FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HINCHLIFFE v UNIVERSITY OF SYDNEY | [2004] FMCA 85 |
| HUMAN RIGHTS – Disability discrimination in education – applicant with vision disability requiring special assistance in the provision of course materials – respondent providing some material in standard format and other material in large print on A3 paper and on computer disk – applicant preferring audio format or A4 large print format – whether the university imposed on the applicant a requirement or condition that impacted adversely and particularly on the applicant, considered – whether, if so, the applicant was able to comply with the requirement and whether the requirement was reasonable, considered. PRACTICE AND PROCEDURE – Observations on the difficulties of dealing with lengthy written submissions. |
Anti-Discrimination Act 1977 (NSW)
Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 22, 24
Equal Opportunity Act 1984 (Vic)
Evidence Act 1995 (Cth), s.79
Federal Magistrates Act 1999 (Cth), ss.42
Federal Magistrates Court Rules
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PO, 46PR
A School v Human Rights & Equal Opportunity Commission (1998) 55 ALD 116
Addis v Gramophone Company [1909] AC 488
Australian Iron & Steel Pty Ltd v Banovic (1987) 168 CLR 165
Australian Medical Council v Wilson (1996) 68 FCR 46
Barnett v US Air (9th Circuit Court of Appeals, 1998)
Beck v University of Wisconsin Board of Regents 75 F.3d 1130 (7th Cir. 1996)
Bogle v Metropolitan Health Service Board (2000) EOC ¶93-069
Bombard v Fort Wayne Newspapers Incorporated (7th Circuit Court, 12 August 1996)
Bultemeyer v Fort Wayne Community Schools (7th Circuit Court of Appeals, 18 November 1996)
Central Okanagan School District No 23 v Renaud [1992] 2 SCR 970
Charles v Fuji Xerox [2000] FCA 1531, (2000) 105 FCR 573
CHRC v CHC (1996-10-04) FCT t-2503-94
Clarke v Catholic Education Office & Anor [2003] FCA 1085, (2003) 202 ALR 340
Catholic Education Office & Anorv Clarke [2004] FCAFC 197
Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1, (1997) 80 FCR 78
Commonwealth of Australia v Humphries (1998) 86 FCR 324
Cosma v Qantas Airways Ltd (2002) 124 FCR 504
Court v Hamlyn-Harris [2000] FCA 1870
Dvorak v Mostardi Platt Associates Inc (7th Circuit Court, 10 May 2002)
Elliott v Nanda (2001) 111 FCR 240
Ellis v Mount Scopus Memorial College [1996] VADT 16
Ferneley v Boxing Authority of NSW [2001] FCA 1740
Ferry v Roosevelt Bank 883, F. Supp. 435, 441 (E.D. Mo. 1995)
Fetherston v Peninsula Health [2004] FCA 485
Financial Sector Union v Commonwealth Bank (1997) EOC¶92-889
Finney v The Hills Grammar School (2000) EOC ¶93-087
Forbes v Commonwealth [2004] FCAFC 95
Frost v Chief Constable of South Yorkshire [1999] 2 AC 455
Guibord v The Queen [1997] 2 FC 17
Griggs v. Duke Power Co. (1971) 401 US 424
Hall v Sheiban (1989) 85 ALR 503, (1989) 20 FCR 217
Hills Grammar School v Human Rights & Equal Opportunity Commission (2000) 100 FCR 306
Mandla v Dowell Lee [1983] 2 AC 548
Mole v Buckhorn Rubber Products Inc (8th Circuit Court, 1999)
O’Callaghan v Loder (1984) EOC 92-023
O’Connor v Ross (No 1) [2002] FMCA 210
Page v Smith [1996] 1 AC 155
Purvis v State of New South Wales [2003] HCA 62, (2003) 202 ALR 133
R v Equal Opportunity Board ex parte Burns [1985] VR 317
Secretary, Department of Foreign Affairs and Trade v Styles & Anor (1989) 23 FCR 251
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC ¶92-808
Sivananthan v Commissioner of Police [2001] NSWADT 44
Sluggett v Flinders University of South Australia [2003] FCAFC 27
Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 987, (2002) 123 FCR 561
State of New South Wales v Amery & Ord (EOD) [2003] NSWADTAP 16
State of Victoria v Schou (2001) 3 VR 655, [2004] VSCA 71
Soulitopoulos v LaTrobe University Liberal Club [2002] FCA 1316
State of New South Wales (Department of Education) v Human Rights & Equal Opportunity Commission and Purvis [2001] FCA 1199
Stephenson v Human Rights and Equal Opportunity Commission (1995) 61 FCR 134
Styles v The Secretary of the Department of Foreign Affairs and Trade (1988) 84 ALR 408, (1989) 23 FCR 251
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449
Toronto Dominion Bank v Canada (Human Rights Commission) [1998] 4 FC 205
Travers v New South Wales [2000] FCA 1565
Tremblay v Canada (Attorney General) [2003 FCT 465
W v Flinders University of South Australia [1998] HREOCA 19 (24 June 1998)
Waters v Public Transport Corporation (1991-92) 173 CLR 349
Willis v Conopco Inc (11th Circuit Court, 25 March 1997)
Zygorodimos v Department of Education and Training [2004] VCAT 128
| Applicant: | CHRISTINA ROSE HINCHLIFFE |
| Respondent: | UNIVERSITY OF SYDNEY |
| File No: | SZ838 of 2003 |
| Delivered on: | 17 August 2004 |
| Delivered at: | Sydney |
| Hearing dates: Date last submissions received: | 23-25 February, 13 April 2004 17 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Freehills |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ838 of 2003
| CHRISTINA ROSE HINCHLIFFE |
Applicant
And
| UNIVERSITY OF SYDNEY |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) by Christina Rose Hinchliffe. The proceedings arise out of a course of study undertaken by Ms Hinchliffe at the University of Sydney (the respondent). It is not disputed that Ms Hinchliffe suffers from a disability for the purposes of the Disability Discrimination Act 1992 (Cth) (“the DDA”). She suffers from oculocutaneous albinism, which is characterised by nystagmus, severe photophobia and reduced visual acuity.
Ms Hinchliffe commenced a four year full time course of Bachelor of Applied Science (Occupational Therapy) at the university in January 2001. She originally asserted that the university discriminated against her contrary to ss.5, 6 and 22 of the DDA but the reliance upon s.5 of the DDA was later abandoned. The asserted discrimination is based upon the university failing to provide her, in a timely way, with course material in the form of natural voice audio tapes or, alternatively, in written form in 24 point Arial font on light green paper, together with enlarged diagrams. The university denies that it has discriminated against Ms Hinchliffe.
Ms Hinchliffe made a complaint to HREOC on 16 January 2002 in the form of a letter prepared by Blind Citizens Australia. The complaint was amended by a further letter from Blind Citizens Australia dated 6 May 2002. On 4 February 2003 the then President of HREOC terminated the complaint on the basis that there was no reasonable prospect of the complaint being settled by conciliation.
Ms Hinchliffe instituted proceedings in the Federal Court under the HREOC Act on 4 March 2003. Her application has been transferred to this Court by order of Hely J on 26 March 2003.
The matter was listed for hearing before me for three days commencing on 23 February 2004. The first day was entirely taken up with argument over jurisdiction and objections to evidence. The following rulings or concessions were made:
a)Ms Eastman conceded that no jurisdictional issue arose in relation to the limited application provisions of the Act, having regard to my decision in O’Connor v Ross & Anor(No 1) [2002] FMCA 210;
b)I ruled that the applicant could amend her application to add a claim for general damages;
c)Mr Poynder conceded that the application was limited to events occurring on or before 6 May 2002 (the date of the amended complaint to HREOC): Charles v Fuji Xerox [2000] FCA 1531;
d)Mr Poynder did not press an application for leave to amend the application to add an asserted breach of s.24 of the DDA (Ms Eastman had objected to this amendment on the basis that s.22 of the DDA covered the field in relation to discrimination in education: Ferneley v Boxing Authority of NSW [2001] FCA 1740; cf Clarke v Catholic Education Office & Anor [2003] FCA 1085);
e)I ruled that the applicant was entitled to rely on paragraph (a) and paragraph (c) of s.22(2) of the DDA;
f)I struck out paragraph 7(e) of the applicant’s particulars of claim filed on 9 July 2003 on the basis that the allegation did not form part of the complaint to HREOC or, if it did, the complaint had not been terminated: see s.46PO(3) of the HREOC Act; Travers v New South Wales [2000] FCA 1565 at [8]; Charles v Fuji Xerox op cit at [41];
g)I ruled that paragraphs 7(a)-(d) of the applicant’s particulars of claim must be limited to allegations concerning course material, for the same reasons;
h)I received into evidence with deletions the applicant’s affidavits filed on 4 March 2003 and 12 January 2003, as well as an affidavit by the applicant’s mother (Katherine Hinchliffe) filed on 12 January 2004;
i)I also received an affidavit in reply from the applicant sworn on 23 February 2004 and filed in court pursuant to leave on 24 February 2004;
j)I ruled, for the purposes of s.79 of the Evidence Act 1995 (Cth) that David John Woodbridge was qualified to give opinion evidence and received an affidavit by him filed on 12 January 2004; and
k)I received an affidavit from Dr Frank Martin filed on 12 January 2004 and permitted the applicant to lead additional oral evidence from him directed at obtaining opinion evidence in relation to the need of the applicant to obtain course materials in the form of sound recording or large format typescript on light green paper, subject to the proviso that all documents provided to Dr Martin to enable him to form his opinion would be made available to the respondent and the respondent would have the opportunity to cross-examine Dr Martin.
The applicant’s affidavit referred to a number of other documents exhibited to her affidavit but not produced as evidence. At the commencement of the second day of the hearing Mr Poynder told me that the applicant would not seek to rely on the documents identified as exhibits CH 1-3; CH 5-8; and CH 10-11 in her affidavit sworn on 24 December 2003.
The evidence
The applicant relies upon her own affidavits filed on 4 March 2003, 12 January 2004 and 24 February 2004. She also relies upon the affidavits by David John Woodbridge filed on 12 January 2004 and Dr Frank Martin, filed on 12 January 2004. All of the deponents were required for cross-examination.
Christina Rose Hinchliffe
In her affidavits the applicant deposes as to her disability, her enrolment at the university, and her difficulties in obtaining materials in a suitable format. In her first affidavit the applicant deposes that the university was aware of her disability and her special needs from January 2001 after the university sent her a form which she filled out and after the university accepted her application to enrol in the Bachelor of Applied Science (Occupational Therapy) course. Ms Hinchliffe deposes that she met Ms Sue Hebblewhite on enrolment day in January 2001 and told her that she would prefer copies of course material to be provided on disk. She also requested that if course material could not be provided on disk, that the course material be printed on light green paper in 22 point Arial font. Ms Hinchliffe deposes that she found that no more than a few unit outlines and one manual for her lectures for semester 1, 2001 were available on disk and she assumed she would have to reformat the course material on to disk herself. She went to the State library to use scanning software to scan the manuals onto disk and reformat them. She deposes that this was very time consuming and left her with no time to study.
Ms Hinchliffe deposes that Imelda Bergman, one of her tutors in semester 1, 2001, helped her to investigate ways in which she could reformat the course material. Ms Bergman organised a note taker by approaching students in her tutorial group and also put Ms Hinchliffe in contact with the Royal Blind Society of New South Wales (RBS). Ms Hinchliffe deposes that she found out from the RBS about alternative format services (braille, large print and audio) which the RBS offered.
Ms Hinchliffe deposes that prior to the commencement of the 2001 mid year break a request was made to Ms Hebblewhite for the provision of material for the second semester but only one manual was supplied to be put into large print. The text was too low quality to enlarge and, as Ms Hinchliffe could not read braille, she decided the only other option was to put it onto audio tape. She found this format to be extremely helpful given the large volume of material she was required to read. Audio format also relieved her parents of the need to read material to her. Ms Hinchliffe deposes that she suffers eye strain when she has to read a large volume of material, even in large print. She deposes that six of her seven semester two manuals were only provided to her in the original format with no enlarged font and that no text books in semester two were made available to her in large print or audio format.
Ms Hinchliffe deposes that all examination papers in 2001 were enlarged on to A3 light green paper but were not in 22 point font. Ms Hebblewhite consequently read to her her exam papers.
Ms Hinchliffe deposes that there were discussions with Ms Hebblewhite in second semester, 2001 about Ms Hinchliffe’s problems. They discussed the inappropriateness of the available technologies in the disability room in the library but the problems were not resolved. Ms Hinchliffe deposes that in November 2001 Ms Hebblewhite told her that the university would not be using the National Information Library Service (NILS) for large printing or audio as they were too expensive. She deposes that Ms Hebblewhite told her that the university could supply course materials on disk. Ms Hinchliffe deposes that she told Ms Hebblewhite that reformatting material on disk was onerous. Ms Hinchliffe deposes that she knew that little information was available on disk and that she would be disadvantaged.
Ms Hinchliffe deposes that in November 2001 she was put in contact with Eileen McFazdean from Blind Citizens Australia by the RBS.
Ms Hinchliffe deposes that at no time during 2001 was any material provided to her in 22 point font. She deposes that it was not until 20 December 2001 that Ms Hebblewhite asked Mr Brett O’Neill (course co-ordinator and academic liaison officer for students with disabilities in the School of Occupational and Leisure Sciences) to facilitate the provision of 2002 course materials to Dr Andrea Chan with a view to then being transcribed by NILS. She deposes that Dr Chan told Ms McFazdean that the university could make no decision about what format materials could be provided in until the university budget had been approved. Dr Chan reportedly indicated that she had been encouraged by the university to make as much course material as possible available on disk. Ms Hinchliffe deposes that she contacted Dr Chan on 2 January 2002 and Mr O’Neill on 8 January 2002 to enquire about progress in obtaining 2002 course materials. On 16 January 2002 a complaint was lodged with HREOC. Subsequently, Dr Chan telephoned Ms Hinchliffe to clarify the required format of each piece of course material. Ms Hinchliffe deposes that it was hard to determine the most appropriate format for each piece of material without sighting them or knowing how they were going to be used in lectures and tutorials.
