Applicant N v Respondent C
[2006] FMCA 1936
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| APPLICANT N v RESPONDENT C | [2006] FMCA 1936 |
| HUMAN RIGHTS – Disability Discrimination – child care centre – no case submission – relevant factors – Briginshaw test – serious allegations – public interest – whether Respondent should be put to its election – consideration of expense to parties – desirability of ‘no case’ submission at conclusion of Applicant’s evidence – human rights cases distinguished from civil claims – whether Respondent ‘educational authority’. |
| Disability Discrimination Act 1992, ss.4, 22, 24 Human Rights and Equal Opportunity Commission Human Rights and Equal Opportunity Commission Act 1986, ss.46PH(2), 46PO(4) |
| Protean (Holdings) Ltd (Receivers and Managers Appointed) & Ors v American Home Assurance Co (1985) VR 187 Australian Competition & Consumer Commission v Amcor & Printing Papers Group Ltd (2000) 169 ALR 344 X v McHugh for the Auditor General of Tasmania, Unreported, 8 July 1994 |
| Applicant: | APPLICANT N |
| Respondent: | RESPONDENT C |
| File number: | MLG 1617 of 2005 |
| Judgment of: | McInnis FM |
| Hearing dates: | 20, 21, 22 March 2006, 2 October 2006, 30 November 2006, 19 December 2006 and 21 December 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr M.W. Harding |
| Solicitors for the Applicant: | Access Law |
| Counsel for the Respondent: | Mr M. D.Wilson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application filed 19 October 2004 be dismissed.
The Applicant shall pay the Respondent's costs to be taxed according to the Federal Court Rules up until the date of transfer and thereafter pursuant to Schedule 1 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1617 of 2005
| APPLICANT N |
Applicant
And
| RESPONDENT C |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the court in this matter is by way of a no-case submission made on behalf of the Respondent at the conclusion of the Applicant's evidence. The substantive application in this matter arises out of a complaint which had been made to the Human Rights and Equal Opportunity Commission (the Commission), relying upon a claim of unlawful discrimination pursuant to provisions of the Disability Discrimination Act 1992 (the DDA).
The application before the court was in fact commenced on 19 October 2004 in the Federal Court by the next friend and father of a minor or infant. Presumably, the application was filed in that manner pursuant to Order 40(3) of the Federal Court Rules. The minor in this matter is now aged six years.
The proceedings were transferred from the Federal Court to this court on 14 December 2005. There is no dispute that the minor is a person with a disability for the purposes of the DDA. The disability is set out in the Statement of Claim, which I note is admitted in the following terms:
“7. The Applicant's disability:
a may be described as right sided hemiplegia, arm worse than leg;
b is such that the Applicant has restricted flexibility and use of the right leg;
c is such that the Applicant has little use of the right arm and hand;
d is such that in the early years of life, being up to the age of about 8 years of age, the more the Applicant uses his right limbs the greater the ultimate use of them will be to him;
e is such that he generally requires external encouragement to use his right arm and hand.”
The claim in this matter in general terms is set out in the Notice of Termination and correspondence from the Commission dated 22 September 2004, which is Attachment A to the Notice of Termination issued pursuant to s.46PH(2) of the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act") also dated 22 September 2004.
In brief terms it is noted, and for present purposes it is sufficient to note by way of background, that the Applicant, whom I shall refer to as Applicant N, was then a four‑year‑old, now six‑year‑old with right‑sided hemiplegia. He attended a centre conducted by the Respondent since 2002. The claim was that the centre was able to receive funding from what is described as the Commonwealth Government’s Special Needs Subsidy Scheme ("SNSS") to apply wholly or substantially to assist Applicant N to access education and services.
According to the Commission the allegation was that a person from the centre, and the centre itself, had not applied the funds appropriately or had not applied the funds for the sole benefit of Applicant N, thereby limiting his access to the service and education provided by the centre. The allegation is therefore one of discrimination based on disability.
It is not appropriate for the purposes of this decision to otherwise refer in further detail to the claim that was before the Commission. It is, however, appropriate to note that in paragraphs 8 and 9 of the Statement of Claim the Applicant claims the following:
“8.The Respondent has been, at all material times, and continues to be, an educational authority for the purpose of section 22(2) of the Disability Discrimination Act 1992.
9.The Applicant has at all material times and continues to be a student for the purpose of section 22(2) of the Disability Discrimination Act 1992.”
Both of those allegations are denied in the Respondent's Defence.
Further, in the Statement of Claim the Applicant pleads the following:
“10.The Respondent has at all material times provided, and continues to provide, a service to the Applicant for the purposes of section 24 Disability Discrimination Act 1992.
11.The Respondent has at all material times made available, and continues to make available, facilities to the Applicant for the purposes of section 24 Disability Discrimination Act 1992.
12.At all material times during which the Applicant has attended the Respondent the Respondent has been in receipt of funding from the Commonwealth Government in the amount sufficient to provide approximately five additional hours child care labour per day.
13.The additional funding referred to above has been received by the Respondent pursuant to the Commonwealth government's Special Needs Subsidy Scheme (SNSS).”
Each and every one of those pleadings appears to have been admitted by the Respondent in their Defence.
It perhaps should also be noted that there are more general assertions which are relevant to consider in this application which appear in the Statement of Claim. Those assertions include a number of matters which are either denied or which are the subject of qualified denials. They include the following:
“14.The SNSS funding has been received by the Respondent arising from applications made jointly by the Respondent and the Applicant's parents to the Commonwealth government in respect of additional assistance required by the Applicant on account of his disability to fully access all the benefits provided by the Respondent.
15.The Respondent was required to apply the SNSS funding wholly or substantially for the benefit of the Applicant.”
Paragraph 16 of the Statement of Claim, which is admitted claims as follows:-
“16.The Respondent was required to apply the SNSS funding consistent with the SNSS guidelines and SNSS funding conditions set by the Commonwealth Government.”
The following further allegations that are made, as with paragraphs 14 and 15, are denied by the Respondent. The allegations set out in the Statement of Claim are:
“17. The SNSS funding ought to have been applied to:
a Enable full access by the Applicant to the service or facilities provided by the Respondent;
b Enable access to the service or facilities provided by the Respondent in a manner equivalent to that enjoyed by the Applicant's peers;
c Assist the development of the Applicant's fine and gross motor skills and social skills in accordance with his individual needs;
d. Organize group activities, of which the Applicant was a member, where such activity would assist with (a), (b) & (c) above.
18.The Respondent has failed to apply the SNSS funding wholly or substantially for the benefit of the Applicant:
a. At all; or
b In the manner described in paragraph 17 above.
19.The Respondent has failed to apply the SNSS funding consistent with the SNSS guidelines and the SNSS funding conditions set by the Commonwealth Government.
