Hurst and Devlin v Education Queensland - [2005] FCA 405

FEDERAL COURT OF AUSTRALIA
Hurst and Devlin v Education Queensland [2005] FCA 405
DISCRIMINATION LAW – disability – profound deafness – access to education – without an Auslan teacher or an Auslan interpreter – reasonableness – compensation – Disability Discrimination Act 1992 (Cth).
Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Purvis v New South Wales(Department of Education and Training) (2003) 202 ALR 133 followed
Haines v Leves (1987) 8 NSWLR 442 followed
Street v Queensland Bar Association and Others (1989) 168 CLR 461 followed
Waters and Others v Public Transport Corporation (1991) 173 CLR 349 followed
Australian Medical Council v Wilson (1996) 68 FCR 46 followed
Australian Iron and Steel Proprietary Limited v Banovic and Others (1989) 168 CLR 165 followed
Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621 followed
Clarke v Catholic Education Office (2003) 202 ALR 340 followed and applied
Charles v Fuji XeroxAustralia Pty Ltd (2000) 105 FCR 573 followed
Todorovic & Another v Waller (1981) 150 CLR 402 followed
Thompson v Faraonio (1979) 24 ALR 1 followed
TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) v EDUCATION QUEENSLAND
Q 200 of 2002
BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) v EDUCATION QUEENSLAND
Q 201 of 2002
LANDER J
15 APRIL 2005
ADELAIDE (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 200 OF 2002

BETWEEN:

TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH)
APPLICANT

AND:

EDUCATION QUEENSLAND
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

15 APRIL 2005

WHERE MADE:

ADELAIDE (HEARD IN BRISBANE)

THE COURT ORDERS THAT:
In Action Q200 of 2002:
1. The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 201 OF 2002

BETWEEN:

BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN)
APPLICANT

AND:

EDUCATION QUEENSLAND
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

15 APRIL 2005

WHERE MADE:

ADELAIDE (HEARD IN BRISBANE)

THE COURT ORDERS THAT:
In Action Q201 of 2002:
1.Leave to amend pars 12, 13, 14, 15, 17, 18, 19, 22, 25, 29 (with the exception of par 29(e)), 29D, 30 and 31 (but in respect of those last two paragraphs only to include a reference to par 29D).
2.Otherwise leave to amend refused.
3.A declaration that the respondent has committed unlawful discrimination.
4.The respondent to pay the applicant $64,000, which includes $4,000 by way of interest.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 200 OF 2002

BETWEEN:

TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH)
APPLICANT

AND:

EDUCATION QUEENSLAND
RESPONDENT

Q 201 OF 2002

BETWEEN:

BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN)
APPLICANT

AND:

EDUCATION QUEENSLAND
RESPONDENT

JUDGE:

LANDER J

DATE:

15 APRIL 2005

PLACE:

ADELAIDE (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

These two matters were heard together and the evidence taken in each matter was admitted, subject to relevance, in the other matter.
These reasons apply to both matters.
INTRODUCTION
Both applicants brought proceedings against the respondent under the Disability Discrimination Act 1992 (Cth) (the Act) seeking compensation, a declaration that the respondent has committed unlawful discrimination, orders requiring the respondent not to repeat or continue such unlawful discrimination, and requiring the respondent to perform such acts and/or courses of conduct that the Court deems appropriate to redress any loss or damage suffered by the applicants.
Benjamin Devlin (Ben) is 12 years of age today. He was born on 15 April 1993. Tiahna Hurst (Tiahna) is now aged seven years. She was born on 24 February 1998.
Both applicants were born profoundly deaf, although Ben is more profoundly deaf than Tiahna. Both of them have a disability as defined in s 4 of the Act, because both of them have a partial loss of bodily function; malfunction of part of the body; and a disorder or malfunction causing them to learn differently from a person without the disorder or malfunction.
The respondent administers educational institutions as defined in s 4 of the Act.
Ben is one of five children of Kim and John Devlin. He was diagnosed as profoundly deaf when about 16 months old. None of his siblings are hearing impaired.
The respondent has provided Ben with an Advisory Visiting Teacher (AVT): Hearing Impairment since soon after his disability was diagnosed. Ben’s first AVT was Rosemary Horn.
In 1994 Mrs Devlin told Ms Horn that she wanted Ben to be oral, that is to say, to be able to speak in English and receive information in English. Ms Devlin said that she thought that when Ben received his hearing aids he would be able to hear. She said that she also relied on Ms Horn’s advice in making that statement. She later realised that the hearing aids did not enable Ben to hear.
In 1995 and 1996 Ben attended a childcare centre which was not administered by the respondent and, in 1997, he attended a childcare centre and kindergarten which were also not administered by the respondent. In 1997 he commenced at the Noosaville SEDC which was administered by the respondent.
Benjamin went to Noosaville Pre-School in 1998 and has continued in educational institutions administered by the respondent since that time and to trial.
Tiahna is the daughter of Gail Smith. Tiahna was diagnosed as profoundly deaf before she was three months old. Her mother is not hearing impaired. However, her maternal grandparents are both profoundly deaf. Her grandparents communicate in Auslan (a native Australian sign language). Her mother is bilingual. Her first language is Auslan and her second language is English. Her father’s second language is Auslan.
The respondent has provided Tiahna with an AVT: Hearing Impairment since 1998. Her first AVT was also Rosemary Horn.
Tiahna first entered an educational institution administered by the respondent in February 1999 where she remained until February 2002.
Between 1999 and 2001 Tiahna was a student at the Yeerongpilly Special Education Development Unit. Between June 2001 and February 2002 she was a student at the Noosaville Special Education Unit.
Tiahna then pursued her education at a private institution not administered by the respondent. In 2003 she recommenced her education in an institution administered by the respondent when she attended the Sunshine Beach State Pre-School. Since January 2004 she has attended the Coolum State School.
Both applicants are so deaf that they cannot hear the spoken word and their speech is affected. Ben is not capable of being understood. Tiahna is able to talk and is capable of being understood by someone who is close to her and who understands the topics which she is addressing.
THE PLEADINGS
Both applicants originally put their case in the same way. Both applicants claimed that the best method, and the only adequate method of communication with them, is through sign language, Auslan. Both applicants claimed that if their teachers were familiar with Auslan, and they were taught it, they would receive a better education than if their teachers attempted to communicate with them by any other method.
They pleaded that if they were taught by the best or only adequate method of communication, then they would obtain access to the education material provided by the respondent at the same rate and to the same degree as their hearing peers would obtain access to the education material provided by the respondent. In particulars given in reply to the respondent’s request for further and better particulars, the applicants define ‘education material’ to be ‘books, videos, and other documents of all description, together with the speech of the teacher used to communicate the ideas, methods and facts referred to in the curriculum of the Respondent relevant to the year and age of the student’.
The applicants pleaded, and this is disputed, that the respondent does not teach them by use of Auslan. They claimed that the respondent does not teach the applicants by teachers qualified in the use of Auslan.
Both applicants claimed that the respondent’s failure to provide teachers fluent in Auslan has retarded their education and will retard it in the future.
The applicants said that they have been taught by a combination of the spoken word and Signed English. They claimed that the quality and fluency of the Signed English used by the respondent has been poor. Particulars were sought of this plea. In Ben’s proceedings, the following particulars to par 14 of his Statement of Claim were given in a document entitled ‘Amended Further and Better Particulars of the Statement of Claim’:
‘Regarding paragraph 14, the Applicant claims that the Signed English referred to was:
(a)“poor in quality” based on;
(i)the fact that:
(1)the Applicant cannot produce meaningful, age appropriate English in spoken, written or signed form;
(2)the Applicant’s use of Signed English is consistently ungrammatical;
(3)the Applicant is unable to, by the use of Signed English, combine ideas in a logical sequence to achieve unity of thought and continuity in telling a story;
(4)the Applicant does not have an intellectual disability.
(ii)the observations of Gail Smith, who is a fluent Auslan signer, and experienced in the use of Signed English and John Uri a qualified teacher of the Applicant’s teachers at Noosaville Primary School;
(iii)    the observations of the Applicant’s mother, Kim Devlin;
(iv)the observations of the Applicant;
(v)the lack of recognised qualifications of teaching staff.
(b)       “poor in fluency” based on;
(i)      the fact that:
(1)the Applicant cannot produce meaningful, age appropriate English in spoken, written or signed form;
(2)the Applicant’s use of Signed English is consistently ungrammatical;
