JVR24 v Trustee for Sydney Catholic Schools Trust - [2024] FedCFamC2G 538

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JVR24 v Trustee for Sydney Catholic Schools Trust [2024] FedCFamC2G 538

File number(s): SYG 1681 of 2023

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 13 June 2024

Catchwords: HUMAN RIGHTS – Disability discrimination – practice and procedure – application that respondent provide particulars of matters affirmatively raised in its defence – respondent ordered to provide particulars.

Legislation: Federal Court Rules r 16.45(1)(b)

Cases cited:
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413

Microsoft Corporation v Intertrust Technologies Corporation [2003] FCA 656

Rares, Justice Steven --- "A Judges viewpoint: the role of pleading" (FCA) [2012] FedJSchol 25

Division: General

Number of paragraphs: 30

Date of hearing: 30 May 2024

Place: Sydney

The Applicant: JVS24 as litigation guardian for the applicant

Solicitor for the Respondent: Mr T Makamure of Barry Nilsson Lawyers, by telephone
ORDERS

SYG 1681 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JVR24

Applicant

AND:
TRUSTEE FOR SYDNEY CATHOLIC SCHOOLS TRUST

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

13 JUNE 2024

THE COURT ORDERS THAT:
1.The respondent provide to the applicant the particulars requested by the applicant’s litigation guardian’s email sent on 27 May 2024, other than the particulars requested by paragraph 2 of that email.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

By email sent on 27 May 2024 (RP) the applicant, through her litigation guardian, JVS24, requested the respondent to provide particulars of the respondent’s defence.[1]
[1] At the directions hearing of 30 May 2024 I marked the request for particulars as MFI1.
In these reasons for judgment I consider whether the applicant has made a proper request for particulars of the defence filed by the respondent.
To be in a position to determine that question, it will be necessary to describe the pleadings.
PLEADINGS
It would be convenient to set out the allegations made in the statement of claim, and the responses contained in the defence, in the following table:

Statement of claim

Defence

1

The applicant was born in 2013.

Not pleaded to.

3

The applicant is a person with a disability, within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) (DD Act).

Admitted.

4

The respondent owned and operated a particular school (School); and is an “educational authority” for the purposes of s 22(1) of the DD Act, and an “education provider” for the purposes of paragraph 2.1 of the Disabilities Standards for Education 2005 (Cth) (DSE).

Admitted, and further alleges:

a.   It owns and operates several mainstream and specialist schools within the Sydney Diocese;

b.   it has established procedures for supporting students with complex social and emotional needs; and

c.   the School is a mainstream school.

5

In June 2020 an application was submitted on behalf of the applicant to enrol as a student at the School.

Admitted, but also says on 18 May 2020 JVS24 contacted the respondent to inquire about enrolling the applicant at the School.

6

Between 17 June 2020 and 14 August 2020 a series of meetings occurred between the applicant’s parents and representatives of the School in relation to the applicant’s prospective enrolment.

Admitted, and further says:

a.   In accordance with Part 4 of the Disability Standards for Education 2005 (DSE), the Respondent was required to take all reasonable steps to explore whether the Applicant was able to be enrolled on the same basis as a prospective student without the applicant’s disability.

b.   In taking those required steps, the respondent: (i) collected medical reports regarding the applicant’s disability; (ii) engaged in consultation with other educational providers that the applicant was previously enrolled at; and (iii) consulted with the applicant’s parents.

c.   On review of the medical reports available, the respondent cancelled the meeting with the applicant on 3 and 6 August 2020 to avoid re-traumatising her by prematurely exposing her to a new school setting.

7

On 24 August 2024 the applicant’s parents attended separate meetings with the School, and were verbally notified the applicant’s application to enrol was refused.

Admitted only to the extent that the respondent held separate meetings with the applicant’s parents, and otherwise denies. Further says:

a.   The purpose of the meetings was to allow the applicant’s parents a further opportunity to consult on the applicant’s learning and schooling needs and assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant’s enrolment.

b.   Prior to the meetings of 24 August 2020 and 29 July 2020 with JVS24, the respondent had a meeting with JVS24 on 25 June 2020 for the purpose of engaging in consultations with them regarding the applicant’s learning and schooling needs to assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant’s enrolment.

8

In late August 2020 the respondent sent letters to the applicant’s parents refusing the applicant’s application to enrol at the School.

