Federal Court of Australia

CEX23 as Litigation Guardian of CEY23 v State of New South Wales (Department of Education) (No 2) [2026] FCA 540

ORDERS

THE COURT ORDERS THAT:

1.    The tender of the report of Dr Justine Ellis dated 2 June 2025, be rejected.

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

REASONS FOR JUDGMENT

YOUNAN J:

Introduction

1    On 20 April 2026, I ruled that the expert report of Dr Justine Ellis dated 2 June 2025 was inadmissible. I determined that the report did not comply substantially with r 23.13 of the Federal Court Rules 2011 (Cth) (FCR or Rules), and that those deficiencies were central to understanding the opinion. I determined that, even if I were minded to dispense with compliance under FCR 1.34, the opinions expressed in the report were not exempted under s 79 of the Evidence Act 1995 (Cth) from the rule excluding opinion evidence, on the basis that the report:

(a)    did not articulate all the significant factual assumptions on which the opinion is based; and

(b)    did not explain how the field of specialised knowledge, on which the opinion is based, applies to the facts assumed or observed so as to produce the opinion proffered.

2    I determined that, even in the absence of this ruling, I would afford the report no weight as it does not assist me in examining the issues I have to determine.

3    It was necessary to make that determination then, in order to ascertain the course of the proceeding. For reasons given at the hearing on 20 April 2026, I determined to grant the litigation guardian’s application for adjournment to enable a referral to pro bono counsel to be made, limited to assistance in the preparation of the expert report, and the filing of any further expert evidence in that regard.

4    As Lee J observed in BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup Pty Limited (2017) 252 FCR 450 at [8], while it is not common practice to give reasons for rulings on admissibility of evidence, such reasons may have bespoke utility. In the present case, they serve the immediate purpose of outlining the deficiencies of the expert report, in the wake of the Court’s order permitting further evidence to be filed.

Background

5    The respondent is an educational authority for the purposes of ss 4 and 22 of the Disability Discrimination Act 1992 (Cth). The proceeding is brought on behalf of the applicant (CEY23) by the applicant’s mother (CEX23) in her capacity as litigation guardian. It arises from a series of incidents which occurred following the applicant’s enrolment at Sydney Secondary College, Balmain Campus (SSCBC).

6    The central issues in this matter relate to the existence, presentation and requirements of the applicant’s pleaded disabilities. The applicant’s treating psychiatrist, Dr Justine Ellis, is the sole witness in the proceeding whose evidence goes to establishing those matters by way of expert opinion. CEX23 affirms in her affidavit dated 27 June 2025 (CEX23 affidavit) that, according to Dr Ellis, the applicant has a primary diagnosis of Autism Spectrum Disorder (ASD), and secondary diagnoses of Attention Deficit Hyperactivity Disorder (ADHD), Post Traumatic Stress Disorder (PTSD), and Anxiety and Major Depression.

7    The subject complaint, in broad terms, is that the respondent discriminated against the applicant by failing to make or propose reasonable adjustments for the applicant’s disabilities in relation to: (1) his attendance at SSCBC; and (2) his requested admission to Aurora College (a virtual selective school).

8    On 9 July 2021, the applicant was offered a place at SSCBC as a selective student, which he accepted. It is common ground that the applicant’s enrolment application on or around 9 August 2021 disclosed that the applicant’s diagnosed disabilities include ASD and ADHD. However, whether the applicant had a disability as defined by s 4 of the Disability Discrimination Act is in issue.

9    On 20 October 2021, the applicant and his parents attended a meeting via video link with the Head Teacher of Wellbeing at SSCBC as part of the applicant’s transition to high school. The litigation guardian contends that the applicant’s disabilities were raised at this meeting and certain reasonable adjustments were requested, which claims are denied by the respondent.

10    On 1 February 2022, CEY23 commenced as a year 7 student at SSCBC. There are two key events of significance which occurred during the applicant’s first term. While the factual circumstances of both events are in dispute, the following matters are alleged:

(1)    On or around 16 February 2022, the applicant received an assignment in an English class, in relation to which the applicant responded by swearing at his teacher (English class incident).

