Federal Court of Australia

Makowski v Legal Profession Admission Board [2023] FCA 666

ORDERS

THE COURT ORDERS THAT:

1.    Leave to make an application to this Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) be refused.

2.    The originating application be dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    Daniel Makowski contends he was discriminated against on the ground of disability by the Legal Profession Admission Board (the LPAB). Mr Makowski lodged a complaint against the LPAB with the Australian Human Rights Commission. His complaint was terminated by the Commission. He now wishes to obtain relief against the LPAB in this Court, alleging contraventions of the Disability Discrimination Act 1992 (Cth) (DD Act). Mr Makowski requires leave to commence these proceedings: s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

2    Mr Makowski relies on two affidavits sworn by him. The LPAB opposed the orders sought, relying on an affidavit affirmed by its Executive Officer, Christopher Banks. All affidavits were taken as read. Both parties have filed written submissions. The matter was initially listed for an oral hearing on 15 June 2023. Following clarification from the parties about their preferences in this respect, the parties agreed that the application should be determined on the papers.

3    For the reasons that follow, leave to commence proceedings should be refused.

BACKGROUND

4    The LPAB is a corporation constituted under s 19(1) of the Legal Profession Uniform Law Application Act 2014 (NSW). It administers a Diploma in Law course which provides a pathway to entry into the legal profession. Eligibility to sit the course exams (and therefore subjects) are governed by the NSW Admission Board Rules 2015, which include:

•    Students must generally complete exams in the order specified in the Rules until they have completed at least 11 subjects: r 59(1);

•    Students may generally undertake only two exams in any one session until they have completed at least eight subjects: r 59(3); and

•    Students will be excluded from taking further exams if, among other things, they fail to sit an exam in at least two subjects in any two successive sessions: r 64.

5    Each of the rules above may be relaxed in circumstances that are “sufficiently special”: r 59(4). In the case of the first two rules above (Progression Rules), the power is conferred on the LPAB Examinations Committee or its delegate: rr 27J(3), 59(4).

6    Students may apply for Special Exam Arrangements, supported by medical evidence, in order to accommodate a disability, illness or other circumstance that may affect the student’s performance in an examination.

7    The LPAB registered Mr Makowski as a student on 30 August 2017.

8    On two occasions Mr Makowski applied for, and was granted, Special Exam Arrangements. His first application, lodged on 22 January 2018, contained a form completed by Dr John Pak which stated that Mr Makowski was diagnosed with “Anxiety/Depression”. The form stated:

Anxiety can cause him to become easily stressed and it also makes it difficult to maintain concentration, especially if and when he sleeps poorly.

…

When and if possible, it will help him to sit the exams in late afternoons and evening time. This will allow him to have less anxiousness in the evening before and let him sleep better by avoiding the fear of waking up late and having to rush to the exam.

9    On 4 February 2018, Mr Makowski lodged his second application form filled out by Dr Pak who stated that he had seen Mr Makowski once in the past 12 months and that he was undergoing “no regular treatment”. The form included:

He finds himself becoming anxious when he had to share the same space with a large number of people.

…

He should be allowed to have the exam either alone or with plentiful space around him so as to ameliorate anxiety/stress.

10    The LPAB made arrangements for Mr Makowski to sit his exams at a different time to other students and in a separate room away from other exam venues.

11    In Term 2 of 2018, Mr Makowski failed the subject “04 Contracts”. He then made a “Student Course Application” (SCA), applying for a relaxation of the Progression Rules such that he could undertake three subjects the following term: 04 Contracts; 05 Real Property and 06 Australian Constitutional Law (ACL) (SCA #1). The application was granted.

12    Mr Makowski did not attend his 04 Contracts or 06 ACL exam. He advised the LPAB that he did not sit the 06 ACL exam because he had received a poor grade for an assignment and had “absolutely no confidence to sit this subject again for fear of being at the arbitrary whims of a lecturer teaching a highly subjective subject”.

13    On 14 May 2019, Mr Makowski made a second SCA, applying for relaxation of the progression rules such that he could undertake 07 Equity and 08 Commercial Transactions without having completed prerequisites 04 Contracts and 06 ACL (SCA #2). The application repeated his concerns in relation to the mark he received for his 06 ACL assignment.

14    The LPAB’s Acting Executive Officer refused SCA #2 on the basis that it had not identified a sufficient reason to depart from the ordinary requirement that students pass 04 Contracts and 06 ACL before completing later subjects (SCA #2 Officer Decision). Mr Makowski appealed the SCA #2 Officer Decision to the Committee.

