FEDERAL COURT OF AUSTRALIA
Catholic Education Office v Clarke [2004] FCAFC 197
DISCRIMINATION LAW – disability – indirect discrimination – offer of enrolment by a school to a deaf student conditional on the acceptance of a ‘model of learning support’ that excluded the provision of Auslan (Australian Sign Language) interpreting services – reasonableness – Disability Discrimination Act 1992 (Cth) ss 6, 22
Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 11, 12, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 45, 67
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11, 46PH, 46PO
Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1975 (Cth)Federal Court Rules (Cth) O 52 r 14AA
Equal Opportunity Act 1984 (Vic) ss 17, 82
Discrimination Act 1991 (ACT) s 27Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 discussed
Waters v Public Transport Corporation (1991) 173 CLR 349 cited
IW v City of Perth (1997) 191 CLR 1 cited
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 cited
State of Victoria v Schou [2004] VSCA 71 cited
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 referred to
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 referred to
Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 referred to
Australian Medical Council v Wilson (1996) 68 FCR 46 referred to
State of Victoria v Schou (2001) 3 VR 655 cited
Richardson v ACT Health and Community Care Service (2000) 100 FCR 1 cited
Colyer v State of Victoria [1998] 3 VR 759 citedHall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 cited
CATHOLIC EDUCATION OFFICE & ANOR v CLARKE
N 1693 of 2003TAMBERLIN, SACKVILLE and STONE JJ
SYDNEY
6 AUGUST 2004
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1693 of 2003
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
CATHOLIC EDUCATION OFFICE
FIRST APPELLANTMACKILLOP CATHOLIC COLLEGE
SECOND APPELLANTAND:
NICHOLAS GEOFFREY CLARKE on behalf of
JACOB NICHOLAS CLARKE
RESPONDENTJUDGES:
TAMBERLIN, SACKVILLE and STONE JJ
DATE OF ORDER:
6 AUGUST 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
- The appeal be dismissed.
- The appellants pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1693 of 2003
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
CATHOLIC EDUCATION OFFICE
FIRST APPELLANTMACKILLOP CATHOLIC COLLEGE
SECOND APPELLANTAND:
NICHOLAS GEOFFREY CLARKE on behalf of JACOB NICHOLAS CLARKE
RESPONDENT
JUDGES:
TAMBERLIN, SACKVILLE and STONE JJ
DATE:
6 AUGUST 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
TAMBERLIN J:
I agree with the reasons and conclusions of Sackville and Stone JJ. I add the following in relation to the characterisation of the condition or special requirement that the…
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- Case
- [2004] FCAFC 197
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide centred around whether the CEO indirectly discriminated against Jacob by requiring him to comply with a condition or requirement, which a substantially higher proportion of persons without the disability comply or are able to comply, which Jacob does not, or is not able to, comply, and which is not reasonable in the circumstances of the case. The primary Judge found that the CEO had indeed required Jacob to comply with a requirement or condition, namely to participate in and receive classroom instruction without the assistance of an Auslan interpreter. The Judge rejected the CEO's contention that Jacob had been offered a classroom education at a secondary school administered by the CEO, an intrinsic feature of which was that the education would be provided in English.
The court's reasoning was that the CEO's requirement or condition of classroom instruction without the assistance of an Auslan interpreter was not reasonable in the circumstances of the case, given Jacob's disability. The court held that the CEO had indirectly discriminated against Jacob. The appeal by the CEO was dismissed, and the CEO was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellants pay the respondent’s costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.