Admitted, and further says that by separate letters sent to each of the applicant’s parents, the respondent communicated an offer to support the applicant to apply for enrolment in an “ASPECT school”, but JVS24 rejected “[t]his proposed adjustment”. The respondent further says that:

a.   the school and diverse learning team considered that the applicant’s needs were such that she needed to be informed in advance of any changes to routine and structure;

b.   any disruptions to these would likely put the applicant in a state of emotional distress; and

c.   at the time of the enrolment application the applicant had been enrolled in home schooling as from 8 March 2020, after her parents had withdrawn her from a public school kindergarten.

9

At the time the application to enrol was made there were reasonable adjustments the respondent could have implemented to admit the applicant as a student, these being:

a.   a senior student assisting the applicant to transition to and from school each day;

b.   participating in a reading recovery program the School offered; and

c.   allowing the applicant to sit at the end of the pew during church services and next to an older student or assistance teacher who would be able to escort her outside to a quiet area is she required a sensory break.

Denies and says:

a.   the adjustments set out in paragraph 9 (a) to (c) would not have been adequate to support the applicant’s social and emotional needs in a classroom setting.

b.   the primary adjustment required by the applicant was that she be provided 1:1 support and interruptive interventions. This was also recommended in the Report from Dr Berlinda Yeoh of 7 February 2019 and Psychological Assessment report from ASPECT of 8 January 2018;

c.   JVS24 declined an offer of enrolment at a different school, All Hallows Catholic Primary School, because that School would not allow 1:1 support through a therapist attending classes with the applicant;

d.   the respondent determined that the required adjustments were not reasonable, having regard to the impact on the respondent’s [sic] ability to independently achieve learning outcomes and participate in class activities, other students and the risk to health and safety;

e.   the respondent proposed a reasonable adjustment by offering to assist the applicant to apply for enrolment at an ASPECT school; and

f.    this proposed adjustment was rejected by JVS24.

10

The respondent’s conduct as alleged above constituted direct discrimination against the applicant on the basis of the applicant’s disability, contrary to s 5(1) and s 22 of the DD Act in that:

a.   the respondent refused to accept the applicant’ application to enrol because of her disability; and

b.   in refusing to accept her enrolment the respondent treated the applicant less favourably than it would have treated a person with a disability in circumstances that were not materially different.

Denied; and further says:

a.   the applicant has misconceived the conceptual comparator (Comparator);

b.   the proper comparator is a student without the applicant’s disability, displaying similar behaviours, seeking enrolment in year 1 at the School; and

c.   the respondent would have treated the Comparator in the same way in circumstances that are not materially different.

11

Further, the respondent’s conduct referred to above constituted direct discrimination against the applicant on the basis of her disability, contrary to s 5(2) and s 22 of the DD Act, in that:

a.   the respondent refused to consider reasonable adjustments for the applicant; and

b.   for that reason, the applicant was treated less favourably than a person without that disability would be treated in circumstances that were not materially different.

Denied.

12

Further, the respondent’s conduct referred to above contravened s 32 of the DD Act.

Denied; and further says that at all material times, the respondent acted consistently with the DSE and took all reasonable steps to explore whether the applicant was able to be enrolled on the same basis as a prospective student without the applicant’s disability.

13

The respondent’s conduct referred to above is unlawful pursuant to ss 5, 22, and 32 of the DD Act.

Denied.