15    On 18 June 2019, the Committee refused the appeal (SCA #2 Committee Decision). The Committee’s reasons included:

1.    Whether the issue is a reconsideration of a matter delegated under rule 27J or a fresh determination by the Committee under rule 59(4), the circumstances are not sufficiently special to relax the order of subjects set out in rule 53.

2.     Contracts and Constitutional Law provide a good basis from which to approach both Equity and Commercial Transactions, and the knowledge is fundamental to undertaking the rest of the subjects.

3.     Other than dissatisfaction with the way his assignments have been marked, the student has advanced no substantive reasons as to why he should be granted permission to study subjects out of order.

4.     Personal preference alone does not qualify as a reason.

16    On 24 June 2019, Mr Makowski made a third SCA, applying for relaxation of the Progression Rules to the same effect as SCA #2 (SCA #3). It was accompanied by a statutory declaration which, unlike the previous applications, cited his medical condition as a reason for relaxing the Progression Rules. However, SCA #3 did not identify how or why his condition required this. On 28 June 2019, LPAB’s Acting Executive Officer advised Mr Makowski that SCA #3 would not be processed on the basis that the Committee had already considered SCA #2 (SCA #3 Officer Decision). Mr Makowski was advised that he could appeal the SCA #2 Committee Decision to the LPAB, that is, the Board itself.

17    On 22 July 2019, Mr Makowski applied to the Board for a review of the SCA #3 Officer Decision, contending that SCA #2 “did not contain the justification of [his] disability” and for that reason SCA #2 and SCA #3 were “substantially different”. Mr Makowski also relied on his application for special examination arrangements lodged on 22 January 2018, which contained a supporting statement by Dr Pak relating to a diagnosis of anxiety/depression: see [8] above.

18    On 6 August 2019, the Board affirmed the SCA #3 Officer Decision (Appeal Decision). The Board reviewed the SCA #3 Officer Decision on both procedural grounds and on its merits. This included a consideration of Mr Makowski’s reliance on his disabilities as a ground for the grant of the application to sit subjects out of order. The Board’s reasons included:

23.    … While Mr Makowski’s disability provides a proper basis for special arrangements for sitting examinations alone or with plenty of space around him, the Board is not satisfied that Mr Makowski’s disability provides a justification for the relaxation of rules 53 and 59 so as to enable him to sit subjects in the order he seeks. It follows that for the purposes of rules 13(1) and 59(4) the Board does not regard the circumstances as sufficiently special to relax rules 53 and 59.

19    On 16 September 2019, Mr Makowski requested a review of the SCA #2 Committee Decision. The Board affirmed this decision on 1 October 2019.

20    On 15 October 2019, Mr Makowski made a fourth SCA for relaxation of the Progression Rules. On 18 October 2019, Mr Makowski was notified that he was excluded from the Diploma of law course due to failing to sit at least two exams in two successive sessions, pursuant to the exclusion rule set out in [4] above.

21    Mr Makowski sought judicial review of the SCA #2 Committee Decision and the SCA #3 Officer Decision in the NSW Supreme Court. That proceeding was dismissed: Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443. He then sought leave to appeal to the New South Wales Court of Appeal, which was dismissed: Makowski v Legal Profession Admission Board [2020] NSWCA 305. Mr Makowski subsequently sought special leave to the High Court of Australia, which was refused: Makowski v Legal Profession Admission Board [2021] HCASL 36.

22    On 28 March 2021, Mr Makowski lodged a complaint with the Commission alleging that the LPAB had engaged in unlawful discrimination under the DD Act, namely in its handling of SCA #2 and SCA #3. The complaint referred to the SCA #2 Officer Decision, SCA #2 Committee Decision and SCA #3 Officer Decision.

23    On 10 November 2021, the Commission terminated Mr Makowski’s complaint pursuant to s 46PH(1)(c) of the AHRC Act which provides:

Termination of complaint

Discretionary termination of complaint

(1)    The President may terminate a complaint on any of the following grounds:

…

(c)    the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted; …

24    Mr Makowski was provided with a notice of termination which annexed the Commission’s reasons for the termination. These reasons included:

…

Apparent merit of the complaint

…

Claim of direct discrimination

It is understood that the subject matter of your complaint to the Commission relates to:

•    LPAB’s decision(s) on the SCA #2 (as affirmed by [the SCA #2 Committee Decision], the Appeal Decision and the Review Decision), and

•    LPAB’s decision not to process the SCA #3 [SCA #3 Officer Decision].

