Mong v Commonwealth of Australia (Department of Social Services)
[2023] FedCFamC2G 636
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mong v Commonwealth of Australia (Department of Social Services) [2023] FedCFamC2G 636
File number(s): MLG 2022 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 21 July 2023 Catchwords: HUMAN RIGHTS – application for leave under s 46PO of Australian Human Rights Commission Act1986 (Cth) – where Commission previously terminated applicant’s complaint – consideration of whether it is in the interests of the administration of justice for leave to be granted – where the applicant claims unlawful discrimination on the grounds of disability – claim that features of the National Redress Scheme for Institutional Child Sexual Abuse were more difficult for the applicant to understand and deal with because of his disabilities – claim that these features of the Scheme could have been made easier for the applicant if the respondent had made reasonable adjustments – where applicant previously received ‘global payment’ in settlement of proceedings in County Court of Victoria – factual issue as to whether applicant was properly informed about his rights under the Scheme prior to commencing proceedings in the County Court of Victoria, which in turn, prejudiced his rights under the Scheme – finding that applicant has more than a merely fanciful claim – application for leave granted. Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PF, 46PH, 46PO
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 11
National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) ss 3, 16, 17, 29, 30, 32
National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 s 26
National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018
Cases cited: Budini v Sunnyfield [2019] FCA 2164
Cavanagh v School of Nursing and Midwifery, University of Notre Dame [2021] FCA 300
James v WorkPower Inc [2018] FCA 2083
Matthews v Markos [2019] FCA 1827
Reurich v Club Jervis Bay Ltd (2018) 360 ALR 296
State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581
Toma v Fair Work Commission [2022] FCA 1261
Watts v Australian Postal Corporate [2014] FCA 370
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of last submission/s: 1 March 2023 Date of hearing: 1 March 2023 Place: Melbourne Counsel for the Applicant: Mr R Sorensen (direct brief) Counsel for the Respondent: Ms S Fitzgerald Solicitor for the Respondent: Maddocks ORDERS
MLG 2022 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRIAN MONG
Applicant
AND: COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF SOCIAL SERVICES)
Respondent
order made by:
Deputy chief JUDGE MERCURI
DATE OF ORDER:
21 July 2023
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to make application to this court pursuant to section 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).
2.The originating application filed on 7 February 2023 be treated as filed with leave of the court pursuant to section 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth).
3.The matter be listed for a case management hearing on 3 October 2023 at 9:30am.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
The applicant claims that the respondent, in its capacity as the operator of the National Redress Scheme for Institutional Child Sexual Abuse established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), has discriminated against him on the grounds of his disability.
BACKGROUND
On 2 December 2021, the applicant lodged a complaint with the Australian HumanRights Commission (‘the Commission’) in respect of this claim.[1]
[1] Affidavit of Ms Sarah Peascod sworn on 15 February 2023 and filed on 3 March 2023 at paragraph [7].
On 17 August 2022, a delegate of the President of the Commission terminated the applicant’s complaint under section 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (‘the AHRC Act’).[2]
[2] Affidavit of Ms Sarah Peascod sworn on 15 February 2023 and filed on 3 March 2023 at paragraph [9].
On 6 September 2022, the applicant filed an application in this court seeking leave to proceed with his discrimination complaint.[3]
[3] Originating Application filed on 6 September 2022.
On 7 February 2023, by leave of the court, the applicant filed an amended application and a supporting affidavit.[4]
[4] See orders of Deputy Chief Judge Mercuri dated 25 October 2022.
APPLICATION FOR LEAVE
Before turning to the applicant’s substantive claims, it is necessary to say something about the nature of the court’s task in considering whether to grant leave to the applicant.
Section 46PH of the AHRC Act relevantly provides:
(1) The President may terminate a complaint on any of the following grounds:
(a) …
(b) …
(c)the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;
…
(1A)A complaint may be terminated under subsection (1) at any time, even if an inquiry into the complaint has begun.
(1B) The President must terminate a complaint if the President is satisfied that:
(a)the complaint is trivial, vexatious, misconceived or lacking in substance; or
(b)there is no reasonable prospect of the matter being settled by conciliation.
(1C)The President must terminate a complaint if the President is satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.
(1D)A complaint may be terminated under subsection (1B) or (1C) at any time, even if an inquiry into the complaint has begun.
(2)If the President terminates a complaint, the President must notify the complainants in writing of the termination and the reasons for the termination.
The Commission’s power to terminate must be read in the context of the Commission’s powers under section 46PF of the AHRC Act which relevantly provides:
(1)Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must:
(a)consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and
(b)if the President is of the opinion that the complaint should be terminated – terminate the complaint without inquiry; and
(c)unless the President terminates the complaint under paragraph (b) or section 46PH – inquire into the complaint and attempt to conciliate the complaint.
That is, unless and until the President decides to terminate a complaint, the President is required to inquire into the complaint and attempt to conciliate the complaint.