20.As a consequence of the Respondent's failure to apply the SNSS funding appropriately the Applicant has received little or no benefit from the SNSS funding at any time during the period in which he has been attending the Respondent.
21.Arising from the failure of the Respondent to apply the SNSS funding appropriately, while providing a service or making available facilities for the purpose of section 24 DDA, the Respondent indirectly discriminated against the Applicant, within the meaning of section 6 DDA, as:
a The Respondent imposed a requirement or condition upon the Applicant, being that he enjoyed full access to the service or facilities without specialized assistance;
b With which a substantially higher proportion of children attending the Respondent without the Applicant's disability are able to comply;
c Which is not reasonable having regard to the circumstances; and
d With which the Applicant is not able to comply.
22.The Respondent has limited the access of the Applicant to a benefit provided by the Respondent, within the meaning of section 22(2)(a) Disability Discrimination Act 1992, by not adequately assisting him to obtain the full enjoyment of the service and facilities.
23.Arising from the failure of the Respondent to apply the SNSS funding appropriately the Respondent has subjected the Applicant to a detriment, within the meaning of section 22(2)(c) Disability Discrimination Act 1992.
24.Arising from the failure of the Respondent to apply the SNSS funding appropriately the Respondent has directly discriminated, within the meaning contained in section 5(1) DDA, against the Applicant in the manner in which the Respondent provides the SNSS funding service or makes its facilities available to the Applicant, within the meaning of section 24(1)(c) DDA, as:
a. Because of the Applicant's disability
b. The Respondent treated the Applicant less favourably than it would treat another child;
c. In similar circumstances.”
It is noted in this matter that other criticisms are relied upon by the Applicant in the affidavit of the next friend affirmed on 19 October 2001 (Exhibit A1). In that affidavit the deponent, in part, after referring to the condition of Applicant N (the next friend's son) states as follows:
“21.The SNSS funding ought to be applied consistent with the SNSS Guidelines published by the Commonwealth Government, which in short, is primarily to benefit the child in question, not as a mere financial incentive, to ‘take on’ a child with a disability.”
In the same affidavit the deponent relatively deposes as follows:
“33.It is apparent that my child has lost opportunities to improve his mobility and use of his right arm and hand due to the conduct of the Respondent.
34.The past and continuing conduct of the Respondent seems to me to be in breach of the Disability Discrimination Act 1992 and may be negligent and in breach of a fiduciary duty.”
It will be evident from reference to the pleadings and the affidavit to which I have just referred that the claims made are what can only be described as comprehensive and significant claims against the Respondent.
The relevant legislation arising from the claim may be set out as follows:
“Disability Discrimination Act 1992
Interpretation
4(1) In this Act, unless the contrary intention appears:
…
"education provider" means:
(a) an educational authority; or
(b) an educational institution; or
(c) an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers referred to in paragraph (a) or (b).
"employment" includes:
(a) part‑time and temporary employment; and
(b) work under a contract for services; and
(c) work as a Commonwealth employee; and
(d) work as an employee of a State or an instrumentality of a State.
"employment agency" means any person who, or body that, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers, and includes the Commonwealth Employment Service.
…
22(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability or a disability of any of the other person’s associates:
(a) by refusing or failing to accept the person’s application for admission as a student; or
(b) in the terms or conditions on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:
(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.
(2A) It is unlawful for an education provider to discriminate against a person on the ground of the person’s disability or a disability of any of the person’s associates:
(a) by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or
(b) by accrediting curricula or training courses having such a content.
(3) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability in respect of admission to an educational institution established wholly or primarily for students who have a particular disability where the person does not have that particular disability.
(4) This section does not make it unlawful for an education provider to discriminate against a person or student as described in subsection (1), (2) or (2A) on the ground of the disability of the person or student or a disability of any associate of the person or student if avoidance of that discrimination would impose an unjustifiable hardship on the education provider concerned.
…
24(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.”
The purpose of making reference to s.46PO(4) of the HREOC Act is to indicate the general powers which are available to the court upon hearing an application of this kind. Section 46PO(4) provides as follows:
“(4) If the court concerned is satisfied that there has been unlawful discrimination by any Respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the Respondent has committed unlawful discrimination and directing the Respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a Respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an Applicant;
(c) an order requiring a Respondent to employ or re‑employ an Applicant;
(d) an order requiring a Respondent to pay to an Applicant damages by way of compensation for any loss or damage suffered because of the conduct of the Respondent;
(e) an order requiring a Respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an Applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.”
It would be evident by reference to that provision that, in part, the court has power, amongst other things, to make an order requiring a Respondent to pay an Applicant “damages by way of compensation for any loss or damage suffered because of the conduct of the Respondent”. It is clear from the material before me that the Applicant in this instance, again in part, in terms of the remedies sought, has relied upon or sought to rely upon the power of the court to award compensation in the nature of damages.
The no-case submission in this application was made by and on behalf of the Respondent on 19 December 2006. At the time the application was made the evidence of the Applicant had concluded. The Applicant did not ask and the court did not require the Respondent to be put to its election. However, before the court delivered a judgment on the no‑case submission the Applicant requested the opportunity to make a submission that the Respondent should be put to its election. The court then heard submissions on the issue of an election on 21 December 2006.
For present purposes I accept that the leading authority in relation to the issue of the principles to be applied in relation to a no-case submission and indeed in relation to the issue of circumstances where an election will be required, is the decision of the Full Court of the Supreme Court of Victoria in Protean (Holdings) Ltd (Receivers and Managers Appointed) & Ors v American Home Assurance Co (1985) VR 187 (Protean).
The significant judgment of the Full Court in that case, in my view, is found in the decision of Tadgell J, at pp.237 and 238. I am satisfied, however, for present purposes that the headnote which appears in that case accurately reflects the reasoning of the court, and in particular accurately reflects the decision of His Honour Tadgell J. In brief terms it is noted from the headnote the following,
“It was held by the court dismissing the appeal that when a trial judge has to consider a submission that there is no case to answer he must first decide whether to put the party making the submission to his election to call no evidence. Save in cases where the outcome of the submission depends principally upon a question of law, the party making the submission will generally be put to his election. Short of refusing altogether to entertain the submission, the judge may:
(a)decline to entertain the submission, unless the party making it elects before making it to call no evidence;
(b)allow the submission to be made without putting the party making it to an election at that stage but reserving the question of whether or not it should be ruled on without requiring an election to be made; or
(c)indicate that the submission will be entertained and ruled upon without requiring an election to be made.
In deciding which course to follow the judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given. The imposition of a requirement that an election be made before the judge entertains a submission or before it is ruled upon will depend upon the just and convenient disposition of the litigation.”
