FEDERAL COURT OF AUSTRALIA

Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1102

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 11-19 and 34-44 of the Amended Statement of Claim filed on 19 November 2019 be struck out.

2.    The applicants be refused leave to re-plead those paragraphs.

3.    The legal representatives for the applicants file and serve any submissions or evidence in relation to the question of whether they should personally bear the costs of the respondent’s application by 4:00pm on 4 October 2021.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This proceeding concerns claims brought under the Disability Discrimination Act 1992 (Cth) (the Act) against the respondent, a school (St Joseph’s). The first applicant is the mother of the second and third applicants, who were born on 20 July 2006 and 26 August 2008 respectively, and who were students at St Joseph’s, in the case of the second applicant, between January 2014 and September 2018, and in the case of the third applicant, between January 2015 and September 2018.

2    The respondent seeks an order that paragraphs 11-19 and 34-44 of the applicants’ Amended Statement of Claim (ASOC) dated 19 November 2019 be struck out, pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth), on the grounds that they are evasive and ambiguous, and are likely to cause prejudice, embarrassment and delay.

3    This is the second time that the respondent has sought orders founded upon the deficiencies of the applicants’ pleading. See Harvey v Dioceses of Sale Catholic Education Limited (St Joseph’s Primary School Wonthaggi) [2019] FCA 1714. To some extent, the amendments made to the ASOC following the delivery of those reasons were a purported attempt to deal with the deficiencies there identified. As I shall explain, they were unsuccessful attempts.

4    The respondent relies on an affidavit of Mr Chauhan sworn 1 July 2020, which exhibits correspondence between the parties’ solicitors. It also relies on correspondence from its solicitors that preceded the making of the first strike out application, in which the respondent made most of the same points it makes again now. It is fair to say that the myriad deficiencies of the impugned paragraphs of the ASOC have been explained in detail by the solicitors for the respondent to the solicitors acting for the applicants, and that the respondent’s invitation further to amend was rejected.

5    For the reasons set out below, the impugned paragraphs of the ASOC will be struck out.

The ASOC

6    It is regrettably necessary to set out the relevant parts of the ASOC in full (errors in original).

E.    The Discrimination

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

Indirect discrimination s 6(1)

11.    The Respondent required students at St Joseph’s, including Max and Jack, to comply with the requirement or condition as defined in s 6(1) that in order to obtain education by classroom instruction or teaching, students must access the curriculum without evidence-based remedial literacy and numeracy programs, implemented with fidelity (the requirement).

PARTICULARS

(a)    “evidence-based” means based on the most contemporaneous scientific research at each point in time;

(b)    “fidelity” means application with accuracy/exactness, being as per the manufacturer’s instructions;

(c)    the subjects in the curriculum that Max and Jack could not access on the same basis as others due to the imposition of the requirement, included;

i.    English;

ii.    Mathematics;

iii.    Languages Other Than English;

iv.    Religious Education

v.    General studies;

vi.    Information and Communications Technology;

vii.    Design, Creativity and Technology;

viii.    Personal Learning;

ix.    Civics and Citizenship;

x.    Thinking Process;

xi.    Integrated Study;

xii.    Geography;

xiii.    History;

xiv.    Ethical Capability;

xv.    Intercultural Capability;

xvi.    Science;

xvii.    Library;

xviii.    Interpersonal Development;

xix.    Music.

12.    Evidence-based remedial literacy and numeracy programs during the relevant period of Max’s complaint and the relevant period of Jack’s complaint were:

12.1    SRA Direct Instruction Programs:

12.1.1    Corrective Reading;

12.1.2    Spelling Mastery;

12.1.3    Reading Mastery;

12.1.4    Connecting Maths Concepts;

12.1.5    Corrective Maths;

12.1.6    DISTAR Arithmetic;

12.1.7    Phonemic Awareness.

12.2    Elementary Maths Mastery;

12.3    Jolly Phonics and Jolly Grammar;

12.4    Spalding;

12.5    MultiLit Reading Tutor Program, MacqLit, Word Attack Skills Extension Program, MiniLit Early Intervention Programme and PreLit Early Literacy Preparation;

12.6    Sounds-Write;

12.7    Phonics Books UK;

12.8    Letters and Sounds;

12.9    PLD Literacy and Learning;

12.10    No-Nonsense Phonics Skills;

12.11    Little Learner’s Love Literacy;

12.12    Alpha to Omega;

12.13    Word Shark;

12.14    Number Shark.    

13.    None of the evidence-based remedial literacy and numeracy programs set out in paragraph 12 hereof were provided with fidelity to students at St Joseph’s, including Max and Jack, between 2014 and 2018, in the following circumstances:

13.1    Teachers at St Joseph’s were not required to deliver evidence based programs according to the manufacturer’s instructions, and were permitted to use their “professional judgement” as to how such programs were applied, using only elements of each program if they so decided.

Particulars

13.1.1    The Applicants refer to a meeting dated 18 July 2017, attended by Principal Ronan O’Mahony, Sharon Anderson Learning Adjustment and Inclusion Officer, Jennifer Watts, Kerry Harvey and Alison Clarke, and Ms Anderson’s confirmation of St Joseph’s approach, which was not disputed by the said Principal.

  13.1.2    The Applicants refer to:

13.1.2.1 the failure of St Joseph’s to require all staff teaching students through evidence based programs to undergo formal training;

13.1.2.2     the failure of St Joseph’s to require programs to be applied to students for the minimum number of days required, resulting in the programs being ineffective.

14    Because of the disabilities set out in paragraph 8 (a)-(f) hereof, Max could not comply with the requirement at any time between 2014 and 2018.

14.1    Max’s disabilities, in totality, resulted in him having the following difficulties:

14.1.1    difficulties with working memory;

14.1.2    difficulties with cognitive processing speed;

14.1.3    deficits in language processing;

14.1.4    difficulties with phonological awareness and processing;

14.1.5    being unable to learn at the same rate as others;

14.1.6    difficulties with acquiring phonics knowledge;

14.1.7    difficulties with Additions;

14.1.8    difficulties with word reading (decoding);

14.1.9    difficulties with rapid automated naming;

14.1.10    difficulties with fine motor coordination skills;

14.1.11    requiring extra learning support sessions on a daily basis focusing on systematic and explicit teaching of phonics, reading, spelling and writing.

14.2    In October 2013, an independent assessment by SPELD Victoria psychologist Jennifer Finemore found, inter alia, that Max:

14.2.1    was approximately 2 years behind in reading;

14.2.2    was approximately 2 years behind in spelling;

14.2.3    was approximately 2 years behind in phonological awareness;

14.2.4    was 1 ½ years behind in maths.

14.3    In August 2016, an Independent Assessment through the National Assessment Program-Literacy Numeracy administered by the Commonwealth Government found that Max:

14.3.1    was below both the national average and the range of achievement for the middle 60% of Year 3 students in Australia in reading, spelling and grammar and punctuation;

14.3.2    was below the national average in writing and mathematics.

14.4    In February 2017, an independent assessment by SPELD Victoria psychologist Jennifer Finemore found, inter alia, that Max:

14.4.1    was approximately 3-4 years behind in reading;

14.4.2    was 4 years behind in spelling;

14.4.3    was 3-4 years behind in mathematics.

14.5    In December 2017, an independent assessment by Speech Pathologist Alison Clarke concluded that Max had spelling skills at the 1st percentile.

14.6    In April 2018, an independent assessment by Speech Pathologist Alison Clarke concluded that Max had reading skills at the 3rd percentile.

14.7    In August 2018, an Independent Assessment through the National Assessment Program-Literacy Numeracy administered by the Commonwealth government, found that Max was:

14.7.1    below both the national average and the range of achievement for the middle 60% of Year 3 students in Australia in reading, writing, spelling, numeracy and grammar; and

14.7.2    below the national average, the range of achievement for the middle 60% of Year 3 students in Australia, and the national minimum standard for writing.

14.8    In February 2019, an independent assessment by Speech Pathologist Alison Clarke concluded that Max had:

14.8.1    reading skills at the 3rd percentile;

14.8.2    spelling skills at the 1st percentile.

15    The requirement is likely to have the effect of disadvantaging persons with Max’s disabilities, and the Respondent thereby discriminated against him within the meaning of s 6(1).