PRINCIPLES

The principles that govern the requirement to provide particulars were usefully set out in an article written by the Honourable Justice Tamberlin, as updated by the Honourable Justice Rares:[2]
It is important not to confuse “pleadings” with “particulars”. The functions of the two are distinct. Division 16.4 of the Federal Court Rules deals with particulars. The function of particulars is to fill in the picture of the applicant’s cause of action with information sufficiently detailed to put the respondent on notice as to the case to be met and to enable preparation for trial. Strictly speaking, particulars may not be used to fill minor gaps in a pleading which ought to have been filled by appropriate statements of the various material facts together constituting the cause of action.[3] Particulars, when given in the pleadings advert to essential facts which fill out the broad allegation in the pleading.
. . . .
The degree of precision required for particulars will depend on the particular circumstances. The Federal Court Rules do not give detailed guidance as to the way in which pleadings must be particularised. Rule 16.41(1) provides that a party shall state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by him or her. Rules 16.42 to 16.44 then go on to provide for specific matters of which a party must give particulars, such as fraud, any “condition of mind” (deliberate act, malice, recklessness), damages or exemplary damages. The Court has the power under r 16.45 to order a party to file and serve on any other party particulars of any claim, defence or other matter or, alternatively, as was ordered in Microsoft Corporation v Intertrust Technologies Corporation,[4] a statement of the nature of the case on which he relies.[5]
THE REQUEST FOR PARTICULARS
[2] Rares, Justice Steven --- "A Judges viewpoint: the role of pleading" (FCA) [2012] FedJSchol 25
[3] Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987 13 FCR 413 at 419 per French J.
[4] [2003] FCA 656.
[5] Federal Court Rules, r 16.45(1)(b).
Request no 1
The first request for particulars (RP1) is directed to the allegation in paragraph 9(b) of the defence, which alleges that the “primary adjustment required by the applicant was that she be provided 1:1 support and interruptive interventions”. RP1 requests that the respondent “state the period for which the provision to the applicant of one to one support and interruptive interventions was determined by the respondent to be required”.
This is a proper request for particulars. Paragraph 9(b) of the defence is necessarily incomplete because it does not specify the period or periods for which the respondent alleges it assessed the applicant as requiring “1:1 support and interruptive interventions”.
I propose to order that the respondent provide the particulars requested by RP1.
Request no 2
The second request for particulars (RP2) requests the identity of the person who determined that the adjustments required by the applicant was that she be provided one to one support and interruptive interventions. That is not a proper request for particulars. The identity of the person who determined the adjustment is not necessary to the applicant’s understanding this part of the respondent’s defence; and is in any event a matter of evidence.
I therefore do not propose to order that the respondent provide the particulars requested by RP2.
Request no 3
The third request for particulars (RP3) requests the respondent identify “the required adjustments to which the respondent’s determination alleged in paragraph 9(d) of the Defence referred”. This is a proper request for particulars because it is not clear to what “the required adjustments” in paragraph 9(d) of the defence is intended to refer. Is it intended to refer to the “reasonable adjustments” alleged in paragraph 9 of the statement of claim, or is it intended to refer to something else? If it is intended to refer to something else, to what does the respondent intend “the required adjustments” in paragraph 9(d) to refer?
I propose to order that the respondent provide the particulars requested by RP3.
Request no 4
The fourth request for particulars (RP4) requests the respondent identify “each impact on the respondent’s (or in the alternative the applicant's) ability to independently achieve learning outcomes upon which the respondent relies at paragraph 9(d) of the Defence”. The reference in RP4 to “or in the alternative the applicant’s” reflects what appears to be a typographical error in paragraph 9(d) of the defence.