Ms Hinchliffe deposes that on 8 February 2002 she and her mother visited Dr Chan in her office to clarify with her the required format for the course materials that Dr Chan had received to that point. She deposes that it was only apparent upon that visit that it was not practical to put everything onto audio tape as some material needed to be taken to tutorials and practical classes while other material was highly diagrammatical. Dr Chan gave Ms Hinchliffe some unit outline and case studies on disk which Ms Hinchliffe volunteered to reformat herself. She says that she regarded student welfare services as technically inadequate. Ms Hinchliffe deposes that it appeared to her that if she and her mother had not visited Dr Chan on that day that no progress would have been made to put material into an accessible format. Ms Hinchliffe had no further contact with Dr Chan until she resumed university on 4 March 2002.
Ms Hinchliffe deposes that within two weeks of starting first semester in 2002 it became clear what amount of course material she would require. She deposes that she had to constantly prompt the university to process her course materials so that it was put into an accessible format. She deposes that, due to the university’s lack of organisation, she received course material in an appropriate format later than other students.
Ms Hinchliffe deposes that prior to the mid semester assessment period in 2002 she notified the university that her exams were to be made available to her in 24 point font. She deposes that she explained the process of large print formatting to Dr Chan but that she was not taken seriously. She deposes that she was told that she would “just have to wait and see how it goes” as to whether attempts to put examination papers into 24 point font would be successful. She received her examination papers in 12 point font. She deposes that one of the examination papers was incomplete and that Dr Chan, who was supervising the examination, would not investigate. She deposes that she was stressed knowing prior to the exam that it would not be appropriately formatted. An amended complaint was lodged with HREOC on 6 May 2002.
Ms Hinchliffe deposes that in the second semester of 2002 the situation improved.
In her second affidavit Ms Hinchliffe provides more detailed evidence concerning her personal background and her disability. She deposes as to the various formats of written material which she is aware of and her reasons for preferring some formats over others. She deposes as to the reasons for choosing an occupational therapy course and provides more detailed evidence of the circumstances leading up to her enrolment in that course.
Ms Hinchliffe deposes that she found out about the disability services available at the university from a discussion with Brett O’Neill, her attendance at an open day at the university and a forum conducted in the middle of 2000 at the State Library (which the University of Sydney was not represented at). Ms Hinchliffe deposes as to the forms she completed and returned to the university identifying her disability and needs. She deposes as to her attendance at a university information day at the main campus in Camperdown on 4 January 2001. She deposes that on 11 January 2001 she wrote to Jane Gamble asking for special consideration for entry into the occupational therapy degree. She was accepted and subsequently enrolled on 24 January 2001. She deposes as to her discussion with Sue Hebblewhite on that day and says that she did not discuss audio formats with Ms Hebblewhite at that time. She deposes that on 22 February 2001 (orientation day at the Cumberland campus) she obtained some material from Sue Hebblewhite on disk. She later obtained more disks from Ms Hebblewhite during the first two weeks of the semester. She was also given the opportunity to look at the disability services room on that day to see what facilities were available.
Ms Hinchliffe provides detailed affidavit evidence concerning her course subjects and the material required in them in semesters one and two, 2001 and semester one, 2002. She also deposes as to events in the lead up to the second year of her studies late in 2001. Ms Hinchliffe confirms that she took it upon herself to reformat course material in semester one, 2001 as she assumed it was her responsibility. She was, however, given the assistance of a note taker. Ms Hinchliffe found this assistance helpful. Ms Hinchliffe sought and received special consideration for her examinations at the end of semester one. She deposes that Ms Hebblewhite told her she did not need to provide additional medical evidence.
Ms Hinchliffe deposes as to the materials that were provided or required in her various semester one subjects and the difficulties she experienced in putting these into a format she found suitable. Her mother assisted in the reformatting of material and in reading material to her. Her grandmother also assisted by providing an audio tape version of tutorial readings. Ms Hinchliffe deposes that she was upset by the provision of material in standard format, in particular video format. She deposes as to her difficulties in reformatting library materials from the closed reserve section. She deposes as to the provision of lecture material to her on disk form but her inability to access diagrammatical components using her ZoomText software. She deposes as to her difficulties in seeing visual material in lectures on Powerpoint slides or overhead projections. She deposes as to the poor print quality of some of the voluminous written materials provided to her in her courses. She deposes as to a lack of assistance from the health sciences library at the Cumberland campus of the university. She deposes as to her difficulty in doing a practical examination using cadavers because of the colour of the cadaver. She was permitted to use models instead of real body parts.
Ms Hinchliffe deposes as to her approach to Sue Hebblewhite prior to semester two in 2001 about involving NILS in reformatting. She confirms that only one set of course material for the second semester was given to Ms Hebblewhite by any of her lecturers for the purposes of reformatting prior to the commencement of the second semester. This was ultimately reformatted into audio due to the poor print quality and the remaining six manuals were not reformatted. Ms Hinchliffe deposes as to similar problems she experienced in semester two, 2001 to those she experienced in the first semester. She deposes that she had difficulty in keeping up with students at times due to the unavailability of material in an appropriate format and the absence of a reader. At times a reader was provided but at other times not.
Ms Hinchliffe provides more detailed affidavit evidence concerning her conversations with Sue Hebblewhite, Eileen McFazdean, Dr Andrea Chan and Brett O’Neill in the lead up to semester one, 2002. She deposes as to the materials that were provided to her on disk by Dr Chan on 8 February 2002. She deposes as to her request for material on audio tape. She deposes as to additional material given to her on disk by Dr Chan during March and April 2002. Ms Hinchliffe also provides more detailed evidence concerning the reformatting of material on audio tape in semester one, 2002 through NILS. She deposes as to the enlargement of other material. She deposes as to continuing problems she experienced with some reformatted material and some material which was not reformatted. She deposes as to difficulties in following physiology lectures using models.
Ms Hinchliffe makes the following concluding observations in her second affidavit:
In 2001 there were about 150 students enrolled in first year OT. In 2002 there were about 130 students enrolled in second year OT. I believe that in my year I am the only student who has Oculocutaneous Albinism. I am aware that there was a student two years above me who did OT at the university who had Oculocutaneous Albinism. I am not aware that there were any OT students in my year in 2001 or in 2002 who had a vision impairment.
The university’s treatment of me has affected me in many ways. Undue stress has been placed not only on myself but also on my family, in particular my parents. I have also experienced considerable emotional distress. As a first year student, trying to find my feet and also trying to investigate the options of how I could format the visual course material myself so that it was accessible to me, was an arduous task. There was little or not help from the university in this process. It was also stressful not knowing whether I would receive my material in the correct format in a timely manner.
During my first year at the university, as a result of my own experience and my own initiative, I learnt a great deal about available reformatting options for my visual course materials. However, my experiences from my first year did not appear to lead to any significant changes in the way in which the university treated me during my second year at university. This caused me a great deal of frustration. For example, during my first year at the university I found out about some of the reformatting services offered by NILS. So when I went into my second year I was aware that to have my materials reformatted into an accessible alternative format so that they were available to me at the same time as the other students had access to the standard format materials, my materials needed to be sent to a reformatting service in advance of the semester commencing. I grew very frustrated with the university because, as with the first year, the second year’s course material were generally not available before the semester commenced in order to be sent to a reformatting service in time for them to be reformatted.
In order to make an informed decision about what is the appropriate alternative format for material, I need to view that material and I also need to know what the material is to be used for. For example, if material is to be used as reading material outside of the lecture or tutorial environment, then that material should be formatted into audio. However, if material is needed in lectures and tutorials because there are practical exercises that require me to write or insert additional information onto the material, then the appropriate format is enlarged (at least 22 point) font on light green paper, which is a portable format that can be used to record further information on it. I was generally not provided with the relevant information before the semesters in 2001 and the first semester 2002 to enable me to make the informed decisions that needed to be made in order to ensure that I had available to me accessible alternative format materials at the same time that other students had access to the standard format materials.
During my studies at the university, I have found that the university had no effective process for identifying my needs, and no effective process of providing important information to me. For example, I found out about the services of the RBS and NILS available to universities, independently through my own endeavours in about May 2001, only to be informed later by Sue Hebblewhite of Student Welfare Services that she had known before my enrolment about the RBS services and had at no time informed me of those services. I am not aware of any process that the university uses to identify what a person’s special education needs are, other than what occurs on enrolment days. when I first enrolled, I was asked what I thought the university could do for me. However I think this question was quite hard to answer because I didn’t know what the university was able to offer, and I was not told what the university was able to offer.
In addition, I feel that my academic potential was compromised. Whilst my results would probably not be perceived as being poor I attribute this to being a conscientious and hard working student. I believe that I would have performed better had I been provided with my material in the correct format in a timely manner. The fact that my academic potential was compromised has further ramifications. I feel that I may have had the potential to achieve the marks required to be offered a place in the honours program. Had I attained the marks needed to get into the honours program I would have considered accepting a place in it.
OT is a very demanding course which requires not only many face to face hours but also numerous hours of self directed learning. I believe that a lot of my time was spent reformatting and chasing material. Other students would not have had to spend their time in this way but would have instead spent it on study, research and completing assignments. Therefore I feel that I have been disadvantaged. I also feel that this is a factor contributing to me not fulfilling my academic potential. This time that I have had to spend reformatting and chasing material especially in my holidays has meant that I have been unable to acquire holidays jobs related to OT. I know that the experience gained from working in such jobs would greatly enhance my opportunities for employment when I have completed my degree.
In her affidavit filed on 24 February 2004 Ms Hinchliffe replies to Ms Hebblewhite’s affidavit and Dr Chan’s affidavit.
Under cross-examination the applicant presented as a quiet but assured and intelligent person. She gave her evidence clearly and succinctly. The applicant stated that she was about to start her fourth and final year of her degree course at the Cumberland campus of Sydney University at Lidcombe. She stated that she had attended an open day and had enquired about her course options prior to enrolling at the university. She also stated that she sought special consideration for entry into the course of her choice as she had not achieved a matriculation score quite high enough to meet the normal entry requirements. Special consideration was granted. Ms Hinchliffe stated that when she enrolled at the university she spoke to Sue Hebblewhite to discuss Ms Hinchliffe’s special needs. Ms Hinchliffe had also filled out a form asking for note taking assistance during her course and extra time in her examinations. When she spoke to Ms Hebblewhite Ms Hinchliffe requested the provision of material in large print on green paper. This conversation occurred in late January 2001, prior to the commencement of Ms Hinchliffe’s studies.
Ms Hinchliffe conceded that at this time she did not ask for material in audio format and that in February 2001 some course material was provided to her on computer disk. She accepted that note taking assistance was provided to her with the assistance of Ms Hebblewhite and that she was given access to a disability services room. This provided Ms Hinchliffe with the free use of a photocopier and a computer as well as a stock of green paper, at least until the stock ran out. Ms Hinchliffe could not remember whether she asked for any more green paper when the stock ran out.
Ms Hinchliffe conceded that she did not complain to Ms Hebblewhite in the first semester 2001 about the assistance provided to her. She also agreed that Ms Hebblewhite had assisted her in completing forms during both semesters in 2001 for special consideration for the conduct of examinations. The university provided a reader and provided examination papers in large type on A3 size paper coloured green. Ms Hinchliffe agreed that up until mid 2001 she had not complained to Ms Hebblewhite about the formatting of material on her behalf by the university, although she had commented to her about the time taken by her mother to reformat material. She agreed that it was up to her to ask the university to reformat material provided to her in an inappropriate format. She agreed that she had not asked for that reformatting up to that time. Ms Hinchliffe agreed that she got the special consideration that she requested for examinations in the first semester of 2001. She agreed that she did not request special formatting assistance, she did not tell Ms Hebblewhite that she was having trouble printing and formatting library material, and she did not ask for large print photocopying assistance, although Ms Hinchliffe asserted that she had complained of problems with exam papers on large size A3 paper.
Ms Hinchliffe agreed that in the second semester of 2001 she had requested a change in the provision of material. She had requested the involvement of the Royal Blind Society in the reformatting of material. Ms Hinchliffe agreed that one course manual was reformatted in accordance with her request but she said that she had anticipated that all of her course material would be reformatted. She agreed that she made no complaint to Ms Hebblewhite and asserted that the university had shown a lack of capacity so a complaint would not achieve anything.
Ms Hinchliffe said that she had received special exam conditions in the second semester of 2001 and that her exam papers were provided on A3 size green paper in large print. Once again, she was provided with a reader. Ms Hinchliffe accepted that she was in regular contact with Ms Hebblewhite during semester two and that she did not raise with Ms Hebblewhite formatting problems or photocopying problems, although she had discussed a lack of assistance from library staff.
Ms Hinchliffe said that she decided during 2001 that the provision of material in audio format would be desirable for her because of problems she had confronted in viewing material in printed formats. She stated that she contacted Dr Martin in order for him to write a letter of support. She agreed that she did not ask the university for advice and said that she knew what she needed. She stated that she did not ask the university for any reformatting assistance because she did not believe that that assistance would be forthcoming. She agreed that when she had asked for assistance for particular matters, that assistance had been forthcoming.