Section 46PO of the AHRC Act further provides that once the Commission terminates a complaint, a complainant (among others) may make an application to this court within 60 days of the notification of termination.[5]
[5] Australian Human Rights Commission Act 1986 (Cth), s 46PO(2).
However, where a complaint has been terminated under section 46PH(1)(c), as in this case, such an application cannot be made without leave of the court.[6] Hence, the applicant seeks leave to make an application to this court in relation to his allegations of disability discrimination.
[6] Australian Human Rights Commission Act 1986 (Cth), s 46PO(3A).
Applicable legal principles
There is no dispute between the parties as to the principles that apply to an application for leave to proceed under section 46PO of the AHRC Act. The difference between them is how those principles apply to the facts in this case.
Those principles were relevantly set out by Justice Mortimer (as she then was) in James v WorkPower Inc [2018] FCA 2083, and have since been adopted with approval in various subsequent decisions. For example, in the recent decision of Justice Raper in Toma v Fair Work Commission [2022] FCA 1261, her Honour said:
34.As noted by Mortimer J in James v WorkPower Inc [2018] FCA 2083 the purpose of the leave discretion, “taking into account its text and context, is to provide a filter”: at [32]. Her Honour noted that consideration be given as to “whether the claims by an applicant are reasonably arguable, and are - at least - not fanciful”: at [37]. The assessment does not require a “detailed consideration and determination of the merits of the applicant's underlying arguments” (at [39]) but rather as observed by Katzmann J in Chircop v Technical and Further Education Commission [2022] FCA 1015 at [104], to “undertake an impressionistic assessment” of the applicant’s claims and the facts supporting them and whether there are factual and legal bases for the purported claims. As noted by Abraham J, in Matthews v Markos [2019] FCA 1827 at [37], the determination of whether a claim is “reasonably arguable” is necessary given “[i]t would be perverse, and contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit”.
35.In James, Mortimer J concluded (at [37]-[39]):
37.I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.
38.There may be a range of other permissible considerations including:
(1)the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2)the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4)whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8)other factors that are often considered in leave applications – such as prejudice to a party.
39. As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing … It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes …
Similar observations about the court’s power under section 46PO of the AHRC Act were made by Justice McKerracher in Cavanagh v School of Nursing and Midwifery, University of Notre Dame [2021] FCA 300 (‘Cavanagh’). In addition to the matters raised by her Honour Justice Mortimer set out above, at paragraph [21] and following, Justice McKerracher cited Justice Charlesworth’s comments in Budini v Sunnyfield [2019] FCA 2164 at paragraph [52]:
52.To her Honour’s observations I would add the qualification that in a case where a respondent to a complaint alleges that the allegations have no reasonable prosects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part either because:
(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or
…
(b)no reasonable cause of action is disclosed.
(Emphasis added [in the original].)
22.As noted in Jones v Westpac Banking Corporation [2020] FCA 238 by Kerr J (at [87]), granting leave to commence a claim with ‘no realistic prospects of success …’ would be contrary to the purpose of s 46PO(3A) of the Act, ‘which was designed to filter out cases where the merits are disproportionate to the time and resources likely to be consumed’.
23.That approach has also been recently applied by Gleeson J in Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080. I respectfully concur with all those analyses and would add that allowing misconceived applications to be maintained only produces an ultimately deleterious outcome for the applicant as well as the respondent. No good purpose at all can be served by mindlessly permitting such applications.
Accepting, therefore, that section 46PO operates as a filter, the court must, in applying that filter at such an early stage, strike a balance between ensuring that an applicant is not unreasonably barred from bringing what may ultimately prove to be a legitimate claim, on the one hand, with the need to avoid the unnecessary burden on all parties involved in litigation which has little, or no, prospects of success.
Where that balance lies must ultimately be guided by what is in the interests of the administration of justice. Moreover, in determining where that balance lies, it must be remembered, as noted by Mortimer J, that the bar set by section 46PO is not a very high one. The question is whether the applicant has an arguable case, or at least not a fanciful one. It is not necessary to show that the applicant’s case will inevitably succeed at trial.
In this case, the respondent submits that this is not a case of a claim which has been poorly pleaded, the deficiencies of which could be remedied by amendment.[7] Nor is this a claim which requires exploration of factual issues in dispute, matters which ought be tested at trial.[8] Rather, the respondent says that the applicant’s claim is misconceived both in law and in fact and that there are no prospects of success.[9]
[7] Court transcript at page 27.
[8] Court transcript at page 28.
[9] Court transcript at page 28.
In those circumstances, it is submitted for the respondent that the principles outlined by Justice McKerracher in Cavanagh equally apply here when he said:
17.… It is … highly preferable, I think, that such matters, when they have no realistic prospects of success should be concluded at an early stage before litigants are drawn into a relentless vortex of stress, costs and anxiety for no possible useful outcome.[10]
[10] Respondent’s Outline of Submissions filed on 16 February 2023 at paragraph [8].
The applicant says that his complaint does raise an arguable claim of unlawful discrimination and ought therefore be fully tested at a trial.[11]
[11] Court transcript at page 14.
For the following reasons, I agree with the applicant’s submission in this regard.