Particulars

The disadvantage to persons with Max’s disabilities is that they will be prevented from obtaining education by classroom instruction, or teaching, on the same basis as others, without the evidence based literacy and numeracy programs delivered with fidelity as set out in paragraph 12 hereof.

16    Because of all of the disabilities set out in paragraph 9 (a)-(c) hereof, Jack could not comply with the requirement at any time during the period 2014 to 2018.

16.1    Jack’s disabilities, in totality, resulted in him having the following difficulties:

16.1.1    difficulties with working memory;

16.1.2    difficulties with word recognition;

16.1.3    deficits in language processing;

16.1.4    difficulties with phonological awareness and processing;

16.1.5    being unable to learn at the same rate as others;

16.1.6    difficulties with concepts and directions, word structure, recalling sentences and formulating sentences;

16.1.7    difficulties understanding language which would transfer to understanding class topic content;

16.1.8    difficulties recalling information he has heard;

16.1.9    difficulties following directions and understanding the teaching of new ideas and concepts in class;

16.1.10    requiring a clear, sequentially structured phonically based program provided for the teaching of reading and spelling.

16.2    In November 2015, an independent assessment by Speech Pathologist Liz Fitzpatrick found, inter alia, that Jack:

16.2.1    had significant language and literacy problems that placed him at the 3rd percentile.

16.2.2    was 2-2 ½ years behind in reading comprehension.

16.3    In September 2015, an independent assessment by SPELD Victoria psychologist Dr Sophie Weiskop found, inter alia, that Jack:

16.3.1    was between 1-2 years behind in reading and reading comprehension;

16.3.2    was almost one and a half years behind in spelling;

16.3.3    was two years behind in mathematics reasoning;

16.3.4    had “below average” phonological skills.

16.4    In August 2018, an Independent Assessment through the National Assessment Program-Literacy Numeracy administered by the Commonwealth government, found that Jack:

16.4.1    was below both the national average and the range of achievement for the middle 60% of Year 3 students in Australia in numeracy and writing;

16.4.2    was below the national average in reading and grammar and punctuation.

17    The requirement is likely to have the effect of disadvantaging persons with Jack’s disabilities, and the Respondent thereby discriminated against him within the meaning of s 6(1).

Particulars

The disadvantage to persons with Jack’s disabilities is that they will be prevented from obtaining education by classroom instruction or teaching on the same basis as others without the evidence based literacy and numeracy programs delivered with fidelity set out in paragraph 12.

Reasonableness s 6(1)

18    The requirement was not reasonable, having regard to the circumstances of the case.

Particulars

The relevant circumstances relied upon by Max and Jack are:

a.    Max and Jack’s academic delays were evident at the beginning of their enrolment with the Respondent;

b.    Max and Jack’s academic delay was evident in every year during the relevant period of Max’s complaint and the relevant period of Jack’s complaint;

c.    the Respondent promotes the use of evidence based programs as set out in the following publications:

i.    Effective Practices for Learning Support Officers piii, 2, 4, 5, 9, 10, 12, 13, 17, 25 Catholic Education Commission of Victoria

ii.    CECV Program Support Group Meeting Guidelines p 3

iii.    CECV Supporting Positive Student Behaviour p 2, 3 4, 6, 8, 9,

iv.    CECV Intervention Framework pi, 2, 3, 5, 7, 12, 24

d.    the Respondent promotes the practice of implementing programs with fidelity, as set out in the following publications:

i.    Effective Practice Is the Learning Support Officers p8, 9,22, 24;

ii.    Catholic Education Commission of Victoria CECV Intervention Framework p 12, 21, 23.

e.    As persons with disabilities, Max and Jack have a right to an education as set out in Article 24 of the Convention on the Rights of Persons with Disabilities, through which the DDA ought to be applied as set out in s12 (8), and the imposition of the requirement limited that right.

f.    As persons with disabilities. Max and Jack have a right to habilitation as set out in Article 26 of the Convention on the Rights of Persons with Disabilities, through which the DDA ought to applied as set out in s 12(8), and the imposition of the requirement limited that right.

g.    Max and Jack were withdrawn from St Joseph’s, in part, by reason of the imposition of the requirement.

h.    The psychological detriment experienced by Max by reason of his inability to access the curriculum was significant, and he relies upon expert evidence to be adduced at trial in addition to notification to the Respondent of such, by emails to St Joseph’s from Mrs Harvey/her representative, dated:

[The ASOC then sets out 16 dates between 25 February 2015 and 23 October 2018.]

i.    Max was required to miss school regularly due to the requirement to obtain private tutoring by reason of the imposition of the requirement upon him, thereby differentiating him from his peers, which contributed to his psychological detriment, such tutoring requiring visits between 2014 and 2018, as follows:

i.    fortnightly between 2014 and 2018;

ii.    twice per week as from Term 1 2018 throughout the relevant period of Max’s complaint.

Discrimination in education – Section 22

19    By imposing the requirement, the Respondent discriminated against Max and Jack within the meaning of s 6(1) by limiting their access to a benefit provided by the Respondent, in breach of s 22(2)(a).

Particulars

The benefit provided by the Respondent that was limited was education by classroom instruction or teaching.

…

E.    Disability Standards For Education

Fourth Allegation: Breach of Disability Standards - Section 32

34    The Respondent is an education provider for the purpose of Part 5.2(1) and 5.2(2) of the Disability Standards for Education 2005 (“the Standards”).

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

35.1    The Respondent failed to take reasonable steps to ensure that Max and Jack could participate in their educational program on the same basis as students without a disability, and without experiencing discrimination, as a result of not properly undertaking its responsibilities set out in s.5.2(2), such responsibilities interpreted pursuant to the Convention on the Rights of Persons with Disabilities through which the DDA ought to be applied pursuant to s 12(8);

Particulars of the Reasonable Steps

35.1.1    following the guidelines of the Respondent, as set out in paragraph 44 hereof;

35.1.2    the formation and operation of a Program Support Group for Jack pursuant to the Respondent’s Guidelines;

35.1.3    the operation of a Program Support Group for Max pursuant to the Respondent’s Guidelines;

35.1.4    the provision of Individual Education Plans, as set out in paragraph 21 hereof.

35.2    The Applicants refer to and repeat the First to Third Allegations inclusive above, as if they were set out seriatum hereto.

35.2.1    With the requirements imposed as set out in the First to Third Allegations:

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

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

c.    Max and Jack had significant academic delays throughout their enrolment, as set out in paragraphs 14.2 to 14.8, and 16.2 to 16.4 hereof, which were not addressed during that time.

35.3    The Respondent failed to meaningfully consult, pursuant to its obligations set out in General Comment 7 of the Convention on the Rights of Persons with Disabilities, as follows:

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

Particulars

a)    Correspondence on the subject of Max and Jack’s education was often not responded to, as set out in paragraphs 36.1 and 36.2 hereof.

b)    Concerns expressed by Mr and Mrs Harvey about the failure by St Joseph’s staff to improve the significant academic lag that Jack and Max experienced were often not acted upon, as set out in paragraphs 36.1 and 36.2 hereof.

c)    Requests for particular supports to ameliorate the effects of Max and Jack’s disabilities as set out in paragraphs 36.1 and 36.2 hereof, were not properly considered or provided.

d)    The Applicants rely upon correspondence and meeting minutes, which may be inspected at the offices of the Applicants’ solicitors by prior appointment, as well as an absence of meetings/meeting minutes.