(3)the Applicant is unable to, by the use of Signed English, combine ideas in a logical sequence to achieve unity of thought and continuity in telling a story;
(4)the Applicant does not have an intellectual disability.
(ii)the observations of Gail Smith, who is a fluent Auslan signer, and experienced in the use of Signed English and John Uri a qualified teacher of the Applicant’s teachers at Noosaville Primary School;
(iii)   the observations of the Applicant’s mother, Kim Devlin;
(iv)    the observations of the Applicant;
(v)     the lack of recognised qualifications of teaching staff.’
The particulars given are inappropriate. The fact that Ben cannot produce meaningful age appropriate English in spoken or written form; his use of Signed English is consistently ungrammatical; he is unable by the use of Signed English to combine ideas in a logical sequence with the consequences described; and that he does not have an intellectual disability, are not particulars of poor quality Signed English used by the respondent.
The observations referred to in subparagraphs (a)(ii), (iii) and (iv) are not particulars. That is the evidence by which the applicant might prove the poor quality of the Signed English used, but are not particulars of the poor quality.
The same remarks apply to the particulars given of ‘poor in fluency’. They are not proper particulars of the allegations in par 14 of Ben’s Statement of Claim.
In Tiahna’s case, she also gave particulars of the same plea of the poor quality and fluency of the Signed English which has been used by the respondent. She pleaded:
‘3.Regarding paragraph 18, the Applicant claims that the Signed English referred to was –
(a) “poor in quality” based on;
(i)the observation of the Applicant’s mother, who is a fluent Auslan signer, and experienced in the use of Signed English;
(ii)the lack of recognised qualifications of teaching staff.
(b) “poor in fluency” based on;
(i)the observation of the Applicant’s mother, who is a fluent Auslan signer, and experienced in the use of Signed English;
(ii)the lack of recognised qualifications of teaching staff.’
For the reasons already given, the particulars given are not particulars, but evidence. Subparagraphs 3(a)(i) and 3(b)(i) contains the evidence by which the claim may be proved. Subparagraphs 3(a)(ii) and 3(b)(ii) do not support the plea of ‘poor in quality’. The lack of recognised qualifications of teaching staff does not mean that the Signed English is poor in quality. There would be many people who are unqualified but who may be quite fluent in Signed English.
Prior to trial, the respondent took no issue in respect of the applicant’s responses to its request for particulars and did not seek to strike out the particulars or seek better particulars. However, there is a reason for drawing attention to the pleas in par 14 and par 18 of the Statements of Claim and the purported particulars.
During the hearing, Mr Gray, who appeared for the applicants, said that the applicants put their cases on two bases. First, on the basis already described, that the only appropriate method of education of the applicants was by Auslan and any other method meant the applicants were the victims of discrimination.
Secondly, that even if it were appropriate to teach the applicants in Signed English and spoken English, the education offered these applicants was so poor, both in quality and fluency, that the applicants were in that regard the victims of discrimination.
During the course of the trial and, more particularly, during closing addresses, I advised the applicants’ counsel that the applicants’ amended Statements of Claim and the particulars given did not raise the case as presented on the alternative and second basis. Whilst the applicants alleged that the quality and fluency of the Signed English offered has been poor, they did not assert that these facts gave rise to discrimination. Their plea of discrimination did not relate to the quality and fluency of the Signed English but only to the claim that any method of education that is not given in Auslan is inappropriate and amounts to discrimination.
It seemed to me that their claim, as pleaded, was that as a result of the respondent’s failure to provide Auslan communication it had diminished their education outcome.
At the conclusion of the respondent’s case, both applicants sought leave to file a further amended Statement of Claim.
In Tiahna’s case, the only amendment sought to be made was to plead that she was ‘severely to profoundly deaf’ rather than simply ‘profoundly deaf’. The respondent did not object to me granting leave and leave was given to Tiahna to amend her Statement of Claim accordingly.
No attempt was made to plead the second basis relied upon by Mr Gray: [29]. Indeed, Mr Gray confirmed, after leave was given to amend Tiahna’s Statement of Claim, that her case was simply that she had been discriminated against because she had not been taught in Auslan. That is the single act of discrimination relied upon.
In Tiahna’s case, therefore, her claim is quite simple. It is that the respondent has discriminated against her by failing to provide her with Auslan instruction and, as a result, her education outcome has been diminished.
Because Tiahna limited her claim to discrimination based solely on a failure to provide her with Auslan instruction, it rendered a good deal of the evidence given in her case irrelevant. Her mother had sworn affidavits in which she was critical of the respondent’s education of Tiahna in a number of respects. She was also highly critical of some of Tiahna’s teachers. She was cross-examined on her affidavits and she maintained those criticisms. I will address her evidence in due course but I make the point, at this early stage, that most of her complaints were, on Tiahna’s own case, as it was left with me, irrelevant. Whilst the respondent has in its defence in answer to those particular criticisms positively asserted reasons why Tiahna has not achieved the same level as her hearing peers, that plea has also been rendered irrelevant. It follows that Ms Smith’s evidence on that issue is also not relevant. There is no reply and, therefore, no positive plea on Tiahna’s part that the poor quality of her education has meant that she has been discriminated against.
During the course of closing addresses, a number of attempts were made to amend Ben’s Statement of Claim so that the pleadings reflected the two bases referred to by Ben’s counsel. As already mentioned, this application to amend Ben’s Statement of Claim was made after the close of the respondent’s case.
In the end result, Ben sought leave to amend his Statement of Claim in three ways. First, was to recognise that he was currently receiving five hours tuition per week in Auslan. There was no objection to that amendment.
The second amendment was more significant. He sought to replead the particulars given in par 14 of the Statement of Claim. In doing so, he sought to delete the existing particulars in the Statement of Claim and include particulars different to those previously given in the Amended Further and Better Particulars of Claim. He sought to amend par 14 in the following way:
‘14.The quality and fluency of the Signed English used by the Respondent in the teaching of the Applicant has been, and is, poor.
PARTICULARS
~~(a)The Respondent has taught, continues to teach, and insofar as may be presently ascertained, would in future teach the Applicant by a varied mixture of Signed English and the spoken word.~~
~~(b)As to the past circumstances and the past, the Respondent is referred to the relevant material in the affidavit of Kim Devlin filed most recently in this proceeding.~~
(a)The Signed English used has not been fluent.
(b)The Signed English used has relied on a limited vocabulary.
(c)The Signed English used has not had a good or adequate language model.
(d)The teachers and teachers aides teaching the Applicant have not been qualified in Signed English or have not been sufficiently qualified in Signed English.
(e)The teachers and teachers aides teaching the Applicant have been inadequately trained in Signed English.
(f)The Respondent has not been able to provide a language environment equivalent to that provided to the Applicant’s hearing peers in the spoken word.
(g)The Signed English used by the teachers and teachers aides teaching the Applicant has been of a standard which could fairly be described as basic, elementary or at best developing.’
He also sought to make consequential amendments in pars 20 and 23 of the Statement of Claim. The respondent objected to those proposed amendments.
The proposed amendments raise issues not previously pleaded. Whilst Ben’s counsel contended that the then existing plea could be understood to raise a claim of discrimination based on the poor quality of education given to Ben over his school life, for the reasons already given, the amended Statement of Claim does not clearly raise that issue. The proposed amended Statement of Claim does.
The respondent argued that the proposed amendment was too late. The respondent contended that Ben had had a number of opportunities to make these allegations prior to trial. It submitted that I had raised this issue with Ben’s counsel on a number of occasions during the trial but it was not until the respondent had closed its case that these amendments were sought.
Mrs Devlin’s evidence was quite critical of Ben’s teachers and their abilities to teach him.
The respondent answered that criticism by calling all of the relevant teachers who had been associated with Ben’s education over the relevant period. However, the respondent submitted that those teachers were called to prove the education that had been offered and the system of education, not for the purpose of answering the matters which Ben sought to raise after the conclusion of the trial.