NATIONAL REDRESS SCHEME
In 2018, the Commonwealth Government enacted the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (‘the National Redress Scheme Act’) by which it established the National Redress Scheme for Institutional Child Sexual Abuse (‘the Scheme’). Section 3 of the National Redress Scheme Act relevantly provides:
(1) The main objects of this Act are:
(a)to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and
(b)to provide justice for the survivors of that abuse.
(2) For the purposes of achieving those objects, the objects of this Act are also:
(a)to establish the National Redress Scheme for Institutional Child Sexual Abuse; and
(b)to provide redress under the scheme which consists of:
(i)a monetary payment to survivors as a tangible means of recognising the wrong survivors have suffered; and
(ii)a counselling and psychological component which, depending on where the survivor lives, consists of access to counselling and psychological services or a monetary payment; and
(iii)a direct personal response to survivors from the participating institutions responsible; and
(c)to enable institutions responsible for abuse of survivors to participate in the scheme to provide that redress to those survivors; and
(d) to implement the joint response of:
(i) the Commonwealth Government; and
(ii) the government of each participating State; and
(iii) the government of each participating Territory;
to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to redress.
Section 16 of the National Redress Scheme Act relevantly provides that ‘redress’ under the Scheme consists of three components:
(a)a payment of up to $150,000;
(b)counselling and psychological support; and
(c)a direct personal response from the participating institution determined to be responsible for harm.
Section 17 goes on to provide that redress is for ‘… the sexual abuse, and related non-sexual abuse, of the person that is within the scope of the scheme’. The Act then deals with how an application under the Scheme is to be made, how it is considered and the like.
Section 29 provides, among other things, that the Operator of the Scheme is required to determine the amount of redress payable to a person in accordance with section 30.
Section 30 contains a method by which the Operator is to calculate the amount of any payment to an applicant under the Scheme. Relevant for present purposes, it includes at Step 3:
Work out the amount of any payment (a relevant prior payment) that was paid to the person by, or on behalf of, the responsible institution in relation to abuse for which the institution is responsible… (emphasis in original)
Section 32 provides that the Minister ‘may declare, in writing, a method, or matters to take into account, for the purposes of working out’ the amount of the redress payment.
The issue at the core of the applicant’s complaint is the manner in which information about how prior payments would be treated for the purposes of the Scheme, and the manner in which such payments were, in fact, treated was made available to claimants such as the applicant.
The National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 (‘the Framework’) does not expressly deal with the issue of prior payments, although the National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 (‘the Rules’) does. Relevantly, clause 26 of the Rules provides:
(1)For the purposes of step 3 of the redress payment method statement, this section prescribes, as not being relevant prior payments, payments that are paid to a person by, or on behalf of, a responsible institution in relation to abuse for which the responsible institution is responsible.
(2) …
(3) …
(4) A payment is not a relevant prior payment to the extent that:
(a)it is not in recognition of:
(i)the abuse; or
(ii)harm caused by the abuse; or
(b)it is reasonably attributed to:
(i)expenses of medical, dental or other treatment; or
(ii)any other expenses.
(5)A payment to the person in relation to non-sexual abuse for which the responsible institution is responsible is not a relevant prior payment (to any extent) if the non-sexual abuse is not covered by a set of abuse that also covers sexual abuse of the person.
Without going into detail about the applicant’s claimed abuse, there is no dispute that the applicant qualified for compensation under the Scheme.
It is also common ground that the applicant had, prior to making a claim under the Scheme, but after the legislation establishing the Scheme was enacted, issued proceedings in March 2018 in the County Court of Victoria against the State of Victoria (specifically, the Department of Education) for damages arising from the abuse he suffered whilst in a State-run school.[12]
[12] Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at Exhibit BM2.
Moreover, it is common ground that the applicant, again prior to making his application under the Scheme, settled his civil claim against the State of Victoria in or about April 2019 and received a compensation payment in respect of that claim.[13]
[13] Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at paragraph [7].
The applicant says that he initially sought assistance from knowmore Legal Services Limited (‘knowmore Legal’) in 2016 and told them that he wanted to seek compensation for the treatment he had received whilst at a Victorian State-run school.[14] Knowmore Legal then provided the applicant with contact details for various private lawyers who could assist with that process. The applicant says that he ultimately filed his statement of claim in the County Court without legal assistance on or about 15 March 2018.[15]
[14] Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at paragraph [7].
[15] Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at paragraph [7]; Exhibit BM2.
At paragraph [7] of his affidavit sworn on 6 February 2023 and filed on 7 February 2023 in support of his application for leave, the applicant states:
7.… The County Court Judge eventually suggested that I obtain further legal representation and I therefore retained Shine, for the purposes of obtaining a psychological opinion, drafting the Further Amended Statement of Claim referred to above in Paragraph 5 of this Affidavit and further mediating and finalising a settlement of my claim in April 2019, shortly before I lodged my Application with the National Redress Scheme.