F.    Victimisation

Sixth Allegation: Breach of s 42 of the DDA

36    In breach of s.42(2)(f), Mrs Harvey and Max have been victimised as a result of asserting Max and Jack’s rights as a student with a disability, by reason of the following events, occurring after Mrs Harvey began asserting those rights:

36.1    St Joseph’s staff refused to provide evidence of documentation supporting the effectiveness of their educational strategies for Max and Jack. The First Applicant refers to:

36.1.1    her email to teacher Ms Joanne Coldebella dated 17 August 2018 requesting evidence of claimed achievements for the year for Max and Jack, which documentation was not provided;

36.1.2    her email to teacher Mr Leigh Granger dated 26 July 2018 requesting lesson content for Max, which documentation was not provided;

36.1.3    her email to teacher Leigh Granger dated 8 June 2018 requesting the scope and sequence for spelling for the remainder of that term, which was not provided;

36.1.4    her email to Principal Mr Ronan O’Mahony and Mr Leigh Granger dated 31 May 2018 requesting the scope and sequence for the spelling word list, which was not provided;

36.1.5    her email to teacher Ms Kylee Bertacco dated 18 April 2018 asking for a copy of Jack’s report, which was not responded to or provided;

36.1.6    her correspondence to Mr Ronan O’Mahony dated 22 November 2017 requesting copies of all pre-and post testing for literacy and numeracy, and workbooks including intervention work, which were not provided;

36.2    St Joseph’s staff refused to answer most queries in writing, or at all, from Mrs Harvey or from Max’s private practitioners, instead only allowing discussions in relation to Max’s education to occur at meetings, typically of a duration of 20-30 minutes, at the school’s direction. The First Applicant refers to:

36.2.1    her emails to teacher Mr Leigh Granger dated 27 August 2018, which were not responded to;

36.2.2    her email to teacher Ms Joanne Coldebella dated 17 August 2018, which was not responded to;

36.2.3    her email to teacher Mr Leigh Granger dated 26 July 2018 requesting information about timetabling, teachers, and the structure of activities for Max, which was not responded to;

36.2.4    her email to principal Ronan O’Mahony, teacher Joanne Coldebella and teacher Ms Kylee Bertacco dated 23 July 2018 where Mrs Harvey expressed her concern about the school refusing to put anything in writing, which was not responded to;

36.2.5    her email to teacher Joanne Coldebella dated 23 July 2018 asking a number of specific questions about the National Collection of Data, requesting an individual learning plan and meeting for Jack and details of how his progress was being monitored, which Ms Coldebella did not answer;

36.2.6    her email with her husband to Principal Mr Ronan O’Mahony dated 15 June 2018, which was not responded to;

36.2.7    her email to Principal Mr Ronan O’Mahony dated 15 June 2018 complaining that as a general rule, communicating with he and teaching staff is met with constant resistance, which was not responded to;

36.2.8    her email to Principal Mr Ronan O’Mahony dated 1 June 2018, raising amongst other things Max missing from the school grounds and previous emails that had been sent and not responded to, which was not responded to;

36.2.9    her email to Principal Mr Ronan O’Mahony and Mr Leigh Granger dated 31 May 2018 in relation to Max’s anxiety and inability to access the curriculum, which was not responded to;

36.2.10    her email to Principal Mr Ronan O’Mahony and Mr Leigh Granger dated 24 May 2018 regarding the possible humiliation of Max in the classroom, and the uninformative communication coming from the school, which was not responded to;

36.2.11    her email to teacher Ms Joanne Coldebella dated 15 May 2018 requesting to know changes to specialist classes, which was not responded to;

36.2.12    her email to teacher Mr Leigh Granger and Ms Joanne Coldebella dated 6 May 2018 expressing a reluctance by the school to share information, requesting details of Max’s classroom program, expressing concern about Max’s academic delay, issues which were not responded to other than by an email from Ms Coldebella implying that if Mrs Harvey did not attend a Program Support Group meeting, communication would not occur;

36.2.13    her email to teacher Ms Joanne Coldebella dated 4 May 2018 requesting evidence of any positive outcomes for Max from attending meetings, and expressing concern that there had been no co-operation and collaboration around Max’s education, to which there was no response;

36.2.14    her email to teacher Ms Kylee Bertacco dated 3 May 2018, asking numerous questions about Jack’s education, to which there was no response;

36.2.15    her email to teacher Ms Kylee Bertacco dated 18 April 2018, asking numerous questions about Jack’s education, to which there was no response;

36.2.16    her email to teacher Ms Joanne Coldebella dated 2 May 2018, setting out her concern in relation to the lack of collaboration and communication from the school, the inability in a 20 minute Program Support Group meeting to adequately discuss issues, failure by the school to respond to Max’s practitioner, and the school’s failure to use evidence-based and best practice approaches in teaching Max, which was not responded to;

36.2.17    Max’s private tutor’s email, sent with the permission of Mrs Harvey, to teacher Leigh Granger dated 26 April 2018 requesting specific details about Max’s learning program in order that she could support that program in her private work with him, requesting detail about any accommodations being made, which was not responded to;

36.2.18    her email to Ms Joanne Coldebella dated 23 April 2018 referring to the feedback provided by her to the Individual Education Plan which had been ignored, which was not responded to;

36.2.19    her email to Mr Leigh Granger on 17 April 2018 which was not responded to;

36.2.20    her email dated 28 March 2018 to teacher Ms Joanna Coldebella which was not responded to;

36.2.21    her email to Principal Ronan O’Mahony which was not responded to;

36.2.22    her email to Ms Joanne Coldebella dated 28 March 2018, which was not responded to;

36.2.23    her email to Mr Ronan O’Mahony dated 19 March 2018 where amongst other things, she raised the reluctance by the school to communicate with her and the failure to respond as to whether any evidence-based remedial program was being provided, issues which were not responded to;

36.2.24    her email to Mr Ronan O’Mahony and Ms Joanne Coldebella dated 16 March 2018, to which there was no reply;

36.2.25    her email to Mr Leigh Granger requesting information about Jack’s learning, to which there was no reply;

36.2.26    her correspondence to Mr Ronan O’Mahony through Max’s advocate, on 9 March 2018, to which there was no reply;

36.2.27    her correspondence to Mr Ronan O’Mahony through Max’s advocate whereby Mr O’Mahony had responded on 13 December 2017 referring queries to Mr Martin Keogh, who when contacted, by letter dated 22 February 2018 referred queries to Mr O’Mahony;

36.2.28    her correspondence to Mr Leigh Granger dated 23 February 2018 involving another student’s physical and verbal abuse of Max, which was not responded to;

36.2.29    her correspondence to Mr Leigh Granger dated 23 February 2018 involving another student’s bullying of Max, which was not responded to;

36.2.30    her email to Mr Leigh Granger dated 13 February 2018 asking him to clarify what literacy and numeracy interventions he was planning on doing with Max, which was not responded to;

36.2.31    her email to Mr Leigh Granger and Mr Ronan O’Mahony dated 8 February 2018 raising amongst other things the difficulties Max was having accessing the curriculum, the failure by the school to share information and the psychological and academic consequences for Max, which was not responded to;

36.2.32    her email to Mr Leigh Granger dated 6 February 2018 requesting information about timetabling, which was not responded to;

36.2.33    her email to Mr Leigh Granger dated 2 February 2018, which was not responded to;

36.2.34    her email to Mr Ronan O’Mahony dated 12 December 2017 in relation to school refusal from Max and Jack, which was not responded to;

36.2.35    her correspondence to Mr Ronan O’Mahony dated 11 December 2017 setting out in detail the significant problems that Max was experiencing at the school, and the school’s failure to collaborate and provide documents to Mr and Mrs Harvey and provide supports to Max, which was not responded to;

36.2.36    her correspondence to Mr Ronan O’Mahony dated 29 November 2017 asking a number of questions about support for Max, which was not responded to;

36.2.37    her correspondence to Mr Ronan O’Mahony dated 22 November 2017, asking for a written reply, which was refused;

36.2.38    her correspondence to Mr Ronan O’Mahony raising numerous issues linked with Max’s education and confirmation of supports, which was not responded to other than to suggest a meeting;

36.2.39    her correspondence to Mr Ronan O’Mahony dated 20 April 2017 expressing significant concerns about Max’s lack of progression and indeed his academic gap widening throughout his schooling, his requirement to have equal access to the curriculum and expressing concerns that the evidence based programs provided by the College were not being run with fidelity and therefore were no longer evidence-based, which was not responded to other than to suggest a meeting;

36.3    The actions in paragraphs 36.1 and 36.2 hereof caused detriment to Max in the following ways:

36.3.1    St Joseph’s would not collaborate with, or provide the information required by Mrs Harvey, unless she attended a meeting;

36.3.2    meetings, due to their brevity and the refusal to accept Mrs Harvey’s input, did not result in positive educational or psychological outcomes for Max, as set out in paragraphs 14.2-14.8 hereof; and

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

36.3.4    there was significant disagreement in relation to the manner in which Max was being educated, and there was insufficient time at meetings to comprehensively discuss Max’s educational plans, which were lengthy and verbose running typically from 9-12 pages; and

36.3.5    by reason of the matters set out in the subparagraphs immediately above, discussions and decision making in relation to Max’s education could not properly occur, and educational planning could not be finalised with parental input, such parental input being vital, as Max’s parents were more familiar with his emotional and academic requirements that St Joseph’s staff, and Max’s academic lag did not reduce throughout the period of his complaint.

