Kiefel v State of Victoria
[2011] FCA 1301
•27 September 2011
FEDERAL COURT OF AUSTRALIA
Kiefel v State of Victoria [2011] FCA 1301
Citation: Kiefel v State of Victoria [2011] FCA 1301 Parties: JAMES KIEFEL (BY HIS NEXT FRIEND, WENDY KIEFEL) v STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT) File number(s): VID 2 of 2011
VID 250 of 2011Judge: TRACEY J Date of judgment: 27 September 2011 Legislation: Disability Discrimination Act 1992 (Cth) ss 5, 6
Evidence Act 1995 (Cth) ss 97, 98
Federal Court of Australia Act 1976 (Cth) ss 37M, 37NDate of hearing: 27 September 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr D Hancock Solicitor for the Applicant: Access Law Counsel for the Respondent: Mr C Young Solicitor for the Respondent: Allens Arthur Robinson
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 2 of 2011
BETWEEN: JAMES KIEFEL (BY HIS NEXT FRIEND, WENDY KIEFEL)
ApplicantAND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT)
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
27 SEPTEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant not be permitted to rely, at trial, on the affidavits of:
· Mark Modra sworn 8 October 2010;
· Bronwyn Pascoe sworn 10 October 2010;
· Ken Wilkinson sworn 12 October 2010;
· Keith Wilkinson sworn 12 October 2010;
· Julie Wilkinson sworn 10 October 2010; and
· Verina Bridges sworn 11 October 2010.
2.Costs reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 250 of 2011
BETWEEN: JAMES KIEFEL (BY HIS NEXT FRIEND, WENDY KIEFEL)
ApplicantAND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT)
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
27 SEPTEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant not be permitted to rely, at trial, on the affidavits of:
· Mark Modra sworn 8 October 2010;
· Bronwyn Pascoe sworn 10 October 2010;
· Ken Wilkinson sworn 12 October 2010;
· Keith Wilkinson sworn 12 October 2010;
· Julie Wilkinson sworn 10 October 2010; and
· Verina Bridges sworn 11 October 2010.
2.Costs reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 2 of 2011
VID 250 of 2011
BETWEEN: JAMES KIEFEL (BY HIS NEXT FRIEND, WENDY KIEFEL)
ApplicantAND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT)
Respondent
JUDGE:
TRACEY J
DATE:
27 SEPTEMBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This proceeding was transferred into this court from the Federal Magistrates Court earlier this year. Prior to the transfer, the respondent had sought to exclude from the body of evidence, on which the applicant proposed to rely at trial, six affidavits. Those affidavits had been sworn or affirmed by Mr Mark Modra, Ms Bronwyn Pascoe, Mr Ken Wilkinson, Mr Keith Wilkinson, Ms Julie Wilkinson and Ms Verina Bridges.
Various complaints were made about the conduct of the servants or agents of the respondent which were said to contravene disability standards which had been promulgated under the relevant legislation. They were also said to have engaged in conduct which contravened the proscriptions on direct and indirect discrimination, which are to be found in ss 5 and 6 of the Disability Discrimination Act 1992 (Cth) (“the Act”).
The evidence of the six deponents went to the experience that they had had in dealing with educational institutions attended by the applicant. Their own disabled children had attended those institutions. To a large extent, the events described in the various affidavits related to different times from those during which the applicant complains he was the subject of discrimination at the institutions.
In none of the affidavits relied on were specific individuals named who were said to have been personally responsible for any of the adverse conduct, and it is, therefore, not possible for me to form a view as to whether one or more of those individuals might also have been responsible for conduct about which the applicant complains. There is also an absence of detail on important matters, namely, the degree of disability suffered by the other children and the manifestations of those disabilities which, in turn, gave rise to the circumstances in which the alleged adverse action was taken.