In my opinion, the respondent could not claim that it was taken by surprise by this amendment.
The original complaint of discrimination, lodged with the Human Rights and Equal Opportunity Commission (HREOC) on 30 May 2002, included the following summary of complaint:
‘2. Benjamin’s teachers are not qualified teachers of the deaf
Even during the other four days a week, the teachers who are available to supervise and teach Benjamin have only rudimentary Signed English skills, and no knowledge at all of Auslan. Benjamin does not have regular access to a fluent interpreter.
3.Benjamin’s curriculum does not include a Bilingual / Bilateral program
4.Because Benjamin has been unable to access the services of trained staff on a full time basis at school, his parents have had to pay a private therapist for speech, language and auditory training sessions. They feel that a school which is coded for hearing impairment should provide such support.’
The complaint was also accompanied by a statement of Mrs Devlin. In that statement, she identified teachers who knew no Signed English and could not communicate with Ben. She said:
‘My husband and I have five children, and love each of our children dearly and equally. However, we are concerned on Benjamin’s behalf to secure for him the same education which his non-hearing impaired siblings have received as a matter of course.
For almost the entire time Benjamin has attended the SEC, it has been a struggle to ensure that he receives an adequate education. Staffing problems have plagued the school, and the teachers and teachers-aids [sic] generally have either no knowledge of Signed English, or only a rudimentary knowledge which is barely enough to communicate with Benjamin, let alone teach him.’
In the end result, I have formed the view, with some hesitation, that allowing the amendments sought in pars 14, 20 and 23 would not disadvantage the respondent. I think that the respondent has addressed the issues raised in the proposed amendments in the affidavits which it filed in opposition to the original claim.
Ben, of course, is not responsible for the way in which the case has been framed. In those circumstances, I think the interest of justice requires me to allow the amendments to be made and I will make an order to that effect.
There were other amendments which Ben sought leave to make to the Statement of Claim which I shall deal with after identifying the legal issues.
After the parties’ addresses, I gave leave to the respondent to make submissions in writing in relation to the issues raised in those amendments. In due course, I received submissions in writing and later, submissions in reply from Ben’s legal advisers. I shall have regard, of course, to those submissions in considering the matters raised in the amendments.
THE LAW
Discrimination can either be direct or indirect. Direct discrimination is dealt with in s 5 of the Act, which provides:
‘5(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.’
The respondent would be guilty of discrimination if, because of the applicants’ deafness, the respondent has treated and/or proposes to continue to treat the applicants less favourably than the respondent treats the applicants’ non-hearing impaired peers. To establish direct discrimination, assuming the circumstances are the same or not materially different, an applicant must prove that, because of his/her disability, the discriminator has treated or proposes to treat him/her differently in the sense of less favourably than the discriminator treats a person without a disability. The applicant must establish that he/she has a disability as defined in s 4 of the Act; that the discriminator has treated or proposes to treat the applicant differently than a person without a disability; that the discriminator has differentiated or proposes to differentiate in the treatment because of the applicant’s disability; that the circumstances are the same or not materially different; and that the different treatment is less favourable than that offered to a person without a disability.
In Purvis v New South Wales(Department of Education and Training) (2003) 202 ALR 133 at [213], Gummow, Hayne and Heydon JJ said:
‘ Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability “in circumstances that are the same or are not materially different”. If that comparison reveals that the disabled person was treated less favourably, a further question which must be asked is whether that was because of the disabled person’s disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s 5 (1) is “a person without the disability”.’
Section 5 requires a comparison of the separate treatments of the disabled applicant and the person without a disability. If the treatments are different, then the next question is whether the treatment of the disabled applicant was because of the applicant’s disability.
If the applicant has been treated differently because of his/her disability, the last question to be answered is whether the treatment is less favourable and that again requires a comparison of the two treatments and a judgment whether the disabled applicant has in fact been treated less favourably.
In Haines v Leves (1987) 8 NSWLR 442 at 471, Kirby P said:
‘ The words “less favourably” and “on the ground of”, permit wide scope to the Tribunal in applying its judgment to the facts proved in each case. Both involve imprecise phrases which necessitate judgment and the characterisation of conduct which is impugned. The first requires a comparison of the treatment in the actual and in an hypothesised case: see Mahoney JA, Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. As was pointed out in that case, a “detriment” concept of discrimination has hitherto been adopted: cf Ministry of Defence v Jeremiah [1980] QB 87. The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; [1979] 1 All ER 474 (Eng CA).’
Ben’s alternative case, which is now contained in the amended pleadings, is one of direct discrimination. He says that he has been treated differently than his hearing peers because of his disability. His hearing peers have teachers who can communicate in English. His teachers cannot communicate with him in English because they cannot communicate fluently in Signed English. He has been treated differently because of his disability. He has been treated less favourably.
Indirect discrimination is addressed in s 6 of the Act:
‘6 For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.’
This type of discrimination has sometimes been described as ‘adverse effect discrimination’: Street v Queensland Bar Association and Others (1989) 168 CLR 461 per Brennan J at 508.
Section 6 addresses what has been described as ‘facially neutral’ conduct. That is conduct which, on the face of it, is not discriminatory but has a discriminatory effect.
In Waters and Others v Public Transport Corporation (1991) 173 CLR 349, Dawson and Toohey JJ, after dealing with direct discrimination, said at 392:
‘On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference s that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.’
There is no direct discrimination but the particular requirement or condition has a discriminatory effect. It will have that discriminatory effect if, because of the person’s disability, the requirement or condition satisfies all of the matters in subparagraphs (a), (b) and (c) of s 6.
The two forms of discrimination are materially exclusive in their operation: Australian Medical Council v Wilson (1996) 68 FCR 46 per Heerey J at 55 (Black CJ agreeing) and per Sackville J at 74.
There are four separate matters which must be established if an applicant is to prove indirect discrimination. First, that the discriminator has required the applicant to comply with a requirement or condition. Secondly, that a substantially higher proportion of persons without the applicant’s disability have complied, or are able to comply, with the requirement or condition. Thirdly, the requirement or condition is not reasonable having regard to the circumstances of the case. Fourthly, the requirement or condition must be one with which the applicant has not complied or is not able to comply.
The words ‘requirement or condition’ are to be construed broadly and beneficially: Australian Iron and Steel Proprietary Limited v Banovic and Others (1989) 168 CLR 165 at 195 per McHugh J. The requirement or condition must be something more than is inherent in the goods or services offered or provided. In Waters and Others v Public Transport Corporation at 361, Mason CJ and Gaudron J said:
‘ The subject matter of s. 17(5) of the Act is usually referred to as “indirect discrimination” or as “adverse effect discrimination”, signifying that some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind.’ [Footnotes omitted.]
The requirement or condition need not be explicit, it may be implicit: (at 360). It is necessary to precisely indicate the requirement or condition that is said to have been required of the applicant with a disability. Unless the precise requirement or condition is identified, the further inquiries that s 6 demands cannot be undertaken. Unfortunately, both applicants have been unable to identify the requirement or condition with any precision at all.
Once the requirement or condition is identified, it is a matter of fact whether the disabled applicant has complied or cannot comply.
Next, the group, who are to be judged on their ability to comply, must be identified. In some cases, that can be quite difficult but not in this case. The group with which the applicant’s compliance must be compared are the applicant’s respective hearing peers in the classroom situation. When that group is identified, it is a question of fact whether a substantially higher proportion of that group can comply with the particular requirement or condition.
Lastly, if the applicant has established those first two matters, the question of reasonableness must be considered. That requires a consideration of all relevant circumstances and a judgment whether, objectively, it was reasonable for the discriminator to impose the requirement or condition. The relevant circumstances will include the reasons advanced for the requirement or condition; the effect upon those disabled persons who cannot comply with the requirement or condition; and any alternative requirement or condition or other method addressing the reasons advanced that are not discriminatory within the meaning of s 6(a) and (c).
A requirement or condition will not be reasonable simply because it is convenient or even more convenient. It must be reasonable. On the other hand, it need not be the only cause of action available. In the end result, it just has to be reasonable.
In Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621 at 634, Bowen CJ and Gummow J said:
‘ The third element in the definition of sex discrimination in s 5(2) is that the requirement or condition be “not reasonable having regard to the circumstances of the case”. As Wilcox J held (84 ALR at 429) the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. We agree. The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.’
In Clarke v Catholic Education Office (2003) 202 ALR 340, Madgwick J summarised the law on this point and said at [51]:
‘ Following Secretary, Department of Foreign Affairs and Trade v Styles, Waters and Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission (1997) 150 ALR 1; 50 ALD 360, the following may be stated as settled propositions of law:
(1)The onus of showing that the impugned requirement or condition is not reasonable rests on the person aggrieved by it.
(2)Reasonableness is to be determined having regard to all the circumstances of the case. These include, but are not limited to:
—the nature and extent of the effect of the discriminatory requirement or condition;
—the reasons advanced in favour of it;
—the possibility of alternative action; and
—matters of “effectiveness, efficiency and convenience”.
(3)The test is an objective one — neither the preferences of the aggrieved person nor the mere convenience of the service supplier can be determinative, though both may be relevant factors.
(4)The test of reasonableness is “less demanding than one of necessity, but more demanding than a test of convenience”. Thus, if the aggrieved person can show that it may have been convenient for the discriminator to impose the requirement or condition but it was not reasonable in all the circumstances, that will suffice. Likewise, if it appears that although it was not necessary for the discriminator to impose the requirement or condition, but the aggrieved person does not establish that it was unreasonable to do so, there is no indirect discrimination, as statutorily defined.
(5)The test is reasonableness and correctness; that is, a decision of the putative discriminator to impose the requirement or condition, may be a reasonable one although not everyone, or even most people, would agree with it.’
The question of reasonableness will always be considered in the light of the objects of the Act which are to eliminate, as far as possible, discrimination against persons on the ground of disability, to ensure as far as practicable that persons with disabilities have the same rights to equality before the law, and to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
Section 22 deals specifically with discrimination in education. Section 22(2) makes it unlawful to discriminate against a student on the ground of a student’s disability.
Section 22(2) of the Act provides:
‘(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b)by expelling the student; or
(c)by subjecting the student to any other detriment.’
‘Disability’ is defined in s 4 of the Act. Deafness is a disability within the meaning of that definition in the Act. Thus, s 22(2) makes it unlawful to discriminate against a student on the ground of a student’s deafness by denying the student access or limiting the student’s access to any benefit provided by the educational authority or by subjecting the student to any other detriment.
The two issues in the applicants’ claims of indirect discrimination are whether the applicants can comply with the requirement or condition and, if not, whether the requirement or condition is reasonable having regard to the circumstances of the case. Notwithstanding the respondent’s submission to the contrary, there is no doubt that a substantially higher proposition of non-hearing impaired persons can comply with the requirement or condition because the instruction they receive is in English. As the authorities to which I have already referred show, the onus is upon the applicants to establish the two issues in dispute.
REQUIREMENT OR CONDITION
As I have already indicated, Tiahna’s Statement of Claim was in the same form at the end of the trial as it had been at the start with the minor exception to which I have referred.
The requirement or condition, which she said the respondent required her to comply with, is pleaded in par 38 of her Statement of Claim.
She pleaded:
‘38.The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, by means of English, the Applicant:
(a)       be best educated;
(b)       be adequately educated;
(c)       reach her educational potential;
(d)reach an education outcome comparable to that of the Applicant’s hearing peers.’
In my opinion, the words following ‘the Applicant:’ have no application to the requirement or condition which Education Queensland, on any understanding, required Tiahna to comply.
The applicants’ case is that they should be instructed in Auslan because that is the best and only appropriate method of communication in education with profoundly deaf children. They have not been so instructed. Education Queensland has required them to receive their education in English. Therefore, the applicants say that the requirement or condition is to accept an education and receive instruction in English and not Auslan and without the assistance of an Auslan teacher or an Auslan interpreter.
In my opinion, the requirement or condition which Tiahna complains about is a requirement or condition which I have mentioned above and, that is, that Tiahna accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter.
I think this convoluted plea is to avoid the respondent’s argument that Tiahna could comply with that requirement or condition because they could both understand English. However, I do not think that it is permissible to raise a false requirement or condition to meet that argument. The issue in this case is whether the applicants require Auslan, in whatever form, to obtain and receive the same education and quality of education as their hearing peers.