(2)    On 28 February 2022, there was an incident at a school camp in which the applicant threw rocks or pebbles at staff in attendance, and was asked to leave the camp early (school camp incident).

11    The CEX23 affidavit describes the applicant’s behaviour during the English class and school camp incidents as being related to his PTSD, and asserts that no reasonable adjustments were in place when the incidents occurred.

12    CEY23 was suspended from 7 March to 1 April 2022 as a consequence of the school camp incident. The applicant’s parents sought (unsuccessfully) to appeal this decision on 8 March 2022.

13    On 10 March 2022, the applicant’s parents and Dr Ellis attended a meeting with the school principal and other representatives from SSCBC to discuss a plan for the applicant’s return to school, including any reasonable adjustments. It is evident that notwithstanding any conversations had at that meeting, its attendees were unable to reach an agreement, and the applicant did not return to school during Term 1.

14    On or around 11 May 2022, CEX23 made a request to the respondent that the applicant be permitted to transfer to Aurora College to facilitate his continued selective education in an online capacity. This request was denied due to the applicant being ineligible for enrolment.

15    On 25 May 2022, the applicant made a complaint to the Australian Human Rights Commission in relation to alleged disability discrimination. The complaint was terminated by a delegate of the President on 28 October 2022 on the basis that there was no reasonable prospect of the matter being settled by conciliation.

16    The applicant then commenced this proceeding by an originating application filed on 3 January 2023, by which he seeks relief under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth), and alleges unlawful disability discrimination by the respondent contrary to ss 5 and 22(2)(a) and (c) of the Disability Discrimination Act and Part 5 of the Disability Standards for Education 2005 (Cth).

17    The applicant asserts that the respondent has failed to make reasonable adjustments for CEY23 and has prevented him from having access to selective education, such that CEY23 has been unable to return to school since March 2022.

Expert report of Dr Ellis

18    On 14 February 2025, I made an order pursuant to FCR 4.12(1), referring the applicant to pro bono counsel for legal assistance in the preparation of her evidence. On 27 June 2026, the applicant filed a report of Dr Justine Ellis dated 2 June 2025 (Ellis report). The report was not supported by an affidavit.

19    The report is proffered to demonstrate the existence and nature of the applicant’s disability, and ultimately to enable the Court to make the kinds of comparisons or assessments required under the Disability Discrimination Act (e.g., where on the spectrum of a given disability the applicant lies and what his specific needs are in the relevant circumstances).

20    The report comprises 12 sections, and is without annexures or any accompanying documents (despite a statement at paragraph [1.4] of the report that a copy of “the Code” and “rule 23.13” are attached). The heading of each section, excepting the first, is framed in the form of a question or request to which the substantive material below it responds.

21    The first section, entitled “Experts’ Code of Conduct”, incorporates four paragraphs expressed in the third person, which appear to be instructions or directions (see, e.g., [1.1] “You need to be aware that the Harmonised Expert Witness Code of Conduct (Code) requires all experts engaged by parties to litigation to be bound to it”). The remaining paragraphs are written in the first person. The author outlines her professional experience as a child and adolescent psychiatrist, and states that she has been the applicant’s treating psychiatrist since March 2018. Paragraph [1.5] confirms that the witness has read “the Code” and that the report is prepared in accordance with FCR 23.13.

22    The second section of the Ellis report lists the applicant’s diagnoses in January 2021, indicates whether the applicant still meets the criteria for each condition, and provides brief high-level descriptions of how the applicant’s presentation has evolved since January 2021. The author states that: “I made the above diagnoses based on my clinical experience and study as a child psychiatrist”, and identifies the various diagnostic instruments used. No results are provided in relation to those clinical assessments. The author notes that the diagnosis of ASD “had already been made by psychmetric [sic] testing performed by a psychologist”, but does not identify that psychologist and their qualifications to undertake such testing.