The decision of the court in Protean, to which I will make further reference later in this judgment in relation to the principles concerning a no-case submission, has, I note, been followed by the Federal Court in Australian Competition & Consumer Commission v Amcor & Printing Papers Group Ltd (2000) 169 ALR 344.
Extrapolating from the principles in relation to the election which appear in Protean it appears to me that there are indeed four elements which the court can take into account when determining whether it should or should not put a party to an election. They are
(1) the nature of the case;
(2) the stages reached;
(3) particular issues involved; and
(4) evidence that has been given.
In relation to the nature of the case, it is my view that in this application it is fair to conclude that serious allegations of unlawful discrimination against a care provider or operator of a child care facility have been made in relation to its treatment of a disabled child. An adverse finding, with or without an award of damages, would, in my view, be significant.
Each anti‑discrimination act or piece of legislation will give rise to varying degrees of seriousness, gravity and/or culpability. In each case, however, it is noted that the onus is upon the complainant to prove the complaint. The standard of proof, however, may vary from case to case and in some instances may lead to the application of the Briginshaw test. I shall incorporate in this judgment an extract from Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 as follows,
“ … when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Basically, the Briginshaw test may be applied to those human rights claims which involve more serious allegations or allegations which are described as being more grave. It does not automatically follow that the application of the Briginshaw test will apply to one form of discrimination rather than another. I note, however, that most of the cases where the Briginshaw test applied appear to be those cases involving racial or sex discrimination. It can, however, apply to discrimination alleged under the DDA (see X v McHugh for the Auditor General of Tasmania, Unreported, 8 July 1994, an extract of which appears in [1994] EOC 92-623).
In the present case, in my view, the nature of the case involves what
I regard as serious, the allegation of unlawful discrimination against a Respondent, which, it is relevant to note, is the operator of a child care centre. To allege that a child care centre has unlawfully discriminated against a disabled child, in my view, is a serious and grave allegation.
It is particularly serious when the allegation is based not simply on a failure to provide an item of equipment or a means of access but is directed to what might be described as the day‑to‑day care of a child and/or the misuse of appropriate Commonwealth funding which in part is designed to optimise, in consultation in with appropriate specialists, the use by the child of his right side. In other words, the care to be given to the child with the assistance of Commonwealth funding is to directly address the difficulties encountered by the child as a direct consequence of the child's disability.
Hence, in my view, in considering the nature of the case, I am satisfied that these are significant, serious and grave allegations. I am also satisfied, for present purposes, in considering the question of whether to put a party to an election, that it is relevant in considering the nature of the case to refer to the appropriate standard of proof which I am satisfied would be the Briginshaw test.
However, even if I am wrong in relation to the appropriate standard of proof and even if the normal standard of balance of probabilities applies, that does not detract from the seriousness and gravity of the allegations and nor does it detract from the conclusions I otherwise draw in relation to the nature of the case.
The other issues referred to in Protean include the stage which the case has reached. In this instance, the close of the Applicant's case was reached, and the hearing, I note, had commenced in March of this year and was adjourned to other dates, primarily for the convenience of the next friend, and was then listed as a trial, to conclude this week.
The particular issues raised in this application have been set out earlier in this judgment and they are evident in what I have just described. Again, in dealing with the particular issues involved, I emphasise that the issues are what I regard to be serious issues. They are also issues which, as with many other human rights cases, involve questions of mixed law and fact.
The other issue is the question of the evidence given. In this case
I shall refer to the evidence that has been given in some further detail. For present purposes, however, given the nature of the case and the issues raised, it is my view, having considered the authority of Protean, that this is not a matter where the Respondent should be put to its election.
There is, in my view, a further public interest element, not addressed in the Protean decision, which applies to human rights cases, which, in my view, strengthens the decision in this instance not to put the Respondent to its election. It is relevant in considering the nature of the claim, in my view, that it is not in the public interest to discourage no-case submissions, which I accept are available in claims of this type, which, as in the present case, involve an inter partes dispute where compensation, in part, by way of damages, is sought.
Respondents may well be exposed to considerable expense defending unmeritorious claims, and, given what are often serious and almost quasi‑criminal allegations, it is not appropriate, in my view, to put the Respondent to an election. The no-case submission, if successful, may well benefit all parties, by reducing the cost burden significantly, and Respondents should not be discouraged in making a no-case submission in the same manner as normal civil or commercial disputes by putting a moving party to an election.
Accordingly, I am prepared to entertain the no-case submission without putting the Respondent to its election. The principles of a no case submission are set out again in the headnote of the decision of Protean referred to earlier as follows:
“(4) A submission may be founded on an argument that (a) there is no evidence capable of establishing the case against the party making the submission, (b) the evidence in support of the case against the party making the submission is so unsatisfactory or unreliable that it should not be acted upon, or (c) a combination of both arguments.
(5) If the submission is based on, or includes, an argument as to the insufficiency or unreliability of the evidence, the Judge will be entitled to assess the quality and sufficiency of the evidence against the party making the submission; and this will involve considering whether or not to draw such inferences as the opposing party may seek to rely upon.
(6) Where a Judge entertains a submission that there is no case to answer without requiring an election, one of three results may ensue.
(a) The Judge may conclude that the evidence would sustain a finding against the party making the submission in which case the submission will be overruled and the case will proceed.
(b) The evidence may be so finely balanced that the Judge is not satisfied that even if the evidence could sustain a finding against the party making the submission he would be prepared to make the necessary finding himself. Where the case is being tried without a jury, the Judge would allow the case to proceed.
(c) The Judge may be persuaded by the submission and decide to uphold it. In reaching such a conclusion the Judge is entitled to draw all proper inferences from the evidence, but he cannot draw inferences against the party making the submission based upon the absence of evidence from that party.
(7) A submission that there is no case to answer will fail if the respondent shows that there is a case to answer not because it will ultimately succeed, but because there is evidence which ought reasonably to satisfy the tribunal that the facts which it seeks to prove have been established.
(8) The ultimate question for the Judge to decide in ruling upon a submission of no case to answer is whether or not the respondent’s evidence is sufficient to debar the party making the submission from obtaining judgment without having to answer the evidence adduced against him. The question for determination is the same, whether or not an election not to call evidence is required, namely, whether the respondent, carrying the onus of proof upon the issue the subject of the submission, has failed to discharge it.”
The Respondent has submitted in this instance that the evidence is not sufficient, as I understand the submission, to de‑bar the Respondent from obtaining a judgment without having to adduce evidence against it. Significant emphasis was placed upon the evidence that has been provided for and on behalf of the Applicant in this case. However, as a preliminary issue, it was argued that there is no evidence that the Respondent is an ‘educational authority’ for the purposes of Division 2 s.22 of the DDA set out earlier in this judgment.
