Kancheff v Charles Darwin University
[2013] FCCA 1564
•10 October 2013
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 27th 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 having a stroke in 1998 resulting, inter alia, in left side paralysis and learning difficulties.
In 2008 he gained entry to the Bachelor of Behavioural Science course (hereinafter “the BBS course”) at Charles Darwin University in Darwin. He relocated from Adelaide to Darwin to participate in the course.
Some aspects of his claim (those relating particularly to the second respondent, who was the Dean of the Faculty of Education, Health and Science in which that course was offered) relate to his treatment in that course.
He subsequently applied for a transfer to another course being a Bachelor of Humanitarian and Community Studies (hereinafter “the BHCS course”) in the same faculty. His transfer was denied by the second respondent and that is one aspect of his claim. Ultimately though he successfully appealed against that refusal and transferred to the BHCS course.
The third respondent was the Co-ordinator of the BHCS course.
One of the compulsory units in that course was unit number SWK-260 known as the “Remote Project Experience” course. That course was designed to provide students with the necessary logistical and practical instruction to operate competently and safely in areas of reduced infrastructure. It involved an excursion to Katherine and Casuarina. A number of aspects of his claim relate to his experiences on that excursion and in particular to his experiences in travelling in a Troop Carrier.
In their Response the respondents deny all aspects of the alleged discrimination and any responsibility for the miscellaneous losses Mr Kancheff claims to have suffered.
These proceedings were instituted in this Court by Mr Kancheff following upon the Australian Human Rights Commission terminating his complaint under s.46PH(1)(i) because it considered there was no reasonable prospect of the claim being settled by conciliation.
Since the institution of the proceedings in July 2011, eleven separate Applications-in-a-Case have been filed by the parties (in total) including the Application I am presently dealing with which is an Application for security for costs filed on behalf of the respondents on 29 August 2012.
During the course of the proceedings but prior to the filing of the Application for security of costs I ordered that Mr Kancheff attend upon a psychiatrist by the name of Dr Cotton and he provided a report dated 27 July 2012. The Application for security for costs was, therefore, brought shortly after the receipt of the report. I had also been provided with a report from Professor Burns following upon the applicant attending upon him.
The Application for security for costs was supported by an affidavit of a legal representative of the respondents, a Ms Owers, filed on 29 August 2012. It sets out the grounds upon which the application is made.
Those grounds include what is said to be Mr Kancheff’s impecuniosity.
At this point I turn to a consideration of the relevant legislative provisions relating to applications for security for costs in this Court.
Section 80 of the Federal Circuit Court of Australia Act 1999 provides as follows:
Security for Costs
(1)…
(2) The Federal Circuit Court of Australia or a Judge may order an applicant in a proceeding in the Federal Circuit Court of Australia to give security for the payment of costs that may be awarded against him or her.
(3) The security is to be of such amount, and given at such time and in such manner and form, as the Federal Circuit Court of Australia or Judge directs.
(4) The Federal Circuit Court of Australia or a Judge may:
(a) reduce or increase the amount of security ordered to be given; and
(b) vary the time at which, or manner or form in which, the security is to be given.
(5) If security, or further security, is not given in accordance with an order under this section, the Federal Circuit Court of Australia or a Judge may order that the proceeding be:
(a) dismissed; or
(b) stayed until security or further security is given in accordance with the first‑mentioned order.
(6) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the giving of security.
Rule 21.01 of the Rules of Court provides:
21.01 Security for costs
(1)On application by a respondent, the Court may order the applicant to give the security that the Court considers appropriate for the respondent’s costs of the proceeding.
(2)For this rule:
Respondent includes an applicant if a cross-claim is made or the response to the application seeks orders in relation to matters not covered by the applicant.
(3.)An application must be made in accordance with the approved form and supported by an affidavit setting out the facts relied on.
As can be seen, neither the legislative provision nor the Rule give any guide as to how to exercise the discretion. As Brennan J (as he then was) said of the analogous provision of the High Court Rules when dealing with an application for security for costs on an appeal to the High Court from the Full Court of the Federal Court in Lucas v Yorke & Anor (1983) 58 ALJR 20 at 21:
The discretion under O.70 r.10 is absolute like the discretion under the High Court Procedure Act 1903 (Cth) considered by Rich J in King v Commercial Bank of Australia Limited (1920) 28 CLR 289. I would respectfully adopt what Rich J said (at 292), mutatis mutandis, to the discretion now to be exercised:
The legislature, however, has left absolute discretion to the Court, and has done so without prescribing any rules for its exercise. In these circumstances no rules can be formulated in advance by any Judge as to how the discretion shall be exercised. It depends entirely on the circumstances of each particular case. The discretion, must, of course, be exercised judicially, which means that in each case the Judge has to enquire how, on the whole, justice will be best served, whether by altering the amount and, if so, to what extent, or by letting it stand unaltered.