Paragraph 9(d) alleges an impact or impacts on the applicant’s ability to independently achieve learning outcomes without identifying what the impacts are. It is necessary to identify what the alleged impact or impacts is or are to give the applicant fair notice of the case she has to meet.
I propose to order that the respondent provide the particulars requested by RP4.
Request no 5
The fifth request for particulars (RP5) requests the respondent identify “each impact on the respondent’s (or in the alternative the applicant’s) ability to participate in class activities upon which the respondent relies at paragraph 9(d) of the Defence”. As I have already noted, the reference in RP5 to “or in the alternative the applicant’s” reflects what appears to be a typographical error in paragraph 9(d) of the defence.
Paragraph 9(d) of the defence alleges an impact or impacts on the applicant’s ability to participate in class activities without identifying what the impacts are. It is necessary to identify what the alleged impact or impacts is or are to give the applicant fair notice of the case she has to meet.
I propose to order that the respondent provide the particulars requested by RP5.
Request no 6
The sixth request for particulars (RP6) requests the respondent identify “each impact on other students upon which the respondent relies at paragraph 9(d) of the Defence”.
Paragraph 9(d) of the defence alleges an impact or impacts on other children without identifying what the impacts are. It is necessary to identify what the alleged impact or impacts is or are to give the applicant fair notice of the case she has to meet.
I propose to order that the respondent provide the particulars requested by RP6.
Request no 7
The seventh request for particulars (RP7) requests the respondent identify “each impact on the risk to health and safety on which the respondent relies in paragraph 9(d) of the Defence”, including the nature and severity of the risk, and the persons or classes of persons whose health or safety would or might be affected.
Paragraph 9(d) alleges an impact or impacts on the risk to health and safety. It is necessary to identify what the alleged impact or impacts is or are on the risk to health and safety, identifying the nature of the risk that is alleged to be impacted, and the persons who are exposed to the risk that is impacted.
I propose to order that the respondent provide the particulars requested by RP7.
Requests no 8 and no 9
The eighth request for particulars (RP8) requests the respondent identify “each behaviour of the applicant upon which the respondent relies at paragraph 10(b) of the Defence”. The ninth request for particulars (RP9) requests the respondent “state each date or dates upon which the respondent alleges the applicant displayed each behaviour upon which the respondent relies at paragraph 10(b) of the Defence, and the circumstances in which the respondent alleges the behaviour occurred”.
Paragraph 10(b) of the defence alleges that the comparator should be a student who does not have the applicant’s disabilities, but who displayed similar behaviours. Paragraph 10(b) of the defence does not, however, identify what the “similar behaviours” are alleged to be, when such behaviours are alleged to have occurred, and the circumstances in which they have occurred. RP8 and RP9 request particulars about these matters; and it is necessary that the respondent provide them to enable the applicant to be properly notified of the case the respondent makes to the extent it relies on the matters alleged in paragraph 10(b).
I propose to order that the respondent provide the particulars requested by RP8 and RP9.
Request no 10
The tenth request for particulars (RP10) is directed to paragraph 12 of the defence, which alleges that the respondent “took all reasonable steps to explore whether the applicant was able to be enrolled on the same basis as a prospective student without the applicant’s disability”. RP10 requests the respondent “state each of the steps” the respondent in paragraph 12 of the defence alleges it took. That is a proper request for particulars.
I propose to order that the respondent provide the particulars requested by RP10.
DISPOSITION
I propose to order that the respondent provide the particulars I have concluded it ought to provide; and I propose to order that it do so by a date I will fix at the directions hearing at 2.15 pm on 13 June 2024.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 13 June 2024