From the information provided to the Commission, it appears that your disability was not a relevant factor in the [SCA #2 Officer Decision] or [the SCA #2 Committee Decision]. As you note in your correspondence to LPAB on 22 July 2019, SCA #2 “did not contain the justification of [your] disability”. As such, it is unclear how you were treated less favourably in these decisions because of your disability.

Based on the information before the Commission, it appears that your disability was first raised as a ground for the request to study subjects out-of-order in SCA #3. While SCA #3 refers to your disability, LPAB submits that no explanation was provided as to how your disability impacts on your ability to sit the Course in the prescribed order and no supporting medical information was provided for the request. As such, the LPAB concludes in the Appeal Decision that the information provided by you about your disability was not accepted as a satisfactory justification for the relaxation of the Progression Rule.

I do not consider that the information before me supports that LPAB’s decisions with respect of your applications to sit subjects out of order were made because of your disabilities.

I also do not consider that LPAB being aware of your disabilities, in and of itself supports your claim that LPAB’s refusal to relax the Progression Rule amounts to disability discrimination. I note that no medical information appears to have been provided to support how relaxation of the Progression Rule was an adjustment you required to accommodate your disabilities. In particular, there does not appear to be any information to support how your disabilities prevented you from studying subjects in a different order. This is in contrast to the medical information from Dr Pak which identified adjustments you required (and which were provided by LPAB) to address your anxiety with respect of examinations.

It is also unclear how the [SCA #3 Officer Decision] not to progress the SCA #3 could amount to direct disability discrimination. It appears that the reason the LPAB decided not to process this application is because the Examination Committee had already considered the same request in SCA #2. In the letter to you regarding the [SCA #3 Officer Decision], you were informed that you could appeal the [SCA #2 Committee Decision] to the LPAB.

I also note, from the Appeal Decision, that LPAB did consider SCA #3 on its merits and found that the information provided did not form satisfactory justification for the approval of the request.

Claim of indirect disability discrimination

In relation to a possible claim of indirect disability discrimination, it appears that the requirement or condition imposed by LPAB was that you complete the Course as per the Progression Rule.

From the information provided to the Commission, you do not appear to have provided explanation of a causal nexus between your disability and the request to do the course out-of-order.

I note that your correspondence to LPAB dated 22 July 2019 titled “Review”, which you provided as part of your further submissions on 19 October 2021, states that “for evidence of my affliction I make reference to the grant of ‘special arrangements’ as a ‘reasonable adjustment’ the Board has afforded me in sitting all my examinations… as completed by my treating physician, Dr John Pak”. You also state in your written submission to the Commission dated 19 October 2021 that “by already having in possession the general evidence of [your] disability ([applications for Special Exam Arrangements]), the LPAB would, upon accepting the Nexus Petition, either relax the Progression Rule on that basis, or request more detailed particulars from Dr Pak so as to grant the relaxation”.

However, it is very unclear from Dr Pak’s statements in [the applications for Special Exam Arrangements] or your correspondence to LPAB how you say you were unable to comply with the requirement to complete the Course as per the Progression Rule because of your disability.

Additionally, in considering the [SCA #3 Officer Decision] not to process SCA #3, it appears that the requirement or condition imposed on you by LPAB is that you follow the process of appeal from a decision of the Examination Committee. It is very unclear how you say you were unable to comply with this requirement because of your disability.

Length of time in lodging the complaint

As noted above, your complaint relates to LPAB’s decision(s) on the SCA #2 (as affirmed by [the SCA #2 Committee Decision], the Appeal Decision and the Review Decision) and the [SCA #3 Officer Decision] not to progress the SCA #3. These decisions were made in the period 16 May 2019 to 8 October 2019.

Your complaint to the Commission is dated 28 March 2021. Therefore, your complaint relates to alleged events that occurred at least 16 to 22 months prior to lodgement of your complaint with this Commission. This is a delay in bringing the complaint forward.

I appreciate that the LPAB’s decisions being complained of have been the subject of a number of legal proceedings in the period 1 July 2019 to 4 March 2021. You state that you delayed filing the complaint with the Commission to avoid the “prejudice in the administration of justice”. However, while based on the same underlying conduct, the legal proceedings considered different legal issues to the complaint currently before the Commission.

I appreciate that you say you are [an] “inexperienced and self-represented litigant” and that “[your] disability [was] a fact in issue in the legal proceedings”. However, I consider that, concurrent with the legal proceedings, you could have lodged, or sought assistance to lodge, your complaint of unlawful disability discrimination with this Commission closer to the time of the alleged events.