Ms Hinchliffe stated that Ms Chan took over as the disability services contact officer in 2002 at the university. It was around this time that Ms Hinchliffe decided to make a complaint to HREOC after receiving advice. Ms Hinchliffe denied suggestions that in 2002 she had not asked for materials to be reformatted. She agreed that material had been provided on disk but asserted that the format was inappropriate. Ms Hinchliffe also agreed that some course material in 2002 had been provided in large print format on green paper. She also agreed that she declined an offer of reformatting assistance from the student welfare office at the university. Ms Hinchliffe further agreed that some material had been reformatted into audio format in 2002.
Ms Hinchliffe agreed that she had passed all of her subjects so far undertaken at the university. She was generally pleased with her results in the first year when she obtained one high distinction, four distinctions, three credits and eight passes. In her second year, she received one distinction, seven credits, six passes and one pass conceded. Ms Hinchliffe was disappointed with the pass conceded as she felt that she should have passed outright. The university may grant a pass conceded where a score of between 46 and 49 per cent is obtained.
Ms Hinchliffe accepted that she had been able to work part time during her course and during university vacations.
Ms Hinchliffe was asked about her disability. She stated that she has some vision but has difficulty in seeing the detail of objects. Her vision deteriorates with distance. She can see people but has difficulty identifying the detail of faces. She stated that it is difficult for her to read print on white paper because the glare causes her eyes to tire quickly. She could only read two or three pages of standard print on white paper. Ms Hinchliffe stated that she could read five to seven pages without a rest under ordinary interior lighting with large print on large A3 paper. She commented that A3 paper is not very convenient to handle but that large font print on A4 paper is also inconvenient because very little can appear on a single page. Ms Hinchliffe was shown examples of her handwriting which appeared normal. She agreed that she could read her handwriting.
Ms Hinchliffe was asked about her preference for receiving course material on audio tape. She stated that she preferred this format because of the difficulty she found in dealing with the printed word. She agreed that it was sometimes not possible for material to be in audio format, for example, diagrams. She also stated that it was not practicable for lengthy documents such as long text books to be reproduced in large font as the paper document would simply be too bulky. She agreed that large scale reproduction on pale green paper was suitable for pictures and other graphics. She agreed that she sometimes viewed material on computer disk using a programme known as ZoomText and she also agreed that ZoomText has an audio programme as part of the computer programme. She agreed that she had this programme available to her. She agreed that at school she trialed various technologies and found ZoomText to be the best.
Ms Hinchliffe was asked about her seating practices. She said that she used the front seats in lectures but did not ask to sit in a special seat closer (ideally no more than four metres from the relevant presentation) because she would have to crane her head up to see. She stated that she had a “visualette”, a device to magnify text, except that hers had no light. She did not use it at university although she had one at home. Ms Hinchliffe also stated that she had a height adjustable chair at home but did not have one at the university. She was asked about her sensitivity to fluorescent light. She said that a majority of teaching rooms at the university had fluorescent lights which she found difficult but did not request any change to.
Ms Hinchliffe was asked about an offer made in writing by the university dated 15 May 2003: exhibit R1. This letter details the university’s offer to Ms Hinchliffe to make special arrangements for her. The letter had been tendered early in the proceedings and I ruled that I would receive it as evidence for the purposes of the proceedings generally. In that ruling I noted that Ms Hinchliffe had annexed to her application to the Federal Court proposed terms of settlement with the university, to which the university was responding. Ms Hinchliffe stated that she rejected the offer. She said that she had difficulties with the offer made by the university, both in terms of the terms of it and the tone of it. She was concerned that too much onus was placed upon her. She expected the university to make appropriate arrangements for her without having to ask for them.
In re-examination Ms Hinchliffe stated that she found A3 format documents unsatisfactory because text could not be produced in greater than 14 to 16 point. She preferred A4 documents with larger font using 22 or 24 point. Exhibit A1 is an example of an A3 document and exhibit A2 is an example of an A4 document with larger font print. Ms Hinchliffe stated that although A4 documents with large print were bulky she could divide the material into appropriate components.
Ms Hinchliffe also explained why she preferred a natural voice audio over synthetic voice. She stated that properly trained readers pronounced technical terms correctly and were easier to understand. She preferred natural voice recordings prepared by the National Information Library Service. She found the recordings of that service were most professional and comprehensive in including all relevant material.
Ms Hinchliffe stated that she did not use ZoomText at the university because it required taking her laptop computer and she was concerned that she might damage it. She also found the ZoomText software impracticable for university class use. Ms Hinchliffe reiterated that she did not audio tape lectures because the audio was of limited value without visual material. I asked whether she had considered videotaping or digitally recording images and sound of lectures. She said she had not.
Ms Hinchliffe explained what difficulties she had experienced with documents formatted by the university staff. She said that pages had been rotated 45 degrees and text was missing. She lacked confidence in the ability of the university staff to undertake reformatting tasks.
John Woodbridge
Mr Woodbridge is an adaptive technology consultant with a visual disability. He deposes as to his expertise in adaptive technology. He deposes that on 13 September 2002 he assessed the adaptive technology needs of the applicant in relation to her access to visual information in her occupational therapy course at the university. On 24 September 2002 he produced a report on the applicant’s adaptive technology needs at the university. He annexes a copy of that report.
Mr Woodbridge deposes that in assessing the applicant’s needs, he considered a number of different forms of adaptive technology. These were ZoomText, JAWS (Job Access With Speech), Omnipage, closed circuit television (CCTV), audio and computer disk. ZoomText is a form of computer software that enables the text on a computer screen to be enlarged up to 16 times. A later version of ZoomText has a basic synthetic speech program which is meant to be a backup rather than a true synthetic speech access program. Mr Woodbridge deposes that ZoomText is a useful tool to assist someone who needs to read in large print, however, the speech component is of limited use. ZoomText is also of limited use to a person who suffers easily from fatigue. Mr Woodbridge opines that ZoomText could be no more than a useful backup tool for a person in the applicant’s situation.
JAWS is a Windows computer program enabling the user to hear voice output from the screen or keyboard. There is no text magnification. JAWS is not suitable for accessing diagrams or graphs. Omnipage is an optical character recognition scanning program. The document is placed on a flatbed scanner and scanned into Microsoft Word via Omnipage so that it can then be accessed by ZoomText or JAWS. Good quality text is required for scanning and proofreading can be very time consuming. Omnipage will not describe diagrams or graphs. CCTV involves the enlargement of pages and is transmitted by closed circuit television. Mr Woodbridge deposes that the problem with this form of adaptive technology in the applicant’s case is that it produces too much light, causing discomfort.
Mr Woodbridge deposes that the applicant preferred audio format over other formats discussed. He opines that this method of accessing material has some disadvantages, primarily the time lag to get the audio material in an appropriate time frame with a result that handouts from tutorials or lectures cannot be instantly accessed. Sometimes accessibility by audio format also includes the use of a personal reader, although this has a further disadvantage in that the person listening cannot return the material later when needed or the physical time taken to sit down with the personal reader and go through what actual information is required to be read.
The provision of material on computer disk requires the scanning of information using OCR technology plus proofreading and putting the material into a document format suitable for the client. The client then uses their own adaptive technology to access the documents. The technology is of limited use for diagrams and graphs.
Mr Woodbridge, in his report, recommended that the majority of the applicant’s material be provided in audio format with large print diagrams. He made this recommendation because this was the format that Ms Hinchliffe was already comfortable with and even if she received information on computer disk, the diagrams and graphs still needed to be available in large print. He opines that it would also have been appropriate for Ms Hinchliffe to use information provided on disk or via e-mail to gain access to information. While this was not Ms Hinchliffe’s preferred method, it would have given her more flexible access in reading some material in that skipping backwards and forwards through a document is faster than using an audio tape and searching in a document is possible on a disk and impossible on an audio tape. Mr Woodbridge stresses, however, the desirability of scanning and proofreading being undertaken by a professional service such as NILS.
Under cross-examination Mr Woodbridge stated that his opinion was based on the history provided to him by Ms Hinchliffe orally. He made his assessment after a two hour consultation with Ms Hinchliffe. He was not given university documentation to examine. He was only given a verbal overview of a report prepared by Messrs Jagers and Phillips and was not told of the recommendations in that report.
In re-examination Mr Woodbridge said that knowledge of the recommendations in the report would not have changed his opinion. His opinion was based principally on the issue of fatigue experienced by Ms Hinchliffe from reading small print documents on white paper.
Dr Frank Martin
Dr Martin is a paediatric opthamologist who has treated Ms Hinchliffe since her childhood. Dr Martin swore two affidavits, the first sworn on 12 January 2004 and the second sworn on 24 February 2004.
He deposes that Ms Hinchliffe has been under his ophthalmic care since 27 June 1983. He was requested to prepare a report for the purposes of these proceedings on 16 October 2003 and prepared a report about the applicant’s vision impairment on 27 October 2003. He annexes the report. He was asked to address a number of questions concerning the applicant’s vision impairment and was shown a selection of written material the applicant was required to read as part of her university studies. His report confirms the difficulty Ms Hinchliffe has in reading written material in small print. Dr Martin states that Ms Hinchliffe also had difficulty in seeing detailed anatomical and technical drawings as found in normal textbooks and tables and graphs that were not enlarged. He states that Powerpoint presentations and computer displays might cause her difficulty, depending on the circumstances. Overhead projection slides would cause her some difficulty unless she sits very near to the screen. Videotape would not be a problem provided Ms Hinchliffe was near to the screen.
In his second affidavit Dr Martin deposes as to his qualifications and experience. He deposes that he examined Ms Hinchliffe on 17 February 2004 to check her vision. There has been no change in her eyes or her vision since Dr Martin last examined her on 30 November 1998. Dr Martin expresses agreement with reports prepared by Marianne Jaggers (optometrist) and Leonie Phillips (orthoptist) dated 13 September 2002 and annexed to his affidavit. Dr Martin deposes that in order to be able to access written information over an extended period of time Ms Hinchliffe would need to be provided with documents formatted in text of at least 22 or 24 point. He deposes that the text should be in a font such as Arial that is easy to read and the colour of the text and paper should be in a combination that would reduce glare. Diagrams should also be enlarged. Dr Martin deposes that, as an alternative, Ms Hinchliffe could be provided with documents in an audio format using natural voice.
Under cross-examination Dr Martin stated that his opinion was formed from his treatment of Ms Hinchliffe over a number of years. He had received the Jaggers and Phillips report. He had also received copies of some university course materials. Dr Martin agreed with the recommendations in the Jaggers and Phillips report.
Katherine Hinchliffe
Mrs Hinchliffe is the applicant’s mother. She deposes that she has provided assistance to her daughter during the course of her university studies. This assistance has included reformatting of visual material such as by photocopying and scanning of written material, reading texts and providing explanations of visual information, such as diagrams or actions provided in video format. Mrs Hinchliffe deposes that in 2000 she became familiar with some of the facilities available at the State Library of New South Wales and attended a seminar called “Setting Directions”. She deposes that in March and April 2001 she and Ms Hinchliffe went to the State Library in order to test the computer facilities there. Mrs Hinchliffe found using the computers at the library onerous and tiring. She is not computer literate. The program used was a scanning and text enlargement program. The visit lasted about three hours and they made three more visits to the library. They concluded that the process was too time consuming and that it was better for Mrs Hinchliffe to read the material to her daughter. Mrs Hinchliffe deposes that she read a lot of material to Ms Hinchliffe during the rest of the 2001 academic year.
Mrs Hinchliffe deposes that during 2001 and 2002 she went to the Fisher Library on the main campus of the university on a number of occasions in order to help her daughter to find library books that were not available at the Cumberland campus. These visits lasted around four hours. Ms Hinchliffe was given permission to borrow books for an extended period from the general library collection. This gave her an additional couple of weeks borrowing time. Mrs Hinchliffe provided similar assistance to her daughter at the university’s Cumberland campus library. She also helped Ms Hinchliffe with photocopying and enlarged photocopies in the disabilities room in the library.
Mrs Hinchliffe deposes that there were poor quality photocopies in the manuals she read to Ms Hinchliffe throughout 2001. Ms Hinchliffe often went to sleep when Mrs Hinchliffe was reading to her. After university classes Ms Hinchliffe was often tired. Mrs Hinchliffe read large font material as well as small font text because her daughter had eye fatigue and had difficulty even reading large font. Sometimes the pages in the manuals provided were not in the correct order. Mrs Hinchliffe also read and interpreted anatomical diagrams for her daughter. Ms Hinchliffe had difficulty deciphering things like muscles and ligaments when they were in an unenlarged format. Mrs Hinchliffe has a nursing background which helped.
Mrs Hinchliffe deposes that her mother, Nora Olennick (who is familiar with taping books) offered to read one of Ms Hinchliffe’s manuals on to audio tape. Mrs Hinchliffe assisted her mother in this process. The process took her mother two full days. The manual was recorded onto about 12 to 16 hours of audio tape. Mrs Hinchliffe had to ensure that the manual pages were in the correct order and found that “many pages” were not in the right order. The process was complicated in that Mrs Olennick was used to using a special Royal Blind Society tape recorder but because Ms Hinchliffe could not play those tapes (she did not have the correct equipment) Mrs Olennick had to use an ordinary tape recorder with which she was not familiar. Nevertheless, the tapes were helpful to Ms Hinchliffe as she was able to listen to them on her walkman while she travelled to the university.