36.4    The detriment caused to Mrs Harvey was distress, frustration and humiliation, in that:

36.4.1    she was aware that she was being treated in a manner that was contrary to the Respondent’s practices in relation to collaborative partnerships with families, and she refers to those practices and their guiding documents as set out in paragraphs 43.1, 43.2, 43.5, 43.6 and 43.7 hereof.

36.4.2    she witnessed Max’s psychological deterioration due to his school experiences, and felt helpless in addressing that deterioration;

36.4.3    she was aware, from organising assessments, that Max’s academic lag was worsening, and she felt distressed that she was unable to do anything constructive to stop that deterioration, until she withdrew him;

36.4.4    In the absence of St Joseph’s staff and Mrs Harvey working collaboratively, Mrs Harvey felt that she had no option other than to withdraw Max, which was deeply upsetting to her, and required her to then travel an hour each day to take Max to school.

G.    Breaches of the Competition and Consumer Act 2010

37    The Respondent is a supplier of educational and other services within the meaning of the Competition and Consumer Act 2010, Schedule 2, Chapter 1 (2)(1) (“the Consumer Act”) and engages in trade or commerce within the meaning of Schedule 2 Chapter 1 (2)(1).

Particulars

In relation to engaging in “trade or commerce”, the Applicants rely upon:

37.1    the definition of such terms in the Consumer Act being “trade or commerce within Australia or between Australia and places outside Australia” s4; and

37.2    the dictionary definition of the term “trade” and “commerce”, both being the buying and/or selling of services.

38    The Respondent received monies from the First Applicant, a parent of the Second and Third Applicants, who were consumers within the meaning of the Consumer Act within the meaning of Schedule 2 Chapter 1 (3)(1), to provide educational services for the Second and Third Applicants.

39    The Respondent made numerous false and misleading representations in trade/commerce, as set out in paragraph 41 hereof, that its services were of a particular standard, quality, value and grade, in breach of s.29(1)(b) of Schedule 2 of the Consumer Act.

40    Alternatively, each of the representations constituted conduct that is liable to mislead the public as to the nature, the characteristics, and the suitability for their purpose being provided through trade/commerce, in breach of s.34 of Schedule 2 of the Consumer Act. Such misleading representations included that the Respondent:

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

40.2    personalises learning through the development of SMART goals for each child based on their developmental needs and interests, through the Program Support Group;

40.3    builds a positive learning community where students feel valued and respected;

40.4    plans reasonable adjustments for the student to access the curriculum;

40.5    monitors and evaluates the progress of the student;

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

40.7    acts in a partnership with parents where both parties seek to achieve a common goal;

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

40.9    undertakes honest, open and regular communication with parents;

40.10    is committed to nurturing respectful relationships and active partnerships with parents;

40.11    communicates with parents regularly regarding their child’s learning, development and wellbeing;

40.12    relates with and responds to parents in a respectful and professional manner;

40.13    ensures a timely response to any concerns raised by parents;

40.14    encourages parents to play an integral role in their children’s education;

40.15    will always act to protect students from any kind of harm;

40.16    seeks to achieve academic development as an important component for students;

40.17    strive for resolutions and outcomes that are satisfactory to all parties;

40.18    provides a learning environment that promotes independence;

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

40.20    provides an inclusive educational environment where every child feels important;

40.21    strives for the implementation of a curriculum that is student centred and personalised;

40.22    believes and therefore facilitates, the right of each child to learn and reach their full potential.

41    The misleading personal representations were made to Mrs Kerry Harvey:

41.1    in a meeting with then Principal of St Joseph’s, Mr Martin Keogh, in or about October 2013 wherein Mr Keogh asserted that;

41.1.1    staff at St Joseph’s would constructively communicate with Max’s practitioners in order to obtain the best outcomes for Max;

41.1.2    staff at St Joseph’s would constructively communicate with Mrs Harvey in order to obtain the best outcomes for Max;

41.1.3    staff at St Joseph’s had the expertise to provide the special interventions that would be required to meet Max’s individual needs and effectively educate him.

41.2    in a meeting on or around 22 November 2018, wherein Mr Martin Keogh asserted that:

41.2.1    Max would require a very structured learning pattern which they would provide; and

41.2.2    the school was planning on providing an evidence-based SRA program named Word Attack.

42    The misleading public representations were made throughout 2014 and 2018 to Max’s family through the following means, Mrs Harvey being directed to the general policies by email from Principal Mr Ronan O’Mahony dated 9 July 2016, and accessing others independently at dates that cannot be recalled:

42.1    The St Joseph’s School Website including in the sections entitled:

42.1.1    Overview of Teaching and Learning;

42.1.2    Administrative Information;

42.1.3    Parent School Relationships Code of Conduct;

42.1.4    Annual Report 2016 in the School Overview and Principals Report.

42.2    The Catholic Education Commission of Victoria Program Support Group Meeting Guidelines in the Introduction, Aims, Role And Responsibilities, Practices and Processes sections.

42.3    The Effective Practices Framework for Learning Support Officers first published in 2012 and updated in 2014 Catholic Education Commission of Victoria:

42.3.1    Pages 22, 22, 23, 24 in relation to ensuring outcomes are measurable;

42.3.2    Pages iii, 2, 4, 5, 9, 10, 12, 13, 17, 25 in relation to the importance of using evidence and research in relation to the provision of education;

42.3.3    Pages 8, 9,22 and 24 in relation to the importance of fidelity when it comes to educational practices;

42.3.4    Pages 2, 4, 6, 9,11, 13, 19, 21, 22, 24, 33 in relation to the importance of monitoring and evaluation in relation to education;

42.3.5    Pages p 2, 4, 6, 14, 15, 19, 20, 21, 22 in relation to the importance of education plans.

42.4    The Whole School Approaches to Supporting Positive Student Behaviour publication published in 2016:

42.4.1    Pages 8 and 10 in relation to ensuring outcomes are measurable;

42.4.2    Pages 7 and 8 in relation to the importance of monitoring and evaluation in relation to education;

42.4.3    Pages 2, 3, 4, 6, 8 and 9 in relation to the importance of using evidence and research in relation to the provision of education;

42.4.4    Pages 1, 7 and 9 in relation to the importance of education plans.

42.5    The CECV Intervention Framework 2015:

42.5.1    Page i stating that learning and teaching inclusive of all;

42.5.2    Page 1 in terms of the commitment to provide an effective education for all students and welcoming environments for families;

42.5.3    Pages 12, 13, 21, 22 and 23 in relation to ensuring outcomes and measurable;

42.5.4    Pages 12, 21 and 23 in relation to the importance of fidelity in education;

42.5.5 Pages 2, 4, 6, 8, 9, 12, 18, 13, 19, 20, 21, 23 and 27 in relation to the importance of evaluation and monitoring in education;

42.5.6 Pages i, 2, 3, 5, 7, 12 and 24 in relation to the importance of using evidence and research in relation to the provision of education;

42.5.7 Pages 2, 4, 9, 13, 17, 18, 19, 20, 21 and 24 in relation to the importance of education plans.

42.6    In the Parent Handbook for Primary Schools on the Catholic Education Commission of Victoria website:

42.6.1    in the Welcome section claiming that Catholic schools encourage parents to be involved in their child’s learning;

42.6.2    in the Welcome section, implying that working together with parents, and timely communication are priorities;

42.6.3    in the Transition section stating that teachers and leaders aims to create safe and supportive environment for children;

42.6.4    in the Your Child’s Learning section, claiming that high standards are maximised in all areas of the curriculum, particularly in literacy and numeracy;

42.6.5    in the Your Child’s Learning section claiming that primary schools provide an environment which encourage children to be confident and excited about learning from the start of school life;

42.6.6    in the Your Child’s Learning section claiming that teachers design learning experiences that are responsive to the different ways in which students achieve their best;

42.6.7    in the section on Additional Learning Needs, in relation to the importance of monitoring and evaluation;

42.6.8    in the Our Primary School Curriculum section which states that the curriculum is designed to prepare students to be lifelong learners;

42.6.9    in the English and Literacy section where claims that primary schools devote a high level of resources to literacy programs to improve learning, and monitor literacy achievement;

42.6.10    in the Mathematics section where it is claimed that primary schools developed numeracy capabilities that all students need in their personal and work lives;

42.6.11    in the Specialised Therapy in Schools section where it states that primary schools work in collaboration with specialised organisations in developing learning programs for students with special needs and these are tailored to meet the requirements of the St Joseph’s School newsletter April 2018 which stated that “ “The respectful individual student.

