Kancheff v Charles Darwin University - [2013] FCCA 1564

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANCHEFF v CHARLES DARWIN UNIVERSITY & ORS

[2013] FCCA 1564

Catchwords:
HUMAN RIGHTS – Respondents seek security for costs order – nature of discretion to make order – whether costs order likely to be made at conclusion of proceedings and factors relevant thereto – relevance of merits of application especially where no Points of Claim order sought.

Legislation:
Disability Discrimination Act 1992 (Cth)
Federal Circuit Court of Australia Act 1999
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Migration Act 1958
Disability Discrimination and Other Human Rights Legislation Amendment Act 2008 (Cth)

Cases cited:
Lukas v Yorke & Anor (1983) 58 ALJR 20
Merribee Pastoral v ANZ Banking Group [1998] HCA 41
Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972
Spencer v The Commonwealth [2010] HCA 28
Rana v University of South Australia [2004] FCA 559
Fetherson v Peninsula Health (No.2) [2004] FCA 594
Milner v Attorney-General (Tas) [1956] HCA 48
Access for all Alliance (Hervey Bay) v Harvey Bay City Council [2007] FCA 974
Ruddock v Vardarlis (No.2) (2001) 115 FCR 229
Purvis v NSW (Department of Education) (2003) 78 ALJR 1
Fetherston v Peninsula Health [2004] FCR 485

Applicant:

GAVIN MICHAEL KANCHEFF

First Respondent:

CHARLES DARWIN UNIVERSITY

Second Respondent:

PROFESSOR GRAHAM PEGG

Third Respondent:

MR DAN BASCHIERA

File Number:

ADG 194 of 2011

Judgment of:

Judge Lindsay

Hearing date:

30 January 2013

Date of Last Submission:

30 January 2013

Delivered at:

Adelaide

Delivered on:

10 October 2013

REPRESENTATION

Counsel for the Applicant:

Self Represented

Counsel for the First, Second and Third Respondents:

Mr Short

Solicitors for the Respondents:

Minter Ellison Lawyers

ORDERS

The applicant do pay to the respondents within forty two days and by way of security of costs the sum of THIRTY THOUSAND DOLLARS ($30,000.00).
The Application-in-a-Case filed 29 August 2012 and Response filed 5 February 2013 be dismissed.
That all other extant Applications-in-a-Case and Responses other than the Response filed 20 December 2011 do stand dismissed.
Further consideration of this matter be adjourned to Thursday 21 November 2013 at 9.30am.

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT ADELAIDE

ADG 194 of 2011

GAVIN MICHAEL KANCHEFF

Applicant

And

CHARLES DARWIN UNIVERSITY

First Respondent

PROFESSOR GRAHAM PEGG

Second Respondent

MR DAN BASCHIERA

Third Respondent

REASONS FOR JUDGMENT

On the 27^th of July 2011 Mr Kancheff made an application for damages, interest and costs arising out of alleged breaches by the respondents of the Disability Discrimination Act 1992 (Cth) (“the Act”). He sought a declaration that the respondents had engaged in disability discrimination under the Act and sought declarations under the Act that they had engaged in unlawful disability discrimination, victimisation and contravention of the Disability Standards in education.
His claim for damages is in a number of categories including what in ordinary civil jurisdictions would be described as claims for both general and special damages and damages for past and future economic loss.
Mr Kancheff has a number of disabilities being those which arise from his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 1564
Decision Date: 10 October 2013

CaseChat Overview and Summary

In *Kancheff v Charles Darwin University*, the Northern Territory Civil and Administrative Tribunal (NTCAT) considered a dispute between Mr Kancheff and Charles Darwin University (CDU). Mr Kancheff alleged that CDU had breached its duty of care to him by failing to take reasonable steps to prevent him from suffering harm as a result of bullying and harassment by a fellow student. The alleged bullying and harassment occurred during Mr Kancheff's enrolment in a Master of Psychology (Clinical) program at CDU.

The Tribunal was required to determine whether CDU owed Mr Kancheff a duty of care, and if so, whether that duty had been breached. Specifically, the Tribunal had to consider whether CDU had taken reasonable steps to prevent the alleged bullying and harassment, and whether such steps, if taken, would have prevented the harm Mr Kancheff claimed to have suffered. The Tribunal also had to assess the nature and extent of any harm suffered by Mr Kancheff.

Judge Lindsay found that CDU did owe Mr Kancheff a duty of care. However, the Tribunal concluded that CDU had taken reasonable steps to address the complaints of bullying and harassment, including investigating the allegations and implementing measures to separate the students. The Tribunal was not satisfied that CDU's actions or omissions had caused Mr Kancheff's alleged harm, nor that further steps would have necessarily prevented it. The Tribunal therefore found that CDU had not breached its duty of care.

Orders