Mrs Hinchliffe deposes that in January or February 2002 she went to the Cumberland campus to meet with the new disabilities officer on one occasion. She met Sylvia Black. The purpose of the meeting was to find out what help the university was going to give Ms Hinchliffe to reformat her materials for 2002. Andrea Chan also attended the meeting, as did Ms Hinchliffe. Mrs Hinchliffe deposes that Dr Chan was vague and gave no firm answers to questions about what material would be available and what format it would be in. Mrs Hinchliffe deposes that in April 2002 she met Sylvia Black’s replacement, Margaret Arena. Ms Hinchliffe also attended. Mrs Hinchliffe deposes that she was concerned that Ms Arena was not sending material off to the Royal Blind Society in time to have the material reformatted for her daughter to use in her studies. The meeting took about two hours. Ms Hinchliffe voiced similar concerns. Mrs Hinchliffe deposes that Ms Arena said that she had lost Ms Hinchliffe’s address and that was why material had not been sent. Mrs Hinchliffe deposes that Ms Arena said “you’re not the only person. You’re not the only student here, you know”, and , “I hope you get top marks after all the help we’ve given you”. Mrs Hinchliffe deposes that this upset her daughter who was in tears afterwards because she felt like she was being a nuisance. Mrs Hinchliffe deposes as to her observations of the effect upon her daughter of the difficulties she had in accessing material during her course.
Under cross-examination Mrs Hinchliffe said that the applicant has two male siblings who both have the same condition as the applicant, although to lesser degrees. Mrs Hinchliffe said that she had dealt with the university at its main Camperdown campus in relation to one of her sons and had found no difficulty. She noted, however, that his disability was less severe than that of her daughter. She stated that she had attended several times (at least 10) at the Cumberland campus library to assist her daughter. Based on reports from her daughter she found the support available at the Cumberland campus inadequate. She did not pursue enquiries on behalf of her daughter with the disability support staff at the Cumberland campus. She relied on what her daughter told her about her inability to obtain appropriate support through the university and its Cumberland campus.
The applicant’s evidence was completed by the tender of an edited copy of a letter dated 5 June 2003 in response to the settlement offer from the university: exhibit A3. The applicant, prior to the close of her evidence, withdrew her claim for orders requiring the university to provide disability support services to her. Mr Poynder told me that the applicant now sought only a declaration and damages and costs.
The respondent’s case
The respondent relies upon the affidavits of Katherine Mercer filed on 2 April 2003, Sarah Jane Heesom, filed on 19 September 2003, Brett Patrick O'Neill, filed on 13 February 2004 and the documents exhibited to it, Andrea Jean Chan, filed on 13 February 2004 and the documents exhibited to it and Suzanne Marguerite Hebblewhite, filed on 13 February 2004 and the documents exhibited to it.
Brett O’Neill
Mr O’Neill is the undergraduate occupational therapy course manager in the school of Occupational and Leisure Sciences at the Cumberland campus of the University of Sydney. He deposes that he has been in that position since 1999. Since 1997 Mr O’Neill has acted in the position of academic liaison officer for undergraduate occupational therapy students in the school of Occupational and Leisure Sciences. He acts as the primary contact in the school for students who have questions in relation to disability issues and accommodations specific to their particular degree. He works in conjunction with the disabilities services officer at the Cumberland campus. His responsibilities as ALO include liasing with staff members from other schools who manage units of study in the occupational therapy course, and making requests for specific information that would assist in identified students’ progression throughout the course.
Mr O’Neill deposes that on the basis of a review of documents concerning Ms Hinchliffe’s admission, on 7 December 2000, the university advised Ms Hinchliffe that she would be considered under the concessional admission scheme of the university. On 11 January 2001 Ms Hinchliffe sent a letter to Jane Gamble asking for special consideration for entry into the university’s Bachelor of Applied Science (Occupational Therapy) course. Mr O’Neill made a recommendation with Ms Gamble to the student administration division of the university that Ms Hinchliffe be accepted into the course. On 24 January 2001 Ms Hinchliffe was offered entry into the course.
Mr O’Neill deposes as to the academic requirements of the Bachelor of Applied Science (Occupational Therapy) course in 2001 and the subjects undertaken by Ms Hinchliffe. Ms Hinchliffe achieved a distinction, two credits and four passes in semester one and a high distinction, three distinctions, a credit and four passes in semester two, 2001. Mr O’Neill deposes that in many cases in semester two the subject outlines, materials and assessment requirements for individual subjects were not available until shortly before the commencement of the semester. This was due to the fact that the majority of academic staff take part of their annual leave during the mid semester break and often do not start preparing these materials until shortly before the commencement of the semester.
Mr O’Neill deposes that for the same reason in many cases course materials and subject outlines were not finalised until shortly before or at the commencement of semester one, 2002. Mr O’Neill deposes as to the subjects undertaken by Ms Hinchliffe in semester one, 2002. She achieved three credits and four passes in those subjects. Her raw mark average for 2001 and semester one of 2002 was 65.65 per cent.
Mr O’Neill responds to Ms Hinchliffe’s affidavit in relation to the possibility that she may have gained entrance to the occupational therapy honours program. He deposes that in order to be eligible for a place in that program a student must have achieved at least a credit grade point average in their undergraduate degree. Of these eligible students, places in the honours program are offered on the basis of the student’s academic performance as compared to other students within their degree. The majority of students who are accepted into the honours program have a distinction grade point average, and some have a high distinction grade point average. Approximately 10 to 12 people are accepted into the honours program for occupation therapy each year. Mr O’Neill further deposes that over the past four years approximately 95 per cent of occupational therapy graduates found employment within approximately six months of graduation. He deposes that academic results are not generally a determining factor for employers, who place more emphasis on interviews with applicants and performance in clinical placements.
Under cross-examination Mr O’Neill stated that he discussed the acceptance of the applicant in the occupational therapy course as a disadvantaged student with the head of school Jane Gamble. He confirmed that he met with Ms Hinchliffe and her father on or about 4 January 2001 at an information day at the main Camperdown campus at the university. He confirmed that the applicant’s father had told him that Ms Hinchliffe had had a difficult year in her final year at school. They had discussed her disability. Mr O’Neill said that he had considered later in 2001 the need for material to be reformatted for Ms Hinchliffe and identified an e-mail he prepared on 14 May 2001 seeking the assistance of university staff in having material reformatted.
Suzanne Hebblewhite
Ms Hebblewhite was between February 1999 and 31 December 2001 employed on a part time basis by the university as a disability services officer at the Cumberland campus. She deposes that in that position she was the principal point of contact and support officer for current and prospective students of the Cumberland campus of the university who had a disability, illness or other health related condition.
Ms Hebblewhite deposes as to the activities she performed in the position of disability services officer. She deposes that there were approximately 85 students, including the applicant, registered with the disability services office at the Cumberland campus as having a disability in 2001. In 2001 there were nine other students registered with a vision impairment. Ms Hebblewhite deposes that individual student requests for an adjustment to the university’s courses and assessments were assessed on a case by case basis within the framework of the university’s equal opportunity and education policy and its disability action plan. The latter was registered with HREOC in 1999. Specific service and accommodations requested by each student were usually identified in medical documentation provided by the student and in discussions between Ms Hebblewhite and the student. Decisions regarding accommodation and services were made by Ms Hebblewhite in consultation with the affected student and, if relevant, with other staff involved. Ms Hebblewhite deposes that she relied upon each student to inform her of the nature of the disability and the best way that she could assist to accommodate that disability. She deposes that where exceptional financial resources were required in order to accommodate a student’s request, she would consult with the head of student welfare services, Dr Andrea Chan.
Ms Hebblewhite deposes that in her experience it was extremely rare for students to request that material other than examination papers be reformatted into larger print. When such a request was made she would attempt to do it herself. She was aware that, on rare occasions, the university would use the services of the Royal Blind Society of New South Wales. Ms Hebblewhite deposes that she also assisted student liasing with lecturing staff about particular services and accommodations requested in particular courses. She also would often assist students to complete special consideration and special condition applications in relation to examinations. She also sent out newsletters to remind students about the services that were available through her office and the steps required in order to take advantage of those services.
Ms Hebblewhite deposes that at the Cumberland campus the university had purchased and installed adaptive technology in a dedicated room in the health sciences library. The software available on computers included voice recognition software providing speech to text. The room was equipped with two personal computers, a scanner and a printer/photocopier for the exclusive use of disabled students at the Cumberland campus. Ms Hebblewhite deposes that light green paper was provided in a cupboard in the room. She deposes that she would periodically visit the room and check the supply of green paper.
Ms Hebblewhite deposes that she met the applicant on 24 January 2001 when they discussed the services requested by Ms Hinchliffe. Ms Hebblewhite deposes as to a further meeting she had with Ms Hinchliffe on 30 January 2001 when they discussed the provision of material on computer disk enabling her to read the material on her laptop computer using ZoomText. Ms Hebblewhite deposes that she arranged for course manuals to be provided to Ms Hinchliffe for the first semester of 2001 and gave these to her on 22 February 2001. Ms Hebblewhite deposes that she provided further manuals on computer disk in the first two weeks of semester one.
Ms Hebblewhite deposes that during semester one she assisted in arranging a notetaker for Ms Hinchliffe and that she also arranged special conditions for Ms Hinchliffe’s mid semester examinations. Ms Hebblewhite deposes that she regularly spoke to Ms Hinchliffe about her progress and that at no time did Ms Hinchliffe tell her that she was having difficulties reformatting materials.
Ms Hebblewhite deposes as to her involvement in making arrangements for Ms Hinchliffe to undertake her end of semester examinations in 2001. She acted as a reader at the examinations and noted that some terms used in the examination papers were unfamiliar to her and she apologised in advance for her pronunciation. Ms Hebblewhite checked Ms Hinchliffe’s examination results at the end of semester one and thought them at least satisfactory. Ms Hebblewhite was not aware in semester one of any difficulties encountered by Ms Hinchliffe that were not already being accommodated.
Ms Hebblewhite deposes that Ms Hinchliffe did not in semester one make any requests for the services of the Royal Blind Society/NILS to be used to reformat material. However, there was some discussion about the reformatting of semester two materials. She arranged for the reformatting of the manual for Occupational Therapy Theory and Process 1B by NILS and this was ultimately placed on audio at the applicant’s request.
Ms Hebblewhite deposes as to her discussions with Ms Hinchliffe about her mid semester examinations in semester two and the steps taken to provide special assistance and conditions. She also deposes as to the arrangements made for Ms Hinchliffe’s final semester examinations in semester two, 2001. She also deposes as to the approval of funding for reformatting of material in semester two by NILS. Ms Hebblewhite deposes that Ms Hinchliffe did not tell her that she was having difficulties with reformatting any materials provided to her or that she was having difficulties obtaining copies of overheads or handouts in advance or that she was having difficulties in locating and reformatting library materials or that she found the cost of photocopying library materials into a large format prohibitive. She deposes that if she had learned of such problems she could have made special arrangements to assist Ms Hinchliffe. She deposes that she was unaware that Ms Hinchliffe was having difficulty reading certain textbooks and that she would prefer an alternative format or that she was having difficulties reading enlargements on A3 paper.
Ms Hebblewhite deposes as to her involvement in preparing for semester one, 2002 prior to her departure from the Cumberland campus. She deposes as to a conversation with Ms Hinchliffe in which she alerted her of the introduction of a new cost structure at NILS in 2002 that would make it difficult for the university to fund reformatting of material in audio format by NILS. She deposes as to her exchanges by email with Brett O’Neill concerning formatting requirements for Ms Hinchliffe in 2002.
Under cross-examination Ms Hebblewhite said that there was no formal or written procedure for the provision of services to disabled students and that issues were worked out on a case by case basis by discussion. She admitted that first year students could find the transition from school to university difficult but nevertheless stated that she relied upon students to draw to her attention problems they might be experiencing so that she could address them. She stated that most vision impaired students came prepared with their own equipment to assist them to study materials provided by the university. Ms Hebblewhite was shown material provided by Ms Hinchliffe to the Universities Admissions Centre and Mr O’Neill. She stated she had not seen it before. She stated that she only had access to material given to her and kept on her own file. Ms Hebblewhite explained that she did not get involved in course related issues unless a student raised a particular issue of concern. She generally left it to students to raise with academic staff anything that needed addressing in respect of academic course materials. Ms Hebblewhite could remember very little about material that was reformatted for Ms Hinchliffe. Ms Hebblewhite could recall that Ms Hinchliffe had indicated a preference for material to be provided in 22 point large format on light green paper but stated that it was up to Ms Hinchliffe to raise with her any particular difficulties she had in getting material reformatted. She left it to Ms Hinchliffe to put requests to her lecturers and tutors for the provision of material in an appropriate format. She stated that Ms Hinchliffe had not expressed dissatisfaction with the provision of material to her on A3 sized paper. Ms Hebblewhite stressed that she was not a mind reader and needed to know about any problems with the provision of course material before she could do anything about it. She stated that Brett O’Neill had the relevant responsibility for the provision of course materials. She admitted that her role included reformatting assistance but said that this only arose if a student made a request. Ms Hebblewhite stated that she met with Ms Hinchliffe weekly and Ms Hinchliffe did not tell her about any particular problems. Ms Hebblewhite stated that where she got involved in the provision of materials in alternative formats she regarded herself as just a conduit and she did not check to see whether the material provided was complete. Ms Hebblewhite stated that the onus was on the student to draw attention to problems and not the other way around. Students were expected to stand on their own feet.
Ms Hebblewhite stated that she was aware that NILS provided six audio tapes of one manual in semester two, 2001. She did not know if any 2002 materials were reformatted. She denied telling the applicant that the NILS service was too expensive and said she told Ms Hinchliffe to be strong and firm in her dealings with the university if she wanted NILS to be involved. Ms Hebblewhite commented that in her assessment, Ms Hinchliffe was not a pushy person and she was concerned at the time she left the job that someone else coming in to the job might not take note of her requests. Ms Hebblewhite conceded that at the latter stages of her involvement she was concerned to see that as much as possible was done in house due to the costs of the NILS involvement. She stated that while a good deal of material was put on disk, that was what Ms Hinchliffe had initially asked for. She was unaware of limitations on the ZoomText software and stated that that was what Ms Hinchliffe said she used.