42.7    working relationship between the school staff and parents is another partnership that helps develop opportunities for our students, and it is a pleasure to observe the respectful interaction between staff and the parents of our students.”

43    The representations misled the public because they were wrong.

43.1    The Program Support Group Guidelines are not followed by St Joseph’s.

43.1.1    St Joseph’s did not work in partnership or collaboration with Mrs Harvey to provide an excellent education and achieve positive outcomes for Max and Jack as set out in paragraphs 36.1 and 36.2;

43.1.2    there was no Program Support Group established for Jack;

43.1.3    there were no educational plans with SMART goals, that were monitored and evaluated for Max and Jack;

43.1.4    the most appropriate educational planning and reasonable adjustments were not provided to Max or Jack as set out in the First Allegation;

43.1.5    the relevant teachers for Max and Jack in each year the subject of the complaint did not provide evidence-based information regarding Max and Jack’s progress to assist in evaluating the goals and adjustments;

43.1.6    sufficient time was not allowed to discuss the difficulties Max and Jack were having as Program Support Group meetings (to the extent they were provided) were limited to 20-30 minutes.

43.2    St Joseph’s staff did not work collaboratively or positively with parents as set out in paragraphs 36.1 and 36.2;

43.3    St Joseph’s did not provide a safe environment as evidenced by the deterioration in Max’s mental health whilst attending referred to in paragraph 18 (h);

43.4    Mrs Harvey was not valued or respected and refers to paragraphs 36.1 and 36.2.

43.5    Max and Jack were not valued or respected as evidenced by the lack of concern expressed by St Joseph’s staff of the ongoing difficulties they were experiencing at St Joseph’s;

43.6    St Joseph’s staff did not provide timely responses to Mrs Harvey as set out in paragraphs 36.1 and 36.2.

43.7    Max and Jack:

43.7.1    did not reach their academic potential;

Particulars

The Applicant will rely on the gains they have made since leaving St Joseph’s.

43.7.2    found their school experiences distressing and anxiety provoking as set out in paragraph 18(h);

43.7.3    were not assisted to overcome their literacy and numeracy delays as set out in paragraphs 14.2-14.8 and 16.2-16.4;

43.7.4    were not provided with the educational skills they required as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;

43.7.5    left St Joseph’s years behind their peers in areas of literacy and numeracy as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;

43.7.6    did not receive evidence based programs based on research applied with fidelity;

43.7.7    did not have data taken on their progress each term to allow monitoring and evaluation.

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

Particulars

The services would have been rendered with care and skill had Max and Jack’s education received the benefits of the representations made by the Respondent as set out in paragraph 40 hereof.

Applicable principles

7    Rule 16.02 relevantly provides:

16.02 Content of pleadings—general

(1)    A pleading must:

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

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

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

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

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

   (f)    state the specific relief sought or claimed.

(2)    A pleading must not:

   (a)    contain any scandalous material; or

   (b)    contain any frivolous or vexatious material; or

   (c)    be evasive or ambiguous; or

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

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

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

…

8    Rule 16.21(1) relevantly provides:

16.21 Application to strike out pleadings

(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

…

9    The following propositions are derived from the joint reasons of French CJ, Gummow, Hayne and Kiefel JJ in Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486, 502-503 and they are axiomatic:

(a)    it is a fundamental requirement for a fair trial of allegations of contravention of law that the party making those allegations identify the case which it seeks to make and to do that clearly and distinctly;

(b)    the task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief;

(c)    a pleader is not entitled to “plant[] a forest of forensic contingencies and wait[] until final address or perhaps even an appeal hearing to map a path through it”.

10    A pleading that ignores those axiomatic propositions risks being embarrassing to a fair trial.

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

Provided that a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet at trial, the pleading should be allowed to stand and the proceeding should be allowed to go to trial. 

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

Consideration

Paragraphs 11-19 – first allegation

13    The allegation in these paragraphs, described as the “first allegation”, purports to be founded on s 6 of the Act, which provided:

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.

14    As set out above, paragraph 11 of the ASOC is in the following terms:

The Respondent required students at St Joseph’s, including Max and Jack, to comply with the requirement or condition as defined in s 6(1) that in order to obtain education by classroom instruction or teaching, students must access the curriculum without evidence-based remedial and numeracy programs, implemented with fidelity (the requirement).

PARTICULARS

(a)    “evidence based” means based on the most contemporaneous scientific research at each point in time

(b)    “fidelity” means applications with accuracy/exactness, being as per the manufacturer’s instructions;

…

15    As the respondent’s counsel submitted, there are a number of insuperable difficulties with that plea.

16    First, what is meant by the “most contemporaneous scientific research at each point in time” is entirely unexplained. Self-evidently, in order to meet the case sought to be put, the respondent must be told what “contemporaneous scientific research” the applicants have in mind. Despite attempts in the correspondence by the solicitors for the respondent to be told what the applicants have in mind, they have declined to provide any further elucidation.

17    It is also impossible to know what “each point in time” refers to. In circumstances where the applicants’ claim relates to two children who attended school in different year levels over a number of years, the need to identify “each point in time” is obvious. Again, however, despite the best efforts of the solicitors for the respondent, the applicants have declined to provide any further explanation of the pleading.

18    The same points can be made with respect to the plea about “the manufacturer’s instructions” in sub-paragraph (b) of the particulars annexed to paragraph 11. Again, self-evidently, the respondent needs to understand what those “manufacturer’s instructions” are, but despite repeated requests by the solicitors for the respondent, it remains none the wiser.

19    As the respondent’s counsel submitted, the defects in paragraph 11 of the ASOC mean that paragraphs 12-19 of it, which are founded on and inextricably related to paragraph 11, must also be struck out.

Paragraphs 34-35 – fourth allegation

20    Section 32 of the Act relevantly provided “[i]t is unlawful for a person to contravene a disability standard”, including the Disability Standards for Education 2005 (Cth) (the Standards). The substance of the “fourth allegation” set out in the ASOC is that the respondent breached the Standards.

21    The Standards aim to specify how education is to be made accessible to students with disabilities. Each standard includes a statement of rights, the legal obligations imposed on the educational provider, and the measures that, if complied with, exonerate the educational provider from complying with certain obligations under the Act.

22    Section 5.2(1) of the Standards sets out the student’s right to enable them to participate in education. It does so by placing an obligation on the educational provider to take “reasonable steps” to ensure this participation can occur.

23    Sections 5.2(2) and 5.2(3) set out the reasonable steps that constitute compliance with s 5.2(1). There are four separate obligations which may be summarised as follows: consultation with the student; deciding whether a reasonable adjustment is necessary; making a reasonable adjustment; and repeating the above process over time.

24    As counsel for the respondent submitted, and as his instructing solicitor has repeatedly told the solicitors for the applicants, in order properly to understand an allegation of contravention of the Standards, the pleading should clearly identify: which of the obligations set out in s 5.2 of the Standards are relied on; the relevant conduct; why the conduct contravened the obligation; and the provision of the Act relied on.

25    Paragraph 34 of the ASOC does none of those things. The failure properly to plead those matters means that the whole of paragraph 35, which is founded on and inextricably related to paragraph 34, must also be struck out.

26    I have not overlooked the submissions made in the respondent’s written submissions at paragraphs 48-62. They make the further points that: the allegation in paragraph 35.1.1 that the respondent breached s 5.2 by “following the Guidelines of the Respondent, as set out in paragraph 44 hereof” is nonsensical because paragraph 44 does not refer to any guidelines; and that paragraph 35 suffers from various different types of incomprehensibility. I agree with those submissions, but it is not necessary to recite them in detail because, as I say, paragraph 35 falls away entirely because it is founded on the manifestly inadequate paragraph 34.

