Ferguson v Dept of Further Education - [2005] FMCA 954

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FERGUSON v DEPT OF FURTHER EDUCATION

[2005] FMCA 954

HUMAN RIGHTS – Disability discrimination in education – where the applicant is profoundly deaf – where the applicant primarily communicates using the Auslan language – where the applicant claims that his access to the benefit of an IT education at TAFE was limited by requiring him to undertake his learning with the provision of a maximum of 6 hours Auslan interpreting per week – where it took the applicant 7 years to complete the course – where the applicant claims that 15 hours per week constituted the reasonable provision of interpreting services in all the circumstances – whether the applicant could have completed the course in the three and a half years if he had received 15 hours per week – whether more than 6 hours of interpreting assistance per week was actually made available to the applicant – whether the applicant ever requested additional hours of interpretation assistance – whether the learning needs of the applicant were properly assessed by TAFE.

Disability Discrimination Act1992, ss.4, 6 and 22(2)
Federal Magistrates Court Rules 2001

Waters v Public Transport Commission (1991) 173 CLR 349
Catholic Education Office v Clarke [2004] FCAFC 197

Applicant:

DAVID JOHN FERGUSON

Respondent:

THE DEPARTMENT OF FURTHER EDUCATION EMPLOYMENT SCIENCE AND TECHNOLOGY (STATE OF SOUTH AUSTRALIA)

File Number:

ADG167 OF 2004

Judgment of:

Raphael FM

Hearing dates:

22-24 June 2005

Date of Last Submission:

24 June 2005

Delivered at:

Sydney

Delivered on:

21 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr S Churches

Solicitors for the Applicant:

Helen Campbell, Solicitor

Counsel for the Respondent:

Mr M Ahern

Solicitors for the Respondent:

Crown Solicitors Office

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(a) and Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

ADG167 OF 2004

DAVID JOHN FERGUSON

Applicant

And

THE DEPARTMENT OF FURTHER EDUCATION EMPLOYMENT SCIENCE AND TECHNOLOGY
(STATE OF SOUTH AUSTRALIA)

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are brought by David John Ferguson, a person who it is admitted has a disability within the meaning of s.4 of the Disability Discrimination Act 1992 (“DDA”) by reason of his profound deafness. Mr Ferguson was a student at the Tea Tree Gully campus of the Torrens Valley Institute of TAFE where between 1997 and 2004 he undertook studies towards a Diploma of Engineering (Electronics) in the Paraprofessional – Technician stream. Mr Ferguson claims that in breach of ss.6 and 22(2) of the DDA TAFE limited his access to the benefit provided by that institution of an education in the IT course in which he enrolled by requiring him to comply with the requirement or condition that he substantially attend his classes, undertake resource based learning and communicate with other students, lecturers and support officers (“undertake his learning”) with only limited assistance from an Auslan interpreter. The affect of the imposition of this requirement or condition was to extend the time which he took in order to complete the course from the three and half years which he proposed to some seven and a half years in actuality. The mean time taken by students on the course was some two and a half years [Annexure DJF1, Affidavit of DJ Ferguson 4 March 2005].
Mr Ferguson states that he was initially offered six hours of Auslan interpreting per week in order to undertake the course but admits in the first two years of the course this was extended to a shared twelve hours a week with one other student and that between October and December 2000 he had for eight weeks extra support provided for a Windows course at the rate of three hours per week, that he received some extra assistance for the undertaking of another evening course and in the first semester of the year 2004 he received interpreting at the rate of fifteen hours per week to enable him to complete the course.
The respondent denied the imposition of the requirement or condition, suggested that Mr Ferguson did not make full use of all the hours provided or offered to him and asserted that the time taken to undertake the course was a product of Mr Ferguson’s own needs and requirements. The respondent also asserted that the provision of six hours of Auslan interpreting per week was reasonable in all the circumstances.
Mr Ferguson claims damages including special damages for economic loss based upon earnings he says he would have made had he completed the course within his original proposed time frame.

