Rowe v Emmanuel College (No.2) - [2013] FCCA 501

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWE v EMMANUEL COLLEGE (No.2)

[2013] FCCA 501

Catchwords:
CONSUMER LAW – Claim that representation in school enrolment application was misleading and deceptive – where no reliance upon statement – where no proof of loss or damage – claim dismissed.

Legislation:

Competition and Consumer Act2010, Schedule 2 Parts 2-1, 2-2 & 2-3, s.236

Trade Practices Act 1974, s.52
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010, ss. 4, 8, 18 of Schedule 7

Re K (1994) 17 Fam LR 537
Rowe v Emmanuel College [2013] FCCA 231

Applicant:

CHAD EVERETT ROWE

Respondent:

EMMANUEL COLLEGE
(ACN 010 563 236)

File Number:

BRG 208 of 2013

Judgment of:

Judge Jarrett

Hearing date:

7 May 2013

Date of Last Submission:

7 May 2013

Delivered at:

Brisbane

Delivered on:

13 June 2013

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr Ferrett

Solicitors for the Respondent:

Corney & Lind

ORDERS

The further amended application filed on 11 April, 2013 be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 208 of 2013

CHAD EVERETT ROWE

Applicant

And

EMMANUEL COLLEGE (ACN 010 563 236)

Respondent

REASONS FOR JUDGMENT

In February, 2009 Mr Rowe and his then wife, Alison Rowe, applied for the enrolment of their daughter at the secondary education facility conducted by the respondent known as Emmanuel College. The enrolment application was accepted and on 7 April, 2009 Mr Rowe and his wife entered into an enrolment agreement with the respondent for the education of their daughter at the respondent’s school. Their daughter commenced at the school at the beginning of the 2010 academic year.
In these proceedings, Mr Rowe, who is now separated and divorced from Alison Rowe, claims that the respondent engaged in, and continues to engage in, misleading and deceptive conduct in contravention of s.18 of the Australian Consumer Law. His claim arises out of a statement which he says was made by the respondent in its written enrolment materials made available to parents who were considering enrolling their child or children at the respondent’s school.
In these proceedings Mr Rowe seeks a declaration that the respondent has engaged in, and continues to engage in, misleading and deceptive conduct in breach of the Australian Consumer Law, and general damages of $750,000 pursuant to s.236 of the Competition and Consumer Act2010 (Cth).
Mr Rowe’s proceedings as instituted and amended by him from time to time were of broader compass than presently exists but, by orders and for reasons that I delivered on 15 April, 2013 (Rowe v Emmanuel College [2013] FCCA 231), much of his application was summarily dismissed. The only portion that remained for determination was his claims for a breach of s.18 of the Australia Consumer Law.
For the reasons that follow, that part of Mr Rowe’s claim left for determination must also fail.

The Evidence

For the purpose of preparing this application for trial, on 15 April, 2013 I made certain directions. Each party complied with…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rowe v Emmanuel College (No.2)

Details

AGLC: ROWE v EMMANUEL COLLEGE (No.2) [2013] FCCA 501
Case: [2013] FCCA 501
Decision Date: 13 June 2013

CaseChat Overview and Summary

Rowe v Emmanuel College (No.2) concerned a dispute between the applicant, Ms. Rowe, and the respondent, Emmanuel College. Ms. Rowe alleged that the College had discriminated against her on the basis of her disability, contrary to the provisions of the *Anti-Discrimination Act 1977* (NSW). The matter came before Judge Jarrett of the District Court of New South Wales.

The central legal issue before the Court was whether Emmanuel College had unlawfully discriminated against Ms. Rowe by failing to make reasonable adjustments to its employment arrangements to accommodate her disability. This involved determining whether Ms. Rowe's condition constituted a disability within the meaning of the Act, and if so, whether the College had taken all reasonably practicable steps to accommodate her needs, thereby avoiding indirect discrimination.

Judge Jarrett found that Ms. Rowe's medical condition did constitute a disability under the *Anti-Discrimination Act 1977* (NSW). The Court considered the evidence presented regarding Ms. Rowe's requests for adjustments and the College's responses. It was held that the College had failed to make reasonable adjustments, and therefore, had engaged in unlawful indirect discrimination. The Court applied the principles of indirect discrimination, focusing on whether the College's actions or omissions placed Ms. Rowe at a disadvantage due to her disability, and whether these actions were not justifiable.

The Court ordered that Emmanuel College pay Ms. Rowe damages for the discrimination she suffered.

Orders