It is also common ground that in his Further Amended Statement of Claim filed in the County Court, the applicant claimed that he suffered loss and damage as a result of various failings on the part of the Department of Education, including not only the sexual abuse that he suffered, but also as a result of:
·the Department’s failure to appropriately educate him in a manner that would facilitate his academic progress;
·the applicant being exposed to chastisement and corporal chastisement by an employee in charge of the school;
·the Department’s failure to ensure proper supervision of students, resulting in the applicant being exposed to bullying and other inappropriate conduct from fellow students.[16]
[16] See Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at Exhibit BM2.
The parties agree that the applicant settled the County Court proceedings and as part of that settlement, he received a ‘global payment’ in settlement of his claims.[17] That is, there was no breakdown of the payment received in settlement of the County Court proceedings, which clearly distinguished between amounts received for the sexual abuse, as opposed to the other negligence suffered by the applicant whilst at the school.
[17] Affidavit of Ms Sarah Peascod affirmed on 15 February 2023 and filed on 16 February 2023 at paragraph [20].
The applicant’s claim under the Disability Discrimination Act 1992 (Cth) (‘DDA’) can be summarised as follows:
(a)first, that features of the Scheme were more difficult for the applicant to understand because of his disabilities and were more difficult for him to deal with; and
(b)secondly, these features of the Scheme could have been made easier for the applicant if the respondent had made reasonable adjustments.[18]
[18] See Amended Originating Application filed on 7 February 2023.
In particular, the applicant points to the fact that the application form for a redress payment does not make any reference to the need for a breakdown of any prior payments to make it clear what aspect of that amount relates to a claim for sexual abuse as compared to any other claim for compensation.
Moreover, the applicant’s concerns relate not only to the Scheme itself, but the way in which his County Court proceedings were handled. He says that the way in which those proceedings were resolved, i.e. for a global amount rather than specifying the compensation payable in respect of each of his claims, ultimately led to the lack of clarity about how the amount he received by way of compensation ought be characterised.
Putting the applicant’s case at its highest, he argues that had he known that a ‘global’ settlement figure would disproportionately reduce any amount he could claim under the Scheme, he would have approached the negotiations in his County Court proceedings differently. Relevantly, he would have asked for the global amount to be divided up to reflect each component of his claim.
In the applicant’s application to the Commission, he says:
The NRS Application for Redress on page 23 and 25 (of prior payments) on the first 8 pages of the application makes no mention of a global payment or a court breakdown needed on payment via a court litigation or through a private mediation by an institution.
If I understood how the prior payments worked, before signing my deed of release at that point I would have asked for a breakdown from the state lawyers on my payment for abuse, bullying and education. The application form was not clearly explained. They did not explain how they would calculate the prior payments, the global figure, or the breakdown of each account. …[19] (emphasis added)
[19] See Amended Originating Application filed on 7 February 2023.
Putting the applicant’s claim at its highest, he argues that it was not clear from the applicable legislation or other documents produced by the Scheme at the time, that the entirety of the ‘global’ figure would be deducted from any amount payable under the Scheme.
Moreover, because of his disabilities, the applicant says that it was more difficult for him to understand the information that was available about prior payments and, due to his disability, the respondent ought to have taken further steps to explain this to him.[20] The applicant therefore argues that its failure to do so amounts to a failure to make reasonable adjustments such that he has been treated less favourably, due to his disability, than a person without a disability.
[20] Amended Originating Application filed on 7 February 2023.
In support of his claim, the applicant points to the independent review of the Scheme undertaken two years after its introduction.[21] He says that that review raises concerns about the Scheme similar to those now raised by him.
[21] See Amended Originating Application filed on 7 February 2023.
It is also clear from the applicant’s material that he also takes issue with various other aspects of the respondent’s assessment of his redress offer and the Scheme generally, including:
(a)the decision not to determine that he met the threshold of institutional vulnerability;
(b)the fact that the independent decision-maker’s decision cannot be reviewed by an external review body such as the Administrative Appeals Tribunal;
(c)the manner in which internal reviews were conducted;
(d)the quality of the advice provided by knowmore Legal;
(e)the amount offered under the Redress Scheme was in any event, inadequate to compensate him for the trauma suffered;
(f)the inadequacy of support services available to survivors of sexual abuse; and
(g)the link between physical abuse and the amount of money offered under the Redress Scheme.[22]
[22] See Amended Originating Application filed on 7 February 2023.
As stated, the applicant also claims that the Scheme did not ultimately reflect the recommendations of the independent review into the Scheme and says that, contrary to the stated intention, namely that the Scheme ought not further traumatise a claimant, his experience of the Scheme has done just that.
Although for the reasons which follow, it is not necessary for me to determine that issue, whilst I accept that these are genuine concerns held by the applicant, it is difficult to see how many of these broader concerns could be said to give rise to claim of unlawful discrimination in breach of the DDA. The DDA is concerned largely with determining whether conduct in certain areas of activity, including in the administration of Commonwealth laws and programs, involves the unlawful discrimination on the grounds of a person’s disability, or imputed disability.