The Evidence

The applicant filed two affidavits on 17 August 2004 and 4 March 2005. He told the court that he had been profoundly deaf from childhood and that he had never learnt to speak. His first language was Auslan, and English was his second language. He had difficulty in written expression and comprehension of the English language which made it difficult for him to undertake educational courses that required considerable reading or which introduced new concepts without the assistance of an Auslan interpreter. Because the Auslan language is necessarily limited its use in the technical area has to be adapted. This requires the interpreter to be in a position to grasp concepts and where necessary clarify them with the tutor before translating them to the deaf subject.
Mr Ferguson originally learned and worked in the trade of a cabinet maker. However, he believed he had an aptitude for technical matters and wished to go into the IT field. His particular interest was in the physical side of computer networking and systems administration as opposed to programming or software development. He is a married man and his wife, who is also profoundly deaf, works. They have children, one of whom has suffered from diabetes and coeliac disease. In the mid 1990s the child required constant medical attention. Mrs Ferguson encouraged her husband to undertake the TAFE course which also enabled him to provide primary care for their children. She understood that her husband would be completing the course part time and that because he had not studied for some years would commence slowly to see how he went.
Before he commenced the technical course Mr Ferguson undertook a preliminary maths course in 1996. He passed this. During this time he had at least one meeting at the TAFE in which he discussed his needs. He was told that the TAFE could offer him six hours per week of Auslan interpreting. He indicated that he did not believe that this was enough and wanted fifteen hours per week. TAFE informed him that this could not be provided by them although suggestions were made that funding assistance could be provided through the Commonwealth Rehabilitation Service or possibly some other third party.
These discussions took place in late 1996. In about February 1997 he undertook aptitude examinations in mathematics and english. He achieved an almost perfect score in the maths exam but only 50% in the english exam. Notwithstanding his rather low score in english the responsible officer of the faculty at TAFE considered that Mr Ferguson could cope with the course and agreed to enrol him. There was a further meeting with Mr Burgess and a Ms Susan Herbert who was contracted to TAFE as a Consultant in Senior Secondary Education for deaf students during which the interpreter hours question was again raised by Mr Ferguson. Mr Burgess indicated that he had been in touch with Mr Lloyd Bennetts who was the co-ordinator of the State Wide Disability Support Service for TAFE. Mr Bennetts had advised that funding for six hours of Auslan interpreting would be made available. Mr Ferguson had originally asked for fifteen hours per week but had modified his request from fifteen to ten hours. There appears to have been some suggestion that assistance could be obtained from CRS but the evidence would indicate that this was only available for full time courses. At that stage Mr Ferguson wanted to commence part time because he had not studied for a number of years and wished to ease himself into the program.
The flexible learning system adopted at the Tea Tree Gully TAFE was an innovative one. There are no lectures as such. The course is delivered by way of modules that include computer based learning, practical demonstrations, tutorials, independent readings and tests of various types. The program is available at all times during the normal TAFE day and lecturers are available for discussions with students, one on one explanations and tutorials. The total course consists of some twenty-five modules and each module is intended to be completed within forty hours of coursework. Forty hours of coursework requires an additional forty hours of homework. There has never been any expectation that Mr Ferguson would be assisted by an Auslan interpreter with his homework. He accepts that he was required to do this independently using his English skills which both he and the TAFE faculty hoped would improve during the time he was undertaking the course.
Some of the modules are of an extremely practical nature. One, taught by Mr Burgess, involved soldering. Mr Ferguson was able to undertake this module with a minimum of assistance from an interpreter. Other modules related to matters in respect of which Mr Ferguson had particular experience or ability and he would be able to undertake these more speedily than others which introduced concepts that were new to him and were difficult to comprehend. In regard to these he would need more time with the Auslan interpreter.