Paragraph 36 – sixth allegation

27    The “sixth allegation”, set out in paragraph 36 of the ASOC, is in substance that the first applicant asserted rights under the Act and, in retaliation, the respondent subjected her to a detriment, in breach of s 42(2)(f) of the Act.

28    Section 42(1) of the Act made it an offence for “a person to commit an act of victimisation against another person”. Section 42(2) provided that victimisation occurs where a person subjects, or threatens to subject, another person to a detriment because of a range of grounds, including, relevantly under s 42(2)(f), because the other person “has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986”.

29    The respondent complained that the applicants failed to address any of the deficiencies it identified in correspondence. In response, the applicants’ solicitors provided an 11 page document marked “Annexure A”, which purports to contain particulars of the allegation in paragraph 36. It is annexed to these reasons as “Annexure A”. The applicants say that the matters contained in that Annexure meet the respondent’s objections.

30    Even assuming that these particulars were to find their way into the ASOC as allegations of material fact, thereby giving the respondent an opportunity properly to plead to the allegations, Annexure A nowhere identifies the nature of the legislative rights said to be asserted. As counsel for the respondent submitted, those sub-paragraphs do no more than summarise written correspondence and nowhere identify statutory rights being asserted. Absent such identification, the cause of action is bound to fail.

31    Other deficiencies are identified in paragraphs 79-85 of the respondent’s written outline, which are also telling and which I accept. It is unnecessary to deal with them in any detail because the reasons as given are manifestly sufficient to warrant the striking out of the plea.

32    Again, these deficiencies have been repeatedly pointed out to the solicitors for the applicants but again, to no avail.

Paragraphs 37-44 – alleged breaches of the ACL

33    The applicants allege the respondent breached ss 29(1), 34 and 60 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL).

34    Section 29(1)(b) of the ACL relevantly provided:

A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

…

(b)    make a false or misleading representation that services are of a particular standard, quality, value or grade …

35    The courts have said time and time again that allegations of misleading or deceptive conduct must clearly identify the conduct that is said to be misleading or deceptive. See, by way of example only, Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance (2010) 241 CLR 357 at [5]. And, along similar lines, the courts have said that “it is imperative that the factual basis upon which [such claims are] alleged … must be stated with appropriate clarity” because that is “a fundamental principle of pleading”. See Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3.

36    In my view, the whole of the pleading with respect to the ACL allegations fails to plead the material facts necessary to constitute a cause of action and must therefore be struck out. Apart from anything else, nowhere does the pleading identify representations or explain why what is alleged was false or misleading.

37    Again, the applicants have been on notice about the respondent’s insistence that this statutory cause of action is improperly pleaded for a considerable period of time, but has done nothing to rectify it.

38    Similar criticisms apply to paragraph 40 of the ASOC, which pleads 22 instances of alleged misleading representations said to contravene s 34 of the ACL (which provided “[a] person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services”).

39    In his submissions on the previous application, the respondent’s counsel asked the following rhetorical questions about those pleaded instances of misleading claims, being: where were they made? When? By whom? To whom? And so on. The solicitors for the respondent have renewed their request for such detail and their insistence that the existing allegation in paragraph 40 is defective, but again, without success.

40    As to paragraphs 42 and 43, again as counsel for the respondent submitted, they suffer from similar deficiencies, not the least of which is that they are unintelligible.

41    Paragraph 44 alleges breaches of s 60 of the ACL, which provided “[i]f a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill”.

42    This pleading is self-evidently defective because, as the respondent submitted:

(a)    it does not identify which part of the first to third allegations are relied on;

(b)    it does not explain why any of the first to third allegations amounted to a failure to render services with due care and skill; and

(c)    the words “[b]y reason of the foregoing, including the matters set out in the [f]irst to [t]hird [a]llegations” suggest the applicants rely on other allegations in addition to the first to third allegations, without identifying what these additional allegations may be.

43    Again, these defects have been repeatedly pointed out to the applicants’ solicitors, to no avail.

Disposition

44    In his written submissions, counsel for the applicants said he is “content to provide a Further Amended Statement of Claim” which re-pleads paragraph 35 to “address[] formatting problems, typographical errors and omissions of paragraph numbers”; inserts Annexure A as “material facts”; inserts the words “in paragraph 43” in paragraph 44 of the ASOC; and “[i]nsert[s] the words ‘as per s 22(2)(a) and (c)[’] in paragraph 36”.

45    The respondent submits that I should invoke the “enough is enough” response referred to in the cases, and that the identified paragraphs of the ASOC should be struck out with no leave to re-plead.

46    I agree. Although ordinarily leave is given to re-plead, here the applicants have been given that chance. The impugned paragraphs wholly fail to plead any proper cause of action. And it is impossible also to “discern the germ of a case concealed within inadequately drafted pleadings”. See Takemoto v Moddy’s Investors Service Pty Limited [2014] FCA 1081 at [89]. As I say, the respondent has afforded the applicants ample opportunity, including after the filing of the ASOC, to plead a reasonable cause of action concerning the claims the subject of the impugned paragraphs. From that, and in light of the very limited extent to which counsel for the applicants says he is “content” to amend yet again (see [46] above), the court is entitled to infer that no such reasonable cause of action exists. Cf White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [47].

47    For those reasons, the applicants will be refused leave to re-plead in the form they seek, or at all.

48    As to costs, the respondent submits that I should make an order that the applicants pay its costs of this application and that such costs be payable forthwith. I am not inclined to make such an order at this point. Instead, I propose to order that the legal practitioners for the applicants file and serve within 21 days a written submission as to why they should not bear those costs personally.

Associate:

Dated:    13 September 2021

Annexure A

(Errors in original.)

Particulars to paragraph 36 of the Amended Statement of Claim of the assertions of Max and Jack’s rights as students with disabilities, such rights amounting to the fact that Max and Jack had a right to access their education, and required reasonable adjustments, are set out as follows.

(a)    Email dated 15 March 2014 from Mrs Kerry Harvey to teacher and Welfare Coordinator Ms Jenny Watts (“Ms Watts”), encouraging her to undertake professional development with the intention of improving her ability to teach Max effectively, in lieu of his dyslexia and academic delay.

(b)    Email dated 8 April 2014 from Mrs Kerry Harvey to Ms Watts encouraging her to undertake and to promote to the teachers who taught Max, a four day course at SPELD Victoria, with the intention of improving their ability to teach Max effectively in lieu of his learning difficulties and academic delay.

(c)    Email dated 29 April 2014 from Mrs Kerry Harvey to teacher Ms Kylie Keogh encouraging her to undertake and promote a teacher training course in relation to explicitly teaching spelling, with the intention of her improving her ability to teach Max effectively in lieu of his learning difficulties and academic delay.

(d)    Email dated 9 June 2014 from Mrs Kerry Harvey to Ms Watts encouraging her to undertake professional development and promote to teachers who taught Max a range of training courses, with the intention of improving their ability to teach Max effectively in lieu of his dyslexia, learning difficulties and academic delay.

(e)    Email dated 11 June 2014 from Mrs Kerry Harvey to Ms Watts encouraging her to undertake professional development and promote to teachers who taught Max videos on dyslexia, with the intention of them improving their ability to teach Max effectively in lieu of his dyslexia and academic delay.

(f)    Email dated 25 February 2015 from Mrs Kerry Harvey to Mr Greg Synan, Acting Principal:

i.    promoting the Arrowsmith Program, which was used in schools to assist students with learning disabilities, and suggesting that St Joseph’s run the program;

ii.    stating that Max was finding his school days increasingly difficult and was suffering anxiety and low self-esteem due to how far behind he was compared to his peers;

iii.    providing her opinion that the programs available within the school were “Band-Aid solutions” and gave students no opportunity for cognitive change;

iv.    requested that Mr Synan attend a meeting to discuss providing the Arrowsmith Program at St Joseph’s.

(g)    Email dated 10 February 2015 from Mrs Kerry Harvey to Ms Watts encouraging her to undertake professional development and promote such professional development to others teaching Max through training organised by SPELD Victoria, with the intent of them improving their ability to teach Max effectively in lieu of his learning difficulties and academic delay.

(h)    Email dated 12 March 2015 from Mrs Kerry Harvey to Ms Watts encouraging her to undertake professional development and promote such professional development to others teaching Max through a seminar promoting the “Little Learner’s Love Literacy” program, a program on teaching phonemic awareness and phonics training for students behind in literacy, with the intention of improving their ability to teach Max and Jack effectively in lieu of their learning difficulties and academic delays.