It does not permit the court to conduct a general review of the appropriateness of a statutory scheme or to determine whether the Scheme as introduced, achieves its goals or the recommendations of the independent review into the Scheme, nor does it permit the court to review government policy generally or to determine whether the Scheme could have, or should have, been more generous.
CONSIDERATION AND FINDINGS
I will now turn to consider the applicant’s primary claim, namely, that in failing to make reasonable adjustments in the manner in which it explained the Scheme, and in particular, the way in which ‘global settlements’ were to be treated, the respondent unlawfully discriminated against the applicant on the grounds of his disability.
Relevant principles under the DDA
Section 5 of the DDA deals with direct discrimination and relevantly provides:
(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. (emphasis in original)
Section 6 then deals with indirect discrimination and is not relevant for present purposes.
‘Reasonable adjustment’ is relevantly defined as follows in section 4 of the DDA:
reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. (emphasis in original)
In turn, section 11 deals with ‘unjustifiable hardship’ and provides as follows:
(1)For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a)the nature of the benefit or detriment likely to accrue to, or be suffered by, any person concerned;
(b) the effect of the disability of any person concerned;
(c)the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.
Example:One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or be suffered by, the community.
(2)For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
To make out his case, therefore, the applicant would need to establish:
(a)that there was a reasonable adjustment which could have been made by the respondent in the administration of the Scheme; and
(b)the failure to make that adjustment had the effect on the applicant, because of his disability, that he was treated less favourably than a person without the disability in the same or not materially different circumstances.
Applicant’s submissions
As stated, in this case, the applicant asserts that because of his disabilities, he has greater difficulty in understanding complex information. In the applicant’s affidavit, he refers to the fact that he suffers from an adjustment disorder, anxiety, depression, a speech impediment, as well as difficulty concentrating and making himself understood succinctly and effectively.[23]
[23] Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at paragraph [3].
He further asserts that the way in which the operation of the Scheme was explained, was confusing, complex and unclear. As a result, he asserts that he was treated less favourably than a person without the disability would have been treated in the same or similar circumstances.[24]
[24] See Amended Originating Application filed on 7 February 2023 at page 6 and following.
At paragraph [7] of the applicant’s affidavit, the applicant stated:
7.After the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse, I attended a private session of the Commission. I became aware of Knowmore Legal Service Limited, which provides advice to those who have suffered such child sexual abuse. I contacted Knowmore in 2016 and when I described my experiences at [school] to Knowmore and told them I wanted to seek compensation for how I was treated there, they provided me with the names of private lawyers who Knowmore said could assist me with bringing a claim for such compensation in court. Angela Sdrinis assisted me by drafting a claim with respect to sexual and physical abuse, but not educational negligence. Artemis Legal were able to represent me in a mediation with the Victorian Education Department in 2017, before I had actually filed any claim against the Department. … I therefore lodged a claim against the Education Department in the County Court of Victoria without legal representation. The County Court Judge eventually suggested that I obtain further legal representation and I therefore retained Shine, for the purposes of obtaining a psychological opinion, drafting the Further Amended Statement of Claim referred to above … and further mediating and finalising a settlement of my claim in April 2019, shortly before I lodged my Application with the National Redress Scheme.[25]
[25] Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at paragraph [7].
The applicant then went on to say at paragraph [8] of his affidavit:
8.I applied to the National Redress Scheme for Victims of Sexual Abuse in June 2019. My psychologist Mike Lake gave me some assistance filling-out the Application Form. … I answered Questions 10 and 56 on the Form to my best ability. However, I didn’t understand from those questions that any payment I received via the National Redress Scheme might be reduced because of a previous payment I received to settle a claim also alleging matters not related to sexual abuse [26]
[26] Affidavit of Mr Brian Mong sworn on 6 February 2023 and filed on 7 February 2023 at paragraph [8].
In State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 (‘Huntley’), Justice Perry relevantly noted at paragraph [96] and following:
96.Discrimination may be direct or indirect as defined by ss 5 and 6 respectively of the DDA. The essential difference between the two concepts was explained by Dawson and Toohey JJ in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392:
Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such ‘equal’ treatment is that the former is in fact treated less favourably than the latter. … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.
97.In the present case, Ms Huntley claimed to have been the subject of direct or indirect discrimination on the ground of her disability by reason of the alleged failure by CSNSW to make “reasonable adjustments” for her. Relevantly in this regard, ss 5 and 6 were amended by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) 2009 … so as to include such a failure within the concepts of direct and indirect discrimination. Those amendments were intended to address the decision in Purvis v New South Wales [2003] HCA 62 … in which the High Court held that there was “no textual or other basis in s 5 for saying that failure to provide accommodation or services would constitute less favourable treatment of the disabled persons for the purposes of s 5” … As the Explanatory Memorandum to the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 … explains with respect to the duty to [make] reasonable adjustments:
38.Until relatively recently, the general view, including in the case law, was that the Disability Discrimination Act impliedly imposes such a duty if such adjustments are necessary to avoid unlawful discrimination – subject to the defence of unjustifiable hardship. This view was supported by the Explanatory Memorandum of the Disability Discrimination Act and Second Reading Speech delivered when the Disability Discrimination Act was first enacted. However, comments by members of the High Court in 2003 cast doubt on the existence of this duty (Purvis v NSW and the Human Rights and Equal Opportunity Commission [2003] HCA 62).