Mr Ferguson commenced his course in March 1997. The evidence from Mr Holland, who had been appointed Mr Ferguson’s mentor, was that a full time student would normally be expected to do twenty modules a year. It was difficult to assess what a part time student would be expected to do because that was very much influenced by their personal circumstances. For example, some students might be working full time and only have time for a very small number of modules. Mr Holland gave evidence that he believed Mr Ferguson’s progress in 1998 to 2001 varied between the good to the exceedingly good for a part time student. Mr Holland gave evidence that at the beginning he noticed that Mr Ferguson attended at the TAFE almost every day of the week even though he was only provided with an Auslan interpreter for part of that time. This led him to the view that Mr Ferguson was probably working to his capacity in those early years and that he was unlikely to have been able to undertake more modules even if he had more interpreting time.
Mr Ferguson’s interpreter was Leigh Russell. She appears to be an exceptionally able person who had responsibilities not only for the hearing impaired but also other disabled persons in the TAFE. Her allowance of hours at the Tee Tree Gully complex was twenty hours per week. Within those twenty hours there appears to have been some flexibility. Right from the start Mr Ferguson was not limited to the six hours a week that he had been told he would get. Another student was taking the same course as Mr Ferguson, although he was somewhat ahead of him. His name was Andrew Trenwith. It was agreed that Mr Trenwith and Mr Ferguson’s six hours each could be combined so that they were effectively with the interpreter for twelve hours. Mr Ferguson confirmed in his evidence this was a satisfactory situation that lasted until 1999.
Mr Ferguson gives evidence of an early enthusiasm for the course and motivation to attempt to achieve as much as possible on his own. He stated at [17] of his affidavit filed on 4 March 2005:
“I did try at first to read my workbooks by myself. My wife often encouraged me to try and do the best I could. I was very motivated at the start of my studies. I eventually gave up on this as I would get lost and frustrated too easily.”
He also stated at [19]:
“I had many discussions with my mentor from time to time about what I still needed to do to complete the course path I was on. These meetings had to be fitted in to the allotted six hours per week of interpreter support.”
These conversations were not corroborated by either Mr Burgess or Mr Holland. The first of these quotations ties in with the evidence of Mr Holland that Mr Ferguson did begin to lose motivation and that in the latter part of his course he would only attend at the TAFE when his interpreter was there or when he could be sure he would be able to speak directly to Mr Holland. Mr Holland has some small knowledge of Auslan and can sign. He had increased responsibilities over the years but would make time every week for Mr Ferguson. Other evidence given by witnesses from the TAFE indicated that in addition to interpreting time Mr Ferguson did received one on one tutoring from faculty staff who adapted their approach to his disability. Mr Ferguson argues that this was not as good as interpreted tuition and he is probably right, but it was certainly more than the average student received.
Ms Russell gave evidence to the effect that after the Trenwith arrangement ended although six hours a week was the allotted time she actually provided between nine and ten hours a week to Mr Ferguson. Mr Ferguson’s evidence was that he attended at TAFE on Tuesdays and Wednesdays for interpreted sessions. Ms Russell confirms that. Mr Ferguson says he was only there for three sessions, usually the morning and afternoon on a Wednesday and either the morning or afternoon on a Thursday. Ms Russell says that he had four sessions. She said that allowing for time to get into class and out the sessions would last about two hours and fifteen minutes. Ms Russell would also give assistance to the applicant in relation to papers being prepared by him and in relation to his participation in group projects. I am not entirely clear whether all of this work was additional to the nine hours that I have referred to but there is no doubt that some of it was. I think the end result of Ms Russell’s evidence is that she gave Mr Ferguson approximately ten hours per week of her time. She said that she had the flexibility to do this within her twenty hour allocation. It was Ms Russell’s view that a person with Mr Ferguson’s intelligence, but his disability, would need about fifty-five to sixty interpreting hours to undertake a forty hour course. She also gave evidence that she offered Mr Ferguson the opportunity of more time, in addition to the ten hours I have discussed, on a Monday afternoon but Mr Ferguson told her that he could not do this because he was required to look after his son. She gave evidence that she was also available on Thursday evenings when another student with a hearing disability, Mr Mayfield, attended. This time was available between 2002 and 2003. The Monday afternoon offering started in 2003. The gravamen of her evidence is therefore that Mr Ferguson was given ten hours per week and had the opportunity of a further two hours per week from the year 2002.