23    In the balance of the Ellis report, the author opines as to: the “partial loss of mental functions” typically caused by each of the applicant’s diagnoses; the impact of the applicant’s diagnoses on his learning and behaviour at school; the symptoms or manifestations of the applicant’s diagnoses; the impact of the applicant’s diagnoses on his participation in school over time; the adjustments which were required to accommodate the applicant’s diagnoses while enrolled at SSCBC (and, in particular, at the time of the English class and school camp incidents); what occurred at the meeting on 10 March 2022; the actions which were/not, or should have been, taken by SSCBC during the relevant period; the applicant’s feelings and related needs during the relevant period; and the imperatives of “good practice”.

Objections to evidence

24    In written submissions filed on 31 March 2026, the respondent objected to the Ellis report being admitted into evidence on the basis that it does not comply with s 79 of the Evidence Act, Part 23 of the FCR, or the Expert Evidence Practice Note (GPN-EXPT) (Practice Note or PN). Other than stating that the report is not relevant to the facts in issue, the respondent did not elaborate upon its objection. However, the respondent foreshadowed in a footnote that it intended to make “more detailed submissions” at the hearing.

25    On 28 October 2025, I ordered that the respondent file and serve any objections in response and a reply to the applicant’s objections, by 13 December 2025. On 25 February 2026, a Registrar made an order extending the time by which the parties were ordered to file a consolidated document of objections to evidence, from 7 February 2026 to 23 March 2026.

26    The respondent did not particularise its objections to the Ellis report in either of the objections to evidence documents that it filed pursuant to the abovementioned orders on 12 December 2025 or 23 March 2026, which error became apparent at a case management hearing before a Registrar on 14 April 2026. The Court is informed by the parties that the respondent sought to rectify its error by emailing its objections to the applicant on the evening of 14 April 2026.

27    In case management hearings before a Registrar on 14 and 16 April 2026, the litigation guardian sought an adjournment of the proceeding (i.e., to vacate the five-day hearing listed the following week) to allow the applicant to cure deficiencies in the Ellis report. The litigation guardian submitted that the report is fundamental to the applicant’s case, and that she would have made the application earlier had she been aware of the respondent’s objections. The Registrar informed the applicant that the admissibility issue would be resolved at the hearing, at which time her adjournment application could be made.

28    On 17 April 2026, the respondent filed an amended consolidated objections to evidence document, in accordance with the Registrar’s orders dated 16 April 2026. In that document, the respondent reiterates that the Ellis report does not comply with r 23.13 of the Rules, the Practice Note, or the Harmonised Expert Witness Code of Conduct (Annexure A to the Practice Note). The respondent identifies, in particular, that the Ellis report does not adhere to: rr 23.13(1)(b), (e), (f), (g) of the FCR; paragraphs [2.4], [3.3], [4.1], [5.2(a)(ii)], [5.2(c)] of the Practice Note; and cll 2, 3(b), (d), (e), (g), (h), (i) of the Code.

29    The applicant says in reply that the respondent’s objections were only raised three working days before the hearing, and evince a “tactical, prejudicial attempt to exclude relevant, admissible testimony”. The applicant contends that exclusion of the Ellis report would “severely hamper the Court’s ability to receive essential assistance on complex technical matters related to disability from a medical expert”, and that it should be admitted and “its value tested” through cross-examination.

30    At the hearing on 20 April 2026, the respondent submitted that in addition to its non-compliance with the Practice Note, Rules, and Code, the Ellis report is “fundamentally flawed” and inadmissible under s 79 of the Evidence Act, as it fails to lay bare the author’s reasoning process and disclose the facts and assumptions upon which the opinion is founded: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, citing Heydon JA in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]); [101] (Heydon J).

31    The respondent submitted that it would be prejudiced if the applicant were to lead evidence addressing the deficiencies in the evidence at the hearing. While the respondent accepts that the Court may dispense with the Rules, it cannot dispense with the requirements of s 79 of the Evidence Act.

