Lambert v State of Victoria

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FEDERAL COURT OF AUSTRALIA

Lambert v State of Victoria [2014] FCA 1064

Citation: Lambert v State of Victoria [2014] FCA 1064
Parties: AMBER LAMBERT v STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND DEVELOPMENT)
File number(s): VID 616 of 2013
Judge(s): DAVIES J
Date of judgment: 3 October 2014
Catchwords: PRACTICE AND PROCEDURE – application to strike out statement of claim pursuant to Federal Court Rules 2011 (Cth) r 16.21 – applicable principles in a strike out application – whether allegations of discrimination under Disability Discrimination Act 1992 (Cth) ss 5, 6 and 22 properly pleaded – statement of claim struck out but leave given to replead
Legislation: Federal Court Rules 2011 (Cth) r 16.21
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 22(2), 22(2A)
Cases cited: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41; [2008] FCA 1920
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) 2010 267 ALR 494; [2010] FCA 361
General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125
Davis v Commonwealth of Australia (1986) 68 ALR 18; [1986] HCA 66
Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164
Morton v Vouris (1996) 21 ACSR 497
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537; [2012] FCAFC 107
Walker v State of Victoria [2012] FCAFC 38
Abela v State of Victoria [2013] FCA 832
Keifel v State of Victoria [2013] FCA 1398
Wade v State of Victoria [2012] FCA 400
Date of hearing: 8 September 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicant: Mr D Hancock
Solicitor for the Applicant: Arnold Thomas & Becker
Counsel for the Respondent: Ms R Orr
Solicitor for the Respondent: Allens

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 616 of 2013
BETWEEN:

AMBER LAMBERT
Applicant
AND:

STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND DEVELOPMENT)
Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

3 OCTOBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Pursuant to Order 16 Rule 21 of the Federal Court Rules 2011 (Cth), paragraphs 7 to 37 of the applicant’s Amended Statement of Claim filed 28 May 2014 be struck out with leave to replead.

2.The applicant pay the respondent’s costs of the application.

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 616 of 2013
BETWEEN:

AMBER LAMBERT
Applicant
AND:

STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND DEVELOPMENT)
Respondent

JUDGE:

DAVIES J

DATE:

3 OCTOBER 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The respondent has applied for an order pursuant to Order 16 Rule 21 of the Federal Court Rules 2011 (Cth) (“the Rules”) striking out the applicant’s Amended Statement of Claim (“ASOC”) on the grounds that the ASOC fails to disclose a reasonable…

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Details
Case
[2014] FCA 1064
Decision Date

CaseChat Overview and Summary

In the case of Lambert v State of Victoria, the applicant brought a claim against the State of Victoria, alleging discrimination under the Disability Discrimination Act 1992 (Cth). The applicant, Lambert, claimed that the State failed to apply and implement policies, procedures, and guidelines relating to students with disabilities, resulting in less favourable treatment on the basis of her disability. The State moved to strike out the applicant’s statement of claim, arguing that the allegations did not properly plead a cause of action under the Act.

The court had to determine whether the applicant's allegations of discrimination were properly pleaded under the Act. The State argued that the court could not enforce the State's policies, as established in previous cases such as Walker v State of Victoria. Additionally, the State contended that the less favourable treatment claim was flawed because many of the policies in question did not apply to students without disabilities. The court had to assess whether the applicant's statement of claim sufficiently alleged a breach of the Act and whether the applicant was entitled to an opportunity to amend her pleadings.

The court held that while the applicant’s statement of claim contained some relevant allegations, it did not sufficiently plead a cause of action under the Act. The court found that the applicant’s reliance on the State's policies was misplaced, as the Act does not empower the court to enforce such policies. The court further noted that the applicant's claim of less favourable treatment was not properly framed, as it did not adequately compare the treatment of the applicant to that of a comparator without disabilities. However, the court granted the applicant leave to replead, allowing her to amend her statement of claim to better align with the requirements of the Act.

The court struck out the applicant's statement of claim but granted leave to replead, with the applicant to pay the respondent's costs of the application. The court's decision highlights the importance of properly pleading claims under the Disability Discrimination Act and the limitations on the enforcement of State policies in such claims.

Orders

Orders of the court

1. Pursuant to Order 16 Rule 21 of the Federal Court Rules 2011 (Cth), paragraphs 7 to 37 of the applicant’s Amended Statement of Claim filed 28 May 2014 be struck out with leave to replead.

2. The applicant pay the respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further it is pleaded that the respondent failed to apply and implement those policies, procedures and guidelines to the applicant “on the assumption that the applicant would not benefit from such policies, procedures and guidelines due to her borderline IQ/mild disability”: paras 7A and 13A. The particulars to para 7A state that the “failure” is set out in para 34. No particulars are provided to para 13A. Paragraph 34 alleges 14 “facts”. The 14 “facts” relevantly include that:(a)The respondent failed to form and/or operate Student Support Groups for the applicant in any year throughout the relevant period “despite [the applicant’s] disabilities, absences, disengagement and critical academic and social well-being deficits” (para 34.2);(b)The respondent has failed to provide the applicant “with access to the curriculum and a quality education” (para 34.3); and(c)The respondent failed to address the applicant’s “disengagement and absences from school” (para 34.14).Decision The respondent’s primary contention was that a direct discrimination case against the respondent based on an alleged failure to apply and implement its policies, procedures and guidelines must fail because this Court has held that the Act does not empower the Court to enforce the respondent’s policies. The respondent referred to Walker v State of Victoria [2012] FCAFC 38 where Gray J (with whom Reeves J agreed) stated at [73] that:Whatever provisions guidelines adopted by the State with respect to students with disabilities might make, and whatever benefits or expectations such guidelines might create, they are not the subject of enforcement of the Disability Discrimination Act. Gray J reasoned that:When dealing with discrimination by less favourable treatment, it is clear that the proper comparator is a student with the same behavioural characteristics, but without the disabilities, of the student in respect of whom such discrimination is alleged. In the case of discrimination by requirement or condition, it is necessary for the person alleging discrimination to establish the existence of the requirement or condition that satisfies the criteria in s 6 of the Disability Discrimination Act. So far as the appellant’s case is concerned with the discrimination in the provision of education services, contrary to s 22 of the Disability Discrimination Act, it needed to focus on the definitions in s 5 and 6 … No provision of the Disability Discrimination Act empowers the Court to undertake a general inquiry into the best interests, or the vulnerability, of a child with disabilities.See too Abela v State of Victoria [2013] FCA 832 at [101] (Tracey J) and Keifel v State of Victoria [2013] FCA 1398 at [3] (Tracey J). It was further argued that the less favourable treatment allegation is “fundamentally flawed” because ten of the eleven policies, procedures and guidelines that the respondent is alleged to have failed to apply and implement in relation to the applicant do not apply to students without the applicant’s disabilities.

Ratio Decidendi

Legal Principle Established

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