It is argued that in this instance the Respondent is not indeed an educational provider and nor could the Respondent be properly regarded as an educational institution. I note in passing that the definition which appears in s.4 of the DDA defines what is meant by an "educational authority" to mean "a body or person administering an educational institution". "Educational institution" is defined in the same section to mean "a school, college, university or other institution at which education or training is provided".
The New Shorter Oxford English Dictionary defines the relevant terms as follows:
"education - the process of nourishing or rearing, The process of bringing up children in particular manners, habits or ways of life. The development of mental or physical powers; moulding of (some aspect of) character.
institution - training, instruction or education.
training - the act or process of providing or receiving instruction in or for a particular skill, profession, occupation, etc.; the process of developing physical fitness and efficiency by diet and exercise".
It is common ground in this case that the Respondent conducts a child care centre. It is not a school, college or university. The question which remains is: whether it is an educational institution. Education is a broad concept and, in my view, the definition in s.4 of the DDA of "educational institution," by including the words "or other institution at which education or training is provided", is clearly intended to cover institutions providing education or training other than schools, colleges or universities.
On the evidence and the pleadings before this court, at the very least, in my view, the Respondent can be said to manage an institution which provides for education of children in the development of mental or physical powers and/or the moulding of some aspects of character.
I reject the Respondent's submissions that s.22 of the DDA and other consequential provisions do not therefore apply to the Respondent.
I am satisfied on the material before me that the Respondent, is an educational authority as it is a body administering an educational institution, namely a child care centre. The child care centre, in my view, is an educational institution in the sense that it is an institution that provides education in the broader sense as defined.
The No-Case Submission
It is appropriate therefore to now consider the no-case submission in the broader sense as it applies to the claims made under the relevant provisions of the DDA. The submissions made for and on behalf of the Respondent referred in some detail to the Statement of Claim, extracts of which I have set out earlier. It is not necessary for me to repeat those in this judgment, save to note that during the course of submissions for the Respondent it was submitted that the current state of evidence is in fact against the claims which appear in paragraphs 15 and 16 and that there is otherwise no evidence to support the significant claims in paragraphs 19 and 20.
As I understand the submissions, it is otherwise submitted that the claims made relying upon other provisions of the legislation and indeed those claims arising out of the SNSS scheme have simply not been the subject of evidence which would support those claims.
It is significant to note that during the course of submissions the Respondent's counsel referred in some detail to the evidence of an expert witness called for and on behalf of the Applicant, namely Associate Professor Gay Ochiltree. Professor Ochiltree is a Principal Fellow of the Faculty of Education, University of Melbourne. There is no question that she is indeed an expert in her field. She not only gave evidence but also adopted an affidavit which had been affirmed by her on 24 February 2005 (Exhibit A5).
I should note in passing that during the course of her evidence Professor Ochiltree confirmed that she actually knew the next friend of the Applicant and that they were both members, as I understood it, of a Board. Nevertheless, no challenge has been made to the independence of Professor Ochiltree nor, as I understand it, has any challenge been made to her expertise. Accordingly, for present purposes, I accept her as an expert witness who was appropriately called for and on behalf of the Applicant.
In her affidavit it is noteworthy that Professor Ochiltree makes reference to documents and material she considered in reaching her conclusions. I will include in this judgment paragraphs 2, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 from her affidavit as follows,
“2.I have various documents regarding the case of [Applicant N] and [Respondent C]
…
6.I have met with [Applicant N], who has had a disability from birth which affects the right side of his body and which will significantly affect the use of his limbs in the future. He has required therapy for this disability from appropriate professionals since birth.
…
9.The [Respondent], which [Applicant N] has attended since he was 18 months old, has received funding from the Commonwealth Governments Special Needs Subsidy Scheme (SNSS) so that they have the capacity to include him in the program. SNSS targets children such as [Applicant N] with ‘ongoing high support needs’. The subsidy is paid to a service to ‘assist the inclusion of children with ongoing high support needs’.
10.SNSS funding is most commonly paid to employ an additional staff member to enable the planning and implementation of a program that provides for the complete access and participation of a child with on-going high support needs in the activities and experience of the child care service. In essence it increases the staff/child ration so that the child can get any additional support needed to take part in both the planned and unplanned activities and the other children can still receive the amount of attention that they would normally get from staff.
11.All child care workers are involved in the support of the child with high needs and the additional staff member does not provide one-to-one support for the child with a disability.
12.Inclusion means making it possible for all children to take part in the planned activities and experiences provided in the child care setting to the best of their abilities. To do this for a child with special needs staff may need additional training or resources and the funding from SNSS can also provide for this.
13.SNSS has guidelines which provide information on the operation of the scheme and the conditions which must be met. An essential requirement of SNSS is the development of an Inclusion Support Plan (ISP) for each child for whom the centre receives funding. This ISP is developed by the Inclusion Support Team which consists of the child’s parent, a representative of the child care service and a SUPS worker. The Inclusion Support Team may include other professionals working with the child where necessary. This Inclusion Support Team concentrates on the needs of the child and the service in relation to access and inclusion of the child.
14.The SUPS worker is part of the Commonwealth Supplementary Services Program (SUPS) which helps mainstream child care services improve access to and the quality of care for children with additional needs. SUPS workers have a facilitation role. The help the staff of the child care service plan and gain access to the resources that will enable them to acquire the skills, knowledge and confidence needed so that they can successfully include children with additional needs.
15.The Commonwealth’s conditions of funding for SNSS state not only that the Inclusion Support Plan is implemented by the service but that there are reviews of the ISP undertaken by the Inclusion Support Team (the parent, a representative of the child care service, and a SUPS support worker) and that a report (on the form provided) is submitted to the State Office of the Commonwealth Department at least once a year.
16.In reviewing the ISP and funding requirement the changing needs of the child and the changing ability of the child care service to meet these needs are considered. These report forms are completed after the initial three months that the child attends the child care service and annually thereafter. The form states that the review has taken place and that the ISP is still appropriate, if a new ISP has been developed, due to changes in the child’s development and/or condition, a copy of the updated ISP should also be forwarded to the Department with this annual review. The form is signed by the all members of the Inclusion Support Team. The guidelines state that ‘All three core members of the Inclusion Support Team are equally responsible for the successful implementation (including the preparation and annual reviews) of the Inclusion Support Plan.
17.Coordination of the preparation and reviews of the Inclusion Support Plan, submission of the application for funding and liaison with the Department are the responsibility of the child care service provider.
18.On the basis of the evidence provided to me these reviews do not appear to have taken place for [Applicant N] since the original ISP which was developed in 2001 although such reviews are a condition of continuing funding.”
I note from the extract from the affidavit included in this judgment that some of the claims made in relation to documents and material could only be described as being somewhat vague. For example, in paragraph 2 the deponent refers to having "various documents". She then refers to "Applicant N".