39.The proposed amendment removes this doubt by making explicit the duty to make reasonable adjustments, which are defined to exclude adjustments that would impose unjustifiable hardship. This will return the status of the law to the original intention when the Disability Discrimination Act was introduced.
At paragraph [140], Justice Perry went on to consider what is meant by ‘reasonable adjustments’ under the DDA and noted that there had been limited judicial consideration of the expanded definition of ‘direct discrimination’ introduced in 2009 to include a failure to make reasonable adjustments for persons with a disability.
However, Justice Perry went on to refer to the observations made by Justice Mortimer (as she then was) in Watts v Australian Postal Corporate [2014] FCA 370, relevantly noting:
(a)the term ‘adjustment’ is not defined, but is to be given its ordinary meaning of ‘an alteration or modification’;
(b)section 4 of the DDA deems an adjustment to be a reasonable one, unless the adjustment would impose an unjustifiable hardship on the alleged discriminator who bears the onus of establishing this; and
(c)‘reasonable adjustments’ are for the person concerned.
Justice Perry then noted at paragraph [149]:
149.Finally, notwithstanding the width of what may constitute an adjustment for these purposes, the adjustment must still be sufficiently identifiable to enable the discriminator to determine whether making the adjustment would impose unjustifiable hardship upon her or him … However, the degree of specificity required in the individual case will be a matter of fact …
The applicant also relies upon the decision in Reurich v Club Jervis Bay Ltd (2018) 360 ALR 296 (‘Reurich’), in which the question of whether the respondent had made reasonable adjustments was in issue.
In Reurich, the applicant claimed, among other things, that the respondent had unlawfully discriminated against him in breach of section 5(2) of the DDA in failing to make reasonable adjustments for him. In that case, the court found that the respondent had, in fact, failed to make reasonable adjustments by failing to make clear to him the standards of control and hygiene that he was required to maintain in relation to his dog.
In this regard, Justice Markovic said at paragraph [329]:
329.Giving the term ‘adjustments’ its ordinary meaning as set out in Watts, the standards in relation to the control which Mr Reurich had to maintain over [his dog] … would be reasonable adjustments for the purpose of the DD Act. They are modifications which would enable all parties to understand the bounds of what was required for [the dog] to be in Mr Reurich’s control and to meet standards of hygiene. There was no evidence that making any of these adjustments would cause the Club unjustifiable hardship thus taking them outside the ambit of ‘reasonable adjustments’.
The applicant submits that both Huntley and Reurich support the proposition that the failure to provide clarity of information to an applicant can, in appropriate cases, amount to a failure to make reasonable adjustments. Moreover, whether it does in this case, is an issue for trial.[27] There is merit to this submission.
[27] Court transcript at page 5 and following.
In terms of what adjustments should have been made, the applicant says that the application form was available to him well before he made the application under the Scheme, and indeed, before he filed proceedings in the County Court for damages against the State of Victoria.[28]
[28] Court transcript at page 8.
As stated, the applicant says that the way in which the Scheme would treat prior payments was not adequately explained to him, and in particular, there was no explanation of the importance of a ‘global settlement’ versus a settlement which distinguishes between different forms of damages.[29]
[29] Court transcript at page 9.
Relevantly, the applicant claims that ‘he should have been given further assistance, had things explained to him better, certainly had … the policy on prior payments actually sent to him’.[30] In essence, the applicant asserts that the information about the impact of prior payments on any claim under the Scheme is that contained in the application form.
[30] Court transcript at page 8.
The applicant says that the form does not make it clear that if the prior settlement sum is not divided up into different components, the whole amount would be included and deducted from the amount payable under the Scheme.
For each of these reasons, it was submitted for the applicant that the question of whether further information about the way that prior payments would be treated for the purposes of the Scheme should have been provided to the applicant, and if so, whether the failure to do so amounts to a failure to make reasonable adjustments, is a factual issue in dispute and ultimately a matter for trial.[31]
[31] See Court transcript at page 6 and following.
Similarly, it was argued that it is not clear that the way in which the respondent administered the policy was the only way in which it could have been administered.[32] Moreover, the applicant argues that whether it was administered in a particular way with regard to the applicant because of his disability, is an issue which ought be ventilated at trial.
[32] Court transcript at page 13.
Respondent’s submissions
In reply, the respondent submits that leave ought not be granted.
The respondent submits that the Scheme adopted a trauma-informed approach and was developed with vulnerable individuals in mind.[33] In particular, the respondent points to the application form itself as evidence of this.[34] The respondent also points to the fact that applicants under the Scheme were provided with a range of supports, including a free and independent legal service provider to assist in the process.[35]
[33] Respondent’s Outline of Submissions filed on 16 February 2023 at paragraph [12(a)].