32    The litigation guardian submitted that the Ellis report is the “starting point” for the case, and that the applicant would be unable to proceed if it were held to be inadmissible. Without expert medical evidence, the applicant is unable to demonstrate a fundamental pillar of his case (being his disability), and whether any adjustments proposed or made are reasonable.

33    The Court was notified on the first day of the hearing that, for medical reasons unrelated to the proceeding, Dr Ellis would not be available for cross-examination the following day and would be unlikely to become available on any of the other listed hearing days that week. The Court was informed that this only became known (by the parties) on or around 15 April 2026.

Legal Principles

Disability discrimination

34    The admissibility of the report is necessarily navigated by reference to the subject matter of the complaint.

35    Section 5 of the Disability Discrimination Act was in the following terms during the relevant period:

5 Direct disability discrimination

(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)     the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)     For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

36    Section 22(2)(a) and (c) of the Disability Discrimination Act provided:

22 Education

…

(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

…

(c)     by subjecting the student to any other detriment.

    …

37    Sections 5.1 and 5.2 of the Standards (with note excluded) provided:

5.1 Application of Part

This Part applies in relation to:

(a)     a student with a disability who is enrolled in an educational institution; and

(b)     an education provider that is:

(i)     the educational institution mentioned in paragraph (a); or

(ii)     an educational authority that administers the educational institution.

Rights given by this Part

The effect of the following standards is to give students with disabilities the right to participate in the courses or programs, and to use services and facilities, provided by an educational institution, on the same basis as students without disabilities, including the right to reasonable adjustments, where necessary, to ensure they are able to participate in education and training, on the same basis as students without disabilities.

5.2 Participation standards

(1)     The education provider must take reasonable steps to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability, and without experiencing discrimination.

(2)     The provider must:

(a)     consult the student, or an associate of the student, about whether the disability affects the student’s ability to participate in the courses or programs for which the student is enrolled and use the facilities or services provided by the provider; and

(b)     in the light of the consultation, decide whether an adjustment is necessary to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability; and

(c)     if:

(i)     an adjustment is necessary to achieve the aim mentioned in paragraph (b); and

(ii)     a reasonable adjustment can be identified in relation to that aim;

make a reasonable adjustment for the student in accordance with Part 3.

(3)     The provider must repeat the process set out in subsection (2) as necessary to allow for the changing needs of the student over time.

(4)     For this section, the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsections (2) and (3).

Expert Evidence

38    Rule 23.11(a) of the FCR provides that a party may call an expert to give expert evidence at a trial only if the party has delivered an expert report that complies with r 23.13 to all other parties.

39    Under FCR 23.12, a party that intends to retain an expert to give an expert report or to give expert evidence must first give that expert the Practice Note.

40    Rule 23.13 of the FCR relevantly provides:

23.13 Contents of an expert report

 (1)     An expert report must:

 (a)     be signed by the expert who prepared the report; and

 (b)     contain an acknowledgement at the beginning of the report that the expert has read, understood and complied with the Practice Note; and

(c)     contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; and

 (d)     identify the questions that the expert was asked to address; and

 (e)     set out separately each of the factual findings or assumptions on which the expert’s opinion is based; and

(f)     set out separately from the factual findings or assumptions each of the expert’s opinions; and

 (g)     set out the reasons for each of the expert’s opinions; and

 (ga)     contain an acknowledgement that the expert’s opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (c); and

 (h)     comply with the Practice Note.

…

41    Non-compliance with Part 23 of the FCR, the Practice Note, or the Code will generally go to weight, rather than admissibility: Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571 at [11]; Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336 at [498] (Lee J). However, Part 23 of the FCR must be read together with Part 3.3 of the Evidence Act, which relates to opinion evidence.

42    Section 79(1) of the Evidence Act provides an exception to the general rule under s 76 that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed:

79 Exception: opinions based on specialised knowledge

(1)     If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

…

43    Section 79 requires the tendering party to establish a nexus between the relevant fact(s), the opinion, and the specialised knowledge on which that opinion is based.