In any event, in the affidavit of Professor Ochiltree it is clear that after reciting the background to SNSS funding and the scheme she also refers to other material and what is described as "evidence provided" to her. In particular, I note that in paragraph 18 the deponent states: “On the basis of the evidence provided to me …” and goes on to be critical of the reviews made of Applicant N. It is perhaps unfortunate that the affidavit does not specify with some degree of precision the documents which were actually provided to the deponent, because when she gave evidence it was clear to me that she was somewhat vague about some of the documents which she may or may not have seen.
Before cross‑examination and further evidence the Applicant had relied upon the evidence‑in‑chief of Professor Ochiltree. Up to that point it seems to me that the independent expert's evidence was evidence which, despite my misgivings about the lack of specifics provided in relation to documents, was nevertheless evidence which would go some way to supporting the Applicant's case.
After the cross‑examination of Professor Ochiltree, however, it is my conclusion that she accepted that when further materials concerning plans and like matters of the Respondent were brought to her attention that she was satisfied overall that the Respondent's plans and arrangements for Applicant N were appropriate.
During the course of her evidence Professor Ochiltree was taken to a number of what I would describe as contemporaneous and relevant documents. I should note in passing that there is nothing unusual about documents being presented from affidavits filed and served, albeit that they have not yet been adopted. In the normal course of events, the court is entitled to reasonably expect that affidavits filed and served by the Respondent annexing, as they did, appropriate documents, or indeed documents put in cross‑examination, would likewise be ultimately tendered absolutely before this court.
It is appropriate and indeed within the power of the court to take into account on that basis the responses given by the witness to the various documents which were presented. It is appropriate for the purposes of this judgment that I refer in some detail to the transcript of evidence of Professor Ochiltree.
The first reference in the evidence, which in my view is relevant, appears in the transcript as follows,
“In terms of [Applicant N], as I understand your evidence you say that these are appropriate plans for [Applicant N] to deal with his disability in terms of the documents that are presented to you. Is that right?---I said they're evidence of planning. What I can't see, and that's because I don't have everything - I can't see, although there's continuity over quite big periods of time I can't see how they fit into the more routine planning for the group [Applicant N] is in, but they are evidence of planning, which I didn't have earlier.
The routine planning that you're referring to, professor, do you mean a plan that is formulated for the creche, or the room in which [Applicant N] is in?---The room ‑ ‑ ‑
- - - for all of the children?---Yes.
That's what you can't see how this individual plan fits into that?---Yes, and I would hope that it would fit in with that but I don't have that evidence to see.
Well, that's the document I want you to look at, ultimately, over lunch, and I'll perhaps be able to direct you it?---Thank you.
But you say in your affidavit that given [Applicant N]'s disability what he needs is encouragement to utilise his right side?---That's right.
That's what he needs in terms of creche on a day to day basis?---Yes.
In terms of executing that encouragement you would say that these individual plans, leaving aside how they fit into the master plan, leaving aside that, these plans clearly are a manifestation of that encouragement that is required for [Applicant N]?---Well, they're the basis for his encouragement.”
(Transcript p.296 lines 15 to 44)
…
“MR WILSON: This professor, just so we know what we’re talking about, is referred to as a communication book?---Yes.
Do you see that?---Yes.
In this case there were two copies, one for each parent, and for the child to take home and the parents to understand what has been happening as far as [Applicant N] was concerned on these days. Do you see that?---Yes.
This of course is a very good way for there to be an understanding as to [Applicant N]'s needs, isn't it, this communication between the creche and the family. You'd say that's an appropriate document, would you not?---It's an appropriate approach.
Yes, and you'll see there and can I take you to - they're not numbered, but the fifth page in from the bundle. The page should have a heading 8 March 04, Clarendon Street. Do you have that?---Yes, I've got it.
This is someone, Clare Woods, telling the parents what [Applicant N] was doing that day and then down the bottom you'll see there - is it Mel Hunt OT?---Yes.
That lady is from Noah's Ark, is she not?---I think so. I think I saw her name somewhere on the ISP.
So this is an appropriate form of letting the parents know that there's been some integration with one of the therapists that cares for [Applicant N]?---True.
Do you agree with that?---Yes.”
(Transcript p.297 lines 13 to 40)
…
“This is again this integration process, isn't it, taking place between the parent, the creche and the therapist?---Yes.
You'd say that's appropriate too?---It's appropriate.
Can I make this suggestion to you; just have browse through those. I don't want to take you to any particular one, but as you are able to just look through those, professor, can I suggest to you that these are appropriate strategies that you see written up in this communication book. These are appropriate strategies for [Applicant N] to encourage him to use his right hand, aren't they?---It's true.
These different things; rolling play with his hands and working on the mini trampoline and all these things that we see written up here, they're all appropriate strategies to encourage this use of the right side. Do you agree with that?---Yes.
(Transcript p.298 lines 5 to 20)
…
These, professor, are said to be staff notes and are kept at the centre and they're staff notes that are particular to [Applicant N]. If you just have a look through those. Have you had a chance to just look through those?---Yes, yes, I have, thank you.
Can I suggest to you that in terms of staff notes, these clearly show, do they not, that there has been strategies implemented to encourage [Applicant N] to use his right side?---It would appear so.
And that these would be, in your view, appropriate strategies for [Applicant N], I take it?---I would ‑ ‑ ‑
Agree with that?---Yes, I'd agree with that, yes.
Would you also accept that it's more than appropriate or appropriate for the centre to keep these staff notes so the staff can review them?---Of course.
(Transcript p.298 lines.26 to 42)
…
Now, Professor, insofar as you've had the chance to look at this document, perhaps I should tell you this first, that the evidence in relation to this document, this portfolio, is that it's compiled in the course of the year at different times and as different activities are done. It's not a day-to-day record. It's compiled and then sent home with the child at the end of the year. It's not a report card but, I suppose, a record of what's happened in the course of the year, different highlights and things. Perhaps I'll rephrase - that will be the evidence, your Honour, about this document. Now, insofar as you've been able to look at the document, I take it you would say, well, look, that clearly shows that there's been encouragement for [Applicant N] to use his right side?---I think so.
I beg your pardon?---Yes.
The activities that are being used and are shown in the portfolio are appropriate activities to encourage [Applicant N] to use his right side?---Yes.”
(Transcript p.299 lines 9 to 24))
It is perhaps significant to note in the transcript that shortly after that evidence there was a luncheon break. A bundle of documents were then provided for the witness to examine during the luncheon period. In my view, as indicated earlier, although, as I understand it, that became part of a bundle which was subsequently Exhibit 7 marked for identification, that does not prevent the court from referring to it or indeed referring to the witness's responses to part of that material.