I propose to proceed on the basis of the requirement or condition which I have identified, which I think is sufficiently pleaded in Tiahna’s Statement of Claim, at least, implicitly.
In par 29 of Ben’s Statement of Claim, which was filed on 29 January 2004 pursuant to leave given by Spender J, he pleads:
‘29.The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, by means of English, the Applicant:
(a)       be best educated;
(b)       be adequately educated;
(c)       reach his educational potential;
(d)reach an education outcome comparable to that of the Applicant’s hearing peers.’
It can be seen that the plea is in the same form as Tiahna’s plea.
In my opinion, for the reasons already given, the words following the word ‘English’ have no application to the requirement or condition imposed.
During addresses, as I have already indicated, Ben’s counsel made a number of applications to amend the Statement of Claim. The third amendment, to which I referred in par [40] of these reasons, was to replead par 29 and to insert pars 29A to 29E. The proposed pleas were in the following form:
‘29.The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, by means of spoken and signed English, the Applicant:
(a)       be best educated;
(b)       be adequately educated;
~~(c)       reach his educational potential;~~
~~(d)reach an education outcome comparable to that of the Applicant’s hearing peers;~~
(e)be educated.
29A.Further the Respondent, in respect of its past and future conduct as to the quality of the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, by means of poor spoken and signed English, the Applicant:
(a)       reach his educational potential;
(b)reach an education outcome comparable to that of the Applicant’s hearing peers;
(c)be educated.
29B.The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, by means of Total Communication, the Applicant:
(a)       be best educated;
(b)       be adequately educated;
(c)       be educated.
29C.Further and in the alternative, the Respondent, in respect of its past and future conduct as to the quality of the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, by means of poor Total Communication, the Applicant:
(a)       reach his educational potential;
(b)reach an education outcome comparable to that of the Applicant’s hearing peers;
(c)be educated.
29D.The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, the Applicant be educated without a full time Auslan interpreter.’
In my opinion, leave ought to be granted to Ben to amend the plea in par 29 as proposed except for the inclusion of subparagraph (e), even though the result of the plea is to leave an awkward and rather cumbersome claim of a requirement or condition. In respect of par 29(e), I would refuse leave to amend because, in my opinion, it adds nothing to the proposed plea.
However, I would not grant leave to Ben to amend to include pars 29A, 29B and 29C which I think take his claim nowhere. His claim is, like Tiahna’s claim, that he has been indirectly discriminated against by reason of a requirement or condition which required him to undergo his education in English and without the assistance of an Auslan teacher or an Auslan interpreter.
The matters contained in each of the subparagraphs of pars 29A, 29B and 29C are, in my opinion, irrelevant as they are in respect of pars 29(a), (b) and (c).
Paragraph 29D most nearly reflects the issues which were raised in this case. Allowing that amendment would not prejudice the respondent. Therefore, leave will be granted accordingly.
JURISDICTION
A person who complains of disability discrimination may lodge a written complaint with HREOC or a complaint may be lodged on that person’s own behalf: s 46P(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act). In both cases, a complaint was made on 30 May 2002.
Any complaint made to HREOC under s 46P must be referred to the President: s 46PG of the HREOC Act.
A claimant is entitled to withdraw a complaint with the leave of the President: s 46PG of the HREOC Act. The President may terminate a complaint for any of the reasons in s 46PH(1). If the President decides to terminate a complaint, the President must notify the complainants, in writing, of that decision and of the reasons for the decision: s 46PH(2) of the HREOC Act.
In Ben’s case, the President terminated the complaint on 4 December 2002 because the President was satisfied there was no reasonable prospect of the matter being settled by conciliation.
In Tiahna’s case, the President also terminated the complaint on 4 December 2002, again, because the President was satisfied there was no reasonable prospect of the matter being settled by conciliation.
If a complaint has been terminated by the President under s 46PH of the HREOC Act and the President has given notice to any person under s 46PH(2), any person on whose behalf the complaint was lodged may make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint: s 46PO of the HREOC Act.
Section 46PO(3) of the HREOC Act provides:
‘(3) The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.’
In Charles v Fuji XeroxAustralia Pty Ltd (2000) 105 FCR 573, Katz J was called upon to consider the construction of s 46PO of the HREOC Act. In that case, the application to HREOC had been made on 3 April 1999. Katz J said at 581:
‘ On the construction which I give to s 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission. On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission. However, I find nothing, even the language of par (b) itself or in the example of its operation given in the Senate explanatory memorandum, insofar as that example reveals a legislative intent regarding the operation of par (b), which would support a construction of the paragraph that permitted Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment.’
It is the respondent’s contention that the applicants are constrained by s 46PO(3) in the following way.
First, neither applicant can rely upon any facts to claim any discrimination after 30 May 2002. Secondly, the unlawful discrimination, into which this Court can inquire, must be the same as was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.
The respondent asserts that the allegations contained in the original complaint, made on behalf of Ben, do not assert any facts or circumstances prior to the beginning of the 2001 school year. Accordingly, it is argued, this Court is only permitted to inquire into the facts and circumstances surrounding the 2001 school year and the school year until 30 May 2002.
I do not agree with that contention. I think the tenor of Ben’s complaint was that he had been discriminated against by Education Queensland throughout the whole of his education upon the two bases which are now before this Court. It is therefore necessary to determine that issue rather than the narrow issue contended for by the respondent.
The respondent conceded that, in Tiahna’s case, the allegations in her complaint cover the period from her birth. However, it is the respondent’s contention that this Court’s inquiry is limited to the period ended 30 May 2002.
Whilst I have rejected the respondent’s first contention that Ben’s inquiry should be limited to a commencement date in the 2001 school year, I do accept the respondent’s contention that the inquiry should be limited to the period ended 30 May 2002.
That, however, does not necessarily make any evidence subsequent to 30 May 2002 irrelevant. That evidence may be relevant to show whether Ben’s direct discrimination claim, whether his teachers prior to 30 May 2002 were fluent in Signed English and, in both applicants’ indirect discrimination claims, whether they were able to comply with the requirement or condition or, alternatively, whether to that point of time, namely 30 May 2002, the requirement or condition was reasonable, have been made out.
However, in the end result, the inquiry must be whether the acts of discrimination, in whatever form, occurred prior to 30 May 2002.
THE TWO CASES
Ben’s principal case and Tiahna’s case, put shortly, is that because they are profoundly deaf the only way in which they can be taught, which would not amount to discrimination under the Act, is in Auslan. They cannot be taught by the spoken word because they cannot hear it. They should not be taught in Signed English because that is an inferior method of communication than Auslan.
The respondent admits that it has the responsibility for and administers 1292 educational institutions throughout the State of Queensland. It admits that Ben was a student of an educational institution over the period of time claimed in his Statement of Claim. It also admits that Tiahna was educated in its institutions as alleged in her Statement of Claim.
The respondent does not admit that the best method of communication with which to teach the applicants is Auslan because, it claims, there has been a divergence in relevant opinion about what is the best method of communication to apply when teaching students who are deaf.
It says that its policy recognises a variety of methods for communication with deaf children such as Signed English (signing), finger spelling, lip reading, speech and the use of residual hearing. Auslan is but one of the methods of communication recognised under the total communication for the deaf/hearing impaired. Its policy is described as the ‘Total Communication Policy’.
It says that Auslan does not have a written form and any student who uses Auslan, to the exclusion of all other methods of teaching, cannot acquire literacy in English. The respondent claims that is likely to be detrimental to that person and, in particular, the applicants, because the applicants would not be able to interact with their peers or their teachers or acquire and develop literacy skills.
The respondent’s Defences join issue with the applicants’ Statements of Claim that Auslan is the only appropriate method of communication for teaching deaf children.
In respect of Ben, the respondent asserts that if Ben has not gained access to the education material provided by the respondent at the same rate and degree as his hearing peers, there are reasons unconnected with the respondent’s teaching program for that, being:
‘(i)the delay in the diagnosis of the Applicant’s hearing impairment;
(ii)the delay, at the request of the Applicant’s next friend, in the Applicant’s introduction to signing as a mode of communication until 1998;
(iii)the Applicant’s poor behaviour at times in class;
(iv)the Applicant’s regular failure to perform homework;
(v)the Applicant’s irregular attendance at school;
(vi)the Applicant’s regular failure to wear an FM amplification unit during his attendance at school;
(vii)the rudimentary or non-existent signing skills in signed English and Auslan held by the Applicant’s parents and siblings and their failure to contribute to the Applicant’s learning.’
The respondent generally denies that the education it offered Ben was in any way inferior to that offered to his hearing peers and it denies that it has been guilty of any form of discrimination under the Act.
The respondent raises the same general issues in answer to Tiahna’s claim and positively asserts that if she has not gained access to the education material provided by the respondent at the same rate and degree as her hearing peers, then that is as a result of:
‘1. The Applicant’s irregular attendance at the Noosaville SEU;
2.The Applicant’s failure to stay for the complete class, when she does attend classes at the Noosaville SEU;
3.The Applicant’s lack of responsiveness to the classes she attended at the Noosaville SEU because of her being distracted by the presence in class of the Applicant’s next friend;
4.The failure of the Applicant’s next friend or another member of the Applicant’s family to attend all the sessions the advisory visiting teacher provided to the Applicant, thereby minimising the benefit of the AVT service provided by the Respondent to the Applicant;
5.The failure of the Applicant to attend all of the AVT sessions that the Respondent was prepared to provide to the Applicant;
6.The Applicant’s next friend’s failure to participate in all of the meetings arranged by the Respondent for the purpose of discussing the Applicant’s educational needs;
7.The failure of the Applicant’s parents to re-enrol the Applicant in the Noosaville SEU or another special education facility after the Applicant’s enrolment at the Noosaville SEU in 2001 had lapsed;
8.The Applicant’s next friend regularly changing the Applicant’s place and mode of education.’
Whilst Tiahna’s case is that she has been discriminated against because she has not been taught in Auslan, the respondent’s plea is not thereby rendered irrelevant. The respondent has raised a positive case seeking to establish why Tiahna has not gained access to the same educational material as her hearing peers.
In the end result, the following factual issues raised on the pleadings are whether:
1.The only appropriate method of communication for teaching profoundly deaf or severely to profoundly deaf children is Auslan;
2.If the State does not provide Auslan interpreters and teach profoundly deaf children in Auslan it thereby discriminates against them under the Act;
3.The applicants have failed to obtain access to the education material provided by the respondent at the same rate and degree as the applicants’ hearing peers;
4.That is as a result of the failure by the respondent to provide Auslan education;
5.That is as a result of the particular circumstances asserted by the respondent in its Defences; or
6.In Ben’s case, he has been discriminated against because of the poor quality and fluency of the Signed English by which he was taught until 30 May 2002.
There are, of course, degrees of deafness. Some people who are deaf are able to hear with the use of aids. Those who can hear, with the use of aids, can be taught by the spoken word. Some other people are able to hear by the use of cochlear transplants. Those people can also be taught by the spoken word and, although suffering some disadvantages, compared with those who can hear with the use of aids, can usually be instructed by the spoken word.
Some people are severely deaf. Some people are profoundly deaf. Deaf Children Australia defines a ‘profoundly deaf’ person as one who has no hearing over 90 decibels. Those people cannot hear the spoken word. Communication with those people must be in some other way apart from the spoken word. They must be taught other than solely by use of the spoken word. In many cases, those who are severely or profoundly deaf cannot communicate by way of the spoken word with other people. They must be taught to communicate with others other than by use of the spoken word.
AUSLAN
Auslan is the native language of the deaf community in Australia. The deaf communities in countries throughout the world have developed a native language in each of their countries. Dr Komesaroff, who was called by the applicants, defines ‘Auslan’ in the following way:
‘The native language of the Australian Deaf community. Auslan is a visual-spatial language in the gestural medium which has its roots in the sign languages brought to Australia from Britain and Ireland during the 1800s. Like all native sign languages, Auslan is distinct from the language spoken by the surrounding hearing culture, English, yet is influenced by it, both lexically and grammatically. Auslan shares the features of all natural languages with complex grammatical and semantic systems; like other native sign languages, these are not derived from the language spoken by the surrounding hearing culture. Signs are conventional symbols constructed with each of the elements of handshape, location, movement, hand orientation and facial expression.’
Auslan is the natural sign language of the deaf community. Auslan does not have an oral or written component. Thus, a person who understands the Auslan language communicates in that language only with his or her hands. Auslan has a different linguistic structure both as to syntax and morphology than English.
SIGNED ENGLISH
A method of communication with deaf people is Signed English. Signed English is an attempt at reproducing the English language by signs rather than by word. It has the same syntax and grammar as the English language. Instead of the words being used, the words are signed by use of the hands. It is not a language separate from English. A non-hearing impaired person using Signed English usually speaks the words at the same time as that person signs those words. That allows the deaf person to see the way in which the words are spoken. Shortly put, Signed English is a combination of lip reading and signing.
Signing is often accompanied by finger spelling, which uses a combination of fingers to represent each letter of the alphabet and enables the person using that system to spell out English words.
SIGNING IN ENGLISH
One of the witnesses called by the applicants (Ms Pardo) distinguished between Signed English and signing in English. In an affidavit sworn on 21 March 2004, she said:
‘34.Some people suggest that if Manually Coded English or signing in English is an acceptable feature of bilingual programs, then why not Signed English? The answer to this question is complex. I have outlined some of the arguments against the use of Signed English in paragraph 3. The similarity in terminology means that Signed English and signing in English are often mistaken for similar processes. In fact, they are most distinct. Signing in English refers to the use of Auslan signs in English word order. Therefore, in order to utilise signing in English, the individual must first learn Auslan. It is not sufficient for that individual to simply learn Auslan vocabulary. They must also understand the way in which meaning is generated in Auslan, which entails a knowledge of grammar, both morphology and syntax. Because they are using signing in English as a tool for developing literacy skills, they need a sophisticated understanding of how the two languages work, and in particular, how they differ. Signing in English may pose a valuable tool in bridging the expanse between Auslan and English. It has none of the conceptual dilemmas of Signed English. As it is not used concurrently with voice, correspondence between speech and signing is not an issue. Signing in English is a distinct skill from the skill of using Auslan. Many deaf people develop the skill of signing in English and use it when “codeswitching” between Auslan and English, in particular contexts. Therefore, while Auslan is used by deaf students to access all aspect of the curriculum, signing in English may be used by teachers and students to focus explicitly on the acquisition of English.’