44    The majority in Dasreef confirmed that to be admissible under s 79(1), the evidence must satisfy two criteria: (1) the witness must have specialised knowledge based on the person’s training, study or experience; and (2) the opinion expressed in evidence by the witness must be wholly or substantially based on that knowledge (at [32]).

45    In the ordinary case, the expert’s evidence must explain how the field of “specialised knowledge” in which they are an expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded: Dasreef at [37].

46    In his dissent, Heydon J held that “the articulation of all significant factual assumptions is a precondition to admissibility when expert evidence is tendered under s 79”: Dasreef at [100] (emphasis added). While this statement goes further than the majority, this aspect of his Honour’s reasons reflects what is required by FCR 23.13(1)(e).

47    In Dasreef, the Court held to be inadmissible the evidence of a chartered chemist, professional engineer and retired academic, which estimated the amount of respirable silica dust to which the respondent was exposed while working for the appellant. The majority reasoned that the witness did not provide evidence of how his training, study and experience permitted him to give an opinion about the numerical or quantitative exposure to silica dust, and therefore there was “no footing on which the primary judge could conclude” that the opinion was wholly or substantially based on specialised knowledge based on training, study or experience (at [39]-[40]). In particular, the majority held that the evidence was not admissible to substantiate the calculation made by the primary judge of the level of respirable dust to which the respondent was exposed (at [43]).

48    The present case is distinguishable from the circumstances in Dasreef. Here, the first limb of the test under s 79(1) is met: the witness has specialised medical knowledge based on her training, study or experience as a child psychiatrist, and purports to express a diagnostic opinion in her relevant field: see Dasreef at [37]. Indeed, the witness confirms (albeit not sworn or affirmed by way of affidavit) that she has twenty years’ experience working as a specialist child and adolescent psychiatrist, with particular expertise in managing the applicant’s stated diagnoses: cf. Dasreef at [39].

49    However, there must be a sufficient and articulated connection between the opinion so expressed and the witness’ specialised knowledge based on training, study or experience (Dasreef at [41]). Failure to demonstrate that connection is a matter which goes to admissibility (Dasreef at [42]).

50    The principles recited by Mortimer J in Kaplan v State of Victoria (No 3) [2022] FCA 728 at [11], are apposite:

It is well-established that the opinion evidence of an expert must be based on facts either proven or assumed, and if the latter, that the expert must identify with some precision the facts the expert has assumed to be true: see HG v The Queen [1999] HCA 2; 197 CLR 414 at [41]. The expert must differentiate between the facts they have assumed, and the opinion they have formed based on those facts: HG at [39]. In part, that is necessary so that the Court can ascertain whether the opinion expressed falls within their area of expertise and conforms to the legal principles about the giving of opinion evidence. It is also so that, once the Court comes to its fact finding, it is clear to the Court whether the opinion as expressed is properly or adequately based on facts which have been proven by the evidence or otherwise taken to have been established (such as by admission or absence of challenge). If that is not the case, the opinion may be of little probative value to the Court. But these are not matters simply of weight, as Gleeson CJ made clear in HG. They are matters of admissibility.

51    As explained below, the Ellis report is inadmissible. It does not disclose the factual bases and assumptions that undergird the stated opinions, and thereby fails to articulate the requisite connection between the stated opinions and the “specialised knowledge” for the purposes of s 79(1) of the Evidence Act.

Admissibility of Expert Evidence

52    At the hearing on 20 April 2026, the respondent elaborated on its objection to the expert report of Dr Ellis.

Preliminaries

53    The central objection was that it was not evident what (material or assumptions) Dr Ellis relied on in order to reach her conclusions. The report was not provided in the context of an affidavit attesting to any oral or written instructions, or material, provided to Dr Ellis.

54    There was also a question whether Dr Ellis had written the entirety of the report, given the third person directions in the preliminary paragraphs of the report, apparently addressed to Dr Ellis.