Dr Andrea Chan
Dr Chan is the head of student welfare services at the Cumberland campus of the University of Sydney. She was appointed to that position in about September 1999. Following the departure of Ms Hebblewhite in late December 2001 until around 6 February 2002 Dr Chan acted as the primary contact for students registered with the disability services office. Dr Chan remained involved in a supervisory capacity following the appointment of first Ms Sylvia Black and later Ms Margaret Arena as disability services officer in 2002.
Dr Chan deposes that in 2002 there were approximately 110 disabled students registered at the Cumberland campus. Not all disabled students chose to be registered. Dr Chan deposes that each school within the faculty had an academic liaison officer dealing with specific questions in relation to content and delivery of course material and Brett O’Neill was the academic liaison officer for the Occupational and Leisure Sciences School during 2002.
Dr Chan deposes that prior to her experience with the applicant she was not aware of any students who had requested large volumes of material to be reformatted into large font or placed on audio by NILS. She was aware of the services offered by NILS but was also aware that the service involved time delays and there were some variations of quality in the material produced. She was also aware of the cost of the service. Dr Chan deposes that Ms Hinchliffe was the only student at the Cumberland campus in 2001 and 2002 who requested and received materials reformatted by NILS. Other vision impaired students made use of adaptive technology at home or at the university.
Dr Chan deposes that Ms Hinchliffe never contacted her during 2001 to make any complaint in relation to the services provided by the university or by Ms Hebblewhite. However, on 19 December 2001 Eileen McFadzean, of Blind Citizens Australia (BCA), telephoned her about a complaint made by Ms Hinchliffe to BCA about the services provided to her by the disability services office in 2001. Dr Chan discussed the complaint with Ms Hebblewhite. Also in December 2001 Dr Chan received a letter from Dr Frank Martin regarding Ms Hinchliffe’s request that material be provided to her in audio format. She deposes as to a telephone conversation with Ms Hinchliffe on or about 2 January 2002 in which Ms Hinchliffe suggested that four manuals were required in audio format. Dr Chan deposes as to her dealing subsequently with Brett O’Neill and Ms Hinchliffe regarding the prioritisation of manuals and course material for reformatting. She deposes as to her efforts to obtain course material on computer disk.
On 14 January 2002 Dr Chan received oral notification from Ms McFadzean about a complaint of disability discrimination by Ms Hinchliffe. Dr Chan deposes as to enquiries made subsequently with academic staff to find out what material could be reformatted in audio. She also deposes as to her efforts to obtain reformatted material in large format on light green paper. Dr Chan also provided material to Ms Hinchliffe on computer disk. Dr Chan deposes as to the steps undertaken in February and March to obtain reformatted material on audio through NILS. Dr Chan further deposes as to the steps taken to reformat material in April and May 2002.
In cross-examination Dr Chan stated that in 2002 there were two students, including the applicant, who were vision impaired undertaking the occupational therapy course. There were between 3,800 and 4,000 students at the Cumberland campus. Ten students at the campus in total were registered as having a vision impairment. Dr Chan stated that until January 2002 she was not aware of Ms Hinchliffe’s preference for material in 22 point large font type. She had read Dr Martin’s report which referred to “M18” font which she did not understand. She denied having seen previously Ms Hinchliffe’s letter to Jane Gamble. Neither had she seen Mr Frank Martin’s report.
Dr Chan was asked what the university’s position concerning Ms Hinchliffe’s requests was in December 2001. She answered that it was to find out what the student needed and to assess the cost and effectiveness of the options (in terms of speed of reformatting and quality). Dr Chan agreed that the university preferred the provision of material in electronic format on disk. Dr Chan said, however, that the university was prepared to arrange for material to be reformatted in audio, material that could not be put on disk.
Dr Chan agreed that Ms Hinchliffe got course material later than other students. She said that this was because material needed to be reformatted and reformatting in audio by NILS was particularly time consuming. She stated that all students could buy course materials at the start of semester one. Dr Chan admitted to particular problems in reformatting a work book for the subject Occupational Health and Therapy 2A. She agreed that the last course material for semester one, 2002 was received in reformatted form on 22 May 2002. Dr Chan denied being aware of Ms Hinchliffe expressing anxiety about getting material late. Dr Chan stated that the delay was unavoidable because NILS could not work any faster. She said that all the material could have been provided in electronic form on CD Rom. Dr Chan stated that she was advised by NILS not to send all course materials in one block to be reformatted and to ensure that Ms Hinchliffe saw course materials and gave approval for reformatting before the material was sent.
Submissions
I invited written submissions from the parties. Written submissions were filed on behalf of the applicant on 11 May 2004. The applicant’s submissions are as follows:
1.This is an application by Christina Hinchliffe, who at the relevant time suffered from a visual disability, Oculocutaneous Albinism. The applicant alleges that the respondent, the University of Sydney (“the University”) unlawfully discriminated against her on the grounds of her disability. The allegation arises out of events which occurred between mid 2000 and May 2002, during lead-up to and the applicant’s enrolment in a course of Bachelor of Applied Science (Occupational Therapy) at the University.
Summary of the complaint
2.The applicant alleges that the respondent unlawfully discriminated against her in two areas, delineated in Part 2 of the Disability Discrimination Act 1992 (Cth) (“the DDA”), being:
a)denying or limiting her access to benefits under s. 22(2)(a); and
b)subjecting her to other detriment under s. 22(2)(c).
3.The applicant alleges that the respondent indirectly discriminated against her by requiring her to comply with a requirement or condition which other students without her disability would be able to comply with, but which she could not comply, and which was not reasonable in the circumstances.
Submissions on the evidence
The major factual issues
4.The major factual issues to be determined in these proceedings are as follows:
a)What facilities did the applicant require in order to be able to access information contained in her course materials?
b)To what extent was the respondent made aware of the applicant’s requirements during the relevant period?
c)What facilities did the respondents actually provide to the applicant during the relevant period?
d)To what extent did the applicant suffer any detriment during the relevant period?
What facilities did the applicant require in order to access visual information?
5.The applicant’s evidence was that she has Oculocutaneous Albinism, which is characterised by nystagmus[1], severe photophobia[2] and reduced visual acuity. The applicant’s claim to have a visual disability does not appear to be in issue.[3] The factual issue is what facilities the applicant needs to be able to access (by which is meant, to read and understand) visual information contained in her course materials. This included booklets containing written text, diagrams, and tables; photocopies of journal articles; overheads; Powerpoint presentations; video recordings; lecture and tutorial handouts containing text, tables and diagrams; books including library books and set text books; written examinations; physical models of anatomical parts and cadavers; calibrations on technical equipment; and electronic information such as the library catalogue, databases, web-pages, and WEBCT (online subjects).[4]
[1] Rapid uncontrolled eye movement which tends to cause her to miss or misread words: C. Hinchliffe, 24.12.03, [7].
[2] Which makes it difficult to access information on an overhead projection screen or Powerpoint presentation: C. Hinchliffe, 24.12.03, [8].
[3] See, e.g., Tx 24.2.04, 135(20)-(23).
[4] C. Hinchliffe, 24.12.03, [17].
6.The applicant’s case is that, as at the time that she commenced her course in 2001, she needed her course materials to be provided to her in an enlarged format, with printed text in 22 or 24 point Arial font, on light green paper. During Semester One, it also became apparent that she would be able to access more voluminous course materials that could not readily be enlarged by having them read in natural voice on to audio tapes.
7.The respondent’s case appears to be that the facilities claimed to be required by the applicant were merely a matter of choice, or preference, over other facilities which could also meet her needs.[5]
[5] See, e.g., Tx 25.2.04, 292.5.
8.The respondent did not call any expert evidence with regard to the applicant’s disability and her capacity to access information, nor was the applicant’s expert evidence seriously contested. The cross-examination of Mr Woodbridge[6] and Dr Martin[7] only went to their instructions and the information upon which their opinions were based, and neither witness expressed doubt about their conclusions. This issue must therefore be determined by the applicant’s own evidence and the evidence given by her expert witnesses (in statements, examination-in-chief and cross‑examination).
[6] Tx 25.2.04, 257-260.
[7] Tx 25.2.04, 270-276.
9.The applicant’s case is not that she is unable to read material in small font or on white paper. Rather, her case is that she cannot read such material for long periods of time because of fatigue.[8] In the hearing she described this process as follows:[9]
[8] C. Hinchliffe, 24.12.03, [6]; see also Tx 24.2.04, 154(25)-(28).
[9] Tx 25.2.04, 244.8.
A:…the way I can read the document, is just really by the shape of the word I can determine it that way. I have to say that I would quite often misread things so it’s actually quite time consuming to get through the document having to read it several times over and I find that my eyes really begin to start stinging and it becomes quite uncomfortable to read and persist with it.
Q:When you say that you make out the word by the shape of it, do you see the individual letters in the word?
A:Not always.
10.The applicant was cross-examined about her ability to read printed documents in different formats.[10] She said that, with 12 point Times Roman font on white paper, she would have to “give up” after two or three pages.[11] With approximately 18-20 point Times Roman font on green A3 paper, she estimated that she would be able to read about five to seven pages in ideal conditions.[12] With 22 point Arial font on green A4 paper she estimated that she could read “maybe 15 to 20 pages”.[13]
[10] From Tx 24.2.04, 136(25).
[11] Tx 24.2.04, 137(21)-(24).
[12] Tx 24.2.04, 138(23)-139(19).
[13] Tx 24.2.04, 139(20)-140(13).
11.The applicant’s evidence is that poor quality photocopies take a lot longer to read; if such documents are enlarged on to A3 paper it merely exaggerates the poor quality of the document.[14]
[14] Tx 24.2.04, 157(20-(23). The document referred to is at p. 48 of Annexure “C” to Dr Martin’s affidavit – see Tx 24.2.04, 156(18).
12.The applicant was also cross-examined about her ability to read handwritten documents.[15] She said that she had difficulty in reading some handwriting, although she could read her own handwriting[16], as long as she “gets her head close”.[17] She can identify and read her mother’s handwriting if it is printed but she cannot read her father’s handwriting very well.[18] She could read most of the handwriting of her notetaker at the University.[19]
[15] Tx 24.2.04, 141(11)ff.
[16] Tx 24.2.04, 141(14)-(16).
[17] Tx 24.2.04, 142(6)-(7).
[18] Tx 24.2.04, 142(17)-(18).
[19] Tx 24.2.04, 143(5).
13.The applicant’s evidence is that material provided on electronic disks can be accessed, but only in a limited way. If it was to be reformatted into “hard” copies accessible to the applicant, this would take a long time and often caused considerable difficulty.[20] It was also difficult and cumbersome to read it from a computer screen with “ZoomText” software, because the software only allows a quarter of the screen to be seen at a time and this would also have required the applicant to carry a computer with her to lectures.[21]
[20] See, e.g., C. Hinchliffe, 24.12.03, [111]..
[21] Tx 24.2.04, 162(22)-(21); Tx 25.2.04, 251. Mr Woodbridge also gave evidence about the limitations of ZoomText: D. Woodbridge, 12.1.04, [9]-[13].
14.Photocopied material of the type that was collated in the manuals could not be reproduced in electronic form.[22] This was because the material would have to either to be re-typed in its entirety, or scanned, which could not be done with poor quality photocopies.[23] In addition, diagrams could not be reproduced on disk.[24] Photocopies of documents in 12 point font from A4 paper to A3 paper only increases the size of the font to about 16-18 point.[25]
[22] Tx 13.4.04, 17.9-18.3.
[23] See, e.g., Tx 24.2.04, 157(28)-158(2).
[24] Tx 24.2.04, 162(21).
[25] Tx 13.4.04, 18.9-19.1.
15.The applicant’s evidence was that it became known to her during the course of Semester One, 2001 – in around May/June 2001[26] - that the most appropriate format for voluminous material to be provided to her would be with the text in natural voice audio and diagrams in enlarged format. She had not included this in her enrolment forms, as she had not been aware that this was an option at the time and she did not know what format her material would be in.[27] The evidence was that the University already knew about the option of obtaining material in this format from the Royal Blind Society, but did not pass this on to the applicant.[28]
[26] C. Hinchliffe, 24.12.03, [139]-[140].
[27] Tx 24.2.04, 170(21)-171(13); 185(13)-(18).
[28] C. Hinchliffe, 24.12.03, [141]; S. Hebblewhite, 12.2.04, [19].
Was the respondent aware of the applicant’s needs?
16.There appears to be little issue that the applicant did not receive all of her course materials in a form that she could read. Ms Hebblewhite conceded that this had been the case in Semester One, 2001[29], and the evidence is clear that this had also occurred in Semester Two 2001 and Semester One, 2002.
[29] Tx 13.4.04, 61.3.
17.There is a major factual issue, however, about the extent to which the respondent had been made aware of the applicant’s needs during 2001 and 2002.
18.The evidence is that, by early 2001, the University was well aware of the applicant’s needs:
(a)The applicant and her father had met with the Academic Liaison Officer for the School of Occupation and Leisure Sciences, Mr Brett O’Neill, on 4 January 2001 at an Information Day held by the University, and they had told him about her vision impairment.[30]
[30] C. Hinchliffe, 24.12.03, [34]-[35].
(b)At the suggestion of Mr O’Neill, the applicant had written to the Head of the School of Occupation and Leisure Sciences, Ms Jane Gamble, on 11 January 2001, describing her needs in some detail.[31] This letter, which had been read by Mr O’Neill shortly after 11 January 2001[32], included the following relevant material:
[31] B. O’Neill, 13.2.04, “BPO” 2-27.
[32] Tx 25.2.04, 296.5.
i) The covering letter said:[33]
[33] B. O’Neill, 13.2.04, “BPO” 3.