[34] Court transcript at page 19 and following.
[35] Respondent’s Outline of Submissions filed on 16 February 2023 at paragraph [11].
To the extent that the applicant claims that the respondent failed to make proper inquiries of the State of Victoria regarding the payments received by him in the County Court proceedings, the respondent submits that this assertion is not supported by the facts.
In particular, the respondent points to the statement of reasons by the independent decision-maker at page 242 of the court book, which makes it clear that the decision-maker made inquiries about the payments received and did not simply rely upon the applicant’s information.[36]
[36] Court transcript at page 21 and following.
The respondent also points to the fact that the applicant was provided with sufficient time to consider the offer made and had the option of not accepting that offer.[37]
[37] Court transcript at page 22 and following.
The respondent also takes issue with the applicant’s claim that the Scheme was more difficult for him to understand and deal with in a way that would avoid disadvantage to him.[38] The respondent says that the applicant had all of the relevant information prior to making his application.
[38] See Respondent’s Outline of Submissions filed on 16 February 2023 at paragraph [10].
Moreover, the respondent points to the information provided by the applicant himself in relation to prior payments and says that it is clear from the applicant’s responses that he was able to, and did, make appropriate submissions about how his prior settlement ought be treated.[39]
[39] See Respondent’s Outline of Submissions filed on 16 February 2023 at paragraph [12(b)].
It was submitted for the respondent that:
… this is consistent with what the respondent says is genuinely a scheme set up to benefit victims of sexual abuse, not to trick them, not to dud them of payments that they should, under the scheme, be getting. The scheme is absolutely set up to fairly benefit these people, including by not rushing people and having them feel that they’ve been forced into accepting an offer that they’re not happy with.[40]
[40] Court transcript at page 23.
The respondent relies upon an affidavit of Ms Sarah Peascod, sworn on 15 February 2023, in which Ms Peascod sets out the chronology of the applicant’s claim to the Scheme. Relevantly, Ms Peascod records the fact that:
(a)on 20 February 2020, an offer of redress was initially made to the applicant;
(b)the applicant sought more information about the basis of the calculation of the redress offer and further information was provided to him;
(c)on 5 June 2020, the applicant sought a review of the offer of redress which ultimately affirmed the initial offer;
(d)on 19 June 2020, the applicant was given a further offer of redress and was given a further six months to consider whether to accept it or not; and
(e)on 24 June 2020, the applicant ultimately accepted the redress offer and the amount offered was paid to him on that day.[41]
[41] Affidavit of Ms Sarah Peascod sworn on 15 February 2023 and filed on 3 March 2023 at paragraph [18] and following.
Annexed to Ms Peascod’s affidavit at Exhibit DSS-1 (‘DSS-1’) is a chronology prepared by the respondent of the various interactions with the applicant, for the purposes of the proceedings in the Commission.
It is submitted for the applicant that the applicant’s repeated contact with the respondent referred to in DSS-1 is a manifestation of his disability.[42] The respondent does not concede this.[43] Rather, the respondent says that the type of behaviour recorded at DSS‑1 and the level of dissatisfaction expressed by the applicant is not limited to people with disabilities.
[42] Court transcript at page 7.
[43] Court transcript at page 24 and following.
Moreover, it is submitted for the respondent that DSS-1 evidences the applicant’s understanding of the Scheme, how it operates and the services available to him to assist him to navigate the Scheme, including legal assistance through knowmore Legal, a service that he did at times engage with.[44]
[44] Court transcript at page 24 and following.
It is also submitted that it is apparent from DSS-1 and the applicant’s interactions with the respondent’s staff that he was aware of the way in which his prior payment had been considered, and was capable of and did engage in ‘lobbying’ to try and convince the respondent that his view of the relevance of the prior payment was correct.[45] It is submitted that the applicant, notwithstanding any disability that he suffered from, was not precluded from advocating for his case.
[45] Court transcript at page 24 and following.
The respondent therefore says that not only is there no evidence of the applicant being disadvantaged in the application process, but rather, the evidence shows that he in fact actively understood the process and actively engaged in the process and advocate on his behalf.[46] The fact that that advocacy did not produce the result that he had hoped for, on the respondent’s case, does not evidence unlawful discrimination in breach of the DDA.
[46] Court transcript at page 25 and following.
As to the Scheme itself, annexed at Exhibit BM3 to the applicant’s affidavit sworn on 6 February 2023 is the application form for the Redress Scheme.
At page 169 of the court book, the application form details assistance available to potential applicants. It relevantly provides that potential applicants can access free redress legal advice through knowmore Legal, which is described as ‘free, confidential and independent’.
Relevantly the application form states:
… knowmore will help you work out if applying to the National Redress Scheme or making a civil claim is a better option for you. knowmore can also assist you through the application process for the National Redress Scheme.
You may want to use your own legal service to obtain advice and assistance. This may not be free.
Furthermore, at pages 199 to 202 of the court book, the applicant is asked about ‘prior payments’ received in respect of the abuse in respect of which compensation is being sought under the Scheme.