55    Furthermore, notwithstanding the statement: “I have read the Code and this report is prepared in accordance with rule 23.13 of the rules”, there is no evidence that Dr Ellis was provided with the Code of Conduct or the Practice Note, in circumstances where the Rules provide that the expert report must contain an acknowledgment at the beginning of the report that the expert has read, understood and complied with the Practice Note (FCR 23.13(1)(b)), and must comply with the Practice Note, which in turn refers to the requirements of the Code and the Rules (FCR 23.13(1)(h)). There is no acknowledgment that Dr Ellis agrees to be bound by the Code or the Practice Note.

56    Importantly, it is not evident from the report that Dr Ellis understood that she had an obligation to provide an independent opinion to the Court. This is especially significant because, as indicated in the report, Dr Ellis has been the applicant’s treating psychiatrist since 2018. In those circumstances, it is important that Dr Ellis understands that her role is not to advocate for the applicant, but to assist the Court impartially on matters relevant to Dr Ellis’ area of expertise.

57    In that regard, while Dr Ellis’ area of expertise was disclosed in the report, it was not supported by affidavit evidence or provided with sufficient detail so as to permit the Court in each instance to examine whether the opinions expressed were relevant to Dr Ellis’ area of expertise. This is illustrated by the example of the applicant’s diagnosis of ASD, which does not appear to have been made by Dr Ellis.

Providing the basis for the opinion

58    The central deficiency in the report is three-fold. First, there is no evidence that Dr Ellis read the Practice Note. In that regard, there is no evidence as to the material provided to Dr Ellis (aside from a reference in the report to what is presumed to be the Third Amended Statement of Claim, “TASOC”). Second, there is no evidence that Dr Ellis understood the Practice Note (which could not be inferred from the report). Third, the report does not comply with the Practice Note (which is not consistent with an understanding of the obligations adverted to in the Practice Note).

59    In particular, the report indicates that the applicant had certain diagnoses in January 2021, including “Post Traumatic Stress Disorder in partial remission”, with a reference to the diagnostic tool “DSM 5 309.81”, without providing the basis for that opinion or an explanation as to what it means. Later in the report, Dr Ellis states that the applicant “has … times where he is in partial remission”. The subsistence of that condition is not apparent, in circumstances where the nature and timing of the diagnosis is in issue in the proceeding.

60    Doctor Ellis refers to the diagnostic process in a few, short paragraphs. She explains that she made the diagnoses “based on my clinical experience and study as a child psychiatrist”. That does not elucidate the process or explain how each diagnosis was made. The same may be said where Dr Ellis opines that the diagnosis is “based on a clinical assessment”, by reference to a particular diagnostic tool. Furthermore, as the litigation guardian accepted, the diagnosis of ASD appears to have been made by another practitioner, who is not identified (“a psychologist”). Doctor Ellis explains, in general terms, how such a diagnosis is made. She does not indicate that she adopts the diagnosis, and the basis of that acceptance. In other words, it is not apparent that it is her opinion.

61    In response to a question as to whether the diagnoses have changed over time, Dr Ellis responds in relation to three diagnoses that the applicant (at the time of the report on 2 June 2025) “still meets” the criteria for the relevant disorder. That does not answer the question: it does not account for the period between diagnosis in January 2021 and the date of the report, which period covers the relevant period in the proceeding. Rather, there is an unstated assumption that the relevant disorders subsisted in the meantime. In relation to the diagnosis of “Major depression in full remission”, Dr Ellis comments that the applicant has “at times” had a partial relapse in his depression since 2021. This does not afford any clarity as to the time periods during which the relapse occurred.

62    Furthermore, there is no indication of the factual basis for these assessments. In particular, it is not apparent whether Dr Ellis is relying on the applicant’s self-reporting, or her own observation.

63    As counsel for the respondent submitted, to assess a claim of direct discrimination in accordance with s 5 of the Disability Discrimination Act, it is necessary to make a comparison between the discriminator’s treatment of the aggrieved person and their treatment of a person without the disability in circumstances that are not materially different. In order to make that comparison, it is necessary to understand the manifestations of the disability at particular points in time. The report does not indicate whether or not there were any changes in the applicant’s condition over the relevant period, and if so, how the changes impacted the applicant’s behaviour.