Mr Ferguson agrees that he was offered this extra time by Ms Russell but says that the Monday times were dependent upon Ms Russell’s other students not taking priority. He was concerned as to how Ms Russell would contact him if she could not assist in any one week. Mr Ferguson wanted certainty in the provision of services. He had similar concerns about the Thursday evening offerings. Mr Ferguson did not pass all of his subjects first time. Sometimes he was required to repeat tests but his marks in general, as evidenced by his academic transcript, indicate a high number of credits and distinctions.
In the year 2002 Mr Ferguson obtained employment with a company known as Protac in the IT sphere. During that year he only did one module. He was assisted in obtaining the position by interpretation from Ms Russell and was obviously a respected employee because he was asked whether he would work for that company full time. He considered the matter with his wife and decided that if he did that he would not be able to complete his course, which he wished to do. He declined the offer and regrettably, shortly thereafter, all casual positions within the organisation were abolished and he became unemployed. Mr Ferguson was also sick for about six months in 2002.
Mr Ferguson returned to the course in 2003 on the same basis as previously. He says that he made known his frustration at the slow pace of progress to Ms Russell and that she responded “What can I do” indicating, he believed, that she was tied to the limited hours. But Mr Ferguson never approached anyone in authority at TAFE such as Mr Burgess or Mr Holland or particularly Mr Lloyd Bennetts to request further hours. Eventually in 2004 the faculty got together and made an application for him. Fifteen hours per week of Ms Russell’s time was allotted and he completed the course in one semester.
Mr Lloyd Bennetts was called by the respondents. He confirmed that at the time Mr Ferguson commenced his course six hours of Auslan interpreting was the norm from TAFE funding. He never met Mr Ferguson and communicated about him through Ms Russell and the TAFE faculty. He did not carry out any needs assessment. He seemed to be stuck in a mindset that interpreters were to be used for pedagogic situations and found it difficult to understand how one would be used for the type of course that Mr Ferguson had enrolled in. He assumed that Mr Ferguson’s abilities allowed him to undertake the reading and writing that were required by the course without assistance and he did not appear to believe that a student might need help to comprehend the flexible delivery course. Mr Bennetts’ evidence was that by about 2000 more money was available for Auslan interpreting. He had been given $50,000 specifically for deaf people. The problem was that unless you asked Mr Bennetts for something it would not be given. He assumed that only people who asked needed. He was entirely reactive. Mr Ferguson did not ask directly. Until a request was made on his behalf in 2004 no extra time was allotted to him by Mr Bennetts, although Mr Bennetts allowed Ms Russell flexibility within her twenty hours which redounded to Mr Ferguson’s advantage. When he was asked in 2004 he readily granted the fifteen hours per week which enabled Mr Ferguson to complete the diploma.
Mrs Ferguson confirms that her husband became more frustrated with the course as the time he took expanded and she encouraged him to request more interpreting hours. Her evidence is that her husband spoke to Ms Russell but there is no suggestion that he spoke to anyone else at the TAFE. Mr Ferguson gave evidence that he had said to Ms Russell that he wanted to do the course full time. Ms Russell’s version is that he once said to her “I wish I had done the course full time.” She said that Mr Ferguson had never made an application to do the course full time at any stage and it would seem that if he had done so he would have been permitted.
I asked Mr Ferguson a number of questions about the time he thought it would take for him to complete the course. He indicated that for twenty-five modules at forty hours per module a thousand hours would be needed for a non disabled student but for him one thousand two hundred and fifty hours would be more appropriate. In answer to questions from me Ms Russell indicated that with her understanding of Mr Ferguson’s ability she believed he would need between fifty five and sixty hours for a forty hour course which would equate to about one thousand four hundred and fifty hours. TAFE is open for forty weeks per year of effective teaching time and so to complete the course within the three and a half years which Mr Ferguson believed was a reasonable time would require interpreting time of approximately 10.4 hours per week. [1450/(3 x 40) + 20]