(i)    Email dated 20 August 2015 from Mrs Kerry Harvey to Mr Ronan O’Mahoney, Principal, (“Mr O’Mahony”) encouraging him to watch and promote to teachers and aides teaching Max the movie “Outside the Square” in order to assist them to understand his needs with the intention of improving their ability to effectively teach him in lieu of his dyslexia and academic delay.

(j)    Email dated 22 October 2015 from Mrs Kerry Harvey to Mr O’Mahoney, and to Ms Watts, promoting a professional development opportunity provided by the Australian Council for Educational Research with the intention that teachers teaching Max and Jack would have an improved understanding of their educational needs in lieu of their learning disabilities and academic delays.

(k)    Email dated 19 December 2015 from Mrs Kerry Harvey to Mr O’Mahoney, making it clear that there was no permission for either Max or Jack to take part in St Joseph’s Reading recovery program, as there was no research base for such a program.

(l)    Email dated 6 February 2016 from Mrs Kerry Harvey to teacher Joanne Coldabella (“Ms Coldabella”), encouraging her to consider professional development on dyslexia with the intention of improving her ability to teach Max effectively in lieu of his dyslexia and academic delay.

(m)    Email dated 8 February 2016 from Mrs Kerry Harvey to Ms Coldabella providing her with the name of numerous programs and professional development resources in relation to dyslexia and learning difficulties with the intention of her improving her ability to teach Max and Jack effectively in lieu of their learning disabilities and academic delays.

(n)    Email dated 9 February 2016 from Mrs Kerry Harvey to staff at St Joseph’s including Mr O’Mahoney and Ms Watts, encouraging staff to attend a film on dyslexia with the intention that teachers attending who taught Max may improve their ability to teach him.

(o)    Email dated 9 February 2016 from Mrs Kerry Harvey to Mr O’Mahoney, providing him with free professional development for he, a vice principal and one other teacher on evidence-based teaching methods to measure the effectiveness of instructional teaching, with the intention that teachers may begin implementing measurable goals for Max and Jack.

(p)    Email dated 18 February 2016 from Mrs Kerry Harvey to Ms Watts encouraging her to adopt the evidence based program “MultiLit”, and to engage with programs that used research informed systematic synthetic phonics teaching, in the hope that by doing so it would improve teachers’ ability to effectively teach Max and Jack in lieu of their learning disabilities and academic delays.

(q)    Email dated 18 February 2016 from Mrs Kerry Harvey to Ms Coldabella requesting discussion about the SRA Corrective Reading program, and expressing concerns about its implementation in relation to Max.

(r)    Email dated 19 February 2016 from Mrs Kerry Harvey to Ms Watts encouraging her to purchase the International Phonics Early Years Starter Package on behalf of the school in the hope that by doing so it would improve teachers’ abilities to effectively teach Max and Jack in lieu of their learning disabilities and academic delays·.

(s)    Email dated 28 February 2016 from Mrs Kerry Harvey o Mr O’Mahoney, advising (amongst other things) that Max was finding the work very difficult, wanted to repeat Great 2, was already 18 months behind his peers in key areas and requesting an understanding of the goals that were being set for Max in literacy and maths, and how they would be facilitated within the current interventions the school was providing.

(t)    Email dated 24 March 2016 from Mrs Kerry Harvey to teacher Ms Coldabella stating that Max continued to be far behind his peers and some students were referring to him as “dumb”.

(u)    Email dated 18 April 2016 from Mrs Kerry Harvey to Ms Marianne O’Rourke, Head of Teaching and Learning, Catholic Education Office in the Sale Diocese (“Ms O’Rourke”), encouraging the Diocese to engage with and urge schools in the area to adopt teaching programs to improve teachers’ skills in teaching students with learning difficulties and dyslexia such as Max and Jack.

(v)    Email dated 7 April 2016 from Mrs Kerry Harvey to Ms O’Rourke, complaining that the gap between Max and his peers was widening and would continue to widen if the SRA Direct Instruction programs implemented at the school continued not to be delivered correctly, being modified to suit the school timetable and not the need of the student, resulting in them no longer being evidence-based.

(w)    Email dated 27 April 2016 from Mrs Kerry Harvey to Ms Coldabella encouraging her to undertake professional development in the area of learning disabilities with the intention of improving her ability to effectively teach Max and Jack, and academic delays.

(x)    Email dated 9 May 2016 from Mrs Kerry Harvey to Mr O’Mahoney, encouraging him to promote staff training in a program for teaching children with dyslexia with the intention of improving their ability to work with Max, and academic delay.

(y)    Emails dated 20 and 23 June 2016 from Mrs Kerry Harvey to Mr O’Mahoney requesting the Catholic Education Office Disability Policy, and promoting professional development for staff with the intention of improving their ability to effectively teach Max and Jack in lieu of their learning disabilities and academic delays.

(z)    Email dated 22 June 2016 from Mrs Kerry Harvey to Mr O’Mahoney, again requesting the Catholic Education Office Disability Policy, and promoting professional development for the teaching of children with dyslexia with the intention of improving teachers’ ability to effectively teach Max in lieu of his dyslexia and academic delay.

(aa)    Email dated 28 July 2016 from Mrs Kerry Harvey to Ms Watts promoting professional development on the effective teaching of reading with the intention that teachers may improve their ability to effectively teach Max and Jack in lieu of their learning disabilities and academic delays.

(bb)    Email dated 13 October 2016 from Mrs Kerry Harvey to teacher Ms Coldabella encouraging her to undertake professional development for the teaching of children with dyslexia with the intention of her improving her ability to effectively teach Max in lieu of his dyslexia and academic delay.

(cc)    Email dated 20 October 2016 from Mrs Kerry Harvey to Ms O’Rourke amongst other things, asserting that Max struggled greatly due to his disabilities and his access to the curriculum was reduced because of the teachers’ at St Joseph’s lack of knowledge and reluctance to embrace knowledge (in relation to teaching children with such disabilities).

(dd)    Email dated 6 February 2017 from Mrs Kerry Harvey to Ms Watts encouraging her to adopt the evidence-based literacy program, MultiLit, with the intention that such program would benefit Max and Jack in lieu of their learning difficulties and academic delays.

(ee)    Email dated 10 February 2017 from Mrs Kerry Harvey to Mr O’Mahoney, stating, amongst other things, that Max and Jack’s learning disabilities required extensive intervention within the school context.

(ff)    Email dated 20 April 2017 from Mrs Kerry Harvey to Mr O’Mahoney, requesting a meeting, setting out that Max had reached an “emergency intervention stage” for both literacy and numeracy, at the age of a 6-7 year old, and setting out a number of interventions and other things he needed, and including a Guide for teachers “Understanding Learning Difficulties” with the intention that they may read it and be assisted to improve their teaching of Max.

(gg)    Email dated 3 May 2017 from Mrs Kerry Harvey to Mr O’Mahoney encouraging professional development in dyscalculia, with the intention that teachers might improve their ability to teach Max and Jack in lieu of their learning difficulties and academic delays.

(hh)    In the meeting dated 18 July 2017, attended by Mr O’Mahoney, teachers Toni Moser and Ms Watts, representative from the Education Office Sharon Anderson - Education Officer, Mrs Kerry Harvey and Speech Pathologist Alison Clark, whereat Mrs Harvey:

i.    requested a new Individual Learning Plan that was designed to show evidence of improvement and more explicit goals which targeted Max specific learning needs;

ii.    expressed concerns that the programs used in the classroom were not supporting Max’s learning;

iii.    expressed concerns that staff had not attended sufficient professional development in dyslexia;

iv.    conveyed that Max had reported that teachers did not understand him or his needs;

v.    expressed her concern that the Corrective Reading Program was not being delivered correctly;

vi.    expressed concerns that the programs the schools had been providing had shown no gains for Max;

vii.    suggested that there was no evidence that Max was making gains through the SRA corrective reading and connecting maths mastery programs.

(ii)    Email dated 1 August 2017 from Mrs Kerry Harvey to Mr O’Mahoney promoting training sessions and programs pertinent to learning difficulties with the intent that teachers might improve their ability to teach Max and Jack in lieu of their learning difficulties and academic delays.