Kirby J dealt with an application for security for costs in relation to an application brought to the High Court in its original (not its appellate) jurisdiction in Merribee Pastoral v ANZ Banking Group [1998] HCA 41. The power to order security for costs in that case was an incident of the inherent jurisdiction of the Court. His Honour summarised the three principle propositions which he thought “may be useful to collect” at [26]. They were
i)That the discretion was unfettered . What matters is what is required by the justice of the matter;
ii)There is no absolute rule that the impecuniosity of a party will entitle the respondent party to an order for security of costs. As His Honour puts it:
Where the power to so provide exists in uncontrolled terms, it would be to fetter the jurisdiction impermissibly to adopt such a rule or even a prima facie entitlement. By the same token, the inability of a party to meet the costs of an unsuccessful proceeding is not irrelevant to the exercise of the jurisdiction. Litigation is inevitably expensive and burdensome. To add to the burdens of a party successful in the outcome, those of paying its costs with little or no prospect of recovery under an order for costs may, in particular circumstances, be a reason for offering a measure of protection to that party by way of security of costs.
iii)An evaluation of the prospects of success of the proceeding. If a proceeding appears doomed to fail, the lack of apparent merit in the case might be a reason for making the order. But His Honour warns that such a consideration would need to be exercised carefully:
... given that the real merits of a case might not emerge until the final hearing or might not sufficiently emerge in the necessarily brief proceedings typically involved in an application for security for costs. Furthermore, if a party asserts that its opponent’s proceedings are manifestly lacking in legal merit, other remedies are available to it to protect it from needless vexation.
His Honour then goes on in that same paragraph to summarise miscellaneous further considerations:
(a)That the hearing of the proceeding is close at hand or that the moving party has delayed its application for such an order.
(b)That the parties or some of them are legally aided.
(c)That the proceeding raises matters of general public importance quite apart from the interests of the parties.
(d)That the nature of the proceeding is such that, even if unsuccessful, an order for costs in favour of the winning party might not be made or might be limited.
(e)That the costs orders made earlier in the proceedings have followed an unusual course or have involved countervailing orders which must be weighed against those liable to be made in the proceedings in question.
(f)That a party to the proceedings is, or will at judgment be, or be likely to be, absent from the jurisdiction and has no or few assets within the jurisdiction.
(g)That if an order were made it would effectively shut a party out of relief according to law in circumstances where that party’s impecuniosity is itself a matter which the litigation may help to cure.
The matters identified by Kirby J and described by me at [19] and [20] are also matters referred to in the decision of Hill J in Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972. In addition His Honour identified in that case the following matters as relevant:
i)Whether the applicant’s impecuniosity arises out of the act in respect of which relief is sought;
ii)Whether there are any public interest considerations to be taken into account.
When I reserved my decision in relation to the application for security for costs on 30 January 2013 I made the following order:
2The applicant provide notice in writing to the Associate to FM Lindsay (as I then was) within 7 days of those affidavits filed on his behalf in this matter to date that he asked the court to consider in determining the application for security for costs.
Mr Kancheff wrote to my Associate on 5 February 2013 and advised her of the four affidavits upon which he relied. That letter has been marked as document 59 on the Court file.
I have read those four affidavits for the purposes of determining this application. With the exception of the affidavit of 5 February 2013 they were filed principally for the purposes of earlier interlocutory applications and contained little that is directly relevant to any issue that arises on this application. The affidavit of 5 February 2013 does address such matters, as does the affidavit of one Jennifer Welter filed on 12 September 2012.
The application I am determining is not an application for summary dismissal. An evaluation of the merits of the principle proceedings is, as we have seen, a factor to be taken into account. But the outcome of this application, if successful, will be an order for security of costs not an order bringing the proceedings to an end. That said, and if I am satisfied as to the impecuniosity of Mr Kancheff, the making of such an order would possibly be a significant first step in the ultimate dismissal of the proceedings, assuming that I made the order that I am asked to make as supplementary to the order for security of costs, namely making the furtherance of the proceedings contingent upon the order for security for costs being satisfied, or that the applicant failed to comply with the order. If Mr Kancheff cannot provide the security in that event, the proceedings would be highly vulnerable to be dismissed. Nevertheless the distinction between a summary dismissal and a security for costs application must be borne in mind.