After the luncheon break when the court resumed Professor Ochiltree was further cross‑examined. She was cross‑examined in relation to those documents which she had managed to peruse during the luncheon adjournment. The result of that cross‑examination relevantly appears in the transcript as follows,
“MR WILSON: Professor, the evidence will be that the staff at the creche met on a weekly basis, and formulated these plans that were on a rotational fortnightly plan basis. That is going to be the evidence. I ask you to accept that. Are these the sort of plans that you were referring to in your earlier evidence that you thought should - there should be these sort of plans for all of the children in the creche?---Yes.
You'll see by reference to them, professor, that there's a number of learning experiences set out there, and then there are specific activities designed to enhance for instance the fine motor skills and the gross motor skills et cetera. You'll see that in the document?---Yes, I saw that.
Do you say that that is an appropriate method of formulating a plan?---Yes, it's an appropriate method.
You would also have noted that in the plan or as part of the plan, there's a layout of the room with the different activities laid out so that the children can circulate through the activities?---Yes.
That is an appropriate method of implementing the plan?---Yes.”
(Transcript p.302 lines 21 to 41)
…
Do you say that that is an appropriate practice ‑ ‑ ‑?---Yes.
- - - for there to be a targeted - not so much a targeted group, but a specific group given specific goals?---That's one way of approaching it.
I take it that you would accept that that's an appropriate ‑ ‑ ‑?---I would accept that.
You would have noticed that Applicant N from time to time forms part of the focused group?---Yes, I did.
He's given particular tasks or focus tasks for his needs. Did you see that?
---Yes, I did.
Not only needs though for Applicant N in relation to his right hand, but more general needs?---Yes.
Did you notice that?---Yes.
And do you accept that that's also appropriate for ‑ ‑ ‑?---Yes. I think that's necessary.
It's necessary, is it not, because Applicant N presents not just as a boy with a hemiplegia, but of course he has a much broader spectrum of needs in that creche, doesn't he?---That's true.
One wouldn't expect to see in a plan like this or any other document for that matter exercises or activities targeting only his hemiplegia, would you?---He's more than an arm and a leg.
(Transcript p.303 lines 15 to 43)
…
MR WILSON: professor, you've seen the ISP that was generated with the team when Applicant N commenced. You've seen some of the plans, a sample of the plans. You've seen the communication book which was one of the documents I took you to. You've seen individual plans. You've seen that document, and you've also seen Applicant N's portfolio now, haven't you?---Yes.
These are all documents that you didn't have the benefit of looking at?---No.
It's correct to say that now, you having seen these documents, it's fair to say, is it not, that there has been a demonstration of a continual assessment and reflection on Applicant N's needs through those documents. Do you agree with that?---Yes, I do.
It's been clearly articulated or it is clearly articulated in those documents, isn't it?---Yes. I'm assuming all the rest of them are similar.
Yes, but we've given - all right ‑ ‑ ‑?---You've given me a selection.
You accept that?---I accept that.
There's also recorded in these documents and articulated in these documents progress - how Applicant N has progressed over the course of the period that he's been in the creche. Do you agree with that?---Yes.
So whilst you have made a comment about the gap between the first ISP in December 2000 and the March 2004 ISP, it's correct to say that there has been a period - reflected in these documents, there has been clear assessment and reflection upon his needs?---Yes.
You agree with that, don't you?---I'd agree with that, yes.
(Transcript p.305 lines 3 to 34)
…
MR WILSON: professor, just one final matter, you've given evidence that your understanding - and I read to you some of the evidence of Mr Quick in terms of the evidence that he will give, and you've agreed with what was put to you about Mr Quick's evidence, and as I understand your answers to those questions, it's this - and just tell me if this is correct - you would accept that it would be inappropriate to apply SNSS funding that a creche may have obtained for the benefit of a specific child. You agree with that, don't you?---Yes, I agree with that.
Beg your pardon?---It's not directly for the - it is for the benefit of the child within the group, but not as an individual.
Not as an individual, that's right. It can be that the fund - when you say for the benefit of the child in the group, that's in the group room, the room that he's in?---Yes.
(Transcript p.306 lines 29 to 43)
…
No. Similarly if the activity of the group was designed purely for his benefit - that's the benefit of the recipient - and to address his handicap, then that would also be an inappropriate use of the funding, wouldn't it?---Yes, because it's funding for inclusion to participate within the program. So it's so that he can get additional help without the other kids being disadvantaged. If you put it in the reverse, that the child - it's specifically designed for that child, it's what we'd call reverse inclusion instead of inclusion. Inclusion is about being able to participate without any disadvantage to the child or the other children. It's participation.
It's to help him participate in the activity?---Yes, and to get the additional support he needs. So SNSS funding is about resources and support. It's about the extra person. So that everybody has got time to support the child with the disability.
And to include him?---And to include him in the program ‑ ‑ ‑
In the program ‑ ‑ ‑?--- ‑ ‑ ‑ of the child care centre.
Yes. In those weekly or fortnightly activities that we've seen ‑ ‑ ‑?---The daily, the everything.
Yes - that we see designed in the exhibit we've just been discussing?---Yes.
That's how it works, isn't it?---Yes, that's how it should work.”
(Transcript p. 307 lines 6 to 31)
Those extracts which are set out in this judgment clearly reveal what
I would describe as strong evidence, not in support of the Applicant's claim but rather in support of the Respondent's defence. Indeed, towards the end of her cross‑examination and prior to re‑examination, in the last extract set out earlier in this judgment, the witness, in response to the question, "That's how it works, isn't it?" answers, "Yes, that's how it should work."
During the course of re‑examination it is significant to note the following:
“When you use the word "appropriate", what do you mean by "appropriate"?---I don't know how his arm works, but there may be movements that he would make that aren't a useful way for him to be reinforced, and there's other ways of doing it that would be useful. I'm not a therapist. So I don't know. But that would be the sort of thing, and it would depend on the child what it was. So SNSS funding allows for professional development for training of staff by appropriate therapists. So they're doing the right thing. They're not doing anything that will long-term disadvantage the child that support it, but it's not therapy. It's applying what the various therapists - and somewhere along the line we've seen that they have come into the centre. So it's applying what they say, and there's been evidence of sharing of knowledge along the way. So that's what I would see and what my interpretation of the SNSS funding is. So you're not neglecting the kid with a disability and you're not disadvantaging him, but you're not - a teacher, a staff member, is not expected to be a therapist. They're expected to do appropriate things as they have been - I use the word "things" very loosely, but appropriate ways of making sure that Applicant N and any other child with a disability can participate to the best of their ability, and for developmental outcomes that are as optimal as they can be for that child.”