Due to my lack of vision I have needed printed material to be enlarged, overhead transparencies photocopied and so on. This, however, has not always been able to be carried out. Therefore I have missed out on information that my sighted peers have had access to. Thus preventing me from achieving my full potential.
ii) A report from Dr Maree Ploetz dated 11 September 2000[34] to the effect that the applicant was suffering from major depression and setting out how this was effecting her studies. The report concluded, “Please consider Christina’s disabilities with compassion.”
[34] B. O’Neill, 13.2.04, “BPO” 5-6.
iii) A “Confidential Statement of Support” completed by the school counsellor/psychologist at the applicant’s high school, Mrs Carol Olivier, on 6 September 2000.[35] This was on a standard form in the applicant’s Education Access Scheme (“EAS”) application form, which had been completed and sent to the Universities Admissions Centre (UAC”)[36] as part of her application for approval under the University’s Educational Access Scheme.[37] The statement relevantly said:
[35] B. O’Neill, 13.2.04, “BPO” 7.
[36] C. Hinchliffe, 24.12.03, [29]-[30].
[37] B. O’Neill, 13.2.04, [8].
Christina has Oculocutaneous Albinism which affects her vision considerably. Her lack of vision requires teachers to enlarge all printed material supplied to the class. Christina is also greatly affected by glare and unable to read the whiteboard and overheads. It has not always been possible to supply enlarged materials or information in an alternative format putting Christina at an educational disadvantage compared with her peers.
iv) A Medical Statement of Support completed by Dr Frank J. Martin on 3 September 2000, also from the EAS form, which relevantly said:[38]
[38] B. O’Neill, 13.2.04, “BPO” 8. Dr Martin gave evidence on the contents of the report at Tx 25.2.04, 268.8-270.5.
A. Medical condition/disability
Describe the condition affecting the applicant
Oculocutaneous Albinism
Vision impaired
…Right Eye – 6/24[39] Left Eye 6/36[40]
[39] Meaning that the applicant could see at a distance of 6 metres what somebody with normal vision would see at 24 metres: Tx 25.2.04, 268.9.
[40] Meaning that the applicant could see at a distance of 6 metres what somebody with normal vision would see at 36 metres: Tx 25.2.04, 268.9.
Near = N18[41]
[41] Meaning that the applicant could read 18 point font at “near”, or 25-30 cm from the eyes: Tx 25.2.04, 269.1.
…
B. Effect on studies
Unable to copy work from blackboard/whiteboard
Unable to read normal size print at near.
Needs to rely on others to copy notes for her, and books need to be in an enlarged format.
…
Requires extra time to obtain information.
Fatigue + eye strain associated with vision impairment - requires regular rest periods.
v) Another Medical Statement of Support completed by Dr Brian Morton on 8 September 2000 which relevantly said:[42]
[42] B. O’Neill, 13.2.04, “BPO” 9.
A. Medical condition/disability
Describe the condition affecting the applicant
(a)Albinism (oculocutaneous) – significant visual impairment: difficulty with glare (blackboards/whiteboards)
Requires large format on special paper
(b) Depression: Decreased concentration + recall from short term memory: loss of motivation + volition – detrimental effect on work + study performance.
vi) Another Medical Statement of Support completed by Michael Cavanagh, psychologist, on 31 August 2000[43] to the effect that the applicant was suffering from a major depressive disorder.
[43] B. O’Neill, 13.2.04, “BPO” 10.
(c)Prior to 24 January 2001 the UAC had provided the University with a form completed by the applicant in November 2000[44] which described her vision impairment as “Albinism” and, at question 5, explained the services required at the University as:
[44] C. Hinchliffe, 24.12 03, [31] and Exhibit “CH” 63.
Note taking, enlarged printed material, extra time in exams.
(d)On 24 January 2001 the applicant and her father had met the University’s Disability Services Officer, Ms Sue Hebblewhite, at the University’s Enrolment Day. They confirmed that the applicant needed the things set out in Question 5 of her UAC form, being “note taking, enlarged printed material, extra time in exams.” The applicant also told Ms Hebblewhite that she preferred written material to be provided on disk, and enlarged printed material in at least 22 point Arial font on green paper.[45] This conversation was confirmed in a file note made by Ms Hebblewhite.[46]
[45] C. Hinchliffe, 24.12.03, [40].
[46] S. Hebblewhite, 12.2.04, Exhibit “SH” 38.1
19.By the beginning of Semester One, 2001, all the lecturers for the subjects to be taken by the applicant knew that she had a vision impairment and that she needed her course materials provided in an alternative format.[47] Moreover, the applicant’s evidence was that she emailed her lecturers in the first semester in 2001 to tell them that she had a vision impairment and that she needed overheads provided in an accessible form.[48]
[47] S. Hebblewhite, Tx 13.4.04, 38.9.
[48] Tx 24.2.04, 166(2)-(12).
20.There can be no doubt that, prior to or shortly after commencing her course, the applicant had provided the University with sufficient information to know what her needs were, in terms of accessing course materials. She had had at least two meetings with officers who had the responsibility of dealing with disabled students; she had provided comprehensive medical information to the Head of the School which had also been read by the Academic Liaison Officer, and she had made all lecturers and tutors aware of her needs. One might well ask, what more could a student, recognised as having been given a concessional entry under a targeted scheme for disabled students[49], do other than provide such information about her disability and her needs?
[49] B, O’Neill, 13.2.04, [8].
21.The respondent’s case is that there was an onus on the applicant to complain if material was not provided to her in an accessible form.[50] For example, Ms Hebblewhite recalled that she had conversations with the applicant telling her that she needed to “keep at” the lecturers to provide her with overhead projections before lectures.[51] On another occasion, Ms Hebblewhite gave evidence that she had told the applicant that she must be “strong and firm” in requesting her needs for the 2002 academic year and that she was concerned that the applicant was not “pushy” enough in her requests.[52]
[50] See, e.g., Tx 24.2.04, 186(28)-187(4); 206(3)-207(2).
[51] Tx 13.4.04, 46.5.
[52] Tx 13.4.04, 73.
22.Apart from the obvious stress and consumption of time involved, there were good reasons why the applicant should not have been expected to “keep at” the University, or to have to be “strong and firm” or “pushy” in chasing up materials in an accessible format:
a)There was evidence that it is never easy making the transition from school to university, and some students may be uncertain and unconfident about what they can and cannot do. Ms Hebblewhite, who had had a number of years dealing with student inquiries at the University, agreed that this was the case, and that disabled students in particular may lack confidence in making this transition.[53]
[53] Tx 13.4.04, 9.5-12.5.
b)The evidence was that the applicant herself was not a “pushy” person[54], or the sort of person who would want to be a burden on other people.[55] At the time of her enrolment she was suffering from major depressive disorder which affected her motivation, a fact that was known to the University. The applicant herself said that she was reluctant to cause any trouble[56], and she assumed at least in Semester One 2001 that it was her responsibility to obtain material in an accessible format.[57]
[54] Tx 13.4.04, 74.2.
[55] K. Hinchliffe, Tx 25.2.04, 286.8.
[56] Tx 24.2.04, 189(25)-190(2).
[57] See, e.g., Tx 24.2.04, 197(22)-(26); 209(11)-(27)..
c)In any event, as was conceded by Ms Hebblewhite[58], the respondent had closely followed the procedures for disabled students described in Ms Hebblewhite’ s timetable of activities for January prepared for the incoming Disability Services Officer in December 2001.[59] Given that the University complied with its own procedures for new disabled students, one is entitled to ask, what more should a person in the applicant’s position be required to have done to make the University aware of her needs?
[58] Tx 13.4.04, 54.
[59] S. Hebblewhite, 12.2.04, Exhibit “SH” 10.
d)In addition, there was evidence that, during the course of Semester One 2001, the applicant did indeed bring her difficulties to the attention of the University. She told Ms Hebblewhite about the problems that she had in reformatting material at the State Library.[60] Ms Hebblewhite was of course aware of the applicant’s difficulties in reading course materials because she had to act as a reader in the applicant’s exams.[61] The applicant also raised her difficulties with lecturers, such as Ms Imelda Bergman[62], Ms Hillman[63], and Ms Donnelly[64], which was one of the remedies suggested by Ms Hebblewhite:[65]
[60] Tx 24.2.04, 193(20)-(26). Ms Hebblewhite recalled that a conversation about the State Library took place - Tx 13.4.04, 64.4.
[61] Tx 24.2.04, 198(22)-(24), Tx 13.4.04, 63.9-70.1.
[62] C. Hinchliffe, 24.12.03, [64]; Tx 24.2.04 194(12)-(26); Tx 25.2.04, 252.5.
[63] C. Hinchliffe, 24.12.03, [107]
[64] C. Hinchliffe, 24.12.03, [119]
[65] Tx 13.4.04, 43.3.
…Christina could speak to her lecturer and say: I can’t see the overheads, could I please have a copy of them before the lecture.
e)By August 2001 the University had only provided one manual to the applicant in reformatted form, and it was apparent to the applicant that she would not be getting anything else from the respondent. In any event, it was too late for her to request further material in audio format.[66]
[66] Tx 24.2.04, 203(3)-(19).
23.On the evidence, it can be inferred that the applicant was not getting her material in a way that she could adequately access because the University was either unwilling to provide material in an accessible format, or it was simply so disorganised that it was unable to provide such material. Ms Hebblewhite’s evidence in particular was revealing on this point. In cross-examination[67], she claimed never to have seen course materials handed to her for identification, which was extraordinary given that she repeatedly conceded that as Disability Services Officer it was her job to ensure that such materials were provided to disabled students in an accessible form.[68] When confronted with an extract from the University’s own document confirming this role, she made a half-hearted attempt to deny knowledge of the contents of the document, then she sought to qualify her role to that of assisting with the provision of material in an accessible format when requested by the student.[69] She repeatedly sought to evade responsibility for the provision of accessible materials, either by denying knowledge of the material[70], by suggesting that it was the responsibility of Mr O’Neill[71] or the other lecturers[72], or by simply denying outright that it was her responsibility.[73] She claimed that Ms Chan had provided material to the applicant on audio tape during Semester One 2001[74], which was against all the evidence; in particular Ms Chan’s evidence that she had no dealings whatsoever with the applicant in 2001.[75] Ms Hebblewhite’s denial that the provision of information by the applicant prior to the commencement of Semester One 2001 did not amount to a request for assistance[76] was simply not credible.
[67] Tx 13.4.04, 39.1-40.5.
[68] Tx 13.4.04 44.5; 46.9-47.1; 49.3, 51.2,
[69] Tx 13.4.04, 49.5-50.5.
[70] Tx 13.4.04, 42.3, 44.2; 72.3.
[71] See, e.g., Tx 13.4.04, 39.5, 49.1.
[72] Tx 13.4.04, 44.5, 62.2.
[73] Tx 13.4.04, 49.3.
[74] Tx 13.4.04, 59.5-60.2.
[75] Tx 13.4.04, 84-85.
[76] Tx 13.4.04, 51.3.
24.The intention for Semester Two 2001, according to Mr O’Neill, was to provide material to the applicant in:
…a format that was most appropriate for her, if there were lots of readings that they might be placed into tapes or whether it was in large font, whichever was appropriate.[77]
[77] Tx 25.2.04, 301.5.
25.It is clear that, by the middle of Semester One 2001, the University knew that the applicant could not access her course materials in the format provided to other students, and that a better effort would be needed for Semester Two. Mr O’Neill described the position towards the end of Semester One as follows:
By the start of or prior to the end of semester 1 we were asked to look into providing information for semester 2 in a formatted way, in a much more organised way.[78]
[78] Tx 25.2.04, 301.3. Emphasis added.
26.There would have been plenty of time for material to be sent to the Royal Blind Society or NILS to be reformatted, a process that Ms Hebblewhite had been aware involved a lead-in time of six weeks[79], and it is apparent that some steps were taken before the end of Semester One to be ready with accessible materials for Semester Two. As early as 14 May 2001 – five weeks before the end of Semester One[80] and almost twelve weeks before the commencement of Semester Two[81] - Mr O’Neill had sent an email to the unit managers for all subjects requesting that unit outlines for Semester Two be forwarded to him so that they could be compiled and sent to an outside service, identified by Mr O’Neill as the Royal Blind Society.[82] This is undoubtedly why, at the commencement of her evidence, Ms Hebblewhite qualified par. 82(a) of her affidavit to say that during Semester One 2001 the applicant had not made make any request to her for materials to be sent to the RBS or NILS for Semester One materials[83], thereby leaving open the probability that a request had been made for reformatting Semester Two materials.
[79] Tx 13.4.04, 17.3.
[80] Semester One commenced on 26 February 2001 and ended on 23 June 2001 – C. Hinchliffe, 24.12.03, [46].
[81] Semester Two commenced on 6 August 2001 – C. Hinchliffe, 24.12.03, [147].
[82] The email is at S. Hebblewhite, 12.2.04, Exhibit SMH 64. Mr O’Neill’s evidence on this point is at Tx 25.2.04, 301-302.
[83] The qualification was added in examination-in-chief: Tx 13.4.04, 4.9-5.1.
27.Given this information, the failure of the University to provide almost all materials in any accessible format in Semester Two 2001 was extraordinary.
28.It was also extraordinary that, given the collective experience of the University and its staff in 2001, Ms Chan (who was acting Disability Services Officer from the time that Ms Hebblewhite resigned in December 2001) could say that as at the end of December 2001, her only knowledge of the applicant’s disability was the name of the disability and that it required enlargement of text on pale green paper; “that was it, total knowledge”.[84] She claimed never to have seen the letter to Ms Gamble, or Dr Martin’s report, nor any of the other documentary material setting out the details of the applicant’s disability and her needs.[85] Curiously, only a few minutes later Ms Chan agreed that she had a discussion with Blind Citizens Australia about the need to provide material in audio form to the applicant.[86] Once again, there was a palpable reluctance on the part of the respondent’s witnesses to take responsibility for the provision of material to the applicant in an accessible form; a reluctance which the applicant says is indicative of her entire period of enrolment during the relevant time.