64    While it may be accepted that certain conditions are “life long” conditions, that acceptance does not account for any change in the condition, which the question posed to Dr Ellis appears to countenance.

65    In terms of describing the symptoms of the applicant’s conditions, the report provides generalised statements devoid of reference to the applicant. The basis of those statements is not apparent. Furthermore, ambiguous references to “giftedness” are not explained or “evidenced” by reference to specifically identified factual material (e.g., “giftedness is evidenced by his recent capacity to achieve high scores in USA college level courses”). Similarly, in reference to the English class and school camp incidents, which are in issue in the proceeding, it is not evident what instructions Dr Ellis received about the incidents that she did not herself observe.

66    The same complaint regarding generalised observations may be made regarding Dr Ellis’ opinion as to how the applicant’s diagnoses affected his participation in school. References are made to “children” with the relevant disorder. These references are not useful in attempting to ascribe the particular behaviour of the applicant. As counsel for the respondent submitted, “people with the same disability have very different abilities”. Furthermore, they are not useful when they include unexplained jargon (e.g., “scaffolding”), the meaning of which is neither apparent nor explained.

67    Moreover, statements as to the support that the applicant did, or did not, have at the school which is the subject of the proceeding, is unhelpful when the source of, and the factual basis for, that statement cannot be identified.

68    The admissibility of expert evidence remains subject to the overriding requirement that the evidence be relevant: s 56 of the Evidence Act.

69    The respondent submitted that the “reasonable adjustments” prescribed by Dr Ellis went beyond those claimed by the applicant (and which the applicant claims were refused by the respondent). While I accept that this part of the report extends beyond what is claimed, I do not accept that the expert’s opinion as to what adjustments should be made in any given scenario is irrelevant to my consideration of whether the discriminator made, or proposed to make, reasonable adjustments, as per s 5(2) of the Disability Discrimination Act, or for the purposes of Part 5 of the Standards.

70    However, where the evidence refers to “good practice”, without explanation of what that means or the basis of the opinion, it is of limited utility in assessing the reasonableness of the adjustment vis-à-vis the applicant’s circumstances. If there is a general tenet that holds in all cases, that was not made clear in the report, and belies the questions that are directed to the circumstances of the applicant.

71    In one instance, the question posed to Dr Ellis refers to the circumstances set out in the TASOC “at [10] to [19]” which do not appear to accord with the circumstances that are the subject of the question, being the circumstances of the applicant’s enrolment in the school on or around 9 August 2021. In that regard, the factual basis on which Dr Ellis proffers the opinion that follows is not evident. In particular, it is not evident on what basis Dr Ellis comes to the view that suspension of the applicant “involved a misunderstanding of [the applicant’s] disability”, nor is the apparent misunderstanding identified. It is followed by a generalised statement about “[c]hildren with ASD” and the dictates of “good practice”.

72    There is a reference to a meeting which Dr Ellis attended after the English class incident. The meeting is not identified specifically by time, date or place. Doctor Ellis opines on the apparent state of mind of the teachers at this meeting regarding their awareness of PTSD and ASD, noting that “the staff seemed unaware of trauma responses in children”. The factual basis of these observations is absent. So, too, is the factual basis for the opinion proffered on the option of completing an alternative assessment with a different topic.

73    Doctor Ellis relies on “contemporaneous notes” taken at the meeting on 10 March 2022 which were not provided, let alone furnished in the form of sworn or affirmed affidavit evidence attesting to the circumstances in which they were made. The form is important in ensuring accountability for what is asserted, which can be tested in cross-examination.

74    The report also contains hearsay material, including statements about what the applicant’s parents said and felt at a meeting at which Dr Ellis was not present. This underscores the importance of outlining the factual assumptions on which the report is based.

75    Doctor Ellis speaks of a “re-integration plan” without specifically identifying the plan. She also opines on her contact with the school on 28 November 2023, which post-dates the period that is the subject of the applicant’s claim. The relevance of this account is not apparent, especially as the question posed in the section heading directs Dr Ellis’ attention to adjustments required at the time of the meeting on 10 March 2022.