In her cross-examination she said:
‘Now, we should be plain – to explain to his Honour, that signing in English as you did, is not the same as signed English, is it?---Correct.
And the difference is, and correct me if I am wrong, that signing in English is to follow the English syntax and morphology but to use Auslan signs effectively?---Yes, indeed.
And where Auslan doesn’t have a capacity to do something, then you have to revert to occasional finger spelling to supplement the Auslan, don’t you?---Yes.
And one of the features of Auslan which we can address at that point is that Auslan doesn’t have – generically doesn’t have things such as participial endings, plurals and other features of English morphology?---It has a very different grammatical system from English.
Yes. I said morphology; I think I meant syntax and grammar, and you say grammatical quite correct?---Yes, I use grammar to mean both morphology and syntax.
And you are correct. And you are correct. The grammar and syntax is very different, and hence we get things like partipial endings, conjunctions, plurals and so on with no equivalent in Auslan?---No.
That is, you agree with me?---Yes, I agree with you, yes.’
Professor Power described this form of communication as Pidgin Signed English, which he described as ‘a combination of signed English and Auslan (English-influenced Auslan). It incorporates some Auslan grammar but uses English word order’. It is not easy to think that signing in English, as described by Ms Pardo and Professor Power, would be an effective means of communication. Auslan, with its different syntax and grammar, is a different language. To try to use it under English language rules must be extraordinarily difficult and confusing. No witness, including the two experts to which I have referred, suggested signing in English was an effective means of communication for the deaf.
TOTAL COMMUNICATION POLICY
Education Queensland subscribes to a policy of total communication, which is formalised in Education Queensland’s policy ‘Total Communication for Deaf/Hearing Impaired Students’ (CS-11). When issued in 1994, that document defined that policy as follows:
‘1.1Total Communication refers to a philosophy which states that deaf/hearing impaired students have available to them a variety of methods of communication. It recognises a variety of methods which may be used to facilitate communication, e.g. signs, fingerspelling, lipreading, speech and the use of residual hearing. The emphasis is on the development of communication skills, in particular, the development of language as a basis for all learning.
1.2In practice, the term Total Communication has been used to refer to the combining of listening, speech, lipreading, signing and fingerspelling to represent English. This combination should more accurately be known as Simultaneous Communication. Thus staff speak and sign simultaneously in Signed English in order to facilitate the student’s English language development through the visual and auditory channels.’
That document also included a policy statement:
‘The Department of Education is committed to the provision of equitable educational opportunities in order that all students have access to, participate in and gain positive outcomes from schooling. Deaf/hearing impaired students are enrolled at all levels of schooling. Our Total Communication philosophy ensures that deaf/hearing impaired children across the state have equal access to an appropriate educational program and a consistent communication approach. Total communication aims to develop all aspects of communication with a focus on the development of language as a basis of all learning.’
The document addresses Signed English and provides the following:
‘2.13English is the language of instruction for all students in Queensland schools. For those deaf/hearing impaired students requiring a sign component, Signed English is used as a method of instruction to develop communication and literacy skills.
2.14All personnel working with the student who is deaf/hearing impaired must communicate effectively to ensure that the communication message is clear to the student. Signed English proficiency levels of support teachers, teacher aides and support personnel need to address and meet the needs of the student. Specialist personnel working with students who require a Signed English input must develop proficiency in the area and must continually refine and develop their skills.
2.15All personnel must be encouraged to use Signed English at all times in the presence of deaf/hearing impaired students and adults. This might include incidental discussions among staff, parents and visitors.’
The terminology in CS-11 has changed since it was first promulgated but the changes do not relevantly affect the meaning of the document.
It was the applicants’ case that CS-11 clearly indicated that it was Education Queensland’s policy to educate those deaf/hearing impaired children who required signing in Signed English. The applicants contended that the policy in that respect was unambiguous. I must say that my reading of CS-11 led me to think that Education Queensland’s policy required its teachers to adopt the Total Communication Policy and, where signing was necessary, provide for communication in Signed English.
However, the respondent called the Deputy Director, Curriculum Study, of Education Queensland and a senior educator on the Sunshine Coast, both of whom referred to a memorandum which, they say, establishes that Auslan was a permitted form of instruction within that policy.
I shall refer to their evidence in more detail in due course when I give my reasons for rejecting that evidence.
In due course, it will be necessary to discuss the evidence of Professor Power and Ms Lawrence who described the circumstances in which the policy came to be adopted.
THE WITNESSES
The evidence-in-chief of all of the witnesses was provided in affidavit form. All but two of the applicants’ witnesses were cross-examined by the respondent’s counsel. All of the respondent’s witnesses were cross-examined by the applicants’ counsel.
In all, 32 witnesses gave oral evidence.
Neither of the applicants gave evidence and, having regard to their age, nor would I have expected them to do so. Both the applicants’ mothers gave evidence. Neither of the applicants’ fathers offered affidavits, so neither gave any oral evidence.
The applicants called a number of experts, two of whom gave evidence by videolink; one from the United States and the other from Melbourne.
The respondent called a number of teachers, teacher’s aides, a number of senior persons in Education Queensland and academics.
I think most of the witnesses endeavoured to assist me to reach the appropriate conclusion in the proceedings. There were exceptions.
Ms Smith is Tiahna’s mother. I have no doubt she wants the best for her daughter. However, she appeared to be a very critical person who expressed her criticisms in very strong language. I thought she exaggerated the complaints which she made. As Tiahna’s case was limited to a claim that she had been discriminated against because she had not been taught and instructed in Auslan, a number of Ms Smith’s criticisms were irrelevant and should not have been made. She was an unsatisfactory witness and I would not be prepared to act on her evidence unless it was uncontroversial or corroborated by an independent source.
On the other hand, whilst I thought Mrs Devlin was a nervous and defensive witness, I think she was, in the main, trying to assist me.
I do not think I was assisted by Dr Komesaroff’s or Ms Pardo’s evidence. They acted as advocates for Auslan and, in doing so, surrendered their academic detachment and objectivity.
I think the remainder of the applicants’ witnesses tried to help me as much as they could. Two of their experts, Professor Lane and Professor Branson, were quite impressive witnesses.
Many of the applicants’ teachers were subject to very trenchant criticism. I thought all of them gave their evidence reasonably, professionally and with dignity.
I thought all but three of the respondent’s witnesses were very good witnesses who gave their evidence in a professional and balanced manner. I thought they were all reliable.
There were three witnesses called by the respondent whose evidence I should separately address. Mr Patrick Cavanagh is the Principal of the Coolum State School. His evidence was flawed in that he failed to answer questions and tended to make speeches. He may have been defensive because of the trenchant criticism which has been offered of Tiahna’s education but that would only be an explanation for why his evidence was as it was. I do not mean to imply that he was not honest but his evidence was devalued by his inability to address a question directly. However, his evidence became largely irrelevant when Tiahna limited her case in the manner previouslydescribed.
Ms Best is the Deputy Director of Curriculum Development of Education Queensland and the senior person within Education Queensland called by the respondent. It was her evidence that CS-11, contrary, in my opinion, to its obvious terms, permitted and encouraged the use of Auslan as a language of instruction for deaf children. That evidence was contrary to the evidence of most of the respondent’s other witnesses. It was contrary to the evidence of Ms Lawrence who participated in the committee meetings which led to the introduction of the policy contained in CS-11. Ms Lawrence said in her evidence:
‘And at the time, back in ’95 and ’96, is it fair to say that you were of the view that the total communication policy did not permit the use of Auslan as a method of instruction?---No. I think it’s quite explicit that the language of instruction is signed English.
HIS HONOUR: Is that still your understanding?---Yes. It is.
And it doesn’t permit Auslan to be used as a language of instruction?---As a language of instruction, but it doesn’t preclude Auslan being used in the child’s program. English would just continue as language of instruction.’
If Ms Best’s evidence were accepted, then Education Queensland has not complied with its own policy.
Ms Best was a most unimpressive witness. She was garrulous. She did not listen to questions. She did not answer questions. She made speeches on topics which were mainly irrelevant.
In its final submissions, the respondent has said that Ms Best was mistaken to urge that any other policy existed as regards a language of instruction by signing in the sense of a promulgated policy.
In fact, by maintaining that CS-11 allowed for the policy which she said it did, had the potential to do serious damage to the respondent’s own case. If the policy in CS-11 was to provide Auslan as the language of instruction, then Education Queensland has failed to comply with its own policy.
It is difficult to conceive that the person who has the ultimate responsibility for the curriculum for deaf children could be mistaken about Education Queensland’s own policy. That is what Education Queensland urged. It said that I should find that the witness that was called to prove the policy did not understand it.
There are other aspects of her evidence which were equally unsatisfactory. Fortunately, from the respondent’s point of view, Ms Best was such an unimpressive witness that her evidence cannot be accepted and, as a result, the damage which she did to her own case is avoided. To avoid misunderstanding, I accept none of her evidence.
Mr McAlpine is the Senior Educator on the Sunshine Coast. He said his understanding of the policy contained in CS-11 was that it did provide for the use of Auslan. During cross-examination, Mr McAlpine was shown a letter which he had written on 13 March 2002 to Tiahna’s parents which was in the following terms:
‘Dear Ms Smith and Mr Hurst
Thank you for your emails of 1 February and 8 March 2002 requesting that Auslan be included in Education Queensland’s policy for the language of instruction for deaf and hearing impaired students requiring manual communication. I sincerely apologise for the delay in responding but I had intended to discuss this matter at our proposed meeting on 5 March 2002, which, on legal advice, you chose to cancel.
Nambour District currently operates within the statewide policy which states that:
· English is the lanauge of instruction in all Queensland schools.
·Signed English is a manual representation of English, using a sign or fingerspelt pattern to express English syntax and morphology.
·For those deaf and hearing impaired students requiring a signed component, Signed English is used as the method of instruction to develop communication and literacy skills.
·Education Queensland’s Total Communication philosophy ensures that deaf and hearing impaired students across the state have equal access to an appropriate educational program and a consistent communication approach.
Having given consideration to Tiahna’s case for Auslan instruction, I regret to advise that Nambour District is unable to offer this option as it falls outside the policy. We consider that Signed English is the most appropriate method of instruction. However, I invite you to provide any research you may have gathered or argument that gives support to a change in this position.
I am advised that a representative working party is to be established to coordinate programs and services to deaf and hearing impaired students in Queensland. This working party will examine policy issues. Please feel free to contact Mr Barry Skinner, Manager, Low Incidence Unit (Ph: 3237 9991) to obtain further information on this working party.
In addition, Mr Norm Armstrong, Principal Education Officer, Student Services, can be contacted on 5470 8913 to discuss any concerns you have regarding educational support for Tiahna. I trust this information clarifies the situation for you.’
That letter states, unequivocally, that Auslan instruction falls outside Education Queensland’s policy and that ‘Signed English is the most appropriate method of instruction’. That letter was written after consultation with Mr Skinner and with Education Queensland’s legal adviser. He said that was his understanding when the letter was written. The Nambour District did not offer Auslan instruction for deaf children. It was not offered because Mr McAlpine thought the instruction was outside the guideline. He said his understanding was corrected by a memorandum he received from Mr Walsh, the Director of the Inclusive Education Branch, Curriculum Directorate in or about February/March 2003. In that memorandum, after referring to par 2.13 to which I have already referred, Mr Walsh wrote:
‘4.In paragraph 2.7, the policy also states that “Aspects of auditory-verbal or bilingual-bicultural programs in educational settings may be included in a Total Communication philosophy, e.g. auditory learning techniques, deaf studies or deaf role models within schools. Such aspects must be enunciated within the student’s Individual Education Plan” and in paragraph 1.7 states “An Alternative program is one designed for a student whose curriculum needs are not able to be met within the regular offerings of the local school. Such a program is negotiated and documented for an individual student through the Individual Education Plan (IEP) process, and may be delivered in a special education facility, or primary or secondary school.”
5.The policy has been generally interpreted within schools and districts as requiring education programs for deaf/hearing impaired students to only use one system of signing – Signed English. However, the policy provides sufficient flexibility to ensure that the communication and language needs of the student are maximised. It is the Inclusive Education Branch’s interpretation of the policy that if the use of Auslan would enhance the student’s educational programs then it needs to be documented within the student’s individual education plan and would be consistent with the policy.
…
7.Please note the information contained in this memorandum indicating that the use of Auslan for deaf/hearing impaired students is consistent with the Department of Education Manual policy CS-11: Total Communication for Deaf/Hearing Impaired.’
Mr McAlpine said that that memorandum corrected his misunderstanding and, thereafter, he was of the view that CS-11 provided for the use of Auslan. Thereafter, he instructed teachers within his area the correct understanding of the policy. He said that Auslan was not offered prior to March 2003 because of his misunderstanding of the policy in CS-11.
Mr McAlpine was a most uncomfortable witness. I gained the very strong impression that he did not believe that aspect of his evidence but he thought that he needed to say it to advance Education Queensland’s case. I also got the impression that he knew that I did not believe him.
Again, if it was Education Queensland’s policy that Auslan should be provided if it would enhance a student’s education outcome, then Education Queensland has failed to comply with its own policy.
It occurred to Mr McAlpine, whilst he was giving evidence, that his evidence was, in fact, quite unhelpful to Education Queensland’s case and he became even more uncomfortable.
The respondent has urged in its final submissions:
‘Mr McAlpine’s contention that he had told or caused to be [sic] teachers in his district about any change to or error in the policy, as regards the language of instruction by signing, was uncompelling and runs counter to a plain and widespread and enduring understanding amongst the teachers to the contrary, which there is no good reason to doubt.’
The only two people who believe that CS-11 allowed for the use of Auslan as a method of instruction outside the bilingual-bicultural program were Ms Best and Mr McAlpine.
I reject their evidence. They had a complete misunderstanding of Education Queensland’s own policy.
BEN’S CASE
Ben’s mother is his next friend. Her affidavits were read and she was cross-examined. Nothing which I am about to say is meant by way of criticism of Ben, his parents or his siblings.
His case is that the standard of teaching has been poor and, as a result, he has suffered humiliation, anxiety, stress, social dislocation, educational disadvantage, cognitive delay, permanent cognitive damage and future economic loss: see par 39 of his Statement of Claim.
As I have already said, Mrs Devlin and her husband have five children, Michael born in 1980, Jaina in 1984, David in 1988, Matt in 1991 and Ben. They have lived in the same house for 16 years. It is a half an hour’s drive from Ben’s school. When Ben started school Mrs Devlin also enrolled David and Matt so that Ben would have his brothers’ company. Michael, who is 13 years older than Ben, was then at High School. Jaina was at a private school. Mrs Devlin used to drive Jaina and the three younger boys to school. Mr Devlin is a construction worker or, more particularly, a form worker. He works long hours, usually leaving home before light, and returning late in the evening at 8 or 9 o’clock. He works six days a week, although on Saturdays he finishes at 3 or 4 o’clock in the afternoon.
Ben’s parents do not only have obligations to him. They also have the responsibility of raising four other children. Because of where they live, they both have to spend a lot of time travelling; Mrs Devlin to transport children to and from schools; and Mr Devlin to work.
Mrs Devlin had had no contact with deaf people prior to Ben’s birth and, thus, no experience in communicating with deaf people. No one in her family was deaf. She did not know anyone who was deaf. She had not read anything about the subject.
I am sure Mrs Devlin was quite devastated when she was advised of Ben’s impairment, which was not diagnosed until 25 August 1994 when he was 16 months old. She did not know how deaf people functioned. She assumed that when Ben got his hearing aids he would function like other people.