Findings on the evidence

The most significant areas in dispute between the parties were:
(i)was more than six hours of interpreting time made available to the applicant and if so how much
(ii)how much time did he actually receive
(iii)did he request more time
(iv)was it reasonable for Mr Ferguson to accept the additional time offered by Ms Russell on Monday’s and Thursday’s
(v)could Mr Ferguson really have completed the course in three and a half years
I will deal with each in turn.
I am satisfied that it was TAFE policy at the time Mr Ferguson enrolled that Auslan interpreting should be restricted to six hours per week unless funding for further time could be obtained from an outside source. This was communicated from Mr Lloyd Bennetts’ office to members of the faculty and to Ms Russell. I am satisfied that unless Mr Ferguson made a direct request through the faculty or Ms Russell to Mr Bennetts for more time no further hours would be made available to him from TAFE funds. If he had made such a request and noting that he did make a request for extra hours for two special courses and was given extra hours at the request of the faculty in 2004, it is reasonable to believe that some extra time would be given but I have no evidence of how much. But the situation in February 1997 was immediately altered by the combination of Mr Ferguson’s six hours with those of Mr Trenwith so that from March 1997 until August 1999 Mr Ferguson had the equivalent of twelve hours of interpreting. I am satisfied that both Mr Ferguson and Mr Trenwith received the benefit of the full twelve hours because of the way in which the course was delivered and the requirement to do some work on your own without the interpreter. This allowed the interpreter to be constantly available for the whole period.
I prefer the evidence of Ms Russell to that of Mr Ferguson in relation to the amount of time that he actually received from her. I was impressed by Ms Russell as a witness and accept that she went out of her way (as did all of the people with whom Mr Ferguson had personal contact at TAFE) to assist him. Mr Ferguson’s affidavits are inaccurate in at least one other particular of importance. They indicated that he had spoken to Mr Lloyd Bennetts. He had not done so and admitted that. I think he was equally inaccurate about the amount of time that he actually received as opposed to the amount of time that he was initially offered and which the faculty of TAFE, at least, considered to be available. I am satisfied that Mr Ferguson received between nine and ten hours of Auslan interpreting time between August 1999 and December 2003 with the exception of the year 2002. I am afraid that I am completely in the dark about how many hours he received in that year but I do not think that it is of concern. Mr Ferguson did not say that he could have done more than the one subject that he passed during that year because of his other commitments to work and his serious health problems.
Mr Ferguson agreed in evidence that the only person to whom he would have made requests for further time was Ms Russell. He says he did do that and that she indicated that she was unable to help him because of the restrictions. She on the other hand says that she did offer him more time on Monday’s and Thursday’s. He accepts that she made these offers but says that it was not reasonable for him to take that offer up on either day. Mr Ferguson wanted time dedicated to himself paid for by TAFE. He believed that what Ms Russel was offering him was the equivalent of shared time. In any event it was not offered until quite late in the day, from 2003, after the three and a half years had passed.
I can see the force of Mr Ferguson’s argument that it would have been difficult for him to take up the offers put by Ms Russell because he needed to know that the time made for him was truly available to him. He is right to say that it would be hard for Ms Russell to communicate with him if on any one particular day her other students would have to take priority. Ms Russell says that Mr Ferguson would always take priority but I think that this is unlikely given her commitment to all of her students. The argument put forward most strongly by the respondent is that there was a very good reason why Mr Ferguson refused the Monday afternoon offering and that was because he was looking after his son and had to bring him home from school. I do not accept this. I prefer Mr and Mrs Ferguson’s evidence which was to the affect that they moulded his parental duties around his TAFE sessions rather than the other way around. I think that if Mr Ferguson had been told by Mr Lloyd Bennetts that a further two hours was available to him on Monday afternoons he would have made other arrangement for his son and would have attended. I do not believe, as was suggested, that the Thursday evening time slot was not utilised by Mr Ferguson because of family duties. I feel that if dedicated time had been allotted that he would have attended on that day as well.
I am satisfied that Mr Ferguson intended to complete this course on a part time basis. I am satisfied that when he commenced the course he intended to do so slowly. It would therefore always be a push to complete the course within the three and a half years nominated by Mr Ferguson. I was impressed by the evidence of Mr Holland, which was not seriously challenged, that at the beginning of his course Mr Ferguson would attend the TAFE almost daily. He would be doing work on his own without the interpreter although he would be assisted by the lecturers that were present. Both Mr Burgess and Mr Holland gave evidence that they had made a particular effort to design ways in which they could communicate with Mr Ferguson without the need for the interpreter and I have no reason to believe that they did not do this. It was Mr Holland’s view that Mr Ferguson was working to full capacity at least up until 2001. I think a change came over Mr Ferguson after his illness and his introduction to the IT workforce in 2002. I think he realised then that he still had a long way to go with the course and that this was one of the reasons for what Mr Holland describes as “de-motivation” which was confirmed by the evidence of Mr Ferguson and his wife. Mr Holland’s view was that in the latter years Mr Ferguson began to take advantage of the system. He relied quite heavily on Ms Russell to express his thoughts in coherent English. He would accept Mr Holland’s assistance in completion of papers but attempted to procure the right answers to questions, many of which were multiple choice, from Mr Holland by use of questioning and reading of his body language. All these things tend me to the view that for the first three and a half years of the course Mr Ferguson took on as much as he could do and he would have received little benefit from any additional hours of Auslan interpreting. It is to be remembered that he made it clear that he was satisfied with the twelve hours a week he received until August 1999. Mr Ferguson never sought to become full time. It could not be said that he did not do this because he thought that he would only be entitled to six hours per week as a full time student because he never made a request for Auslan interpreting as a full time student but only as a part time one. I do not think that Mr Ferguson’s wish to complete the course within three and a half years was realistic given his intellectual capacity and the complexities of the course.
There is one further matter of dispute between the parties and that is whether or not Mr Ferguson’s needs were assessed. The respondents argued that they were and point to the two meetings before Mr Ferguson started the course. They also point to the decision by the faculty to provide funds for further Auslan interpreting at the end of Mr Ferguson’s course. I do not think that these things satisfy the definition of a needs assessment for a disabled person. Ideally Mr Ferguson should have been asked to sit down with a representative of the faculty, Ms Russell and Mr Lloyd Bennetts and possibly with Ms Herbert. In this way Mr Lloyd Bennetts would have been brought into the group. He could have been proactive in requiring ongoing assistance from time to time so that Mr Ferguson’s progress could be assessed not only against those of a hypothetical part time student, even a hypothetical profoundly deaf part time student, which I suspect is the criteria Mr Holland used when he told the court he thought Mr Ferguson’s progress was satisfactory or better, but against Ferguson’s own criteria to complete the course within a particular time. I think that this type of assessment was particularly important after Mr Lloyd Bennetts received a substantial grant to provide Auslan assistance to deaf persons.