…

25    The reasons for the Commission’s termination included information about how to apply to this Court.

THE APPLICATION TO THIS COURT

26    In his originating application, Mr Makowski alleged that the LPAB discriminated against him under ss 5, 6, 10 and 22 of the DD Act. Mr Makowski claimed:

1.    The [SCA #3 Officer Decision] to refuse to process [SCA #3], was discriminatory as based on the Applicant’s disability of suffering from a mental illness described as anxiety and depression, in circumstances where the administrative procedure amounted to the acceptance and retainment of the benefit of the fee the Applicant provided to have [SCA #3] processed, but which prevented the Applicant from placing before the Respondent’s administrative decision-maker a disability adjustment request from which, if granted, the Applicant could continue to progress in the Respondent’s Diploma in Law course.

2.    The [Appeal Decision] to dismiss the Applicant’s review on its merits of the [SCA #3 Officer Decision] to refuse [SCA #3], which petitioned the Respondent to weigh compassion in its decision because of the active role of the disability of mental illness described as anxiety and depression under which the Applicant laboured under and which created a burden too difficult for the Applicant to have managed in accordance with rule 59(1) of the NSW Admission Board Rules 2015, was discriminatory as based on the Applicant’s disability, in circumstances where a causal nexus existed between the permission being sought and cogent evidence to suggest that it was a reasonable adjustment or modification required for the Applicant to progress in the Respondent’s Diploma in Law course.

3.    The curriculum of the Respondent’s Diploma in Law course or the effect of the [SCA #3 Officer Decision] and [Appeal Decision], which has seen the Applicant excluded from the Respondent’s Diploma in Law course, was discriminatory as based on the Applicant’s disability of mental illness described as anxiety and depression, in circumstances where the relaxation of rule 59(1) of the NSW Admission Board Rules 2015 would have merely varied the order of, and not waived, the mandatory examinations under rule 53 of the Rules, and where the relaxation being sought was being granted as a mere formality to, it is alleged, non-disabled students.

27    By his originating application, Mr Makowski seeks relief in the form of a public apology from the LPAB, the annulment of his exclusion from the LPAB’s course and compensation totalling $46,989. This amount comprises of $10,042 in legal costs allegedly incurred in attempting to return to the course; $33,445 in legal costs he seeks to recover “for having successfully defended various legal proceedings”; and $3,502 for the funds Mr Makowski claims he will need to file an application in the NSW Supreme Court for the purposes of seeking a practising certificate. In his statement of claim filed, Mr Makowski sought a total amount of $44,852.

RELEVANT PRINCIPLES

28    As to the principles relevant to the question of whether leave should be granted to institute proceedings pursuant to s 46PO(3A)(a) of the AHRC Act, both parties referred to James v WorkPower Inc [2018] FCA 2083, in which Mortimer J stated:

[37]    I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

[38]    There may be a range of other permissible considerations including:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

29    Granting leave to commence a claim with no realistic prospects of success would ordinarily be contrary to the purpose of s 46PO(3A), which was designed to filter out meritless cases: Jones v Westpac Banking Corporation [2020] FCA 238 at [87] (Kerr J); Budini v Sunnyfield [2019] FCA 2164 at [50] to [52] (Charlesworth J).

30    Section 4(1) of the DD Act defines disability to include “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”. Mr Makowski alleges both direct and indirect discrimination.

31    Direct disability discrimination is defined in s 5 of the DD Act, which provides:

(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.

(emphasis added)

32    Indirect disability discrimination is defined in s 6 of the DD Act, which provides:

(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.

33    Direct or indirect discrimination will not be unlawful unless it occurs in the various circumstances set out in Part 2 of the DD Act. Mr Makowski relies on the prohibitions on discrimination in the area of education set out in s 22 of the DD Act. Section 22 includes:

(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.

34    The LPAB accepts that:

    it is an “educational authority” within the meaning of s 22;

    Mr Makowski had a disability (being anxiety and depression); and

    a refusal to relax the Progression Rules is capable of constituting: (a) a denial or limit on Mr Makowski’s access to any benefit provided by the LPAB within s 22(2)(a); and (b) the “subjecting [of Mr Makowski] to any other detriment” within s 22(2)(c).