It must be accepted that an education system cannot change its method of education without first inquiring into the benefits of the suggested changes and the manner in which those changes might be implemented.
It must first be satisfied that there are benefits in the suggested changes. It must be satisfied that it can implement those changes without disruption to those whom it is delivering its service.
It was appropriate, in my opinion, for Education Queensland to take the time that it did in considering the benefits which would be associated with bilingual-bicultural programs and the use of Auslan.
I accept the respondent’s argument that changes, as fundamental as those proposed in the bilingual-bicultural program, should be evolutionary rather than revolutionary. It is too dangerous to jettison a system of education and adopt a different system without being first sure that the adopted system is likely to offer increased benefits to the persons to whom the education is directed.
I think, however, in the years to come that all education authorities will move toward a bilingual-bicultural program of the kind advocated by Professor Branson and Professor Lane, and now cautiously supported by Professor Power.
In my opinion, however, it was not unreasonable for Education Queensland not to have adopted a bilingual-bicultural program prior to 30 May 2002.
I think Education Queensland, for all of the reasons I have mentioned, was entitled to move cautiously to the point that it did and to assess, step by step, the potential success or otherwise of the program.
It needed to develop a community of the kind that has been developed at Yeerongpilly and Toowong to allow the program to be successful.
It follows, from those findings, that both applicants have not established that it was not reasonable, having regard to the circumstances of the case, for Education Queensland not to have provided them with a bilingual-bicultural program prior to 30 May 2002.
It does not follow, in those circumstances, that the applicants’ case must fail.
For the reasons already given, Auslan as a method of communication and instruction should be delivered in a community. For the reasons already given, the applicants have not established that it was not reasonable to have introduced a program of that kind prior to 30 May 2002.
However, Auslan will still be of assistance to those who are profoundly deaf even if delivered on a one-on-one basis.
That is the evidence of all of the experts including Professor Power.
It seems to me, that some assessment should have been made of Ben’s and Tiahna’s needs prior to 30 May 2002 to determine whether they should be instructed in English, including Signed English, or in Auslan.
For the reasons already given, the Total Communication Policy did not allow for Auslan as a method of communication. In that sense, the Total Communication Policy has ceased to be a Total Communication Policy.
In my opinion, it was not reasonable for Education Queensland to not provide Auslan teachers or interpreters to Tiahna and Ben if they were not able to comply with the condition that they receive their instruction in Signed English. In other words, whilst they have not succeeded in establishing that it was not reasonable of Education Queensland to not have introduced a bilingual-bicultural program by 30 May 2002, they have succeeded, in my opinion, in establishing that it would have been of benefit to both of them to have been instructed in Auslan rather than in English.
In Tiahna’s case that is, without a doubt, obvious. Her first language is Auslan. She would have been better taught in Auslan.
In Ben’s case it is not so obvious but at least by 30 May 2002, it was a fact. In his case, some assessment should have been made within a short time after he commenced school to determine whether he could receive his education in English. The assessment was not made or, if made, was not made for the purpose of determining whether he should receive his instruction in Auslan.
That is no criticism of his teachers. They did not make that assessment because the Total Communication Policy did not provide for instruction in Auslan.
In my opinion, and this can be no more than a judgment, that assessment should have been carried out early in the year 2000 and an Auslan teacher or interpreter provided to him to assist him in his education.
In my opinion, Tiahna has established that, throughout the whole of her education in Education Queensland’s schools, it was not reasonable of Education Queensland not to provide her with an Auslan teacher or interpreter.
In my opinion, and as I say this can be no more than a judgment, in Ben’s case he has established that it was not reasonable for Education Queensland not to have provided him with an Auslan teacher or interpreter for the two years prior to May 2002.
THE APPLICANTS’ ABILITY TO COMPLY
Both Ben and Tiahna complained that they could not comply with the requirement or condition that they be educated in English and without the assistance of an Auslan teacher or an Auslan interpreter. I have already discussed the rather convoluted requirement or condition that was advanced by both of them which I have said may be understood in the way that I have put it.
The overwhelming evidence is that Ben’s education has suffered. He has fallen far behind his peers. I have accepted some of the respondent’s arguments for the reasons why that is so. But, whilst that may explain, in part, why he has fallen behind his peers, unless they are the only reasons that does not mean that Ben can comply with the requirement or condition that he receive his education in English and without the assistance of an Auslan teacher or an Auslan interpreter. Indeed, they may show why it is that Ben cannot comply.
In my opinion, there can be no doubt that Ben has not been able to comply with the requirement or condition that he be educated in English and without the assistance of an Auslan teacher or interpreter.
For that finding I accept Ms Wilson’s opinion to which I have referred at [565] to [569]; Mr Morris’ assessment at [583] to [588]; Professor Lane’s opinions at [604] to [606]; and Professor Branson’s opinions at [626] to [628].
In my opinion, on the respondent’s experts’ evidence on this issue, which I accept, Ben has made out his case under s 6(c) of the Act.
On the other hand, in my opinion, the evidence does not support a finding that Tiahna has not been able to comply with the same requirement or condition.
On the expert evidence called by her, she has been able to receive her education in English and in Signed English.
Tiahna has a verbal IQ of 98 and a performance IQ between 98 and 100. There is no disparity in that regard. She is in the average range across all her skill areas: Ms Wilson [570] to [573].
She has good oral skills. She can cope in a regular classroom environment: Mr Morris [589] to [591].
She has maintained parity with her hearing peers.
Professor Lane said that Tiahna should have Auslan instruction: [607]. He did not say that Tiahna could not comply with a requirement or condition that Tiahna receive her education in English.
Professor Branson’s evidence tended to establish that Tiahna could cope with education in English: [630].
Ms Pardo did not say that Tiahna could not comply. If her evidence in par 22 of her affidavit of 18 August 2003 suggested Tiahna could not comply, although in my opinion it does not, I reject that evidence. As I have already said, I prefer the evidence of the other experts to that of Ms Pardo.
There is no evidence, or no evidence which I am prepared to accept, to support a finding that Tiahna cannot be educated in English, including Signed English.
No doubt it was for that reason that she put her case in the rather convoluted way that she did in par 38 of her Statement of Claim. However, I am not prepared to find that that is a requirement or condition for the purpose of the Act. In my opinion, for reasons already given, the appropriate requirement or condition is to be taught in English without the assistance of an Auslan teacher or an Auslan interpreter.
On Tiahna’s own evidence, she has not established that she has fallen behind her hearing peers. It might be that she has not fallen behind her hearing peers because of the attention which she receives from her mother and the instruction which she no doubt receives from her mother in Auslan.
However, this is a matter upon which the experts have not discriminated.
In my opinion, it is enough to say that she has not satisfied that she is not able to comply with the requirement or condition that she be instructed in English without the assistance of an Auslan teacher or an Auslan interpreter.
Her case fails on that basis.
ORDERS AND COMPENSATION
Section 46PO(4) of the HREOC Act provides:
‘(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.’
Because of my findings, Tiahna’s claim must be dismissed.
However, in case I am wrong about the findings already made, I should briefly address the question of compensation in her case. If, contrary to my findings, Tiahna has established a case of indirect discrimination, in my opinion, on the expert evidence which has been called she has not established any loss or damage.
She has not fallen behind her hearing peers. There is no evidence to say that she would have done better than her hearing peers. Therefore, she has not established, in my opinion, that over the relevant period for which Education Queensland was responsible for her education, as a result of any breach of the Act, she has suffered any loss or damage.
Therefore, if I had had to assess compensation, I would not assess her compensation at any more than a nominal amount.
In his application Ben has sought the following orders:
‘□       Apology from respondent
□        Compensation
~~Details of the amount of compensation sought will be provided to the Court prior to the hearing of this matter.~~
Details of compensation sought are contained in Attachment 3 to this Amended Application.
~~The Applicant will be claiming general damages and amounts expended by his parents providing private tutelage that should reasonably have been provided by the Respondent.~~
□        Other
(1)       An Order declaring the respondent has committed unlawful discrimination;
(2)       An Order requiring the respondent not to repeat or continue such unlawful discrimination;
(3)       An Order requiring the Respondent perform such acts(s) and/or course(s) of conduct that the Court deems appropriate to redress any loss or damage suffered by the applicant.’
In Attachment 3 Ben has identified the compensation sought:
LIST OF EXPENSES INCURRED BY
BENJAMIN DEVLIN AND/OR HIS PARENTS
AS A RESULT OF DISCRIMINATION
Phone calls – local & STD  $200.00
(to raise concerns regarding education)  approx
Learning games, books and cassettes  $500.00
(including signed English)  approx
Weekly visits to Laurie Ludvigsen – Aural  $700.00
Habilitationist
Travel an extra 7 klms per visit  $103.95
Auslan CD Rom  $59.00
Teletext television with captions  $475.00
  Approx
GLOBAL ESTIMATE OF COSTS OF
INTENSIVE REMEDIAL LESSONS
TO BRING APPLICANT’S EDUCATION
STANDARD TO AGE APPROPRIATE LEVEL
Global sum claimed for cost of Intensive Remedial  $10,000.00
lessons required to bring Applicant’s education
standard to an age appropriate level
GENERAL DAMAGES TO COMPENSATE   $20,000.00
THE APPLICANT FOR THE SEVERE
DISADVANTAGES SUFFERED BY HIM
AS A RESULT OF THE DISCRIMINATION
OF HIM BY THE RESPONDENT
TOTAL  $32,037.95
In par 39 of his Statement of Claim he claims that he has suffered:
‘(a) Humiliation;
(b)Anxiety;
(c)Stress
(d)Social dislocation
(e)Educational disadvantage;
(f)Cognitive delay;
(g)Permanent cognitive damage;
(h)Future economic loss.’
In par 40 he seeks by way of remedy:
‘(a) Compensation for future economic loss
(b) Compensation for psychological harm;
(c)Compensation for cognitive harm;
(b)[sic]Orders requiring the Respondent to desist from further relevant breaches of the Disability Discrimination Act 1992 in respect of the Applicant;
(c)[sic]Orders requiring the Respondent to make relevant remedial linguistic intervention for the Applicant;
(d)[sic]Orders requiring the Respondent to implement appropriate educational methodologies as referred to in paragraph 28 of the Affidavit of Vernoica Pardo filed in this application on 21 August 2003.
(e)Costs;
(f)Such other Orders as the Court determines.’
It would be appropriate to make an order that the respondent has committed unlawful discrimination.
It would not be appropriate to make an order of the kind sought in subparagraph (2) of Ben’s application or in paragraph 40(b) (second appearing) of the Statement of Claim.
The evidence is that Ben does now have the assistance of an Auslan teacher. There is no reason to think that will not continue. There is equally no reason to think that Education Queensland would not respond to this decision in the provision of its further services to Ben. I decline to make an order that Education Queensland not repeat or continue the unlawful discrimination or an order requiring it to desist from any further breaches of the Act.
In his first written submissions, at the conclusion of the evidence, Ben sought compensation for psychological harm and a further sum for future economic loss. I accept this is a case where compensation for the loss or damage caused by the respondent’s conduct would be appropriate. That said, for the reasons that follow, on the evidence as it has been left, the assessment of that compensation is an almost impossible exercise.
In respect of that first head of damage he claimed, as he had pleaded, that he had suffered humiliation, anxiety, stress and social dislocation because of the significant language and academic delay due to the respondent’s conduct.
It was submitted that that he had been subject to humiliation, anxiety, stress and social dislocation.
That, it was submitted, ought to give rise to an award of damages and it was submitted that a sum in the order of $80,000 ought to be awarded under that head.
That submission was put upon the basis that Education Queensland ought to have provided Ben with an Auslan teacher or an Auslan interpreter from the time within which Ben came within its system and until trial.
The second head of damage was predicated upon the basis that, provided Ben obtains full-time access to an Auslan interpreter, it is likely he may complete secondary education but be confined to work of a manual or semi-skilled nature for his working life.
It was put:
‘7.The earning capacity difference between that of the average tertiary qualified person as against that of the average secondary qualified person can be estimated and the Applicant’s evidence from Geoff Manton was that the difference may be between $20,000 and $30,000 per annum. If the Court is uncomfortable making an award of compensation on this estimate it is submitted an appropriate course if for the Court to make relevantly useful findings about the Applicant’s likely earnings, as is possible, and findings about the likely earnings but for the impugned conduct and appoint an expert in the form of an actuary to quantify the likely economic loss arising.’
I am not prepared to act upon “the evidence” contained in that submission. I did not admit the evidence from Mr Manton that Ben might suffer a loss of between $20,000 and $30,000 per annum. There is no evidence of the kind referred to in that submission.
Nor am I prepared to act upon the further submission and appoint an actuary to quantify the loss. It is this Court’s duty to assess compensation. That assessment must be made on the admissible evidence before the Court.
The time for Ben to call evidence, in relation to a claim for economic loss, or more particularly loss of earning capacity, was at the trial.
In his Statement of Claim he identified the compensation for any loss or damage suffered quite precisely. No attempt was made to prove the individual items. In his Statement of Claim he limited his claim for compensation for general damages to $20,000.
I think Ben is entitled to compensation for general damages, in particular for the hurt, embarrassment and social dislocation which has been occasioned by his inability to communicate in any language. Of course, not all of that has been caused by Education Queensland. All of the other factors to which I have earlier referred have played a part.
It was submitted that Ms Mosely’s evidence showed that Ben used to withdraw into himself when communication broke down. I accept her evidence.
However, I cannot find on that evidence that was as a consequence of Education Queensland’s conduct. Ms Mosely was his teacher for a period in 2001. At that time, Ben’s conduct might well have been due to his failure to have any language to the year 2000 which was not a consequence of Education Queensland’s conduct.
However, I think Ben is entitled to some award for those general damages. In my opinion, a sum of $20,000 would be appropriate.
I turn to the claim for economic loss.
Ben has fallen far behind his hearing peers. That is partly due to the matters relied on by the respondent.
However, he would have been assisted if Education Queensland had provided him with an Auslan education or, at the very least, an Auslan interpreter from early 2000, i.e. for the two years before his complaint.
The only evidence to assist me in assessing any loss of earning capacity suffered by Ben is the evidence of Mr Manton, to which I have referred, and that evidence, meaning no disrespect to Mr Manton, is self-evident.
How it would sound in compensation though is impossible to calculate.
If I were to assume that Ben has lost the opportunity of a tertiary education and employment commensurate with a tertiary education, I simply have no figures upon which to work. If I were to assume that Ben is capable of a secondary education at present, I cannot make any finding about what employment might be available to Ben upon the assumption that he has lost the opportunity of a tertiary education.
The other matter about which I have no evidence is whether, if Ben obtains the education which it is said that he requires, he will attain a level of performance equal to his hearing peers, although I think, on the evidence presently before me, it is unlikely, unfortunately, that Ben will ever attain that level. That is for all of the reasons already addressed including reasons quite unconnected with Education Queensland’s conduct.
It therefore follows that there is insufficient evidence before me to assess compensation upon the basis that Ben has lost the opportunity of a tertiary education and is now less likely to obtain employment.
However, I must make some assessment, even though there is a paucity of evidence.
In my opinion, it would be appropriate to proceed upon the basis that Ben lost two years schooling prior to 30 May 2002 because of the failure of Education Queensland to provide him with an Auslan teacher or interpreter.