(jj)    The meeting dated 31 August 2017 attended by Mr O’Mahoney, teachers Toni Moser and Ms Watts, Mrs Kerry Harvey and Advocate Sharon Bergles, whereat Mrs Harvey:

i.    requested lined books in order for Max to practice spelling and for someone to correct his spelling at the time;

ii.    requested Max be provided with a touch typing program that incorporated goals around speed and accuracy with an evaluation process to gauge his progress;

iii.    expressed her concern that Max was not been provided with enough time in his curriculum to improve his current level of mathematics;

iv.    expressed her intention to come to the school and teach Max herself;

v.    requested worksheets in numeracy and literacy to be provided to Max and pre-and posttesting in order to measure his progress.

(kk)    The meeting dated 20 October 2017 attended by Mr O’Mahoney, teachers Toni Moser and Ms Watts, Mrs Kerry Harvey and Advocate Sharon Bergles, whereat Mrs Harvey:

i.    asked how the school obtained evidence as to Max’s educational progress and cognitive understanding of the lesson delivery;

ii.    expressed her concern that he was not receiving enough support and was not understanding the work.

(ll)    The meeting dated 26 October 2017 attended by Mr O’Mahoney, teachers Toni Moser and Ms Watts, Mrs Kerry Harvey and Advocate Sharon Bergles, whereat Mrs Harvey:

i.    advised that Max was probably feeling out of his depth with the curriculum;

ii.    requested that Max received the Soundwaves program with the rest of the class;

iii.    stated that Max needed to develop his written words, improve his spelling and his handwriting;

iv.    noted that Max’s writing book had blank pages in it;

v.    requested that Max’s spelling mistakes be corrected at the time they were made;

vi.    requested support for touch typing for Max with an evaluation of speed and accuracy such evaluation brought to the next meeting;

vii.    requested as to how evaluating and monitoring the student academic programme occurred;

viii.    expressed a desire to attend the school to work with Max providing one-to-one assistance in order that he work towards attaining a similar level of education as his peers;

ix.    requested that the school provide Max with worksheets in numeracy and literacy;

(mm)    Email dated 22 November 2017 from Mrs Kerry Harvey to Mr O’Mahoney, wherein Mrs Harvey:

i.    advocated for specialised dyslexia and psychological support for Max;

ii.    stated she had spent hours researching the best evidence-based peer­reviewed interventions to assist in supporting the school and others to understand Max’s needs;

iii.    asserted that the current interventions Max was receiving were inadequate;

iv.    requested an explanation for Mr O’Mahoney’s reluctance for Max to access a tutor who specialised in teaching students with dyslexia;

v.    asked for an explanation as to whether the school had a peer-reviewed evidence-based programme in literacy and numeracy planned for 2018;

vi.    stated that Max needed to have access to effective interventions as recommended in his educational reports and counselling with the school psychologist;

vii.    listed Max’s disabilities and asserted that he was continually performing below his peers and within the age range of a 6-8 year old.

(nn)    Email dated 29 November 2017 from Mrs Kerry Harvey to Mr O’Mahoney wherein Mrs Harvey asked a series of questions around the reluctance by Mr O’Mahoney to provide a number of reasonable adjustments to Max, and asked for a response in writing.

(oo)    Email dated 5 December 2017 from Mrs Kerry Harvey to Principal Ronan O’Mahoney wherein Mrs Harvey requested the answers to the questions asked in the Email dated 29 November 2017.

(pp)    Email dated 7 December 2017 from Mrs Kerry Harvey to Mr O’Mahoney wherein Mrs Harvey requested the answers to the questions asked in the email dated 29 November 2017.

(qq)    Email dated 11 December 2017, from Mrs Kerry Harvey to Mr O’Mahoney, wherein Mrs Harvey detailed the history of the provision of Max’s diagnoses to the school, the inadequate response by the school to Max’s literacy and numeracy deficits, the school’s refusal to put in place evidence-based intervention programs, the school’s refusal to provide pre-and post-test assessments, and the school’s refusal to put in place numerous reasonable adjustments.

(rr)    Every Program Support Group meeting held in relation to Max.

Particulars

Discussions in relation to Max at Program Support Group meetings was not minuted, and accurate records were not kept by the Respondent, in non­compliance with its Program Support Group guidelines, until late 2017.

(ss)    The letter sent on behalf of Mrs Harvey by Disability Advocate Ms Julie Phillips to Mr Martin Keogh Director of Catholic .Education Dioceses of Sale on 10 February 2018 stating, inter alia, that:

i.    Mr and Mrs Harvey had asked her to advocate on behalf of Max due to the number of concerns they had in relation to the supports provided to him;

ii.    Max had disabilities pursuant to the Disability Discrimination Act;

iii.    Mr O’Mahoney had stated that Catholic Education funding did not cover the disabilities that Max had;

iv.    the school had obligations to ensure all students with disabilities could access their education on the same basis as their peers;

v.    Max needed evidence-based literacy and numeracy programs and had limited access to adjustments and modifications at school;

vi.    Max had the right to an accessible education;

vii.    current programs applied to Max’s learning were not appropriate;

viii.    non-evidence-based interventions were of little assistance to Max and did not provide the supports he needed;

ix.    the SRA Maths Program had been discontinued because it had not been implemented with fidelity and not all of the staff providing the programs had been trained;

x.    Mrs Harvey had been required to employ her own tutor in the absence of the school putting in place suitable programs for Max;

xi.    Mr and Mrs Harvey had no evidence of any outcomes based on data of Max’s progress;

xii.    Max was often receiving the same worksheets as other students and could not do the work;

xiii.    the limitation of Program Support Group meetings to 30 minutes did not allow any monitoring, review or evaluation of Max’s educational progress;

xiv.    Mrs Harvey did not support the Individual Learning Plans and the non­evidence based strategies for which there were no outcomes or evidence;

xv.    Max required a range of reasonable adjustments including evidence­based programs, occupational therapy recommendations, speech pathology recommendations, assistive technology, education plans that were measurable, teachers to undertake specific professional development, and access to an agreed psychologist to manage his school anxiety.

(tt)    Email sent on behalf of Mrs Harvey by Disability Advocate Ms Julie Phillips to Mr Martin Keogh Director of Catholic Education Dioceses of Sale on 23 February 2018, requesting reply to her letter dated 10 February 2018, stating that the longer Max continued in his current state the more detriment he was experiencing.

(uu)    Email sent on behalf of Mrs Harvey by his tutor Ms Karen Morse to Mr O’Mahoney date 18 March 2018, wherein she:

i.    noted that she had attempted to communicate with Max’s teacher Mr Leigh Granger in order to maximise consistency for Max’s learning however he had not replied;

ii.    noted that a program being applied to Max, Fountas & Pinnell, was not an evidence-based program suitable for dyslexic student;

iii.    expressed her concern that small group instruction was being delivered by an Education Support Officer;

iv.    expressed her concern that Max’s teacher was unable to provide information about his learning;

v.    passed on feedback from Max that the small group work he was doing was too easy;

vi.    noted that a program suggested by the school, Literacy Pro, was not a suitable program for dyslexic students and would be a waste of time for Max;

vii.    noted that Max’s writing deficits were an accumulation of this not being addressed since his enrolment in Year 1;

viii.    expressed her concern that Max’s mathematics calls were not commensurate with the mathematics work she was undertaking with Max;

ix.    stated that it was important that Max was able to access the curriculum more effectively by providing him with appropriate reasonable adjustments;

x.    stated that targeted interventions for Max needed to be evidence-based and suitable for dyslexic and dyscalculia learners in order for Max to develop his literacy numeracy skills.

(vv)    Email sent on behalf of Mrs Harvey by Disability Advocate Ms Julie Phillips to Mr Ronan O’Mahoney dated 9 March 2018, noting that Mr and Mrs Harvey had asked for a number of reasonable adjustments to support Max’s learning.

(ww)    Email sent on behalf of Mrs Harvey by Disability Advocate Ms Julie Phillips to Principal Mr Ronan O’Mahoney on 28 March 2018 noting that he was refusing to provide reasonable adjustments to Max and that she would be advising Mr and Mrs Harvey in relation to a discrimination complaint.

(xx)    The Emails set out in the Amended Statement of Claim at Paragraphs 36.1 and 36.2.