35    Mr Makowski submitted that the LPAB’s reference to a case needing to be “reasonably arguable” in order for leave to be granted was inappropriate and “unsupported in law”. He contended that all that was required was for the claim to be “at the least – not fanciful”, citing WorkPower at [37] (set out at [28] above). A similar submission was considered and rejected by Abraham J in Wilson v Britten-Jones (No 2) [2020] FCA 1290. Her Honour observed at [86]:

Properly read, James v WorkPower was not setting two different standards, with it necessarily being sufficient to simply determine whether the claim is fanciful or not, it being a lesser standard than reasonably arguable. Content is given to that term by the purpose of s 46PO(3A) as described in James v WorkPower, and as explained inter alia, at [43]. There must currently exist in the material relied on a factual basis to establish that the applicant’s claim is reasonably arguable. Although questions of fact and law which are arguable are to be determined at the final hearing there must be a rational factual substratum for the allegations: James v WorkPower at [39], [43]. In other words, there must be some factual basis for the claims, even at a threshold level which is what is required for leave.

36    Ultimately, the case must be sufficiently arguable to warrant the grant of leave when considered together with any other factors relevant to whether leave should be granted. If the case is “fanciful”, leave would ordinarily be refused. If the case is “reasonably arguable”, and there is no other factor tending against granting leave, then leave would ordinarily be granted. There may be cases which do not fit neatly into either description.

CONSIDERATION

Direct discrimination

37    In relation to direct discrimination, Mr Makowski must demonstrate that because of his disability, he was treated less favourably by the LPAB than a student with no disability in the same circumstances. This is an inquiry into the true basis or real reason for the relevant action: Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92 at [13] (Gleeson CJ), [166] (McHugh and Kirby JJ).

38    Mr Makowski’s submissions on direct discrimination included the following:

31.    The Applicant’s claim under s 5 of the DD Act shows that the Respondent -

(a)    was cognizant from January 2018 that the Applicant was diagnosed with Anxiety and Depression in 2004, and that this “[]Confidential[]” information of the Applicant’s disability was approved again pursuant to a subsequent [special arrangements for examinations] for the Applicant to sit his examinations;

(b)    was authorised by the Applicant’s hand of 4 February 2019, “to clarify details of the [Applicant’s] condition as outlined in this form [(Anxiety and Depression)] for the purposes of making appropriate educational adjustments”; and

(c)    was informed of the Applicant’s “burden” justification for why he required the relaxation from under ss 53 and 59(1) of the [NSW Admissions Board Rules].

39    In relation to [1] of the originating application, the LPAB submitted that, although Mr Makowski had raised his disability as a reason for relaxing the Progression Rules by the time he made SCA #3, the basis for refusing to process SCA #3 was the LPAB Officer’s view that Mr Makowski had an appeal right from the SCA #2 Committee Decision.

40    Mr Makowski’s submissions in reply about the nature of the SCA #3 Officer’s Decision included:

8.    For the Respondent to have represented to the Australian Human Rights Commission (the Commission) that the decision to refuse to process SCA #3 was “procedural” invites the not unreasonable proposition that the Respondent’s procedures are themselves deficient to the extent of being discriminatory. This is because in circumstances where SCA #3 contained the Applicant’s disability justification, SCA #3 was prevented from being assessed and thus denied the grant of a benefit which was being granted - as if - by default. Consequently, from its decision to refuse to process SCA #3, the Respondent subjected the Applicant to detriment in two (2) respects:

(i)     With the Applicant’s file … having become opened at the executive level, it is submitted that the Respondent was taken to be cognisant of the fact that the Applicant required the dispensation which SCA #3 sought, so as to avoid the detriment of not progressing in the course of studies. This is because the dispensation would have prevented r 64 of the [NSW Admissions Board Rules] to arise and exclude the Applicant from the course; and

(ii)     it would have prevented the Applicant from having to attempt to return to the course of studies by initiating lengthy and expensive legal proceedings.

41    I accept the LAPB’s submission. In circumstances where SCA #3 replicated the outcome sought in SCA #2, that is, to sit the same subjects out of order, an appeal of SCA #2 was seen by the decision maker of SCA #3 to be the appropriate avenue. It is not reasonably arguable that the Officer’s Decision in relation to SCA #3 was made because of Mr Makowski’s disability.

42    It should also be noted that the Board considered the merits of SCA #3 in the Appeal Decision.

43    It is not reasonably arguable that the SCA #3 Officer Decision was made because of Mr Makowski’s disability. The claim in [1] of the originating application is not sufficiently arguable to warrant a grant of leave.