Discussion

The applicant’s claims fall within s.6 and s.22(2) of the Disability Discrimination Act which are in the following form:
6    Indirect disability discrimination

For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)      which is not reasonable having regard to the circumstances of the case; and
(c)     with which the aggrieved person does not or is not able to comply.
22(2)Education

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.
The applicant submits that the relevant condition is that of the limitation on the provision of Auslan interpreting and states at p170 of the transcript:
“If we want to get exact wording that will satisfy the terminology of s.6, the condition is that he be treated on the basis of being substantially a well hearing student.”
The applicant also submits that:
“The requirement to undertake the applicant’s learning with this improper limitation on the Auslan interpreting assistance itself constitutes discrimination because it limits the applicant’s access to the benefit provided by the respondent TAFE.”
The benefit is described as the complete learning experience with a view to the completion of the diploma course within a period of three and half years. The applicant submits that if he had fifteen hours of Auslan interpreting a week it would equate to the provision of one half of the amount of course time that a full time student without a disability would need in order to complete the course within eighteen months. The applicant also submits that if Mr Ferguson had been provided with the fifteen hours of interpreter services from the commencement of his course the cost to TAFE of providing that interpreter service would have in fact been less than the actual cost of providing interpreter services to Mr Ferguson throughout the seven years it took him to complete.
The applicant submits that it cannot be argued that he was a reluctant attender as he had made it clear that he would not undertake courses which required more than six hours attendance per week because he would not have any interpreter services for them. As is submitted at P174:
“So he has held back from enrolling for more subjects once it has become apparent to him, as it did from the meeting on 26 February 1997 that he is not going to receive more than six hours a week of interpreting.”
But this submission is not consistent with the facts as I have found them. I cannot see any reason why Mr Ferguson limited his enrolment to the number of courses that he could handle with six hours per week of interpreting when he was in fact getting twelve hours per week from 1997 to 1999 and ten hours per week thereafter. Another submission which is contradicted by the evidence is made at P176 where the applicant’s Counsel says:
“The point then your Honour as we set out in our submissions, is that if TAFE had not taken that approach [6 hours of interpreting per deaf student] but had adopted a systematic approach of assessing each student’s needs and had dealt with Mr Ferguson on a personal needs basis and that policy of 6 hours a week did not exist, then of course Mr Ferguson might well have completed by the end of 1999 and his education would have been concluded satisfactorily and happily.”
I am quite satisfied that Mr Ferguson could not have completed the course by the end of 1999 if he had fifteen hours per week. This is only three hours per week more than he actually did get until the middle of 1999 and by that time he was nowhere the end of the course. In 1997 he completed 1.5 units. In 1998 he completed 3.5 units. In 1999 he completed 6 units, altogether 11.5 units. Mr Holland’s evidence, which I have accepted, is that in this time he was working at his maximum capacity. In the year 2000 Mr Ferguson submitted that he completed six subjects, but in fact two of those were half subjects so the total completed was five. Mr Holland’s evidence about the applicant working to his capacity extended through this year. Mrs Ferguson refers in her affidavit that her husband began to feel frustration and guilt about the pressure he was placing on his family from the fourth year of the course.
It seems to me that the findings of fact which I have made, namely that Mr Ferguson never intended to undertake the course full time, that for four years he worked at his capacity and that by inference extra hours of interpreting time would not have improved his performance so as to comply with his criteria means the applicant’s case must fail. The reason that Mr Ferguson did not complete the course within three and a half years was not because he did not have sufficient Auslan interpreting time but because the course was simply too demanding for him. If the applicant was to succeed he would have to bring evidence which satisfied me that if he had received more hours of Auslan interpreting than he actually received he would have been able to complete the course in three and a half or four years. That evidence was not forthcoming from either of the experts in the problems of hearing impaired persons Ms Herbert or Ms Elsden. It did come from the applicant. But he was basing his case upon having received less hours than I have found that he actually did receive. Ms Russell did not make any admissions under cross examination to the effect that if more hours had been available the course would have been completed within the time set by Mr Ferguson.