(Transcript p.308 lines 10 to 29)
I shall further incorporate in this judgment the following extracts from the evidence of Professor Ochiltree in re‑examination:
“Are you able to determine whether or not they are, based on what's said in these documents, observations pursuant to a plan ensuring that Applicant N used his right hand?---All the way through, the notes emphasise - not on every page, but encouraging him or observing him in using his right side, and in particular his right hand, just even glancing through now, and other things about using his legs, you know, climbing up the
A-frame. The evidence that I'm seeing today is evidence of quite a bit of planning and observation, and anything that a centre does, that a staff member does, should be based on observation, on knowledge of development and on knowledge of what Applicant N's special circumstances are with his disability and his needs.
I take it from what you said that there ought to be, as part of - your affidavit has made plain that there ought to be a program for each child?---Yes.
The observations that - do you say that that an observation that he's using his right hand or being encouraged to use his right hand is evidence of a program or a plan?---It's evidence of the observation on which those programs which I saw - I know you don't want me to mention them. However, they are the programs. They're the observations and they also contain observations, and that's what you plan on. You plan on it for every kid, not just Applicant N. He has particular needs, and that was the evidence I saw. I mean, this was what I was saying I had seen no evidence of. I have now seen evidence of, and it's what I would expect. It's what I would like to see. I'm not sitting in the classroom seeing how wonderfully they interact, because a lot in child care is to do with the relationship within the centre between the child, the staff and the parents. I can't see that, but there's every evidence that they're trying to communicate with the parents. Those quarterly returns have been signed by a parent. If the parent didn't like it, they may not have wanted to sign it. I don't know. I've seen evidence of planning now at an individual level, a group level and a room level. It's based on observations, and that's what we want to see in child care, based on observation of the individual child.”
(Transcript p.310 lines 35 to 45 and p.311 lines 1 to 21)
That evidence of Professor Ochiltree, in my view, directly addresses what I regard as the core issues of the claim set out in the extracts from the Statement of Claim earlier in this judgment and addressed relevantly in other evidence of the next friend of the Applicant and another supporting witness.
The evidence, as I have indicated, in my view, is evidence which goes not to support the Applicant's claim but rather, effectively and ultimately, to support the Respondent's defence. It does so in what I regard as a clear and concise manner and it is perhaps not surprising given that, in the circumstances, when the witness had completed her affidavit earlier this year, I am satisfied she was not in possession of what might be regarded as relevant documents.
It is clear that other evidence was relied upon in support of the Applicant's claim. It is equally clear that in discharging my duty I should not draw any particular adverse inferences necessarily against any witness at this stage of the proceedings. Nevertheless, the evidence of the next friend contained what I would describe as limited observations. It is noted that the next friend did not call the mother of the child, that is, the next friend's former wife.
It is not appropriate to draw a ‘Jones v Dunkel’ inference at this stage of the proceedings but it is appropriate to note that there is at least a deficiency of evidence from another parent in relation to what might be described as contemporary or relevant events. I refer to the transcript of the evidence of the next friend which, in my view, reveals what could only be described as a somewhat limited opportunity to make any or any adequate assessment of the reality of the Respondent's premises. The following appears during the course of evidence‑in‑chief:
“Can I ask you: prior to the beginning of 2004 but after Applicant N started at the centre in January 2002, did you personally go to the centre on any occasions on which it was open to you to inspect what was happening with his special needs program? ---Yes, it was open to me, but I had no reason to suspect that nothing - that there was anything going wrong. So I would very rarely spend any time at the centre other than just to pick him up and drop him off.”
(Transcript p.23 lines 20 to 25)
Evidence was also relied upon by the Applicant of Brian John Hoare, an occupational therapist. In my view, that evidence is also likewise limited. In the transcript the witness during the course of evidence‑in‑chief was asked a number of questions, including questions concerning his use of the word "goals" as follows:
“MR PERKINS: You’ve used the word “goals” I think and you’ve mentioned “evaluation”. When you talk about goals what sort of goals would you expect in the case of say [Applicant N] would need to be dealt with by an inclusion support plan? Can you give us some example of the sorts of things that one could expect to find?---Well, the most obvious for a child with hemiplegia such as [Applicant N] is perhaps from an upper limb management point of view is to encourage use of the right hand in its normal role which is an assisting hand, and I think you really need to set realistic goals at different stages of development and an understanding where [Applicant N] is at this stage of development.
When you say “different stages of development” how frequently should the goals be reviewed?--- Say for a child of 18 months you would need to review them at least on a sort of three-monthly maximum basis.”
(Transcript p.46 lines 5 to 19)
I note in passing, however, that that reference to "goals" would appear to be at least largely consistent with the manner in which Professor Ochiltree approached the task given to her both in her affidavit and oral evidence.
At page 57 of the transcript, it is relevant to note, in the further evidence of Mr Hoare in cross‑examination other comments were made in relation to the material and what had occurred in terms of strategies in place by the Respondent dealing with the disability of Applicant N.
“MR WILSON I’m sorry. Yes, if he could.
Perhaps before we deal with the affidavit, can I just clarify one thing with you, Mr Hoare. What [Applicant N] needed, given that he had a right-sided specicity, is he needed encouragement in his early developmental years to use the right side. That’s it in a nutshell, isn’t it?---Very basically yes.
Yes, very basically?---But within that, encouragement can take on many different strategies.
Such as?---Such as? In term of actually understanding, as I’ve said before, the roles of the hand and what normal hand function is in bi-manual play and most of the activities – all the activities what we do in such children, or the treatment that we provide is within play. Choosing the appropriate toys and equipment to use for [Applicant N] in --- “
(Transcript p.57 8 to 20)
…
“You started to see [Applicant N] in 2001, did you not?---Correct.
At that time, he was not in the crèche. Correct---From memory, no.
He hadn’t yet started. Is that right. Okay. You then swore an affidavit, 4 March 2005. Do you see that?---Yes.
In paragraph 1 of that affidavit, you say that, “[Applicant N] has made significant progress in his handskill development over the past four years.” Is that so?---He has.
Do you include 2005 in that period?---It would have been probably to end of 04.
Working backwards, you would include 2005, 2004, 2003, 2002. They’re the four years you’re referring to?---Correct.
In that period you’re saying in your affidavit, that he “has made significant progress in his handskill development”, and you’re referring to his right side, are you not?---Yes, that’s - part of bi-manual is part of handskill development.
You go on to say that he “has much improved spontaneous use of his right hand”, Correct?---He does.
The side, the hand with his disability. Correct?---Yes, compared to that ---
His gross grasp grip has become very effective in that period of time?---Yes, correct.
I’ll take it and you don’t have to be bashful about this Mr Hoare, but some of the strategies that you’ve developed for [Applicant N], you would attribute that progress to those strategies, would you not?---Part of the overall care at Monash, yes.
That he has had. But of course, the only way that a child can make significant progress is if the strategies that are developed by people such as yourself are implemented in a day-to-day basis?---Correct.”