44    In relation to [2] of the originating application, concerning the Board’s Appeal Decision in relation to SCA #3, Mr Makowski has not established that his disability formed any part of the basis for the Board’s Appeal Decision. The Appeal Division found no error in the SCA #3 Officer’s Decision and also considered SCA #3 on its merits. The LPAB submitted, and I accept, that the basis for the Board’s decision on the merits was the fact that Mr Makowski had not shown how his condition constituted sufficiently special circumstances to warrant relaxing the Progression Rules: see [17] above. He was not arguably treated differently from any other person because of his disability.

45    The LPAB’s awareness of Mr Makowski’s disabilities does not lead to the conclusion that the Appeal Decision to refuse SCA #3 amounts to direct disability discrimination. The form accompanying SCA #3 populated by Dr Pak articulated the consequences of Mr Makowski’s disability in the context of special arrangements for exams. There was no information before the Board to support how Mr Makowski’s anxiety or depression prevented him from studying subjects in the usual order.

46    Mr Makowski also submitted:

32.    The “burden” of having to comply with the requirement which rr 53 and 59(1) of the [NSW Admissions Board Rules] imposes, arose out of the Applicant’s disability as a manifestation of all, or more, a symptom, feature or adverse-reaction resulting from -- or to the stress -- which the Applicant suffered under as a person living with a disability within the Legal Profession. If it is unclear from SCA #3 that the Applicant dreaded and was tormented in having to use his disability as a justification for what the Respondent describes as “special arrangements” -- not least because the torment and dread was furcated with the “burden” of having to conform to the requirement from which he was seeking license -- then the dread and torment, and/or the burden was an actual experience which the Applicant experienced as a form of psychologically-manifest pain.

47    Mr Makowski contends that his inability to comply with the Progression Rules was due to the stress he suffered as a person living with a disability within the legal profession and that he dreaded having to use his disability as a justification for seeking to relax the Progression Rules.

48    Even accepting this to be so, it does not establish why his disability required a relaxation of the Progression Rules. The Board’s reasoning to this effect in the Appeal Decision does not support any realistic argument that there has been direct discrimination. The claim in [2] of the originating application is not sufficiently arguable to warrant a grant of leave.

Indirect Discrimination

49    Mr Makowski’s submissions on indirect discrimination provided numerical data on the number of occasions in which the LPAB had relaxed the Progression Rules. His submissions also included:

37.     The Respondent required that the Applicant comply with the requirement imposed by [the Progression Rules]. The Applicant was unable to comply with [the Progression Rules] because - as he had put before the Respondent - it was “too much of a burden” in a student-at-law with a disability ... And, the Applicant submits that he was able to comply but for the Respondent’s refusal to make a reasonable adjustment because of two (2) reasons:

(i)     the reasonable adjustment was to adjust the order of examinations; and

(ii)     in each of the two times when the Respondent made reasonable adjustments in respect of the acceptance of the Applicant’s two [Special Examination Arrangements], the Applicant was able to comply with the requirement to sit for his examinations. …

50    There is no material to suggest that Mr Makowski would be able to comply with the Progression Rules if they were relaxed, or that the failure to relax the Progression Rules was likely to have the effect of disadvantaging persons with anxiety and/or depression. In the absence of any evidence, there is no arguable basis for thinking that Mr Makowski could not sit his law subjects in the prescribed order because of anxiety and/or depression. There is also no material which suggests it is reasonably arguable that others with the disability would be unable to comply – see: s 6(1)(c) of the DD Act.

51    The rationale for the Progression Rules was set out in the affidavit of Mr Christopher Banks, the LPAB’s Executive Officer. A key rationale for the Progression Rules is to ensure that students acquire foundational knowledge and skills before proceeding to more advanced subjects. It is not clear how Mr Makowski’s disability could demand a relaxation of this rule. It cannot be said that any of the LPAB’s decisions reflected anything but reasonable requirements that any student would be expected to meet when undertaking a tertiary education course in law. Indeed, one would think that the Progression Rules would ordinarily reduce the prospect of anxiety by promoting appropriate foundational knowledge before progression.

CONCLUSION

52    Mr Makowski has ventilated his complaint before the Commission. The Commission’s reasons for terminating the complaint were clear and comprehensive: see above at [19]. The underlying facts have not changed. Mr Makowski has not demonstrated that he has a case which is reasonably arguable or otherwise sufficiently arguable to warrant the grant of leave pursuant to s 46PO(3A) of the AHRC Act to commence proceedings having regard to all relevant factors.

53    Leave to commence proceedings should be refused and the applicant ordered to pay the respondent’s costs.

Associate:

Dated:    21 June 2023