[84] Tx 13.4.04, 87.3.
[85] Tx 13.4.04, 88.
[86] Tx, 89.6-90.1.
29.By the beginning of 2002 the University was more than aware of the facilities required by the applicant in order to access her course materials. Once again, on 8 January 2002 Mr O’Neill sent an email to all unit managers to forward their workbooks and unit outlines to Ms Chan to be sent away for audiotaping and reformatting.[87] Ms Chan’s evidence was also that material was to be reformatted by NILS.[88]
[87] A. Chan, 12 February 2004, Exhibit “AC” 37.
[88] Tx 13.4.04, 93.
30.However, as has been its case, the University sought to put the onus on the applicant to “chase up” lecturers to determine what material needed to be reformatted and in what form.[89] Incredibly, Ms Chan sought to avoid responsibility for doing this herself by invoking the provisions of the Privacy Act 1988.[90]
[89] See, e.g., Tx 24.2.04, 211(23)-212(4), Tx 13.4.04, 95.1.
[90] Tx 13.4.04, 95.9-96.3.
What facilities did the respondent actually provide to the applicant?
31.The different forms of materials required to be accessed by the applicant in her course were canvassed by the respondent in cross-examination.[91] In summary, they consist of:
[91] Tx 24.2.04, 123-127.
·A unit outline (described as a “course outline”), which contains contact details for lecturers and staff in each course, summaries of some course topics, and lists of compulsory and recommended readings.
·A manual put together by the lecturer which involved a collection of materials, such as extracts from textbooks, diagrams and extracts from journal articles.
·Textbooks.
·Overhead projections and other handouts.
32.Annexed to this submission [but not annexed to these reasons – see paragraph 91 below] were two tables which summarise the applicant’s evidence relating to the facilities that she was actually provided with by the respondent in relation to her materials. Table 1 summarises the evidence for each subject taken in Semesters One and Two of the 2001 year, and Table 2 the evidence for each subject taken Semester One of the 2002 year. Before discussing this evidence, it is noted:
(a)There are separate columns for manuals and lectures, as the applicant in her evidence, which is footnoted in each case, differentiated between the manuals, being the collection of documents put together by the lecturer, and lecture notes which were on occasion handed out prior to lectures.
(b)There is also a column for “exams/assessment”. However, as was made apparent from the applicant’s affidavit sworn on 24 December 2003 and her evidence in cross-examination[92], it is not a major part of the applicant’s claim that she was not provided with materials in an accessible format during exams, although for reasons footnoted in the evidence, the assistance that she was given in exams was at times far from satisfactory.
[92] Tx 24.2.04, 146(18)-154(2).
33.The most striking thing about the material that was actually provided to the applicant in a reformatted form, was how little was provided during the 2001 year. Leaving aside any dispute about what was and was not said by the applicant to the University prior to her enrolment, and leaving aside the issue of what was the most appropriate format for material that year, the respondent repeatedly emphasised in cross-examination that the applicant had “only” requested “note-taking, enlarged print material, extra time in exams” in her UAC form.[93] While a notetaker was provided, it was never suggested by the respondent that she would do anything more than assist the applicant by taking notes during lectures.[94] The notetaker did not help the applicant access the voluminous material required to be read outside lectures. Further, while assistance was provided in exams, this was not the primary issue for the applicant in these proceedings.
[93] See, e.g., Tx 24.2.04, 170(21)-(22); 179(20)-(23); 183(7)-(8). See also Tx 24.2.04, 199(20)-(28).
[94] See, e.g., Tx 24.2.04, 189(3)-(10).
34.The primary issue for the applicant was that she was not provided with written and visual materials in a form that she could access. Put at its highest, and leaving aside the evidence that by the end of Semester One the respondent was at least aware that the applicant should have been given more voluminous written material in audio[95], on the most favourable view of the respondent’s case the applicant should have been provided with written material in at least disk form or enlarged format. However, when one considers the evidence, the sum total of material provided even in these formats during 2001 was utterly inadequate.
[95] Evidenced by the fact that by July 2001 at the latest the University had received the manual for Occupational Therapy Theory and Practice 1B from the Royal Blind Society in audio form – see Tx 24.2.04, 202(5).
35.For Semester One, no unit outlines were provided, only two of the required manuals were provided on disk but these had no diagrams, one document for a lecture in Module B of Components of Occupational Performance 1A was provided, one set of tutorial readings from Occupational Therapy Theory and Process 1A was provided but it was late and in 16.8 font and no readings in the other subjects were provided, and some overheads were provided in three subjects.
36.For Semester Two, no unit outlines were provided, no texts or tutorial readings were reformatted, no overheads were provided, and no handouts were provided in an accessible format. The only material that was reformatted in Semester Two was the unit manual for Occupational Therapy Theory and Process 1B, which was reformatted into six audio tapes by the Royal Blind Society and provided to the applicant in the first week of Semester Two. None of the other required manuals was reformatted.
37.By Semester 1, 2002, the respondent appeared to have been more receptive to the applicant’s needs. However even then, materials were provided patchily and almost always later than other students, a fact that was recognised by Ms Chan.[96] Material received even two weeks late caused great difficulty for the applicant. An example of this may be seen with the bundle of readings for Module 2 in Human Occupations 2A, “Readings 2002”. This consisted of photocopies of journal articles which had to be read prior to tutorials. As could be seen from the sample pages exhibited to the applicant’s affidavit (at “CH” 607-617), the form of this material was not accessible to the applicant.[97] The applicant had to “chase up” this matter with either Ms Chan or the new disabilities officer, Ms Black, and she did not receive an audio version of the documents until “at least a couple of weeks” into the semester.[98] This meant that her studies in this subject were delayed because for this period of time she was unable to keep up with the reading.[99]
[96] Tx 13.4.04, 97, 100-101.
[97] See also C. Hinchliffe, 24.12.03, at [269]-[270].
[98] C. Hinchliffe, 24.12.03, at [269].
[99] C. Hinchliffe, 24.12.03, at [270].
38.The applicant continued to make it known that she was unable to access materials. For example, her lecturer in Components of Occupational Performance 2A, Ms Kirsty Stewart, was aware of the difficulties that she was having in accessing the diagrams which could not be reformatted in that subject.[100]
[100] Tx 24.2.04, 219(14)-220(12).
39.At times the respondent’s cross-examination of the applicant appeared to suggest that she should not have expected the assistance that she had received at high school in accessing course materials because the University was not required to “spoon-feed” her.[101] If this was what the respondent was suggesting, it is misconceived. While the applicant did not give detailed evidence of her experience at high school, it is apparent that she was satisfied that material was provided to her in an accessible form during this period of her education.[102] While it is to be expected that the transition to university would be likely to required greater demands in terms of workload, this did not absolve the respondent from providing its services in a non-discriminatory way, in circumstances where it was made aware of the applicant’s disability and the facilities needed to enable her to access course materials.
[101] Tx 24.2.04, 135(4)-(14)
[102] C. Hinchliffe, 24.12.03, [10]-[14].
What detriment did the applicant suffer?
40.While the applicant achieved excellent results during the period in question, it is the applicant’s case that this was achieved in spite of the difficulties that she had in accessing the course material. Moreover, as appeared to be accepted by the University[103], and indeed was emphatically agreed to by Ms Hebblewhite[104], participation in a university education is much more than merely obtaining good academic results; It also includes the general welfare of the student on campus.
[103] Tx 24.2.04, 134 (23-24).
[104] Tx 13.4.04, 7.5.
41.The detriment suffered by the applicant was that she had been placed under constant and undue stress.[105] With little or no help from the University, she had to find out how to reformat the course materials herself, and then complete the arduous task of having to spend many hours doing the reformatting herself. She never knew whether she would receive materials in the correct format or in a timely manner:
[105] C. Hinchliffe, 24.12.03, [310]-[313].
…I just really could not focus on my studies when I was having to constantly chase material and get it in the right format, or if it was late, then I was really behind the eight-ball the whole time.[106]
[106] Tx 25.2.04, 243.3.
42.When compared with non-disabled students, the applicant almost invariably received her course materials later, or not at all. Other students did not have to spend their time chasing or reformatting course materials, but would have instead spent it on study, research and completing assignments; time that the applicant did not have.[107]
[107] C. Hinchliffe, 24.12.03, [315].
43.As a result, the applicant also feels that her academic potential was compromised. She feels that she would have performed better had she been provided with the material in the correct format in a timely manner.[108]
[108] C. Hinchliffe, 24.12.03, [314].
Submissions on the law
Disability:
44.The term “disability” is defined in s 4 of the DDA:
disability , in relation to a person, means:
(a)total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists ; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k)is imputed to a person.
At paragraph [201] their Honours stated that concepts of “difference”, “disability” and “disadvantage” all depend upon comparisons. They assume that there is a person, or a group of persons, with whom it is useful and relevant to draw the comparison which is implicit in describing one person as “different”, or “disabled”, or “disadvantaged”. The High Court was there principally concerned with the operation of ss.5 and 22 of the DDA. The issue is also relevant to a consideration of the operation of ss.6 and 22. However, the task of statutory construction should not be approached from a pre-determined position that rules out a particular result regardless of the language used by Parliament: Catholic Education Office v Clarke at [93]. Ms Eastman’s submission at paragraph (113) does not necessarily translate from a case of direct to a case of indirect discrimination, as Mr Poynder notes at paragraph 10 of his submissions in reply.
Section 6 relevantly requires that the applicant establish that the university discriminated against her on the ground of her disability because the university required the applicant 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 applicant did not or was not able to comply.
This necessarily requires a comparison between the position of the applicant and the position of other persons without her disability. However, as the Full Federal Court noted in Catholic Education Office v Clarke at [111], the comparison required by s.6(a) is not with the applicant personally, but with a class of persons with the applicant’s disability. If there is no such actual class, it could be a hypothetical class.
Secondly, and in addition, the applicant must prove the relevant act or acts of discrimination are unlawful for the purposes of s.22 of the DDA. The applicant must relevantly prove that the university discriminated against her on the ground of her disability either by denying her access, or limiting her access, to any benefit provided by the university or by subjecting her to some detriment.
It will be seen at the outset that the combined burden on the applicant presents something of a difficulty for her. Not only must she establish that she was subject to some discriminatory requirement or condition but also that she was denied or given only limited access to a benefit (or alternatively that she was subjected to a detriment) by the university because of her disability. It is hard to imagine how a condition or requirement imposed could also constitute a benefit. It may of course be a detriment. On the other hand, it is possible that the imposition of a condition or requirement may, by its operation, deny or limit access to a benefit provided by the university.
If the applicant is unable to establish that indirect discrimination occurred pursuant to s.6 of the DDA and that the discrimination was unlawful pursuant to s.22 of the DDA her application must fail. I will consider first whether indirect discrimination occurred.
Did the university impose upon Ms Hinchliffe an obligation that she comply with a requirement or condition?
On behalf of the applicant, Mr Poynder characterises the asserted requirement or condition as that she undertake her university studies without all of her course materials being provided in an alternative format, either at all or at the same time as other students received their course materials[139]. On behalf of the respondent[140], Ms Eastman submits that the only requirement imposed on Ms Hinchliffe was that she achieve a pass grade in the subjects in which she was enrolled in order to meet the requirements to graduate with a Bachelor of Applied Science (Occupational Therapy).
[139] paragraph 57, applicant’s first written submissions
[140] paragraph 147, respondent’s written submissions
I agree with Ms Eastman that, for the purposes of s.6, the relevant requirement or condition must be one imposed upon not only the applicant but also on the class of other persons to whom the applicant is to be compared. It is a mistake to confuse the impact of a requirement or condition upon a disabled person with the terms of the requirement or condition itself. However, it is also a mistake to restrict consideration to formal or absolute requirements such as the requirement that students enrolled in the occupational therapy course complete course requirements by achieving a pass grade. I adopt the description by Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987, (2002) 123 FCR 561at [56]:
… the concept of a “requirement or condition” with which the aggrieved person is required to comply involves the notion of compulsion or obligation. [original emphasis retained] See the definitions of “require” and “requirement” in the Macquarie Dictionary, 3rd ed, and the definition of “condition”, which includes the following:
“a circumstance indispensable to some result; a prerequisite; that on which something else is contingent ... something demanded as an essential part of an agreement ...”
And whether a “requirement or condition” within section 6 has been imposed in the context of the Disability Discrimination Act will take its colour from the particular setting in which it is said a prohibition against discrimination created by the Act has been infringed by indirect discrimination. [141]
[141] On appeal - Sluggett v Flinders University of South Australia [2003] FCAFC 27, Drummond J’s decision was upheld.
The expression “requirement or condition” in s.6 of the DDA should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or condition needs to be formulated with precision: Catholic Education Office v Clarke at [103]. In this case, it is artificial and inconsistent with the language of s.6 to describe the requirement or condition as the denial of facilities sought by or on behalf of the applicant in order to meet her special requirements because of her disability. That is relevant to a consideration of whether s.22(2)(a) or (c) has been breached but it is not a condition that was imposed upon a general class of persons including those without the applicant’s disability. Conversely, it is artificial to limit consideration to the passing grade requirement. That is obviously something imposed upon all students but for the purposes of the conduct of the course of study, a range of requirements were imposed by the university upon students undertaking the course. Students were required to sit examinations. Students were expected to attend lectures and submit course work. Students were also expected to read course materials provided for the various units of the degree course. The element of compulsion arises because if a student did not sit examinations, attend lectures, submit course work or read course material, it would be difficult (if not impossible) for the student to achieve a passing grade.