File number(s):	SYG 1681 of 2023
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	13 June 2024
Catchwords:	HUMAN RIGHTS – Disability discrimination – practice and procedure – application that respondent provide particulars of matters affirmatively raised in its defence – respondent ordered to provide particulars.
Legislation:	Federal Court Rules r 16.45(1)(b)
Cases cited:	Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 Microsoft Corporation v Intertrust Technologies Corporation [2003] FCA 656 Rares, Justice Steven --- "A Judges viewpoint: the role of pleading" (FCA) [2012] FedJSchol 25
Division:	General
Number of paragraphs:	30
Date of hearing:	30 May 2024
Place:	Sydney
The Applicant:	JVS24 as litigation guardian for the applicant
Solicitor for the Respondent:	Mr T Makamure of Barry Nilsson Lawyers, by telephone

SYG 1681 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JVR24 Applicant
AND:	TRUSTEE FOR SYDNEY CATHOLIC SCHOOLS TRUST Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	13 JUNE 2024

Statement of claim	Defence
1	The applicant was born in 2013.	Not pleaded to.
3	The applicant is a person with a disability, within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) (DD Act).	Admitted.
4	The respondent owned and operated a particular school (School); and is an “educational authority” for the purposes of s 22(1) of the DD Act, and an “education provider” for the purposes of paragraph 2.1 of the Disabilities Standards for Education 2005 (Cth) (DSE).	Admitted, and further alleges: a. It owns and operates several mainstream and specialist schools within the Sydney Diocese; b. it has established procedures for supporting students with complex social and emotional needs; and c. the School is a mainstream school.
5	In June 2020 an application was submitted on behalf of the applicant to enrol as a student at the School.	Admitted, but also says on 18 May 2020 JVS24 contacted the respondent to inquire about enrolling the applicant at the School.
6	Between 17 June 2020 and 14 August 2020 a series of meetings occurred between the applicant’s parents and representatives of the School in relation to the applicant’s prospective enrolment.	Admitted, and further says: a. In accordance with Part 4 of the Disability Standards for Education 2005 (DSE), the Respondent was required to take all reasonable steps to explore whether the Applicant was able to be enrolled on the same basis as a prospective student without the applicant’s disability. b. In taking those required steps, the respondent: (i) collected medical reports regarding the applicant’s disability; (ii) engaged in consultation with other educational providers that the applicant was previously enrolled at; and (iii) consulted with the applicant’s parents. c. On review of the medical reports available, the respondent cancelled the meeting with the applicant on 3 and 6 August 2020 to avoid re-traumatising her by prematurely exposing her to a new school setting.
7	On 24 August 2024 the applicant’s parents attended separate meetings with the School, and were verbally notified the applicant’s application to enrol was refused.	Admitted only to the extent that the respondent held separate meetings with the applicant’s parents, and otherwise denies. Further says: a. The purpose of the meetings was to allow the applicant’s parents a further opportunity to consult on the applicant’s learning and schooling needs and assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant’s enrolment. b. Prior to the meetings of 24 August 2020 and 29 July 2020 with JVS24, the respondent had a meeting with JVS24 on 25 June 2020 for the purpose of engaging in consultations with them regarding the applicant’s learning and schooling needs to assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant’s enrolment.
8	In late August 2020 the respondent sent letters to the applicant’s parents refusing the applicant’s application to enrol at the School.	Admitted, and further says that by separate letters sent to each of the applicant’s parents, the respondent communicated an offer to support the applicant to apply for enrolment in an “ASPECT school”, but JVS24 rejected “[t]his proposed adjustment”. The respondent further says that: a. the school and diverse learning team considered that the applicant’s needs were such that she needed to be informed in advance of any changes to routine and structure; b. any disruptions to these would likely put the applicant in a state of emotional distress; and c. at the time of the enrolment application the applicant had been enrolled in home schooling as from 8 March 2020, after her parents had withdrawn her from a public school kindergarten.
9	At the time the application to enrol was made there were reasonable adjustments the respondent could have implemented to admit the applicant as a student, these being: a. a senior student assisting the applicant to transition to and from school each day; b. participating in a reading recovery program the School offered; and c. allowing the applicant to sit at the end of the pew during church services and next to an older student or assistance teacher who would be able to escort her outside to a quiet area is she required a sensory break.	Denies and says: a. the adjustments set out in paragraph 9 (a) to (c) would not have been adequate to support the applicant’s social and emotional needs in a classroom setting. b. the primary adjustment required by the applicant was that she be provided 1:1 support and interruptive interventions. This was also recommended in the Report from Dr Berlinda Yeoh of 7 February 2019 and Psychological Assessment report from ASPECT of 8 January 2018; c. JVS24 declined an offer of enrolment at a different school, All Hallows Catholic Primary School, because that School would not allow 1:1 support through a therapist attending classes with the applicant; d. the respondent determined that the required adjustments were not reasonable, having regard to the impact on the respondent’s [sic] ability to independently achieve learning outcomes and participate in class activities, other students and the risk to health and safety; e. the respondent proposed a reasonable adjustment by offering to assist the applicant to apply for enrolment at an ASPECT school; and f. this proposed adjustment was rejected by JVS24.
10	The respondent’s conduct as alleged above constituted direct discrimination against the applicant on the basis of the applicant’s disability, contrary to s 5(1) and s 22 of the DD Act in that: a. the respondent refused to accept the applicant’ application to enrol because of her disability; and b. in refusing to accept her enrolment the respondent treated the applicant less favourably than it would have treated a person with a disability in circumstances that were not materially different.	Denied; and further says: a. the applicant has misconceived the conceptual comparator (Comparator); b. the proper comparator is a student without the applicant’s disability, displaying similar behaviours, seeking enrolment in year 1 at the School; and c. the respondent would have treated the Comparator in the same way in circumstances that are not materially different.
11	Further, the respondent’s conduct referred to above constituted direct discrimination against the applicant on the basis of her disability, contrary to s 5(2) and s 22 of the DD Act, in that: a. the respondent refused to consider reasonable adjustments for the applicant; and b. for that reason, the applicant was treated less favourably than a person without that disability would be treated in circumstances that were not materially different.	Denied.
12	Further, the respondent’s conduct referred to above contravened s 32 of the DD Act.	Denied; and further says that at all material times, the respondent acted consistently with the DSE and took all reasonable steps to explore whether the applicant was able to be enrolled on the same basis as a prospective student without the applicant’s disability.
13	The respondent’s conduct referred to above is unlawful pursuant to ss 5, 22, and 32 of the DD Act.	Denied.