If he were to stay at school for two years more than he otherwise would have, he should be able to regain the education he has lost. That is the assumption I will make. However, that does not make the assessment much easier.
I will compensate Ben upon the basis that he has lost two years earnings some time into the future; some time either between the ages of 17 and 19 years if he only completes a secondary education or between the ages of 22 and 24 years if he completes a tertiary education.
I still do not know what level of achievement Ben could attain, assuming that those two years of education were replaced.
I do not have any evidence of what earnings might be available to Ben at that time.
Like in an assessment of damages in claims for personal injury, I should ignore inflation. I should allow for the present day value of the money. I should assume that the discount rate is three per cent: Todorovic & Another v Waller (1981) 150 CLR 402.
I assess the compensation for loss or damage payable by the respondent in the nature of loss of earning capacity to the applicant Ben at $40,000. There will be no award of interest on the sum of $40,000. That sum reflects a future loss of earning capacity: Thompson v Faraonio (1979) 24 ALR 1.
The sum of $20,000 which I have assessed for the hurt suffered by Ben should carry interest. I will award interest of $4,000 on the sum of $20,000 which has been outstanding for nearly three years.
I realise that the sum awarded is more than Ben sought in his Statement of Claim but it is significantly less than the amount sought at trial.
I make the following orders:
In Action Q200 of 2002:
1. The application be dismissed.
In Action Q201 of 2002:
1.Leave to amend pars 12, 13, 14, 15, 17, 18, 19, 22, 25, 29 (with the exception of par 29(e)), 29D, 30 and 31 (but in respect of those last two paragraphs only to include a reference to par 29D).
2.Otherwise leave to amend refused.
3.A declaration that the respondent has committed unlawful discrimination.
4.The respondent to pay the applicant $64,000, which includes $4,000 by way of interest.
I will hear the parties as to costs. Because the matters were heard together the parties may seek orders apart from the usual orders where costs follow the event. I will, if asked, extend the time within which to appeal to commence from whenever the costs orders are made.