76    Doctor Ellis opines that the suspension meeting was not held in a “trauma informed” way, which is not explained by reference to any factual material disclosed in the report. The claimed failure to amend the “behaviour support plan” and to provide adjustments and guidance for the schoolwork place on Google classrooms, is similarly opaque.

Consequence of non-compliance: expert may not be called to give expert evidence

77    I find that the report does not comply with FCR 23.13(1)(b), (e), (f), (g), (ga) and (h), and the requirements of the Practice Note at paragraphs [2.3], [4.4], [5.1] (with reference to cl 3(b), (d), (e), (h), and (i) of the Code) and [5.2(a), (c)].

78    Once it is determined that the expert report does not comply with FCR 23.13, it follows that the applicant may not call Dr Ellis to give expert evidence at trial. The calling of an expert to give expert evidence at a trial is predicated on delivering an expert report that complies with FCR 23.13: FCR 23.11(a).

Cross-examination cannot cure inadmissibility

79    I accept the respondent’s submission that leading the evidence from Dr Ellis in cross-examination so as to “correct” (and, I take it, substitute for) the omissions in the report, as suggested by the litigation guardian, will give rise to prejudice to the respondent and occasion further delay in the proceeding, as the respondent is afforded an opportunity put on evidence in response to any new information. The litigation guardian speculated that nothing new would arise in cross-examination. Given the dearth of factual material disclosed in the report, that would be a surprising (and disappointing) outcome. Insofar as the information forms the basis of Dr Ellis’ opinion, cross-examination will be the first time that the information is disclosed, either as a matter of fact or as an aspect of the expert’s reasoning.

80    In any event, cross-examination cannot rescue the report. It does not cure non-compliance with FCR 23.13, which is a precondition to calling the expert to give expert evidence at trial. Furthermore, it cannot cure a failure to satisfy s 79 of the Evidence Act. If it is not apparent that the opinion expressed in the report is wholly or substantially based on the specialised knowledge of the expert, then the opinion rule applies (s 76). This is fatal to the admissibility of the opinions expressed in the report. There is good reason for it. As Heydon J expounded in Dasreef at [101] (citations omitted):

A construction of s 79 as abolishing the common law rule should be rejected because silence about the factual assumptions being made would have very unsatisfactory consequences. First, the court may not be able to understand the opinion so as to decide what weight to accord it. Secondly, the court will not be able to assess whether it corresponds with the facts which the court finds at the end of the trial. Thirdly, the court will not be able to assess whether the opinion is one wholly or substantially based on the expert’s knowledge. Fourthly, there would be unacceptable difficulties for the cross-examiner, who should not have to perform, in the dark, particularly in relation to lengthy and complex expert opinion evidence, the “task of teasing out in cross-examination all the circumstances that the witness had in mind”. Fifthly, the cross-examining party should not be left at a disadvantage in deciding whether and how to meet the evidence. Sixthly, the respondent’s construction reduces the chance of the parties getting to grips, or at least getting to grips quickly. It would thus cause trials to become slower, more complicated and more costly.

81    This is not a technical point. It is about the utility of the evidence. There is an elusive distinction between the threshold requirement of admissibility of evidence and the ultimate assessment of the weight to be accorded to that evidence, where the rationale undergirding both is the reliability of the evidence presented to the Court.

Conclusion

82    I consider that the failure to comply with FCR 23.13 and to qualify as an exception to the opinion rule in s 79 of the Evidence Act, is such that it renders the entirety of Dr Ellis’ report inadmissible. There are omissions that affect certain parts of the report. However, there are other omissions, including the attestation of compliance with the Practice Note and agreement to be bound by the Code, that infect the entirety of the report. There is no room for speculation as to the basis of the expert’s opinion, and there can be no question that the expert understands that they are independent of, and do not advocate for, the applicant.

Associate:

Dated:    5 May 2026