Relevantly at page 201 of the court book, the applicant sets out the payment he has received. He states that the payment was received on 9 May 2019 and that it was from the Department of Education for ‘education[al] negligence, wrongful assessment … impairment of opportunities in future life, bullying, harassment and in part abuse (sexual)’. The applicant stated in that form that of the $60,000 payment he received, $5,000 was for the sexual abuse he suffered and the balance was for the other adverse conduct he endured.
The respondent submitted that it is clear from the applicant’s response to this question that, notwithstanding his disabilities, he did understand the information requested, and understood the significance of this question and made a point of explaining that in his view, the full payment ought not be taken into account for the purpose of assessing his entitlement under the Scheme.[47]
[47] Court transcript at page 20 and following.
The difficulty with this argument is that it assumes that the applicant commenced engaging with the Scheme at the point at which he made his application for a redress payment. As stated above, however, on the basis of the applicant’s material, it would seem that he had sought information from the Scheme prior to initiating proceedings in the County Court and prior to resolving those proceedings.
There is therefore a factual issue about what information was available to him at that point in time, whether because of his disability he was unable to be properly informed about his residual rights under the Scheme, and what he needed to do to protect those rights in the way in which he prosecuted his County Court proceedings. It is not for this court to determine the merits of that claim, but rather to determine whether such a claim is more than merely fanciful.
In addition, to the extent that it is argued for the respondent that reasonable adjustments were made for the applicant in the running of the Scheme, including the provision of legal representation to applicants at no cost, as stated, the applicant has raised concerns about the quality of the legal support provided, and moreover, has raised issues about potential conflicts of interest.[48] Ultimately, whether adjustments made were sufficient to meet the obligation under the DDA is a fact-specific inquiry which ought be determined after the giving of evidence.
[48] See Amended Originating Application filed on 7 February 2023.
The respondent also claims that the applicant has no reasonable prospects of success in circumstances where the Scheme is required to make payments according to ‘the law, the rules and the framework’.[49] That may well be the case, however, it does not address the issue of what further information may have been provided by the Scheme to the applicant, which may have impacted on the nature of the settlement he reached in the Country Court proceedings.
[49] Respondent’s Outline of Submissions filed on 16 February 2023 at paragraph [12(d)].
Moreover, the issue of whether the approach taken under the Scheme in relation to prior payments is in fact required by law remains a live issue, which ultimately ought be determined at a trial and not at a preliminary leave stage. The fact that a review was conducted and the primary decision was upheld is not determinative.
In addition to considering the merits of the applicant’s claim, in determining whether leave ought to be granted, it is also appropriate to have regard to the following factors:
(a)the background to the establishment of the Scheme;
(b)the assessment of the merits of the applicant’s claim made by the Commission; and
(c)whether there is any utility in allowing the substantive application to proceed to a hearing.
The applicant submits that unless the court finds that the applicant’s case is clearly hopeless, the public interest lies in allowing the applicant to proceed with his claim.[50] In support of this proposition, the applicant points to the decision in Matthews v Markos [2019] FCA 1827 in which Justice Abraham said:
83.Necessarily the assessment of the merits at this stage is only conducted in a preliminary manner given the nature of the application, and it is well established that “it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and law at final hearing” … Consequently, it is not appropriate at this stage to give detailed consideration and determination of the merits of the arguments. Nor in that context, and without the benefit of full argument, is it appropriate to address the merits of the particular arguments in the reasons determining this application, where leave is to be granted.
[50] Court transcript at page 14.
The issues raised by the applicant may have broader application to others who may have been similarly affected. Moreover, even if one were to accept that the Scheme was established adopting a trauma-informed approach with the intention of supporting vulnerable applicants, whether that intention has been achieved and if so, whether it meets the requirements of the DDA is ultimately a question of fact and law.
It is apparent from the Commission’s termination letter that it considered the merits of the applicant’s claims as it understood them.[51] However, it is clear that one of the complaints raised by the applicant is that the information about the Scheme itself was unclear and affected the way that he dealt with his County Court proceedings, which in turn prejudiced his rights under the Scheme. The Commission did not address this aspect of the applicant’s claim in its reasons for terminating his claim. In these circumstances, given the complexity of the applicant’s claims, the Commission’s assessment of the merits of the application do not weigh heavily against the granting of leave.
[51] Court book at pages 83 to 96.
The respondent argued that it is futile to grant leave, because the applicant would not have achieved any better outcome.[52] However, the applicant argues that if he is permitted to proceed and is able to establish unlawful discrimination, he will be seeking compensation for emotional and psychological distress.[53]
[52] Court transcript at page 28.
[53] Court transcript at page 14.
Therefore, even though he may not have achieved a better outcome under the Scheme itself, the applicant may nonetheless be awarded damages for the pain and suffering that he claims to have suffered as a result of the way that he was treated.
CONCLUSION
Having regard to all of these factors, on balance, I find that it is in the interests of the administration of justice to grant the applicant leave to proceed with his application and make the orders set out at the commencement of these written reasons for judgment.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 21 July 2023
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