The principles applicable to an application for summary dismissal (which is a power exercised in this Court under the rubric of Rule 13.10) are clear. They have been articulated by the High Court recently in Spencer v The Commonwealth [2010] HCA 28. To summarily determine a proceeding I need to be satisfied that the prosecutor has no reasonable prospect of succeeding. Formerly the test, was couched in terms of whether the proceeding was bound to fail.
In the context of a security for costs application, I am not applying in a formal sense the principles associated with the exercise of summary dismissal. I am scrutinising the apparent strength or weakness of the case as a factor in the exercise of the unfettered discretion I have as to whether to order the security to be provided. I bear in mind that I am doing so in the context of the proceedings that have not proceeded by way of pleadings. The respondents could have but did not ask me to order Mr Kancheff to file Points of Claim (and invite me to direct them to file Points of Defence) at any phase of the proceedings and the application for security was brought after the proceedings had been on foot for over a year. An application for summary dismissal is almost certain to fail in this Court if Points of Claim have not been ordered prior to the application being agitated, for the reasons given by Lander J in Rana v University of South Australia [2004] FCA 559 at [28]-[41]. Those passages of His Honour’s judgment set forth the legislative provisions and Rules of Court which prescribe the manner in which proceedings are instituted and are dealt with in this Court.
So the cautionary dicta of Kirby J in Merribee Pastoral noted above as to bearing in mind that a full or clear statement of the applicant’s case may not emerge until oral evidence has been given or the proceedings have advanced to some further stage antecedent to trial, apply a fortiori to a case where the applicant was able to institute proceedings by way of application and supporting affidavit, and without the strictures of more formal pleading.
It was because of my concern about these matters that I directed Mr Kancheff to identify any affidavits upon which he relied, though as noted above it is really only his most recent affidavit (and that of his witness) which address matters relating to merit and thus matters pertinent to the application of the security application.
Having said that, I am satisfied that Mr Kancheff has had an opportunity to put before me all of the factual matters he says indicate that he was the subject of discrimination, upon the basis of his disability, by the respondents. The application itself is really the most informative document. The information he has put before me I have taken into account in a liberal fashion in the sense that I have accepted that certain factual contentions may have only been adumbrated by him rather than fleshed out in full and that such expansion of the factual contentions on which the claim is based may occur at trial or, if evidence-in-chief is directed to be by affidavit, at the time of the filing of such affidavits.
The fact that the remedy sought is not summary dismissed is a matter that must not be overlooked. An alternative remedy available but not taken is a matter noted by Kirby J in Merribee Pastoral (see the passage I have set forth at [19] hereof). I must be acutely aware, when evaluating the prospective merits of the matter as a factor here, that the respondents decision not to seek summary dismissal, or to seek the procedural orders that would have set the scene for a proper opportunity to evaluate such application, has meant that, in a strict sense, I am not applying, as a matter of law, the usual test in relation to reasonable prospects of success. I am considering the merits in a less formal context which arguably could disadvantage an applicant in a case such as this where a security of costs order may have the same effect as a summary dismissal order. I must ensure he is not disadvantaged by the respondent’s choice of remedy. I must be especially cautious in evaluating the merits issue.
I will deal with the apparent strength or weakness of the case in its particulars shortly hereafter but first deal with another fundamental consideration. The making of an order for security for costs would be unjustified of course if I were not likely to make an order for costs at all at the conclusion of the proceedings.
In other words, the taking into account of the apparent strength or weakness of the case is linked to another factor relevant to the exercise of this discretion and that is that I must ask myself whether an order for costs is likely to be made against Mr Kancheff at the end of the proceedings. If my evaluation of the merit of his case suggests he is likely to be unsuccessful then, in accordance with authority, an order for costs is likely to follow but even then if he is unsuccessful an order for costs is not inevitable. This is another of the matters referred to by Kirby J in Merribee Pastoral.
Neither the Act nor the Human Rights and Equal Opportunity Commission Act (1986) (Cth) (“hereinafter the HREOC Act”) make any special provision for the award of costs. The Federal Circuit Court Act 1999 (Cth) simply says in s.79:
Costs
(1) …
(2) The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.