(Transcript p.59 lines 14 to 45 and p.60 lines 1 to 6)
…
“It’s got to be reinforced in a daily basis?---That’s right, in all environments.
In a normal environment.
HIS HONOUR: Sorry, did you say “normal” or “in all”?---All environments.
MR WILSON: I’m sorry, thank you, your Honour.
All environments?---Yes.
So that would be his crèche environment, as well as his home environment. Correct?---Yes.
Now, you know that [Applicant N] spent a large proposition of each week at the crèche, don’t you?---Correct.
It goes without saying that he could not have achieved what you described as “significant progress” without those therapies and strategies being put in place by one of his principal caregivers, namely the crèche?---that would perhaps be correct, but I haven’t seen anything.
That’s exactly right. But you haven’t seen it, but if follows, doesn’t it? The only way the he could have made what you call “significant progress” is the place where he spends five days a week, probably 11 months of the year, implementing those strategies and encouraging the use of his right hand?---Whether or not those are part of a co-ordinated team approach, I’m not sure. [Applicant N] did receive quite a lot of treatment at Monash. He’s had four lots of Botox injections and quite intensive therapy from part of a rehab program at Monash. Yes he does spend the majority of his time at crèche. It’s a minimal amount of time at Monash. But I think in terms of coordination of his care and coordinated approach, I’m not sure whether or not they were incorporated into his program at child care.
You don’t know because you weren’t there. Correct?—No, I wasn’t there and I haven’t seen ---
You’ve never been there. You’ve never been asked to go there to view them. Correct?---No, I’ve never been asked and I’ve never been sent---
We know that. What I’m asking you, as an occupational therapist, is very simply this: this child could not have made significant progress that you observed over the previous four years, going back from March 205 if the place where he spent most of his time was not implementing appropriate therapies on his right hand. It follows, doesn’t it?---It does make some sense, yes.
Of course, it does. It’s an absolute inevitable conclusion, isn’t it, Mr Hoare? Do you agree with that?---Yes In terms of his development, he did improve quite a lot over those four years.
No that’s not the question. I’m saying it’s an inevitable conclusion that the crèche provided the appropriate therapy to his right hand. That’s the only way he could have made significant progress?---I can’t answer that because I wasn’t at the crèche.”
[Emphasis added]
(Transcript p.60 lines 11 to 45 and p. 61 lines 1 to 23)
I note in passing that the extract of the transcript which appears at page 61, and in particular the question and answer which appears at line 15, relevantly contains the passages emphasised.
In cross‑examination of Mr Hoare the following appears,
“Thank you. Then the next paragraph, “Yesterday [Applicant N] was completing a six-piece puzzle and tried consistently to use his right hand and grasp a puzzle knob. We have introduced some larger puzzles with knobs to accommodate this, also throwing balls much throughout the day.” They’re appropriate therapies or strategies or activities for a person such as [Applicant N] that the crèche needs to encourage to use his right side, aren’t they?---They are, yes.
Over the page. 30th, six days later, “Today [Applicant N] enjoyed crayon drawing with left hand, although he is showing more interest in his right hand of late with hand washing and he passed the “- I think it says “crayon” – “to his right hand. He held it for a while and then passed it back to continue drawing. He did horizontal lines and curves.” Again, this is appropriate for a boy than needs to have his right side encouraged, is it not?---I would also, yes, it’s just part of the actual – of any normal developing child as well with any activity perhaps at a child care centre so---
This boy is being encouraged to use his right hand in this activity, isn’t he?---According to this, it is saying that.
Over the page, [Applicant N] enjoyed using both hands to play with clay today. He used his right hand to hold small pieces in his left hand to mould. [Applicant N] also had fun kicking a ball with friends.” That’s an appropriate for this sort of boy, isn’t it, with his disability?---Clay definitely is but in terms of actually within that activity, just using the hand, whether or not this child care worker actually understand where [Applicant N] is at in his hand-skill development and perhaps what – just using clay, perhaps you could just put your hand on there or dependent on where [Applicant N] in his development, you could look at particular aspects of that and part of our job is to actually break down the activities, look at where [Applicant N] is having his difficulty and then provide strategies to the child care worker to do that.
(Transcript p.65 lines 14 to 44)
Go four pages on. There’s a photograph. “Rolling the clay in his right and left arm.” That’s a appropriate strategy, isn’t it, for this boy?---It’s one of.
He’s not putting it on the tale. This is rolling it, both hands, that sort of activity?---Yes, that’s definitely one that you would use to encourage two hands.”
(Transcript p.66 lines 1 to 6)
It will be clear from a proper analysis of that evidence, extracts of which I have endeavoured to set out in some detail in this judgment, that, in my view, neither of the other witnesses, that is, the witnesses other than Professor Ochiltree, assist the Applicant's case in any meaningful sense or would enable this court to make findings in favour of the Applicant.
It seems to me that in the circumstances the submissions made for and on behalf of the Applicant that there is a case to answer fails entirely to properly assess and evaluate the state of the evidence up to and including the time that Professor Ochiltree gave evidence, but certainly on and after the time when Professor Ochiltree gave evidence, including the period of time when she was cross‑examined after having made available to her what I regard to be relevant and appropriate material. It is my view that the submissions of the Applicant in relation to the state of evidence or in relation to the question of whether there is no case to answer should be rejected.
On my analysis of the material it is evident and leads to a strong conclusion that in applying the relevant principles, which I am bound to apply, set out in Protean the no-case submission should be upheld.
I conclude that the evidence for and on behalf of the Applicant is not sufficient to de‑bar the Respondent from obtaining judgment without having to answer the evidence adduce against it. In my view, the evidence against the Respondent is so unsatisfactory and/or unreliable that it should not be acted upon.
Indeed, when properly taken to the relevant documents, as I have indicated, the key aspects of the Applicant's claim which were dealt with during the course of the evidence and considering the evidence in totality, it is my view that it would not be reasonable to expect the Respondent to in fact now be required to answer that evidence.
I am satisfied that the key expert witness, Professor Ochiltree, gave her evidence in what I describe as a fair and genuinely independent manner. She gave answers, however, which I have indicated earlier, effectively support the Respondent's defence rather than the Applicant's claim. My assessment of the evidence, as I have indicated earlier, is based not on the Briginshaw test but rather on the normal balance of probabilities standard of proof. I have done that, out of an abundance of caution, in order to give the greatest advantage that I may to the Applicant when considering this ‘no case’ application.
It follows, for the reasons given, that the application that there is no case should be upheld and the order of the court is that the substantive application be dismissed. It is appropriate that I direct that the reasons for decision that I have just given, effectively ex tempore, be transcribed and upon review shall constitute my reasons for judgment in this matter.
In the circumstances I do not see any reason why costs should not follow the event.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 December 2006
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