I certify that the preceding eight hundred and sixty nine (869) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.
Associate:
Dated: 15 April 2005

Counsel for the Applicants: Mr J D Gray with Mr M Hodge

Solicitor for the Applicants: Caxton Legal Centre

Counsel for the Respondent: Mr R Bain QC with Mr C J Murdoch

Solicitor for the Respondent: Crown Solicitor

Date of Hearing: 7, 8, 9, 10, 11, 15, 16, 17, 18, 30 June 2004; 1, 2 July 2004

Date of Judgment: 15 April 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 200 OF 2002

BETWEEN:	TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) APPLICANT
AND:	EDUCATION QUEENSLAND RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	15 APRIL 2005
WHERE MADE:	ADELAIDE (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 201 OF 2002

BETWEEN:	BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) APPLICANT
AND:	EDUCATION QUEENSLAND RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	15 APRIL 2005
WHERE MADE:	ADELAIDE (HEARD IN BRISBANE)

JUDGE:	LANDER J
DATE:	15 APRIL 2005
PLACE:	ADELAIDE (HEARD IN BRISBANE)

Counsel for the Applicants:	Mr J D Gray with Mr M Hodge
Solicitor for the Applicants:	Caxton Legal Centre
Counsel for the Respondent:	Mr R Bain QC with Mr C J Murdoch
Solicitor for the Respondent:	Crown Solicitor
Date of Hearing:	7, 8, 9, 10, 11, 15, 16, 17, 18, 30 June 2004; 1, 2 July 2004
Date of Judgment:	15 April 2005