The general rule that costs follow the event applies to matters under the Act. As Heerey J said in Fetherston v Peninsula Health (No.2) [2004] FCA 594, when ordering costs against an unsuccessful applicant in a matter under the Act said, at [9]:
While the Disability Discrimination Act is without doubt beneficial legislation, its characterisation as such does not mean that this Court is to apply any different approach as to costs. In conferring jurisdiction under a particular statute Parliament may conclude that policy considerations warrant a special provision as to costs, for example that there be no order as to costs or that costs only be awarded in certain circumstance, such as, for example, where a proceeding has been instituted vexatiously or without reasonable cause: Workplace Relations Act 1996 (Cth) s 347. The absence of any such provision applicable to the present case confirms that the usual principles as to costs are to apply.
The general rule applies unless good reason is shown to the contrary (see Milner v Attorney-General (Tas) [1956] HCA 48 at [32]). Partial success only by the party applying for the costs or matters relating to the conduct of such party during the course of the litigation are sometimes identified as good reasons to the contrary.
One reason for departure from the general rule for matters under the Act sometimes relied upon is the circumstance that the case involved a significant public interest component.
In Access for all Alliance(Hervey Bay) v Harvey Bay City Council [2007] FCA 974 Collier J said at [27]:
First, it is clear from a number of cases that the fact that the case is a human rights and/or discrimination case does not of itself automatically characterise the proceedings as being in the public interest with the result that the court should divert from usual orders as to costs (Sluggett v HREOC [2002] FCA 1060 and Fetherson v Peninsula Health (No 2) [2004] FCA 594.
Ruddock v Vardarlis (No.2) (2001) 115 FCR 229 was a decision of the Full Court of the Federal Court where the unsuccessful plaintiff was not ordered to pay costs, by majority (Black CJ and French J, as he then was, Beaumont J dissenting). The majority, describing it as “a most unusual case” ([29]), found in the fact that the case raised and clarified novel and important questions, inter alia, about the Executive power of the Commonwealth; the fact that the Commonwealth Parliament found it necessary to legislate that the use of the Executive power under scrutiny in the case was not prevented by the Migration Act (which was consistent in any event with the outcome of the case in the Full Court of the Federal Court); that the applicant had nothing to gain financially by the litigation; and the circumstance that the party against whom a costs order was sought had been represented by counsel on a pro bono basis, reasons for departure from the general rule. Nevertheless Their Honours said [18]:
That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the 0primary factor in deciding on the award of costs is the outcome of the litigation.
Mr Kancheff is seeking an award of damages and compensation arising out of what he says are his experiences of discrimination; this is not a case where he is litigating to establish, or to test, a general principle in which his participation could be described as disinterested. As far as I am able to discern, no issue of public policy is likely to feature in the case, apart from those issues which are already the subject of expression in the Act and the HREOC Act themselves.
I will attempt to deal with all aspects of his claim, so I will return to the issue of whether it is likely he will be only partially successful in the proceedings (or, put another way, the respondents will be partially successful in defending the proceedings) hereunder, following an evaluation of the strength or weakness of the application generally.
No issue as to the conduct of the respondents to the proceedings arises, other than the issue in delay in bringing the security for costs application and that will be dealt with separately hereunder.
If Mr Kancheff, then, were to be unsuccessful there is no basis, in my view, for assuming that there would be any good reason as to why costs would not follow the event.
I thus return to the issue of the evaluation of his prospects of success.
The allegations of disability discrimination are these:
i)that when he was accepted for the BBS course the first and second respondents agreed to provide examples of previous student work to him and subsequently the lecturer in one of the subjects which was part of that course (Psychology A) refused to do so on grounds of protecting student confidentiality;
ii)that the second respondent insisted on the applicant providing a written apology to that lecturer following upon what is alleged was the applicant’s use of abusive language and his general belligerence towards her;
iii)that when the applicant consequently applied for a transfer to the BHSC course, the first and second respondents insisted upon him obtaining and providing a medical clearance;
iv)that when he gained entry to the BHSC course and undertook unit SWK-260 (the “Remote Project Experience”) the third respondent warned other class members of the risks arising from the applicant’s visual impairment.
v)that during the course of the Remote Project Experience while travelling in a troop carrier the applicant was refused by the third respondent an opportunity to sit in the front of the vehicle and was obliged to sit in the rear of the vehicle and that he was consequently thrown around dangerously in the rear of the vehicle;
vi)that during the said Remote Project Experience the applicant was obliged to climb through a gap in a post and rail fence to inspect a pump and experienced a leg spasm, brought on it is alleged by the nature of the travel he had experienced in the rear of the troop carrier;
vii)that the third respondent subsequently refused to discuss reasonable adjustments for the applicant and that he was then expelled from the course.
I accept (on the basis of medical reports produced by both the applicant and respondent and in reliance upon the accuracy of the information provided by the applicant to those medical practitioners who prepared the reports) that the applicant suffers from a disability as defined by s.4 of the Act and, in particular that he will be able to establish at trial the existence of, during all relevant periods, those disabilities described in subparagraphs (a), (f) and (g) of that definition. I set forth those paragraphs of the definition:
"disability", in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) …
(c) …
(d) …
(e) …
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour
The nature of his disabilities are not set forth with any clarity in any document filed by Mr Kancheff but nevertheless I am satisfied that he will establish at trial that his cerebrovascular episode in 1998 left him with the disabilities I set out hereunder. They are perhaps most clearly illuminated in the medical reports of Professor Burns and Dr Cotton attached to the affidavit of the respondents’’ solicitor of 29 August 2012. The relevant disabilities appear to be:
a)loss of function of his left hand;
b)reduced left eye vision or homonymous hemianopia;
c)sleep apnoea;
d)hypertension;
e)sensory deficit in upper limb;
f)depression and anxiety.
That list describes his disorders, illnesses, malfunctions and loss of functions which make up his disability but does not, of course, describe all of the symptoms or expressions of his disabilities.
Mr Kancheff claims to have suffered both direct and indirect discrimination.
Direct discrimination is described in s.5 of the Act:
Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
The High Court in Purvis v NSW (Department of Education) (2003) 78 ALJR 1 made clear that while the comparator posited pursuant to the section is a person without the disability, that does not mean that all of the circumstances pertaining to the treatment given to the disabled person must be excluded from the comparison even if they involve behaviour which is itself an expression of the disability.
[222] It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
[223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the test of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
[225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions:
(i)How, in those circumstances, would the educational authority have treated a person without Daniel’s disability?
(ii)If Daniel’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel’s disability?
Section 5(1) could be engaged in the application of s 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel’s treatment.
The definition of disability in s.4 of the Act was amended in 2009 (vide Disability Discrimination and Other Human Rights Legislation Amendment Act 2008 (Cth)) so as to include these words:
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of disability
The Explanatory Memorandum to that amending Act provided, at note 21 in relation to that amendment:
This implements Productivity Commission Recommendation 11.1 to add a note to the definition of disability to clarify that behaviour that is a symptom or manifestation of a disability is part of the disability for the purposes of the Disability Discrimination Act. Although this reflects the current status of the law as pronounced by the High Court in Purvis v The State of New South Wales (Department of Education and Training) [2003] HCA 62, the recommendation is being implemented for the avoidance of doubt.
It is possible to have seen this amendment as one which, had it been in existence at the time Purvis was decided, would have strengthened the (ultimately unsuccessful) argument of the appellant in that case that his violent behaviour should be excluded from considerations relating to the comparator. Heerey J, in Fetherston v Peninsula Health [2004] FCR 485 noted at [90]:
This is a stronger case than Purvis. There the relevant “disability” was that defined in paragraph (g) of the definition.
“A disorder, illness or disease that affects a person’s though-processes, perception of reality, emotions or judgment or that results in disturbed behaviour”. (Emphasis added)
Thus it could be, and was, argued, albeit in the event unsuccessfully, that the pupil’s disturbed behaviour was an aspect of his disability and so was to be ignored in considering how a person “without the disability” would have been treated. In the present case, that kind of argument could not be put.
The legislation now provides that the disability of the aggrieved person includes his behaviour. But the Explanatory Memorandum describes the amendment as being consistent with what was said by the High Court in Purvis. The majority did observe, at [230] in relation to their construction of s.5:
Fourthly, it is a construction of the section which does not depend upon distinguishing between the cause of a person’s disability and the effects or consequences of it. Indeed, it is a construction which embraces the importance of identifying (as part of the relevant circumstances) all the effects and consequences of disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?
The same amending Act inserted the present provisions relating to “reasonable adjustments” to s.5 of the Act.
The majority in Purvis had this to say on the question of causation as it arises in s.5 of the Act:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.
Section 6 of the Act deals with indirect discrimination and provides:
Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
Before dealing with the answers the respondents give to the allegations of disability discrimination I should say something about the form in which I have been provided with their answers. What I have, apart from the medical reports are statements (unsworn) of the second and third respondents and of BBS lecturer. Those statements adumbrate, as it were, the evidence those persons will give. In that sense they are no different from the assertions that are set forth in the applicant’s Grounds of Application. I do not think that it is inappropriate for me to inform myself in this way of the nature of the cases that will be presented. I am not making findings of fact; I am dealing with an interlocutory application. I will decide the application on the basis of what each of the parties tell me their case will be at trial, in the absence of any matter being put to me which would suggest that such an approach is unwarranted.
The answer given to the complaint about the denial of access to previous student work is that the respondent through its officers and employees never agreed to the provision of this work being part of the reasonable adjustments they needed to make on account of Mr Kancheff’s learning disabilities. A statement of the Student Facilitator (a Ms Coulter) of the first respondent is provided: she attaches the Confidential Access Plan designed for the applicant. It provides that the applicant “may request (my emphasis) to see previous assignments or exams if having difficulty grasping the concept” but contains no indication that the same will be provided. In any event the Student Facilitator provides this clarification, after noting the applicant’s entitlement to make this request:
This had regard to uncompleted previous assignments or exams. Student’s [sic] work was confidential. Students are entitled to privacy in relation to their work. Assessment criteria would not be met if students were able to see previous students’ work. This was reasonable.
3. There was never an agreement that the Applicant be provided with previous students’ work.
The applicant says that Ms Coulter agreed orally to his requests to see previous students’ work in the presence of his witness Ms Welter.
However, Ms Welter’s affidavit does not corroborate that assertion.
So, that there was an agreement to this particular adjustment is a matter of controversy; all that is acknowledged is the entitlement to make a request; there is also a dispute as to whether completed student work was to be made available to the applicant. If the applicant is unsuccessful in persuading the Court of the accuracy of his account, then it might be inferred he would then argue that the University failed to make reasonable adjustments for his disability.
If we reach that point, the confidentiality explanation proffered by the respondents seems, prima facie, a reasonable one. In other words the jettisoning of the confidentiality protection for other students would have entailed not a reasonable adjustment but an unreasonable one.
The allegation here is not so much as to the discriminatory effect of requirement with which the applicant needed to comply and therefore of indirect discrimination. The issue is whether the applicant’s request ought to have been acceded to. However, even taking the view that the “requirement” is constituted by the need to submit an essay per se, and that the refusal to show completed previous student work was a failure to make a reasonable adjustment in terms of s.6(2)(c) of the Act, the problem appears to be one of persuading the Court that such an adjustment would be a reasonable one given the confidentiality obligation to other students. This aspect of the applicant’s case appears tenuous.
The next allegation relates to the sequelae to the refusal to provide previous student essays because of confidentiality obligations.
The applicant speaks inappropriately to the lecturer; he subsequently apologise orally but a written is requested and the applicant is warned that misconduct charges would follow if he did not apologise in writing.
The University has a by-law regulating the way in which misconduct by students is dealt with.
It may be that reference to this matter is only provided in the Grounds of Application by way of giving a factual background to the other allegations and that it is not intended itself to be an allegation of an occasion of discrimination on the basis of disability.
Certainly, if I accept (as I am bound to do for reasons discussed earlier) that the amendment to the definition of disability in the Act to include behaviour is consistent with the decision of the High Court in Purvis and I follow Purvis (as I am bound to do) in having regard to the applicant’s behaviour in the course of my comparator exercise, then I am very unlikely to find that a comparator would have been treated differently.
The by-laws did not themselves require a written apology. The second respondent in consultation with the Psychology staff, did. The reasons for the second respondent asking for a written confirmation of the apology are reasonably self-evident and I consider that the request would have made of any student including those who did not have a disability in circumstances where an oral apology only had been proffered. Mr Kancheff’s interaction with the University to that point had been vexed and included some conflict. A written apology is a reasonable request. Mr Kancheff’s written account of his oral apology (not containing information as to why and in what terms he was apologising) was insufficient.
If this is a separate allegation of disability discrimination it is a weak one.
When the applicant gained entry to the BHCS course the third respondent was well aware of his disabilities. The applicant had drawn them to his attention. It is clear on the information before me that the applicant had been sedulous in acquainting members of the staff of the university (as it was proper for him to do) of his disabilities.
The course included unit SWK260. It is clear from the third respondent’s statement (attached to his solicitor’s affidavit) that the unit involved extensive, even somewhat rigorous, physical activity. This is also clear from the applicant’s account of his experience of the course as he has related it in his Grounds and to Professor Burns and Dr Cotton.
The contention that the request by the third respondent for a medical clearance before admission to the course was discriminatory on the basis of his disability is, in these circumstances, highly ambitious. The request for medical information confirming his ability to do the course (which is how the expression “clearance” must surely be understood) is not fairly criticised as “non-specific” as the applicant claims. The purpose of the request was clear. More fundamentally the request for a medical clearance does not amount to “less favourable treatment”; it may instead be seen as respectful recognition of the difficulties the applicant would possibly face if he participated in the unit, which was a compulsory part of the course; to admit him to the course heedless of his possible difficulties would not be non-discriminatory so much as reckless. But even if it were less favourable treatment, it would not be appropriate to categorise it as having occurred “because” of the disabilities. The High Court majority in Purvis (at [236]) recognised that “motive, purpose and effect” may all bear on the question as to why a person was treated less favourably. For Gleeson CJ, in Purvis, an assessment of the school’s motive had been determinative of the outcome of the case.
The answer to the “why” question here is not “because he was disabled”; it was “because only by seeking a medical clearance would the applicant’s health and safety (and, subsidiarily, that of other students and staff) be assured”.
Prima facie, the request for a medical clearance is not an instance of disability discrimination.
The next allegation is set out at [8] of the Application:
During the time the Applicant attended the course work component in Casuarina, the Supervisor, Mr Dan Baschiera being the Third Respondent warned the other students about working with the Applicant near machinery because of his visual impairment. This warning was based on a mistaken view of the Applicant’s disability and the Applicant found it a humiliating breach of privacy.
Mr Baschiera says at [19] of his Statement in relation to this:
On 2 or 3 July 2009, at the end of one of the theory session in SWK260, I said to the students words to the effect “Mr Kancheff as you know has some difficulties. One of his difficulties is his vision. He can’t see well out the side. His peripheral vision is not very good. So, when you are standing next to machinery, just be conscious that he may not be able to see you next to the machinery. He may turn and knock you into the machinery.” There were a number of students who were light and not very cognisant with machinery. Mr Kancheff did not say anything after I announced this to the class. He didn’t say he had a problem with it. I told the students this for health and safety reasons.
Similar considerations as to request for the medical clearance apply here. There does not appear to be any dispute of substance about what was said to the students by Mr Baschiera. In particular, the applicant does not dispute the warning was limited to the peripheral vision issue and to circumstances of working new machinery. He offers an apparently coherent explanation for why he made the remarks. No doubt further evidence at the trial will elucidate whether and if so in what way what he said constituted an erroneous view of this aspect of the applicant’s disability, as the applicant claims. (It may relate to an inaccurate summary of homonymous hemianopia as being related to peripheral vision; in fact it relates to the vertical mid-line of the eye). The extent of the information Mr Baschiera had about the disability may bear on that question and, consequently, then, on an assessment as to whether (assuming it constituted less favourable treatment) it was made because of Mr Kancheff’s disability or because of safety concerns arising for other students on account of the disability. But the precise nature of a vision issue is not likely to render a general warning unnecessary. The comparator might be someone, for example, with a temporary difficulty with vision. Finding a comparator when the act of discrimination relates to an announcement of the existence of the disability to other persons may be difficult, but must still be undertaken. Perhaps a better comparator would be someone who released personal but non-medical information to a group about a person for reasons ostensibly (at least) relating to the safety of members of the group. It does appear, on its face, to be an occasion of disability discrimination.
The last three allegations which I set out at [43] herein relate to the experience of the applicant on the first day of the excursion to Katherine. I have detailed accounts from the applicant and the third respondent. Firstly, there is the refusal to comply with Mr Kancheff’s request to sit in the front of the troop carrier; then there is the “requirement” for Mr Kancheff to negotiate his way through wire that ran between posts to get to a pump; then there is his subsequent expulsion from the course when Mr Baschiera is taking him away from the site.
My understanding of this part of the claim will be augmented by the oral evidence at trial. Issues that will be clarified include:
i)My ability to find whether Mr Baschiera’s claims that Mr Kancheff was belligerent and disruptive and uncooperative throughout this episode will have a significant bearing upon the comparator selection;
ii)Whether and in what manner Mr Kancheff was given an opportunity to use the alternative of a gate to access the pump rather than having to negotiate the fence;
iii)Whether Professor Burn’s opinion as to Mr Kancheff having an ability to sit in the rear of the troop carrier notwithstanding his disabilities was an assessment of his which I should give any weight given the absence of an opportunity by Professor Burns to sight the troop carrier;
iv)The significance and validity of the other criticisms made by Mr Baschiera concerning Mr Kancheff’s fulfilment of other course requirements such as reading of core texts;
v)Whether further information about the troop carrier may be required before an adjudication of the indirect discrimination aspect of the matter;
vi)Whether the attempts by Mr Baschiera to assist Mr Kancheff in entering the troop carrier and dealing with the leg spasm at the fence amount to reasonable adjustments.
These considerations mean that it cannot be said that this aspect of the claim is, prima facie as weak as the other aspects. It suggests some (limited) possibility of partial success.
This issue is important not only from the merit assessment perspective. It also bears upon the issue of whether there will be an order for costs at all and I will consider it in that context as well (see [36]).
Such is my preliminary assessment of the applicant’s case given the legal principles upon which it will be determined. I hope I have explicated my understanding of those principles.
I turn now to other matters relevant to the discretion s to the ordering of security for costs.
The application was not brought until August of 2012 and the proceedings commenced in July 2011. The respondents’ purport to explain the delay by referring to the fact that the medical reports of Professor Burns and Dr Cotton arising from their examination of the applicant only became available in July of 2012. Those reports, it is said, had a bearing on the respondents’ understanding of the merits of the applicant’s case and gave the Court, it is said, a proper perspective on those merits. The conclusions in the reports are untested by cross‑examination of course and I am not at all convinced that a proper preliminary assessment of the merits of the case was significantly enhanced significantly by the availability of the reports.
The fact remains that the proceedings were extant for twelve months before the respondents asked the Court to secure their costs.
Certainly there was a lot of interlocutory skirmishing in those twelve months (and subsequently) and the application for security is the eleventh application in a case filed in the proceedings.
I am certainly satisfied as to the applicant’s impecunious circumstances. Paragraphs 12 to 18 of the respondents’ solicitor’s affidavit provides information about his circumstances which were not disputed. I am satisfied he would not be able to meet an adverse costs order.
There is no adequate information before me to ground a finding or even an apprehension that the disability discrimination complained of by the applicant accounts for his impecunious circumstances.
I am conscious of the fact that my making a security for costs order may well have the consequence of shutting down this litigation. It may not. The applicant may be able to access resources of which we are not presently aware or be the object of benevolence but these possibilities are unlikely.
However, it is not appropriate to allow litigation that has little apparent merit to continue in the knowledge that the respondents will be put to significant expense which they can never recover. This circumstance puts in to focus the balancing exercise that is at the heart of the exercise of the discretion.
It is not the case that the application has no merit following a prima facie assessment of it. The position is that it has little apparent merit. I have tried to bear steadfastly in mind that the merit in certain aspects of the application which are not apparent now may emerge at trial. I also bear in mind the respondents chose to bring this application and not subject themselves to the application of the reasonable prospects of success and Spencer principles. But my scrutiny of the evidence available to this point suggests that the apparent difficulties associated with successfully prosecuting the case will not be remedied by as yet unknown or unarticulated evidence or argument.
In the circumstances I propose to make an order for security for costs.
In terms of quantum, the respondents seek the amount of $30,923.50.
The affidavit of the respondents’ solicitor estimates the solicitor-client costs of the respondents prospectively i.e from the date to this security numbers of costs application to be between $51,780.00 inclusive of disbursements such as the witness fees of Professor Burns and Dr Cotton and travel and accommodation expenses for witnesses and, of course, counsel fees.
Costs in this jurisdiction of this Court, of course, are governed by the vents-based scale set forth in Schedule 1 to the Rules of Court. Paragraph 27 of the respondents’ solicitors affidavit calculates the costs in accordance with that scale – again, on a prospective basis from this application – to be approximately $31,000.00 inclusive of disbursements.
I propose to make an order in that amount.
The applicant should be given an opportunity to procure those funds and the matter should be adjourned for directions to a date approximately six weeks hence. I would propose to fix trial dates in the meantime. I will not stay the action in the meantime.
The Rule gives me the capacity to re-visit this matter in the light of any circumstances existing then.
I will take the opportunity when making these orders to dismiss, in addition to the Application and Response filed for the purposes of this application, all previous Applications and Responses other than the primary Application of 27 July 2011 and the primary Response of 20 December 2011. The applicant has on occasion (e.g. 12 September 2012 and 10 October 2011 and in the Response to this application for security for costs, dated 5 February 2013) filed Response documents when what ought to have been filed were Responses to Applications‑in-a-Case.
I order accordingly.
I will hear the parties on any issue relating to the mechanics of the payment e.g. where the money should be held and any matters relating to the terms and conditions on which it is held.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Lindsay.
Associate:
Date: 8 October 2013
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