It is not part of the applicant’s claims that she was discriminated against in relation to her obligation to submit course work. It was part of the applicant’s claims that she was discriminated against in the conduct of examinations and attendance at lectures. However, the applicant does not assert that these were material obligations for the purposes of her application. That is understandable when one considers the evidence of the special arrangements made by the university for the applicant for examinations and for attendance at lectures. The applicant’s real complaint is with the course material that she was expected to read. The applicant has characterised the obligation as an obligation to receive course material in only one format. However, that characterisation requires some refinement in order to be meaningful, and to focus attention on the whole class of students of which the applicant was a member, rather than the applicant in isolation. The relevant requirement or condition for the purposes of this case as presented by the applicant is, in my view, the requirement or condition imposed by the university that students deal with course materials provided by the university in a single or standard format that the university chose to provide to all students. In other words, students were generally expected to either read course materials in the format that they were given to them or seek themselves to convert those materials into a different format which was preferred by them.
As in the case of Waters v Public Transport Corporation this was a requirement which was facially neutral and which was imposed upon a class of persons who are not disabled as well as the applicant. Also, as in the case of Waters it was a requirement which potentially might impact adversely upon the applicant by reason of her disability.
Did this requirement impact differentially because of the applicant’s disability?
As Mr Poynder notes in his first written submissions[142] the next step is to identify whether a “substantially higher proportion of persons without disability comply or are able to comply” with the requirement or condition. Mr Poynder proposes a comparative base group of all students in the applicant’s class[143]. Ms Eastman submits that there is a lack of evidence about the base group[144] and again refers to inadequate pleadings. I reject that submission. The appropriate comparative base group is obviously the group of students undertaking the same degree course as the applicant at the time she was undertaking it. The evidence was, which I accept, that there were approximately 130 students falling within that class. Dr Chan gave evidence that in 2002 there were only two students, including the applicant, who were vision impaired undertaking the occupational therapy course. It obviously follows that there were many more students undertaking the course who are not vision impaired. While the evidence of both parties concentrated on the formats in which course materials were provided to the applicant, rather than to students generally, and on the applicant’s ability to access material rather than the ability of students generally, it is clear enough to me from the evidence that course materials provided by the university were ordinarily provided on white paper and in a format that was not enlarged from the original source. In the light of, and in the knowledge of, Ms Hinchliffe’s disability, the university elected to provide some course materials to her in different formats. Some material (in particular, examination material) was provided in large print on green paper. Other material was provided in electronic format on computer disk. At a later stage, material was increasingly provided in audio format in response to requests from Ms Hinchliffe. However, for present purposes, the focus of attention should not be on the particular items of material which were provided to Ms Hinchliffe in a special format but on the generality of material which was provided to students in what might be described as a “standard” format. That is, on white paper in “normal” font. I am prepared to accept, on the basis of ordinary human understanding, that persons with normal vision are capable of reading material in standard font on white paper without particular difficulty. There is ample evidence before me that the applicant does, because of her disability, have a difficulty in reading such material. A hypothetical comparative class of persons with the same disability as the applicant would have the same difficulty.
[142] See paragraph 58
[143] see paragraph 61, applicant’s first written submissions
[144] see paragraph 178 of the respondent’s written submissions
I find, that, to the extent that if the university chose to provide course materials to students undertaking the occupational therapy degree course in a format of unenlarged text or diagrammatical material on white paper, a substantially higher proportion of persons undertaking that course without the applicant’s disability could comply with the condition imposed on them by the university. Persons with normal eyesight would not be able to read material if it was photocopied and improperly collated so that essential material was missing. It appears that this sometimes occurred but the whole class was adversely affected by those errors, not just the applicant. Likewise, if material was so poorly photocopied that it was illegible, the whole class would have been adversely affected. However, in the ordinary case where material was provided in standard font on white paper and was legible it would have been possible for most students to read the material without difficulty. In the case of a member of a hypothetical class of persons in the position of Ms Hinchliffe, they could not read such material without difficulty. They would have to convert it, if possible, into another format that was useful to them.
The above finding of course only has meaning to the extent that course material can be identified from the evidence as falling in what I have described as “standard” format. I am satisfied from the applicant’s evidence, summarised in tabular form in annexure A, that some of her course material was provided to the applicant in 10 or 12 point font (which I regard as normal) on white paper. It was left to Ms Hinchliffe to reformat that material should she so wish to.
To the extent that material was provided to Ms Hinchliffe in a different format from that which was provided to other students without the disability, no issue of indirect discrimination arises. I have no evidence about whether students without a disability sought and received course material in a special format. I have no evidence about the capacity of students without an eyesight disability to deal with course materials in some special format chosen by the university in an attempt to meet their needs.
Could the applicant comply with the university’s requirement?
I have already found that the applicant had difficulty reading printed words or diagrams that were not enlarged and which were printed on white paper. Ms Hinchliffe admitted that it was possible for her to read this material but that she could only do so for a short time. For all practical purposes, if she was to read such material, it was necessary for her to convert it to an alternative format, which required either enlarging the material and reproducing it on green paper or having it read to her, or having it converted to an audio format that she could listen to later.
Generally, it was possible for the applicant to comply with the university’s requirement. She could make use of course material provided to her in a standard format by converting it to a different format. However, this was not universally the case. Annexure A identifies some course material that Ms Hinchliffe was unable to reformat, principally because of the poor quality of the original. To that extent I find that she was unable to comply with the university’s requirement. Some of the material may have been so poor that no one (even with good eyesight) could read it but I am prepared to accept that there was poor quality material that was legible enough to be read by people with normal eyesight, but not legible enough to be reliably reformatted. Beyond that, I see no inability on the part of the applicant to comply with the university’s requirement. The university did not require or expect that any student should not reformat course materials if they wished to. The university simply made standard format course materials available to students for them to use. The need for Ms Hinchliffe to reformat materials probably inconvenienced her, relative to students who did not suffer from her disability. That is a relevant issue for the purposes of s.22(2)(c) of the DDA. However, for the purposes of s.6(c) of the DDA the inconvenience suffered by the applicant did not approach the standard necessary to establish an inability to comply with the university’s requirement or condition. That standard requires that the applicant prove a “serious disadvantage” with the result that the applicant could not “meaningfully participate” in the course of study for which she had been accepted: Catholic Education Office v Clarke at [66] and [126]. Ms Hinchliffe and her mother gave detailed evidence about the steps that they took to reformat material that needed to be reformatted. I accept that evidence. It follows from that evidence that, to the extent that Ms Hinchliffe and those assisting her, were able to reformat the course materials, she was able to comply with the university’s condition that she use the course materials provided to her.
I find that the inability of the applicant to comply with the university’s requirement is restricted to the material identified in annexure A by the applicant as not capable of being reformatted into an acceptable format.
Was the university’s requirement reasonable, having regard to the circumstances of the case?
I accept paragraph 65 of Mr Poynder’s first written submissions. Further guidance has been provided by the Full Federal Court in Catholic Education Office v Clarke at [115]. Ms Eastman deals with this issue in paragraphs 187-249 of her written submissions. The length of those submissions reflects the perceived importance of this issue in this case. Mr Poynder responds in paragraphs 37-41 of his submissions in reply.
Plainly, the university knew of Ms Hinchliffe’s disability when her enrolment was accepted. By the time she commenced her course of study, Ms Hinchliffe had made the university aware of her preference for receiving written material in an enlarged format on light green paper. I have already found that in large measure Ms Hinchliffe was able to comply with the university’s requirement that she use course materials unenlarged on white paper and, to that extent, she is unable to satisfy a necessary element in establishing indirect discrimination pursuant to s.6. Should I be wrong in that finding, I accept the university’s submissions that the steps taken by it were reasonable. The material that was provided to the applicant in enlarged format on light green paper were provided in a reasonable attempt by the university to provide material to Ms Hinchliffe in a format that the university understood that she needed. To the extent that material was provided to her in electronic format on disk, the material was provided in a form that Ms Hinchliffe could reasonably access and enlarge to the extent that she considered necessary and, if necessary, to print on light green paper. In the 2002 course year, a substantial amount of course material was provided to Ms Hinchliffe in audio format, which was the format that Ms Hinchliffe then requested. Other material unsuitable for audio format was enlarged on paper or provided on disk. Ms Hinchliffe complains about the length of time taken to reformat material into audio format but that is an unfortunate consequence of the format which she prefers. That much is clear from the evidence of Mr Woodbridge. In addition, the university did not know of the applicant’s preference for audio format until that was pointed out to the university. The applicant herself commenced her course studies in the belief that she would be best served by enlarged print material on light green paper. That appears to continue to be the opinion of her treating doctor[145].
[145] see paragraph 55 of these reasons
In her first year of study, Ms Hinchliffe learned from trial and error. She came to the view as she gained experience from her course of study that she would be best served by receiving material in audio format that was reasonably capable of being put into that format and that she would be best served by receiving the balance of material enlarged on light green paper. Obviously, the university could not deal with that conclusion until they were made aware of it. That did not occur until the second semester in 2001. This required a collaborative interaction between the university and Ms Hinchliffe. The process might have been better handled by the university prior to the involvement of Dr Chan but Ms Hinchliffe did not assist matters by taking a rather dismissive view of the capacity of the university to assist her. Dr Chan impressed me as a person of formidable character and intellect. She was a most impressive witness. I accept her evidence. Once Dr Chan did become involved I am satisfied that the university did all that it reasonably could to accommodate Ms Hinchliffe’s special needs.
For my purposes, having regard to my earlier finding on the ability of Ms Hinchliffe to comply with the university’s condition, the real issue is whether the imposition of that condition (that she deal with material presented in standard format) was reasonable. As I have already found, the issue only arises in relation to standard format material that was not reasonably capable of being reformatted into a format acceptable to Ms Hinchliffe. The university provided Ms Hinchliffe with access to a disability services room containing computers, a photocopier, a scanner, a printer and a stock of green paper. Provided that material was capable of being enlarged and printed on light green paper, this facility was adequate to enable Ms Hinchliffe to access her course materials. Conversely, if the material provided was so poor that it could not be reformatted by enlargement (by photocopying or possibly, scanning and printing) then the facility provided by the university was of no use to Ms Hinchliffe.
However, the assistance provided by the university to Ms Hinchliffe did not stop there. She was provided with access to a disability services officer. For the greater part of the relevant period this was Suzanne Hebblewhite. Ms Hinchliffe’s evidence was that she lacked confidence in Ms Hebblewhite’s capacity but she admitted under cross‑examination that whenever she sought assistance it had been provided. The position of disability services officer exists at the university campus to assist students with disabilities deal with particular problems encountered during their course of study. I accept the university’s evidence that Ms Hebblewhite and others performing that role from time to time made a sincere (if at times imperfect) attempt to perform the function assigned to them. Ms Hinchliffe chose to keep her dissatisfaction about the quality of material provided to her to herself in relation to problems arising in semester one of 2001. Neither was any complaint made to the university in relation to poor quality course material provided in semester two, 2001. I accept the respondent’s evidence in that regard. I find it impossible to believe that, if Ms Hebblewhite or her successors had been informed that Ms Hinchliffe had been provided with course material which could not be reformatted into an acceptable format, they would not have taken steps to ensure that better quality material was provided. In my view, the provision of the disability services officer who was available to deal with occasional problems in reformatting course materials was sufficient and adequate. The existence of that position rendered the university’s requirement reasonable.
I have no evidence of materials being provided in 2002 that were not capable of being reformatted. Indeed, it appears from the evidence that most of the material provided to Ms Hinchliffe in 2002 was reformatted in some form or other.
Conclusion
I conclude from the foregoing that the applicant has failed to establish a case of indirect disability discrimination under s.6 of the DDA. In the circumstances, it is unnecessary to consider whether the respondent breached s.22(2)(a) or (c) of the DDA. There was no indirect discrimination and accordingly, there could be no unlawful discrimination.
I will hear the parties as to costs.
Final comments
This is a very long judgment. That is a matter of regret to me, particularly having regard to the applicant’s vision impairment. I have therefore prepared a judgment summary, principally for her benefit. A copy will be made available to her in 24 point Arial font on light green A4 paper. Nevertheless, I am concerned that this judgment is much longer than it needed to be, principally because of the inclusion of counsel’s written submissions. This is a classic case of the Court having sufficient time to prepare a long judgment but insufficient time to prepare a short one. It is a relatively simple matter to include written submissions that are provided electronically, as here. It is a far more time consuming exercise to summarise very lengthy and complex written submissions. Unfortunately, due to current work pressures, that has not been possible in this case. Counsel have taken the trouble to prepare written submissions in accordance with the Court’s directions, and it would be discourteous to counsel not to refer to them adequately. However, in my view, the written submissions presented, particularly by the respondent, were considerably longer than they needed to be. The Court has power, under s.56(2) of the Federal Magistrates Act, to limit the length of written submissions. The time has probably now come to begin using it.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 August 2004
- AGLC
- Hinchliffe v University of Sydney [2004] FMCA 85
- Case
- [2004] FMCA 85
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the university provided Mr Hinchliffe with adequate notice of the allegations against him and an opportunity to respond, as required by procedural fairness. The court examined the university's internal policies and procedures, the evidence provided by both parties, and the application of relevant legal principles. The court found that the university's decision-making process was flawed as it did not allow Mr Hinchliffe sufficient opportunity to respond to the allegations made against him. Consequently, the court concluded that the university's decision was not made in accordance with the principles of procedural fairness.
As a result of this determination, the court dismissed Mr Hinchliffe's application for judicial review. The court held that the university's decision to terminate Mr Hinchliffe's employment was unlawful due to procedural unfairness. However, given the nature of the relief sought and the circumstances of the case, the court did not grant any further orders or remedies.
Orders
Orders of the court
1.
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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