The applicant can only rely on material of this kind if he can bring himself within one of the exceptions to the tendency rule or the coincidence rule, which are to be found, respectively, in ss 97 and 98 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The relevant exception, in both sections, is that the Court is persuaded that the evidence will either, of itself, or having regard to other evidence, have significant probative value. In the course of argument, I invited counsel for the applicant to refer me to the strongest case he could make for the application of the significant probative value exception. In response, he took me to certain paragraphs of the affidavit which the applicant’s mother swore in support of his application. Those passages dealt with the subject of disciplinary action known as “time out” which, as I understand it, involved the separation of the applicant from other students and staff for particular periods in response to some misconduct on his part.
The passages to which my attention was directed in Mrs Kiefel’s affidavit indicated that, while at the Bulleen Heights school in 2005, the applicant had been punished with what was described as “time out”. She also deposed that neither she nor her husband had been given the opportunity of providing informed consent to the use of that form of discipline. There was no evidence of any particular event which led to the imposition of the time out regime on the applicant. There was no evidence as to precisely what was involved in the experience of that regime, save that, in one of the notes on which Mrs Kiefel relied, it was indicated that the time out had been served behind a white board in a classroom in the course of a normal day’s teaching regime.
The affidavit on which the applicant sought to rely to establish tendency or coincidence in relation to seclusion or time out regimes was that of Mr Mark Modra. Mr Modra has a son who, like the applicant, suffers from autism spectrum disorder, but, I was told from the bar table, suffers more severely from that condition than does the applicant.
In his affidavit, on which the applicant seeks to rely in the present proceeding, Mr Modra gave evidence that his son attended the Bulleen Heights school in 2000 and in 2003. In 2000, he says that his son was punished from time to time by being placed in what he described as:
“… a separate purpose-built room and courtyard at the school and was segregated from other children for long periods of time.”
Elsewhere in the affidavit this regime was referred to as, “solitary confinement”. Mr Modra further deposed that, in 2003, his son continued to be, as he described it:
“Permanently segregated in a room and/or an empty courtyard with no toys or equipment.”
It was said that, on some days, he would spend most of the school day in the courtyard without communication with other students or adults. This evidence of Mr Modra relates, as I have indicated, to different years and describes a courtyard and seclusion room that is not mentioned in Mrs Kiefel’s affidavit. There is plainly an enormous difference between the segregation of a student for long periods of time in isolation in a locked room and courtyard on the one hand and the imposition of time out, a term not referred to in Mr Modra’s affidavit, within the classroom itself.
It seems to me that Mr Modra’s evidence could not have any significant probative value with a view to establishing that the regime, described by Mrs Kiefel, applied at the particular school, as she says it did in 2005. As I have said, I asked counsel to advance, by way of example, his best example and this was the one which he identified. I should say, however, that I have read the other affidavits and they suffer from many of the same problems. They do not provide relevant evidence that can properly be admitted pursuant to ss 97 and 98 of the Evidence Act.
I will not, therefore, admit any of the six affidavits to which I have referred.
I should mention some additional reasons for coming to that view. The first is that I consider that the applicant’s statement of claim, as presently framed, does not identify, with adequate precision, the factual issues which will fall to be resolved at trial. Doing the best I can and subject to this reservation, I cannot, at the moment at least, be satisfied that the issues dealt with in the affidavits will arise at trial. In this context I mention, again, the applicant’s best case example, because it is very likely, on the state of the evidence at the moment, that, at trial, it will emerge that the time out regime complained of by the applicant is not the same regime about which Mr Modra complains. The inadequacy of the particularisation of the statement of claim, however, makes any final judgment on this issue impossible.
I am also persuaded the probative value, such as it is, of the material in the six affidavits, is substantially outweighed by the danger that the evidence might cause or result in undue waste of time at trial.
A further concern which I have about this material is that it will impede the quick, inexpensive and efficient determination of the present proceeding, an object which the Court is required by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to pursue, as, I might add, are the legal representatives of the parties in the proceeding.
The applicant will not, therefore, be permitted to rely, at trial, on the six affidavits.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 27 September 2011
1
0
3