Much was made by Mr Ferguson of the failure of the TAFE to assess his needs and to ensure that he received sufficient interpreting time to maintain progress at a rate that would have been commensurate with that of a non disabled person of Mr Ferguson’s intellectual capacity. But this was not put as a ground of discrimination, it was put as part of the reasonableness test required by s.6(b) of the DDA. The failure to provide assessment was said to prove the unreasonableness of only providing six hours a week of interpreting services, (see p7 Applicant’s Points of Claim). It may be that if the applicant had somehow incorporated the failure to provide the needs assessment as part of the actual requirement or condition rather than limiting the requirement or condition to attending his classes etc with only limited assistance from an Auslan interpreter (p4 of Points of Claim) a case might have been capable of being made out. An example of such a claim would have been that:
“TAFE required Mr Ferguson to comply with the requirement or condition that he undertake his learning and complete his course within a reasonable time without the benefit of a needs assessment.”
That seems to me to a facially neutral requirement or condition which Mr Ferguson could have proved that a substantially higher proportion of persons without the disability were able to comply with. He could also have proved that it was not reasonable having regard to the circumstances of his case that he should be required to comply with it and that he was not able to comply with it. There are no doubt other more elegant ways in which this could have been put so as to bring Mr Ferguson’s claim and the evidence he was able to bring within the confines of the DDA. But I am only able to deal with the case that was before me and not one which might have been. The court cannot allow its natural sympathies with a person under a disability to dictate to it an outcome based upon a case that is not pleaded.
In making these remarks I am sensible of the dicta of the High Court in Waters v Public Transport Commission (1991) 173 CLR 349 at 361 explained by Tamberlin J in Catholic Education Office v Clarke [2004] FCAFC 197 about the importance of the proper characterisation of the requirement from the perspective of a disabled person:
“This observation indicates the importance of the proper characterisation of the requirement from the perspective of the disabled person. Once the nature and extent of the service is clarified, then the impact of the condition can be properly analysed as required by the DD Act.”
I note that P5 of the Points of Claim states:
“TAFE allowed Mr Ferguson to enrol, but required him to comply with the “requirement or condition” that he undertake his learning with the assistance of an Auslan interpreter for only 6 hours per week for the majority of the time he was studying. This had the impact of limiting the number of subjects which Mr Ferguson could study.”
The particular limitation on hours and the effect of that limitation on Mr Ferguson’s enjoyment of the benefits provided by TAFE are there set out. The applicant was clearly conscious when framing his complaint that the facts of his case were not those in Clarke; he had not been refused interpretation, he had completed the course. He felt he should have been able to do this in less time had he been given sufficient hours. The finding of this court is that in those years during which he asserted he could have completed the course if sufficient hours were provided – 1997-2001 – four complete years, he received all the interpreting assistance which he could usefully handle. In so far as later years are concerned the finding is that Mr Ferguson was indisposed or because of employement unable to undertake any course over and above the one subject he did complete in 2002. Only in 2003 could it be said that he might have benefited from extra hours properly allotted to him. The failure to provide the needs analysis meant that his needs and ability to use the hours was not identified. But the failure does not establish his complaint, which relates to earlier years.
In all the circumstances I must dismiss this application as the factual substratum necessary to establish the alleged breach has not been made out. I will also order that the applicant pay the respondent’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and the Schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: