Sievwright v State of Victoria

[2012] FCA 118

FEDERAL COURT OF AUSTRALIA

Sievwright v State of Victoria [2012] FCA 118

Citation:		Sievwright v State of Victoria [2012] FCA 118
Parties:		JADE SIEVWRIGHT (BY HER NEXT FRIEND, ANNE WITCOMBE) v STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)
File number:		VID 803 of 2009
Judge:		MARSHALL J
Date of judgment:		21 February 2012
Catchwords:		HUMAN RIGHTS – discrimination – education - child with an intellectual disability – alleged direct and indirect discrimination by educational authority – whether ‘requirement or condition’ is pleaded with sufficient precision to ground a finding of indirect discrimination – alleged breach of the Disability Standards – alleged breach of Education Training and Reform Act 2006 (Vic) – allegations not made out – dismissed
Legislation:		Australian Human Rights Commission Act1986 (Cth) s 46PO Disability Discrimination Act 1992 (Cth) ss 5, 6, 22 Disability Standards for Education 2005 (Cth) Parts 3, 4, 5, 6, 7 Education and Training Reform Act 2006 (Vic) ss 1.1, 1.2, 2.1 Judiciary Act 1903 (Cth) s 78B
Cases cited:		Catholic Education Office v Clarke (2004) 138 FCR 121 Victoria v Schou (2001) 3 VR 655 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 Watersv Public Transport Corporation (1991) 173 CLR 349 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Walker v State of Victoria [2011] FCA 258 Hurst v Queensland (2006) 151 FCR 562 Devers v Kindilan Society [2009] FCA 1392 Devers v Kindilan Society [2010] FCAFC 72 Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 State of Victoria v Schou (No 2) (2004) 8 VR 120 Re AEU; ex parte Victoria (1995) 184 CLR 188
Dates of hearing:	1, 2, 3, 4, 5, 8, 9, 10, 15, 16 and 18 August 2011
Date of last submissions:	31 October 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	249
Counsel for the Applicant:	Mr D Hancock
Solicitor for the Applicant:	Access Law
Counsel for the Respondent:	Ms R Doyle SC with Mr M Felman
Solicitor for the Respondent:	Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 803 of 2009

BETWEEN:	JADE SIEVWRIGHT (BY HER NEXT FRIEND, ANNE WITCOMBE) Applicant
AND:	STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	21 FEBRUARY 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

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

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 803 of 2009

BETWEEN:	JADE SIEVWRIGHT (BY HER NEXT FRIEND, ANNE WITCOMBE) Applicant
AND:	STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) Respondent

JUDGE:	MARSHALL J
DATE:	21 FEBRUARY 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Miss Jade Sievwright (“the applicant” or “Jade”) applies to the Court through her next friend, her mother Ms Anne Witcombe, pursuant to s 46PO(1) of the Australian Human Rights Commission Act1986 (Cth) (“the AHRC Act”), following the termination of her complaint to the Australian Human Rights Commission (“the Commission”) on 11 September 2009. Jade alleges that the respondent, the State of Victoria (“the State”) discriminated against her, by reason of her disability, in contravention of the Disability Discrimination Act 1992 (Cth) (“the DD Act”), during the time when she attended two schools operated by the Department of Education and Early Childhood Development (“the Department”). It is common ground that the Department is an educational authority for the purposes of the DD Act.

2. The claim against the State relates to Jade’s attendance at:

   ·Glen Katherine Primary School (“Glen Katherine”) from the commencement of the school year in 2004 until the end of Term 2, 2006; and

   ·Briar Hill Primary School (“Briar Hill”) from the beginning of Term 3 in 2006 to the second week of Term 1 in 2010 (apart from the period when she temporarily resided in Sydney).

   The Period of the Claim

3. Section 46PO(3) of the AHRC Act confines the claim to the period of Jade’s education beginning in January 2004 to 6 April 2009, the date Jade filed a complaint in the Commission. The Court has no power to hear matters that allege discrimination or to make a finding of discrimination outside that period. However, the Court may consider evidence of matters and events that occur after 6 April 2009 where they are relevant to some issue within the period of the claim.

   RELIEF SOUGHT

4. The applicant initially sought the following remedies in [29] of her amended statement of claim (“the pleading”):

   (a)       a Declaration that the Respondent had [sic] discriminated against Jade; 

   (b)       an Order that the Respondent:

   (i)provide Jade with a full-time aide, for all her academic subjects;

   (ii)teach English and mathematics to Jade through Spelling Mastery, Reading Decoding and Corrective Maths “Direct Instruction”, pursuant to the manuals published for such programs by the manufacturer, SRA;

   (iii)provide the teaching referred to in (i) to (ii) above by way of a person formally qualified to teach the Direct Instruction Programs;

   (iv)provide an Individual Education Plan incorporating all of the recommendations of the RMIT Psychology Clinic; Ms Marilyn Black, Speech Pathologist; Ms Bettina Kaplan, Speech Pathologist; Ms Sharon Cowan, Audiologist, and Dr Rick Jarman, Consultant Paediatrician; such plan to be developed in accordance with the Respondent’s own procedures and guidelines, and in collaboration with Jade’s mother;

   (v)engage an independent speech pathologist to:

   (A) develop and implement a school-based total integration speech pathology/language program for Jade;

   (B) assess Jade at least twice per term;

   (C) monitor and review the program at least once per term and modify it if necessary;

   (D) train Jade’s teachers and aides as to how to effectively teach and work with Jade; 

   (c)  an Order that the Respondent reimburse the expenses incurred in providing Jade with speech therapy in the sum of $21,145.00, the costs of Jade’s counselling at RMIT University in the sum of $1,000.00, and the costs of Jade’s home schooling and ancillary medical and educational expenses in the total sum of $5,466.16;

   (d)  an Order that the Respondent reimburse the expenses incurred in providing Jade with the Linda Mood-Bell [sic] programs in the sum of $29,898.00;

   (e)  an order requiring the Respondent to pay to the Applicant, by way of compensation for loss and damage suffered because of the conduct of the Respondent, general and exemplary damages to Jade for discriminating against her. [sic]

   (f)  an order that the Respondent pay Jade’s reasonable legal costs of and incidental to these proceedings. [sic]

   (g)  any further Orders the Court considers appropriate. 

   The claim for reimbursement of the applicant’s medical expenses was withdrawn after the conclusion of the trial. A revised list of expenses was then provided to the Court. The amended total of this list is $56,876.41, which includes $29,898 for the applicant’s enrolment in the Lindamood-Bell Institute, and $21,145 for speech therapy with a therapist, Ms Marilyn Black (see at [20] below). The other expenses on the amended list include sessions at the RMIT Psychology clinic between July 2008 and July 2010, and the purchase of teaching equipment for homeschooling.

   STATUTORY FRAMEWORK

5. The applicant claims the State contravened ss 5 and 6 of the DD Act by directly and indirectly discriminating against her on the basis of her disabilities:

   ·in the terms and conditions upon which the schools admitted her (s 22(1)(b) of the DD Act);

   ·by denying, or limiting, her access to the benefits provided by the State (s 22(2)(a) of the DD Act); and

   ·by subjecting her to a detriment (s 22(2)(c) of the DD Act).

6. Sections 22(1) and (2) of the DD Act, at all material times, stated:

   (1)It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability or a disability of any of the other person’s associates:

   (a) by refusing or failing to accept the person’s application for admission as a student; or

   (b) in the terms or conditions on which it is prepared to admit the person as a student.

   (2) It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:

   (a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

   (b)       by expelling the student; or

   (c)       by subjecting the student to any other detriment.

7. Section 5 of the DD Act defines direct discrimination, and at all material times stated:

   (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

   (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

   (Original emphasis.)

8. Section 6 of the DD Act defines indirect discrimination, and at all material times stated:

   For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

   (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

   (b) which is not reasonable having regard to the circumstances of the case; and

   (c)       with which the aggrieved person does not or is not able to comply.

   (Original emphasis.)

9. Jade further claims the State breached Parts 3-7 of the Disability Standards for Education 2005 (Cth) (“Disability Standards”), which are promulgated under the DD Act: see s 32. The disability standards make it unlawful for a person to contravene any one of them. Parts 3-7 of the Disability Standards concern the making of reasonable adjustments for students with disabilities, standards for enrolment, standards for participation, standards for curriculum development and standards for the provision of support services.

   BACKGROUND

   2004 - Prep

10. Jade was born in 1997. In 2004, aged six and a half, Jade started Prep at Glen Katherine in the class of Ms Lynne Taylor. At the time Jade was enrolled, Glen Katherine had around 750 students.

11. In Jade’s 2004 Semester 1 report, Ms Taylor commented that Jade had made a smooth transition into primary school. However, Jade’s language difficulties were becoming apparent even at that early stage. In June 2004 Ms Taylor wrote that Jade’s “presentation” was “painstakingly slow”, and that Jade at times seemed “very unfocused”. Ms Taylor made similar comments in Jade’s December 2004 Semester 2 report, writing that Jade “sometimes goes off into space”, “takes a long time to process concepts”, and that in literacy Jade had “real trouble” connecting text with the   accompanying illustrations.   

    2005 – Grade 1

12. Jade commenced Grade 1 at Glen Katherine in 2005, in the class of Ms Kathleen Reeve. Ms Reeve conducted a brief spelling test for all her new students in the first week of Term 1 of that year. Ms Reeve recalled Jade having difficulty with letter recognition and phonetics and that the results of the spelling test indicated that Jade was in the lower range of student ability.

13. In February 2005, Ms Reeve referred Jade to a psychologist employed by the Department, Ms Judy Beesley. Ms Beesley tested Jade’s general thinking and reasoning using the Wechsler Intelligence Scale for Children (“WISC”) – Third Edition, and her receptive vocabulary using the Peabody Picture Vocabulary Test – Third Edition. In her report dated March 2005, Ms Beesley stated that Jade’s receptive vocabulary was extremely low and that her level of intellectual functioning was in the low average range overall. Professor Vicki Anderson gave evidence in this proceeding that such a result equates to an IQ of around 80.

14. Based on these results, Ms Beesley recommended that Jade would benefit from extra assistance with new learning, re-teaching of any ‘gaps’ in her skill and understanding, a modified program and encouragement to help improve her self esteem.  Ms Reeve and Ms Witcombe discussed Ms Beesley’s report. Ms Reeve informed Ms Witcombe that Jade’s classroom and homework expectations would be lowered accordingly.

15. Early in the school year, Ms Reeve selected students who had demonstrated weakness in literacy to undergo a test to determine their eligibility for the Reading Recovery program. The program is a one to one remedial program designed to assist Grade 1 students having difficulties learning to read and write. Based on her test results, Jade was selected to undertake Reading Recovery in early February 2005. The program consisted of a 30 minute lesson conducted daily by Mrs Susan Hollyoak, who was trained to deliver the program.  During the 20 weeks the program was delivered to Jade, she reached level 7 out of a possible 24 levels.  Reading Recovery terminates after 20 weeks, regardless of whether the student completes the program in that time. However, Ms Reeve continued to use Reading Recovery texts and workbooks for Jade during literacy lessons.

16. In May 2005, after a referral from Ms Beesley, Jade was also assessed by a speech pathologist employed by the State, Ms Bettina Kaplan. Ms Kaplan was allocated to Glen Katherine for the 2005 and 2006 school years. In addition to testing and assessing Jade on 18, 24 and 31 May 2005, Ms Kaplan was given a copy of Ms Beesley’s earlier report and spoke with Ms Witcombe by telephone regarding Jade’s speech.

17. On 21 June 2005, Mrs Hollyoak wrote a referral letter for Jade to see Dr Kevin Collins, a neurologist at the Royal Children’s Hospital, as she had concerns regarding Jade’s lack of progress through the Reading Recovery program.  Mrs Hollyoak’s letter stated that

    Jade finds unprepared reading very challenging and demonstrates considerable frustration at the fact that she cannot remember words that she is faced with daily.

18. Mrs Hollyoak noted that Jade would give up quickly, could become very upset, and presented as tired in their Reading Recovery sessions. Ms Kaplan also wrote a letter to provide background information for the neurological assessment. The letter, dated 14 June 2005, stated that Ms Kaplan had noted Jade had some word retrieval problems and some mild speech sound errors, but was unable to provide further details until she had completed her assessment. Ms Witcombe stated that Dr Collins (who did not give evidence) saw Jade shortly after Mrs Hollyoak’s referral and informed her that there was nothing wrong with Jade.

19. On 22 July 2005, Ms Kaplan completed her Speech Pathology Assessment Report. Ms Kaplan found that both Jade’s receptive language (her ability to understand spoken language) and her expressive language (her ability to verbally express ideas) were moderately impaired. She also found that the Clinical Evaluation of Language Fundamentals – Revised Edition (“CELF-4”) test placed Jade’s core language score at 78, which indicated that Jade suffered from “moderate language difficulties overall”. Ms Kaplan’s report also set out several recommendations that she believed would assist Jade, including speech pathology and other recommendations contained in a document attached to her report titled ‘Specific Language Disorder (SLD) Information for Teachers’. Ms Kaplan offered to provide speech therapy to Jade through the Department, but informed Ms Witcombe access to speech therapy would not be immediate, and that Jade would go on a waiting list.

20. Instead of waiting for speech therapy to be provided by the State, in August 2005, Jade began seeing a private speech pathologist, Ms Marilyn Black.  Ms Black was not called as a witness in this proceeding. On 24 November 2005, Ms Black provided Ms Witcombe with a letter which Ms Witcombe then gave to Glen Katherine. In her letter, Ms Black stated that her initial observations of Jade resulted in her referring Jade to an audiologist, Ms Sharon Cowan (who was also not called as a witness). Ms Cowan assessed Jade in September 2005 and diagnosed her with significant weaknesses in binaural integration, binaural separation and temporal patterning. Ms Black diagnosed Jade as having expressive and receptive language difficulties, “significant difficulties with speech-sound discrimination and phonetic awareness” and a “specific language impairment”. Ms Black recommended that Jade have ongoing speech therapy, that Jade’s classroom work be adapted and that she have a teacher aide to “assist with individualised learning instruction”. Jade’s sessions with Ms Black continued until December 2009.

21. During 2005, Jade also undertook an intense speech therapy course with Ms Black, called “Fast For Word”. The program was conducted between 8:30 am and 12:30 pm daily for eight weeks. Jade did not attend school on the mornings she undertook the Fast For Word program.  

22. In June 2005, Ms Reeve wrote in Jade’s Semester 1 report that Jade found the “bulk of the grade one program to be beyond her abilities.” While Jade’s ‘Effort’ was marked as ‘High’, Jade was marked ‘Needs Improvement’ in all aspects of English and Mathematics. In a letter dated 20 June 2005, drafted for the purpose of referring Jade to a doctor, Ms Reeve commented on Jade’s habit of “drifting off” and noted that she was concerned about Jade’s “general vagueness and lack of progress in literacy and numeracy.”

23. In her 2005 Semester 2 report, Jade’s ‘Effort’ was again marked as ‘High’, and Ms Reeve commented that Jade “continued to complete her modified tasks willingly”, and that she was a “wonderful member of the class…highly respected for her kindness and the efforts she has made with her work.” However, Jade’s marks in English and Mathematics had not improved, save for Jade’s mark in ‘Speaking and Listening’, which was graded ‘Satisfactory’.

    2006 – Grade 2

24. Jade commenced Grade 2 at Glen Katherine in 2006. In Term 1 Jade’s class was taught by a relief teacher, Ms Carol Oppermann. In Term 2 Jade’s teacher was Ms Ines Saunders.

25. During Term 1 and 2 Glen Katherine arranged for an Integration Aide, Ms Sandra Embling, to work with Jade for one hour, three times per week, during literacy and numeracy blocks. Ms Embling gave evidence that during the allocated time she worked with Jade either in the classroom as part of a small group, on a one to one basis in a room adjoining the classroom or in a specialised integration room, depending on the kind of activity undertaken.

26. Ms Saunders wrote Jade’s 2006 Semester 1 report. For mathematics, reading and writing, Jade received a ‘D’ (below the standard expected). In speaking and listening, Jade was marked ‘C’ (at the standard expected).

27. At the end of Semester 1 2006, Ms Witcombe decided to move Jade from Glen Katherine to Briar Hill. Ms Witcombe gave evidence that the reason for this decision was that after discussions with Mr Ross Dudgeon, the Principal of Briar Hill, she thought a smaller school like Briar Hill might provide better support for Jade. Additionally, Briar Hill offered a Steiner education stream, an alternative mode of education based on the philosophy of Rudolf Steiner. As a general philosophy, the Steiner education model has a ‘whole class’ focus, with an emphasis on imaginative as well as analytical thinking. Ms Black had advised Ms Witcombe that the Steiner program might be beneficial to Jade. Mrs Margaret Hirth, at all relevant times a teacher at Briar Hill, gave evidence that the Steiner stream at Briar Hill was not a ‘pure’ Steiner program. As a State run primary school, Briar Hill had to meet curriculum guidelines as established by the State. However, Mrs Hirth acknowledged that the Steiner philosophy strongly influenced the Briar Hill curriculum. Accordingly, students in the Steiner stream at Briar Hill did not begin learning literacy until approximately Grade 3. Ms Witcombe believed that would give Jade the opportunity to learn foundational literacy again.

1. Jade moved to Briar Hill in Term 3 of 2006. She completed the remainder of her Grade 2 studies in a composite Grade 2/3 class of approximately 22 students. Ms Elise Boyle taught the Grade 3 students in that class. As no funding application had yet been made for Jade, where possible, Jade received assistance from Ms Pauline Steele, an aide who was formally assigned to another child in the class. Briar Hill also offered Jade access to a State funded speech therapist, but this was refused by Ms Witcombe, as she was advised by Ms Black that having two speech therapists could confuse Jade and result in regression of her progress.

2. During Grade 2 at Briar Hill Jade participated in the Fitzroy Readers program, a program for students struggling with their reading. The Fitzroy Readers program focussed on phonics, recognising high frequency words and developing strategies to support students when reading new texts. A group of five students was taken by Ms Steele or Ms Boyle for approximately three or four 30 minute sessions per week. Jade also participated in the Fitzroy Readers program in 2007.

3. In December 2006, Jade’s general practitioner recommended that Jade be assessed by a paediatrician to investigate spells in which Jade was ‘blank’ or ‘went off into space’. Ms Witcombe had observed Jade’s “blanking spells” since approximately 2005. In December 2006, paediatrician Dr Frederick Jarman diagnosed Jade with epilepsy. In his report dated 12 December 2006, Dr Jarman said Jade’s epilepsy “must also be having a deleterious effect on brain function and academic performance.” Dr Jarman prescribed Tegretol to Jade to assist in stopping Jade’s seizures. Ms Witcombe gave evidence that Jade took Tegretol until 2007, when, after consultation with Ms Boyle, its use was abandoned as it seemed to have little effect. Dr Jarman did not give evidence in the proceeding, but Ms Witcombe stated that she took Jade to see Dr Jarman again in May 2011 because she was aware that Jade was still ‘daydreaming’ and ‘tuning out’ for short periods. After another examination, Dr Jarman told Ms Witcombe that it seemed Jade had “grown out of” or “matured out of” epilepsy. Ms Witcombe did not pursue the matter of Jade’s daydreaming spells any further.

4. Jade undertook another of the intensive eight week programs run by Ms Black in 2006. During those eight weeks, she was absent from school for the morning session. Jade was not formally assessed by Ms Boyle in 2006, as she had missed too much of the school year at Briar Hill. However, Ms Boyle did make some comments in Jade’s 2006 Semester 2 report. In terms of literacy, Ms Boyle stated that Jade was “making slow but steady progress” in English, but had missed many writing lessons due to her intensive speech therapy sessions. Ms Boyle commented that Jade was “still struggling with recognising the sounds of letters, which is impeding her ability to read, write and spell new words.” Ms Boyle also stated it was difficult to assess Jade’s maths skills because she had missed so many maths lessons.

   2007 – Grade 3

5. Jade undertook Grade 3 at Briar Hill in 2007. Students in the Steiner stream have the same teacher for each year of their primary school education, so Ms Boyle was also Jade’s Grade 3 teacher. Jade was in a Grade 3/4 composite class of approximately 18 to 20 students.

6. In early 2007, the newly appointed Assistant Principal, Mrs Hirth, implemented the Neale Analysis of Reading Ability test (“the Neale test”) for students across the school. The results of the Neale test were used to implement support programs for students with reading difficulties. Jade undertook the Neale test on 9 March 2007. Jade’s results show that her reading accuracy and comprehension were in the very low range, and placed her reading age at around six years old.

7. Mrs Hirth also introduced the use of Individual Student Learning Plans, now more commonly known as Individual Education Plans (“IEPs”) to Briar Hill. An IEP is a statement of learning objectives and goals concerning a particular student, developed by that student’s classroom teacher. The Neale test results and other data were used to determine which students would have IEPs developed for them. In June 2007, Ms Boyle drafted an IEP for Jade and included in it several classroom and home-based activities aimed at improving her numeracy and literacy. These included Jade’s continued involvement in the Fitzroy Readers program and Ms Witcombe reading with Jade each night.  

8. Around mid 2007, Mrs Hirth introduced the SRA Corrective Reading Program (“CRP”) to Briar Hill for students struggling with literacy. CRP is a remedial reading program designed for students in Grade 3 and above. Mrs Hirth gave evidence that she had experienced good results with the program at her previous school, Strathewen Primary School. Jade commenced CRP in Term 3 2007. Ms Boyle gave evidence that Ms Steele delivered the program to Jade in four 30 minute sessions per week. 

9. During 2007, Jade also received intermittent assistance from three student teachers who assisted the class as part of placement programs. These programs ran for three weeks each.

10. Jade’s 2007 Semester 1 Report marked her ‘Effort’ and ‘Classroom Behaviour’ as ‘Excellent’, however the majority of her grades in numeracy and literacy remained ‘below the expected standard’, with mathematics grades ‘at the expected standard’ in the categories of ‘space’ and ‘measurement, chance and data’. Ms Boyle noted that Jade had become more confident speaking in front of her peers and that Jade seemed to find reading a little easier.

11. Jade’s 2007 Semester 2 report demonstrated that although her literacy and numeracy skills had improved throughout the year, her abilities were well below those expected for a child of her year level. Ms Boyle commented that Jade had “benefited greatly from participating in the corrective reading program”, but found reading activities in class “very demanding”. Ms Boyle wrote that Jade tended to “freeze up” when asked to read in front of her peers.

    2008 – Grade 4

12. During 2008, Jade was in Ms Boyle’s Grade 4/5 composite class. The class had 17 students.  While the daily structure was similar to that of previous years, the lessons took on a more academic focus. They engaged the class more closely with the mainstream curriculum set by the State.  Ms Boyle’s gave evidence that, as a result of this, the “gap” between Jade’s ability and that of her peers became more apparent.

13. Ms Boyle continued to modify the curriculum for Jade. At some stage during the year, after consultation with Ms Witcombe, Ms Boyle gave Jade access to a calculator to assist her participation in maths activities. In the literacy program, Ms Boyle implemented a Reader’s Workshop in the classroom. The Reader’s Workshop involved grouping the students according to ability and developing literacy programs for each separate group. Jade was grouped with three other students in the lowest ability group. In addition to this, Jade continued her participation in CRP in 2008, attending sessions with Ms Steele three times a week for between 30 and 45 minutes.

14. Jade undertook the Neale test again on 19 March 2008. Despite an improvement from the previous year, Jade’s results remained in the very low category.

15. On 22 April 2008, Ms Witcombe wrote to the Regional Director of the Department seeking “extra resources” to be given to Briar Hill to assist Jade. Ms Witcombe requested Jade receive “one to one assistance in academic classes, an RF Unit [and] speech therapy”; see [46] below. On 22 May 2008 an Assistant Regional Director of the Department, Mr Joe Corbett, wrote back to Ms Witcombe suggesting that Jade apply for the Program for Students with Disabilities (“PSD”). That is the system by which the Department provides additional funding for individual students with disabilities. Mr Mark Tainsh, Acting Assistant General Manager of the Student Wellbeing Division of the Department, gave evidence that the PSD application process involves the parents, teachers and any professional who is assisting the student forming what is now known as a Student Support Group (“SSG”). The SSG meets to complete a PSD application on behalf of a student. The application consists of the Educational Needs Questionnaire, a Goals and Strategies document and a summary agreement.

16. To be eligible for the PSD, students must meet the eligibility criteria in one of seven categories, including a Intellectual Disability category. The IQ threshold for eligibility for PSD funding in that category is “two standard deviations or more below the mean (100) score”; that is, an IQ of 70 or below.

17. Ms Witcombe replied to Mr Corbett’s letter on 22 May 2008, advising him that she had been told that Jade had a moderate language disorder, epilepsy and an auditory processing disorder. Ms Witcombe wrote that Jade’s “moderate language disorder certainly does not meet the criteria of the Severe Language Disorder category [of the PSD], and her epilepsy and auditory processing disorder do not fit…any category at all.” Ms Witcombe therefore considered that a PSD application would be “fruitless”.

18. On 5 June 2008, Mr Corbett wrote to Ms Witcombe and suggested a SSG meeting be arranged with Mr Dudgeon, Jade’s teachers and some other Departmental officers to “undertake a review of Jade’s program and support and to submit a new application to the Student Wellbeing Branch if…appropriate”. After some further correspondence between Ms Witcombe and Mr Corbett, a meeting was arranged with Mr Dudgeon and Ms Witcombe, but did not occur.

19. In his letter, Mr Corbett also informed Ms Witcombe that in response to her request for an “RF Unit”, an FM listening device was being sourced to trial with Jade. The use of such a device was recommended in Ms Cowan’s report dated 8 September 2005, but had not previously been trialled. The device required that Jade wear a pair of headphones and Ms Boyle wear a lapel microphone, the theory being that this would amplify Ms Boyle’s voice and also shut out any background noise. The device was provided by the Department in July 2008. After a trial lasting approximately one month, neither Jade nor Ms Boyle had found the device effective. In her witness statement, Ms Boyle described one difficulty was that the device had to be manually switched off so that if she raised her voice suddenly in class without doing so, her amplified voice would be quite distressing for Jade. The use of the device was abandoned by agreement between Ms Boyle and Ms Witcombe in or around late August 2008.  

20. In July 2008, Ms Witcombe obtained a further psychological assessment of Jade. The assessment was undertaken at RMIT Psychology Clinic by Ms Jade O’Donnell, a Provisional Psychologist, under the supervision of Associate Professor Dr Kerry Hempenstall. Ms O’Donnell and Dr Hempenstall provided their report in October 2008. The report stated that Jade’s test results under the WISC-IV demonstrated that she had an IQ of 68, which is in the extremely low category. Jade’s results in verbal comprehension, perceptual reasoning, working memory and processing speed were found to be in the borderline range. The report recommended that Jade undertake CRP, the Addition Module of Corrective Mathematics and the Spelling Mastery Program. The report recommended that those programs be undertaken five days per week, for a total of 1.5 to 2 hours per day. Ms Witcombe provided the report to Briar Hill.

21. Ms Witcombe also delivered CRP to Jade at home for the period of October 2008 to December 2009, after undertaking a “couple of sessions” on how to deliver the program with Ms O’Donnell. Ms O’Donnell and Ms Witcombe also discussed the difficulties a parent may face in teaching such sessions due to the complexities of the parent/child relationship. To overcome such difficulties Ms Witcombe ran the sessions with Jade on a token economy basis, rewarding Jade with a gift or money for every session she participated in. Ms Witcombe gave evidence that the frequency with which she was able to deliver the program varied due to interruptions from work commitments or Jade’s absence on camps or at school holiday times. Ms Witcombe said that sometimes she delivered CRP three times a week and sometimes not at all. 

22. On 27 October 2008, Ms Black provided a Speech Pathology Progress Report to Ms Witcombe. In drafting the report, Ms Black had again assessed Jade using the CELF-4 test. Jade’s results demonstrated that she achieved a core language score of 75, three points lower than the score she achieved in 2005. Jade’s results remained in the moderately disordered range.

23. During 2008, the opportunity arose for some students at Briar Hill, including Jade, to undertake the Andrew Dean Fildes program, which places final year tertiary speech therapy students in schools to administer speech therapy to students who need it. However, Ms Witcombe rejected the offer for Jade to participate in the program, on the basis that it might interfere with Jade’s progress with Ms Black.

24. In November 2008, Ms Witcombe instigated a meeting with Mr Dudgeon and Ms Boyle to discuss Jade’s transition into Grade 5. During the meeting, Ms Boyle suggested that Jade move to an Inquiry/mainstream class (as opposed to a Steiner stream class) the following year. Ms Boyle gave evidence that she was concerned that Jade felt isolated by having to complete different work to her classmates in the Steiner stream class, where the focus is on group learning. In Ms Boyle’s view, the Inquiry stream was more suited to Jade as work was completed in smaller groups tailored to varying student ability and was focussed more intently on literacy and numeracy. The class Ms Boyle suggested for Jade also had two classroom teachers (Ms Allison Butterworth and Assistant Principal Mrs Hirth) and a teacher’s aide (Ms Karen Hatfield) allocated to it.  At the meeting, the possibility of making a PSD application was raised, based on Jade’s IQ result in the RMIT report. Shortly after the meeting, Ms Witcombe decided to move Jade into the Inquiry/mainstream class the following year.

25. In Jade’s 2008 Semester 1 report Ms Boyle commented that “reading continues to be a challenge for Jade”, and that “Jade is well below what was expected of her in grade four English and mathematics”. In her 2008 Semester 2 report, Ms Boyle commented that Jade was “acutely aware” that the ability of her peers surpassed her own, and this gave her at tendency to “shut down” in class, particularly during reading sessions.

    2009 – Grade 5

26. Jade commenced Grade 5 in 2009. Jade was in a Grade 4/5/6 composite class taught by Mrs Hirth and Ms Butterworth. Ms Butterworth taught the class full time, with Mrs Hirth teaching about 10 hours per week. The rest of Mrs Hirth’s time was absorbed by her role as Assistant Principal. There were approximately 30 children in the class. Ms Hatfield was allocated to Jade’s class to work with two boys who both received funding under the PSD. Ms Hatfield gave evidence that throughout the day at various times she was also able to work with Jade one to one, albeit on an intermittent basis.

27. On 10 March 2009 Jade again undertook the Neale test. Her results remained in the very low category, and demonstrated a ‘reading age’ of a six year old.

28. After further correspondence with the Department and Mr Dudgeon (that had continued since late 2008), on 27 February 2009 Ms Witcombe completed a parent/guardian referral and consent form for assessment of Jade for possible inclusion in the PSD, under the Intellectual Disability or Severe Language Disorder with Critical Education Needs categories. However, Mr Dudgeon informed Ms Witcombe that, even if the application was successful, as it had been submitted after the final date for 2009 funding applications, Jade would not receive any funding until 2010.

29. Around July 2009, following the resignation of Mr Dudgeon, Mrs Hirth was promoted to Acting Principal of Briar Hill. This new role meant Mrs Hirth could no longer teach in the classroom. Ms Robyn Watson-Turner took over Mrs Hirth’s role as a part time teacher in Jade’s class. Mrs Hirth and Ms Watson-Turner had a ‘handover’ session in which they discussed strategies for teaching Jade.

30. On 13 July 2009, Ms Witcombe wrote to Briar Hill expressing concerns arising from Jade’s 2009 Semester 1 report. In response to her letter, a meeting was called on 14 July 2009 between Ms Witcombe, her support person, Mrs Hirth, Ms Butterworth, Ms Watson-Turner and Ms Lyn Deering, a representative from the Department, to discuss making a PSD application for Jade. Specifically, the meeting was called to discuss the documents that made up the PSD application. One such document, the Educational Needs Questionnaire, was filled in at the meeting. Over the next few days, several meetings were held in quick succession to finalise Jade’s PSD application and complete the application documents. The finalised application was submitted to the Department on 16 July 2009.  

31. On 7 August 2009, Ms Cowan undertook another assessment of Jade, and as with her diagnosis in 2005, found that Jade had a significant weakness in relation to binaural integration, binaural separation, temporal patterning and temporal processing. Ms Cowan recommended that Jade be seated with good visual access to her teachers, that information be repeated and rephrased for Jade and an FM assisted listening device be used to reduce reverberations and noise around Jade. Such a device had already been trialled and abandoned as ineffective; see at [46] above.

32. In September 2009, Jade’s PSD funding application was granted by the Department, and Briar Hill was informed that Jade would receive Level 2 funding for the school year commencing in 2010. On 15 September 2009, Ms Witcombe, Mrs Hirth, Ms Butterworth and Ms Watson-Turner met again to discuss how to spend the funds. It was explained to Ms Witcombe in the meeting that Level 2 funding equated to approximately 12 hours of aide time per week.

33. Jade’s NAPLAN results were also discussed at the meeting. Her results placed her below the middle 60% of Grade 5 students in Australia in the categories of Spelling, Grammar & Punctuation, Numeracy and Reading. The minutes from the meeting demonstrate that the NAPLAN results were used as a basis for discussions targeting possible support programs for Jade.

34. Another meeting was held on 20 October 2009 to discuss how to allocate Jade’s PSD funding. By that time, Ms Witcombe had sought advice from Ms O’Donnell, and had decided that as a first priority the funds should be directed towards four hours of CRP and five hours of aide time, presumably on a weekly basis.

35. At the meeting Ms Witcombe also raised the possibility of Jade exiting Briar Hill for Term 1 of 2010 to attend a private institution, the Lindamood-Bell Institute (“Lindamood-Bell”). The question was raised as to what implications Jade’s exit might have on the provision of funding by the Department. On 16 November 2009, Mrs Hirth informed Ms Witcombe that PSD funding would still be available for Jade if Briar Hill were able to show that Jade was still enrolled there, and if the Department were provided with documents from Lindamood-Bell and a statement from Ms Witcombe that she was pursuing an additional program for Jade.

36. In Jade’s 2009 Semester 1 report she was graded ‘D’ (below standard) for all aspects of mathematics, and ‘E’ (well below standard) for all aspects of English. Jade had made improvements by the end of the year in ‘speaking and listening’, but still achieved only ‘Ds’ and ‘Es’ in her 2009 Semester 2 report. In the comments section, Ms Butterworth wrote that CRP continued to have a positive impact on Jade, but there was no noticeable improvement in her reading decoding skills.

    2010 – Grade 6

37. Jade attended Briar Hill for the first two weeks of her Grade 6 year. On 14 February 2010, Jade and Ms Witcombe moved temporarily to Sydney so that Jade could attend Lindamood-Bell full time for the rest of Term 1.

1. Lindamood-Bell is an American based institute, which had recently commenced operations in Double Bay, Sydney. Lindamood-Bell is not registered as a school in Victoria or New South Wales. Ms Witcombe first came across Lindamood-Bell because Ms Black administered some of its programs to Jade during speech therapy sessions. For a fee of about $29,000, Lindamood-Bell provided Jade 16 weeks of one to one instruction in its literacy and reading comprehension programs.

2. In preparation for her attendance, Jade undertook Lindamood-Bell testing in September 2009. Jade underwent the same tests again at the end of her instruction in Sydney in May 2010. In the Peabody Picture Vocabulary Test and the Word Opposites test, Jade’s results had not improved at the end of her time at Lindamood-Bell. In others, such as Verbal Absurdities, Oral Directions and the Woodcock Reading Mastery tests, Jade showed some improvement. Ms Witcombe gave evidence that she was surprised and happy with some of these results.  

3. On 12 April 2010, Ms Witcombe sent an email to Ms Marion Drummond, the new Principal at Briar Hill, confirming Jade’s return to the school on 17 May 2010. Ms Witcombe told Ms Drummond her preferences for spending Jade’s PSD funding were:

   1.Support in the classroom everyday for a minimum of 2 hours each day.

   2.One on one tuition with an aid [sic] to complete literacy and numeracy practice for 1 hour every day. 

4. Ms Drummond subsequently told Ms Witcombe that during Jade’s absence Ms Hatfield had been redeployed by the Department and was no longer available to work with Jade. Arrangements were made for another aide, Ms Laura Elliot, to be available to assist Jade upon her return to Briar Hill until the end of Term 2 2010. Briar Hill informed Ms Witcombe that a recruitment process would ensue to find a replacement to assist Jade at that time.

5. Ms Witcombe had some concerns regarding this proposed arrangement, including Ms Elliot’s age and lack of experience in working with students with auditory processing and language disorders. She was also concerned that there may be a period during the recruitment process in which Jade would not be supported by an aide. These concerns caused Ms Witcombe to decide not to return Jade to Briar Hill for the remainder of her Grade 6 year. After investigating the possibility of moving Jade to another school, Ms Witcombe instead decided to home school Jade upon their return to Melbourne in May 2010.  This decision to remove Jade from the state school system meant that she would not have access to the PSD funding that had been allocated to her.

6. In October 2010, Jade was assessed by Ms Margaret Capp, a psychologist employed by Warringal Counselling. Ms Witcombe intended to use Ms Capp’s assessment to apply for PSD funding for Jade’s first year of high school in 2011. Ms Capp tested Jade under the WISC-IV test, which demonstrated she had an IQ of 72.    

   2011 - Year 7

7. Jade attended Preston Girls Secondary College in Year 7. On 29 March 2011, Jade was assessed by a speech pathologist employed by the Department, Ms Litsa Kypuros. Ms Kypuros assessed Jade’s core language score as 65, down from 78 when Ms Kaplan tested Jade in 2005, and 72 when Jade was tested by Ms Black in 2008.

   ISSUES FOR DETERMINATION

8. The applicant’s evidentiary case was substantial and not focussed with sufficient care on the issues that required determination.  At the Court’s suggestion, to focus on the real issues in dispute, the parties submitted a joint list of 22 issues for determination. It was agreed that these are the essential issues, the determination of which will resolve the matters in contention. They are dealt with below.

   1.        Did Jade have the disabilities as alleged in [8] of the Amended Statement of Claim and if so, over what period of time?

9. Section 4 of the DD Act defines the term “disability”. Relevantly, the definition includes “total or partial loss of the person’s bodily or mental functions”, “a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction”, and includes a disability that presently exists or previously existed but no longer exists.

10. Paragraph [8] of the pleading alleges that Jade has and had the following disabilities at all relevant times:

    (a)       Receptive Language Disorder

    (b)      Expressive Language Disorder

    (d)      Auditory Processing Problems

    (e)Borderline Verbal Comprehension, Perceptual Reasoning, Working Memory and Processing Speed (mild intellectual disability, however by reason of receiving an education at the Linda Mood-Bell School [sic], by September 2010 Jade’s cognition had improved and she no longer has a diagnosis of “mild intellectual disability”)

    (f)Epilepsy (Jade no longer has a diagnosis of epilepsy, and has not had a seizure for at least three years).

11. The applicant further alleges that the above disabilities posed the following impediments to Jade:

    (a) Jade had, and has, difficulties processing and absorbing language at the normal rate, immature written and spoken vocabulary and difficulties in comprehending language.

    (b) Jade had, and has, difficulties in formulating ideas into grammatical and meaningful sentences.

    (c)Jade had, and has, difficulty hearing and processing what is said.

    (d)       Jade did not, and does not, learn at the same rate as others.

    (f) Jade experienced, and continues to experience, complex partial seizures which caused [sic] her to lose concentration for periods of time. 

12. The State alleges Jade had the following disabilities within the meaning of the DD Act at the following times:

    ·since June 2005, moderately impaired language skills and a moderate language deficit and since October 2008 a core language score in the moderately disordered range;

    ·since September 2005, auditory processing weaknesses;

    ·epilepsy, from at least 12 December 2006; and

    ·an intellectual disability by way of a report in October 2008 demonstrating that Jade had a IQ of 68.

13. The Court is satisfied that the evidence discloses that Jade’s disabilities were:

    ·on 3 March 2005, Ms Beesley reported that Jade had a level of intellectual functioning in the low average range and an extremely low receptive vocabulary. Jade’s level of intellectual functioning at that time (which was equivalent to an IQ of around 80) placed her outside the range that constitutes an “intellectual disability” within the meaning of the PSD. However, Ms Beesley’s report places Jade’s ability to understand spoken language, when she was seven years and four months old, at the level expected of a child three years and 11 months old. Such limited receptive language ability fits the s 4 definition of ‘disability’ in the DD Act as it would result in Jade learning differently from a person without such receptive language limitations. I find that Jade had a receptive language disability within the meaning of the DD Act from March 2005;

    ·in June 2005, Ms Kaplan reported that Jade had a core language score of 78, and moderately impaired receptive and expressive language. Jade was tested again on 27 October 2008, when Ms Black reported that Jade had a core language score of 75, in the moderately disordered range. Jade is therefore taken to have had moderately impaired language skills since June 2005;

    ·about 8 September 2005, Ms Cowan diagnosed Jade as having a significant weakness in binaural integration, binaural separation and temporal patterning, and she is taken to have had these auditory processing weaknesses from September 2005;

    ·on 12 December 2006, Dr Jarman diagnosed Jade with epilepsy. Dr Jarman’s report suggests that Jade suffered from epilepsy for some time prior to this diagnosis. Jade is therefore taken to have had epilepsy from at least 12 December 2006; and

    ·in October 2008, Ms O’Donnell and Dr Hempenstall reported that Jade had an IQ of 68. It is accepted that an IQ below 70 constitutes an intellectual disability so I find that Jade had an intellectual disability from October 2008.

    2.        Was the Respondent aware of Jade’s disabilities and if so, during what period of time?

14. The State submits that it was aware:

    ·since June 2005, Jade had been reported to have moderately impaired language skills and a moderate language deficit; and since October 2008, that Jade had a core language score in the moderately disordered range;

    ·since 8 September 2005, Jade had been reported to have auditory processing weaknesses;

    ·from at least 12 December 2006, Jade had epilepsy; and

    ·in October 2008 Jade was reported as having an IQ of 68 and therefore an intellectual disability.

15. I agree with this analysis, but further find that in March 2005, the State was aware that Jade had receptive vocabulary ability in the extremely low range. That is based on the report of Ms Beesley, which was published at that time and provided to Ms Reeve. As noted above, Ms Beesley’s report does not disclose an ‘intellectual disability’ within the meaning of the PSD, but it did reveal a level of receptive language dysfunction that fits the definition of disability under the DD Act. In addition to the acknowledgements in paragraph [78] above, the State is therefore taken to have known about Jade’s extremely low receptive language ability from March 2005.

    3. Is the period of the claim (with respect to which the Court has jurisdiction to make any findings of unlawful discrimination in this proceeding) confined to the period 2004 to 6 April 2009 – having regard to s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth)?

16. It is not in dispute that the period of the claim is from January 2004 to 6 April 2009; see [3] above.

    4.        What were the recommendations made by experts as to the “special assistance” (as defined by the Applicant in [11] of the Amended Statement of Claim) that Jade required, when and with respect to what period of time?

    5.        Were the recommendations identified in answer to paragraph [4] hereof implemented by the schools educating Jade, when and to what degree?

    6.        What is the evidence concerning whether the recommendations made in respect of Jade’s schooling constituted “special assistance” which Jade required in order to access her education?

17. Questions 4, 5 and 6 are dealt with together below.

18. The amended statement of claim sets out the “particulars of special assistance” (“Special Assistance”) that it is contended the State should have provided to Jade in order for her to ‘access her education’. Special Assistance is defined as follows:

    (i)         a full-time aide for all of Jade’s academic subjects;

    (ii)       evidence based remedial programs in literacy and numeracy;

    (iii) the teaching referred to in (i) and (ii) above by way of a person formally trained:

    a)    to teach such programs; and

    b) by professionals expert in language disorders and learning     disabilities/disorders in order to effectively teach Jade.  

    (iv) an Individual Education Plan incorporating the recommendations of the RMIT Psychology Clinic; Ms Marilyn Black, Speech Pathologist; Ms Bettina Kaplan, Speech Pathologist; Ms Sharon Cowan, Audiologist; and Dr Rick Jarman, Consultant Paediatrician; such plan to be developed in accordance with the Respondent’s own procedures and guidelines, and in collaboration with Jade’s mother; [and]

    (v) speech pathology – a school-based speech pathology program, developed and regularly monitored, evaluated and reviewed by a Speech Pathologist.

    It is claimed that if the State had provided Special Assistance to Jade, she could have overcome her “impediments”.

19. The following experts assessed or treated Jade during the period of the claim:

    Ms Beesley, Educational Psychologist (report dated 3 March 2005)

    Ms Beesley’s report recommended that:

    ·Jade would benefit from extra assistance with new learning, as well identification and re-teaching of any ‘gaps’ in her skill and understanding, especially in literacy and numeracy;

    ·Jade may also need a modified program pitched at a level at which she can succeed and make progress, until she has caught up on areas that need re-teaching; and

    ·it is very important that teachers and parents provide regular encouragement to help improve Jade’s self esteem as a learner.

    Ms Kaplan, Speech Pathologist (letter dated 14 June 2005 and report dated 22 July 2005)

    Ms Kaplan’s report recommended that:

    ·Jade could benefit from teaching strategies that took her particular difficulties into account; and

    ·Jade could benefit from language therapy provided by a speech pathologist.

    Ms Kaplan also provided an information sheet to Ms Reeve titled ‘Specific Language Disorder (SLD) Information for Teachers’, and offered to liaise with Ms Reeve to discuss more specific strategies.  

    Ms Cowan, Audiologist (report dated 8 September 2005)

    Ms Cowan recommended:

    ·environmental modifications, including seating Jade close to her teacher, reducing background noise (including by use of an FM device), repeating information, using visual cues, giving simple instructions, pre-teaching new information, encouraging Jade to ask questions, working with Jade in a small group or individually, and allowing her extra time to process information;

    · speech and language therapy; and

    ·Prosody Training and temporal patterning training.

    Ms Black, Speech Pathologist (reports dated 24 November 2005 and 27 October 2008)

    Ms Black recommended in 2005:

    ·systematic and thorough treatment in an ongoing individualised speech therapy program;

    ·classroom adaptations to assist with Jade’s language-learning disorder;

    ·stated that “the provision of a teacher aide to assist with individualised learning instruction is vital in ensuring [Jade’s] welfare in the personal, social and academic realms”;

    and in 2008 recommended:

    ·“that all who teach [Jade] need to be aware of her added need for instructional support when it comes to listening and absorbing information”; and

    ·teachers implement teaching strategies such as simplification, repetition, visual illustration, slower delivery and task breakdown.

    Dr Jarman, Consultant Paediatrician, (report dated 12 December 2006)

    Dr Jarman recommended:

    ·a trial on anti-epileptic medication, Tergretol suspension 110mg/5ml, 2ml twice daily increasing to 4ml twice daily. Dr Jarman’s report stated he was “hopeful that this will stop clinical seizures, normalise brain electrical function, and therefore aid cognitive language processing”; and

    ·speech and language therapy.

    Ms O’Donnell and Dr Hempenstall (report dated July 2008)  

    The RMIT report recommended:

    ·“a highly structured and reinforcing program tailored to Jade’s areas of difficulty” in reading, spelling and arithmetic, including:

    · “the Corrective Reading: Decoding program…designed to be presented five times per week, taking approximately 30 – 40 minutes per session”;

    ·the Addition model of the Corrective Mathematics program;

    ·Level A of the Spelling Mastery Program; and

    · “intensive, systematic and individualised teaching…to improve reading, spelling, arithmetic and language comprehension skills”.

    The report also attached a list of recommendations for teaching Jade oral and written comprehension, how to follow instructions and how to understand vocabulary.

20. Not all elements of Special Assistance defined by the pleading were recommended by experts. It is claimed that some elements of Special Assistance can be “inferred” from the nature of Jade’s disabilities and the evidence adduced at trial. I now turn to examine each element of Special Assistance.

    (i) and (iii):  a full time aide for all of Jade’s academic subjects, ‘formally trained’ by professionals expert in language disorders and learning disabilities/disorders in order to effectively teach Jade

21. ‘Academic subjects’ has not been defined by counsel for the applicant, Mr Hancock. For these purposes it is assumed that the term encapsulates, at a minimum, numeracy and literacy lessons. Mr Hancock submits that whether the “formally trained” aide is a teacher, special education teacher or Student Support Officer (formerly Integration Aide) is of no consequence. This is somewhat different to what is sought as relief, which is an order that Jade be provided with a full time aide for all her academic subjects, to be a person “formally qualified to teach the Direct Instruction Programs”. 

22. None of the experts who assessed Jade during the period of the claim recommended that she have a “full time aide for all her academic subjects”. Nor is there any evidence that any expert recommended that assistance to Jade should be provided by “a professional expert in language disorders” or any other discipline. Only Ms Black, who did not give evidence in the proceeding, recommended for Jade “the provision of a teacher aide to assist with individualised learning instruction”. This recommendation was made in Ms Black’s November 2005 report. In her report dated October 2008, Ms Black made some further recommendations for Jade, but did not revive her recommendation for an aide.

23. Professor Sheena Reilly, a Professor of Paediatric Speech Pathology at the University of Melbourne, assessed Jade in June 2010. Professor Reilly did not recommend a full time aide, but did recommend that:

    Jade requires blocks of intensive one-to-one individualised teaching lessons. These could be conducted daily, at least several days per week, for 2-4 weeks in order to consolidate learning of key language skills and, in particular, to enhance Jade’s receptive language skills.

    When asked to clarify the intended intensity and duration of the above recommendation, Professor Reilly clarified that the one to one instruction was intended for a two to four week period only, and that some of the work was to be integrated into the classroom rather than in isolation. This recommendation, and others in Professor Reilly’s witness statement, apply prospectively from June 2010. They fall outside the period of the claim.

24. Those of Jade’s teachers who gave evidence stated that, where possible, Jade was provided with one to one assistance in the classroom:

    ·Ms Reeve stated that she provided Jade with individual support when Jade specifically needed it and every time she could;

    ·Ms Saunders said that in literacy blocks, Jade was assisted one to one after she had made an attempt to spell words independently;

    ·Ms Boyle stated that she put in “a lot of time with Jade”;

    ·Ms Embling gave evidence that in Semester 1 2006, while allocated to Ms Boyle’s classroom, she worked with Jade one to one for three hours per week;

    ·Ms Boyle gave evidence that in Semester 2 2006 Ms Steele assisted Jade one to one where possible. Ms Boyle also stated that in 2007 and 2008 Jade was assisted one to one by the student teachers who were assigned to her classroom;

    ·Ms Butterworth stated that while her work with Jade was not regularly one to one, she often worked with Jade as part of a small group.  Ms Hatfield also gave Jade one to one assistance at times “scattered throughout the day”;

    ·Mrs Hirth stated that she “regularly worked one on one with Jade”; and

    ·Ms Watson-Turner gave evidence that she spent one to one time with Jade “wherever possible”, but that she was tactful in approaching Jade as she didn’t want to ostracise her from the rest of the class.

25. It was put to several witnesses by Mr Hancock that Jade would have “benefitted” from the provision of a full time aide. All the teachers who gave evidence agreed. Ms Reeve said that she would have supported the use of an aide for Jade and stated that “an extra body within a grade is always useful” and “it would probably just enable you to do more than you already do.” Similarly, Ms Saunders stated that “it is always good to have an extra person in the grade”, and that “that’s our ideal thing to have an extra person work with us in the classroom.” Ms Butterworth agreed that extra funding for Jade would have “taken the pressure of me in the classroom” and that any extra help in the classroom would have been of assistance. The teachers’ evidence in this regard demonstrates that provision of an aide would have benefited the busy classroom environment in a number of ways. However none gave evidence that provision of an aide was likely to have assisted Jade’s academic results or her performance and understanding of literacy and numeracy.

1. Professor Anderson’s evidence in this regard is similar to the evidence of the classroom teachers. She agreed with Mr Hancock that it would have been of benefit to Jade to have a trained staff member to assist Jade in academic classes. However, when asked to clarify in what way such an aide would have benefitted Jade, Professor Anderson said

   that role commonly assists the classroom teacher in providing an alternate curriculum for a child who isn’t able to cope with the normal curriculum. So [the student] can sit in class and be doing their work along with their peers, but it will be different work, so it’s enabling participation at that level.

   Professor Anderson clarified that the sort of intervention put to her would not have the capacity to increase Jade’s IQ over time or improve her academic attainment. Professor Anderson was asked about the capacity of a child with an IQ in the bottom 2.2 per cent of the population to go above that in terms of their academic achievement. She answered that it was “relatively rare”. She stated that such improvement, if any, would be likely to be around “specific skills…[for example] you might see an improvement in a word attack skill, which is something that is a fairly rote skill that you can train a child to do.” Professor Anderson also said:

   …in my experience, it is not likely to see – that you would see improvements in the – in the skills such as reading, comprehension or, you know, complicated maths skills and so on. And I think I said that there is, to me, there is a bit of a ceiling, so you are not going to improve into the average range from that very low level. You might gain a few points…
   (Emphasis added.)

2. Mr Hancock referred Professor Anderson to the evidence of Dr Hempenstall to the effect that with appropriate interventions a child with an intellectual disability may be more likely to make average or near average progress. Professor Anderson said:  

   My experience is that a child with a global development delay such as Jade will continue to function at the level that she is functioning at…the experience I have had with my patients, what happens, even with intervention, is the child maintains their level. So there are three options. Obviously, kids can improve, they can stay stable, or they can deteriorate, and certainly, the – my primary experience has been that kids will stay stable, so make development gains appropriate for their age, or fail to make those gains. It is much less likely that they will make gains over and above what you would expect…
   (Emphasis added.)

3. It was further noted by the State that the provision of a full time aide would have to be balanced against other considerations, one of which was Jade’s high sensitivity to having attention drawn to her. While Ms Boyle agreed that having an extra person would have helped Jade “navigate the classroom”, she said further that “[Jade] got embarrassed when attention was drawn to her, she didn’t like being the child that couldn’t do things, and I’m not sure that always having somebody next to her would be great for her self esteem.”

4. Another consideration is the additional expenditure the State would be required to undertake if it was to provide a full time aide for all students who have the same IQ level as Jade. Mr Tainsh’s statement sets out that the number of students estimated to have an IQ level between 71 and 75 is 13,637 students. If a full time aide was required for each student in that IQ cohort, and all students who currently receive funding under the Intellectual Disability category of the PSD, Mr Tainsh estimated that the additional expenditure for the State would be $975 million. Such an amount is almost double the current level of funding for the entire PSD program.

5. It is likely that any child would ‘benefit’ from one to one tutelage or assistance in class. However, the question before the Court is not whether Jade would have benefitted from having a full time aide assist her. The question is whether due to the absence of a full time aide in all her academic classes, Jade suffered a serious disadvantage in her education. No expert or teacher has attested that Jade suffered serious disadvantage in her education because she was not provided with this element of Special Assistance. It is not open to find to the contrary.

   (ii) and (iii):  evidence based remedial programs in literacy and numeracy administered by a person ‘formally trained’ by professionals expert in language disorders and learning disabilities/disorders in order to effectively teach Jade

6. Again, this element of Special Assistance is phrased differently to what is sought by way of relief. The relief claimed is that the State

   teach English and mathematics to Jade through Spelling Mastery, Reading Decoding and Corrective Maths “Direct Instruction”, pursuant to the manuals published for such programs by the manufacturer, SRA

   by way of a person “formally qualified to teach the Direct Instruction Programs”.

   Requirement of Formal Training

7. It is unclear what is meant by a person “formally qualified to teach the Direct Instruction Programs”. Ms Loretta Snell, a former sales representative at McGraw Hill, (publishers of a number of educational materials including the SRA direct instruction programs) gave evidence in the proceeding. Ms Snell said that she would advise school staff to undertake ‘formal training’ in CRP. Under cross examination, Ms Snell said that her understanding of “real training or proper training” in CRP would be to refer schools providing CRP to a Ms Claire Scott at the RMIT Psychology Clinic, whom Ms Snell knew to be formally trained in CRP. Ms Snell said:

   Claire offered an introductory training day where people would come for a day and she would teach them about the testing procedure, how to run a test. She would demonstrate the delivery of the program…she would not call that formal training…What she termed formal training was going into schools and working with teachers over a period of weeks, where she would go and demonstrate the teaching of the children, so, she would model how to do it. And then she would have – she would come back and visit the teachers after a period of time, until she was happy with their proficiency in teaching. So that was what we termed real training or proper training.

   It is assumed that this is the meaning of “formally trained” adopted by the applicant.

8. The overwhelming thrust of the evidence before the Court was that minimal training was required to deliver CRP. Dr Hempenstall gave evidence that the initial training session for a person learning to deliver CRP is “a couple hours” followed by a feedback session, and that because the program is scripted “the average parent” is able to implement it. Ms Witcombe gave evidence that she was trained to present CRP in only a couple of hours. There is therefore no evidence before the Court that establishes the absence of a person “formally qualified” to teach direct instruction programs to Jade seriously disadvantaged her in her education. Nor is there any evidence to ground the assertion by Mr Hancock that a person ‘formally trained by professionals expert in language disorders and learning disabilities/disorders’ is required to effectively teach Jade direct instruction programs. It seems only a short training session and access to the program script is required.   

   Delivery of the Programs

9. The report of Dr Hempenstall and Ms O’Donnell, dated October 2008, recommended that Jade would benefit from a “highly structured and reinforcing program tailored to Jade’s areas of difficulty.” Such a program would include, according to the RMIT Report, three evidence-based remedial programs: CRP, the Spelling Mastery Program and Corrective Mathematics Program. Dr Hempenstall stated that “in an ideal situation” all three programs would be presented simultaneously (for a total of approximately 90 minutes instruction per day). A “fall back position” would be for the programs to be introduced sequentially.

10. Jade was already undertaking CRP when the recommendations were made in the RMIT Report. It was delivered to Jade approximately three times per week from Term 3 in 2007, after Mrs Hirth introduced the program at Briar Hill. Jade subsequently undertook CRP in 2008 and 2009. In 2007, CRP was conducted by Ms Steele, for four 30 minute sessions per week in a small group. Towards the end of the year, CRP was delivered to Jade one to one. In 2008, when Jade was in Grade 4, Ms Steele continued to deliver CRP to Jade approximately three times per week for about 30-45 minutes per session.  In 2009, when Jade was in Grade 5, Ms Hatfield delivered CRP to her for approximately three sessions per week, for 45 minutes per session. As previously mentioned, Ms Witcombe also administered CRP to Jade at home from October 2008 to December 2009.

11. The Department did not provide the Spelling Mastery Program or Corrective Mathematics Program to Jade. Mrs Hirth gave evidence that Briar Hill did not have the staffing resources to implement them, as the intervention budget had already been spent on staffing and resources for the delivery of CRP. Mrs Hirth said that CRP was introduced initially in the hope that there might be resources to implement other programs like the Spelling Mastery Program or Corrective Mathematics Program at some later date. However, she said that she had significant reservations about the introduction of the Corrective Mathematics Program after having experienced difficulties with it while at Strathewen Primary School, due to its focus on American money and units of measurement causing difficulties for Australian students. 

12. Professor Anderson gave evidence that spelling is the most difficult of areas to remediate, and speaking from her personal experience, found the Spelling Mastery Program to be “uniformly not helpful in the patients that I see.” Professor Anderson said that spelling intervention would be her “lowest priority”.

13. When giving evidence about his recommendation that Jade undertake CRP, Dr Hempenstall was adamant that to be successful, CRP must be delivered according to the protocol published by McGraw Hill. That protocol specified CRP should be conducted five times per week, for at least 30 minutes per session. Dr Hempenstall’s said “if you are unfaithful to those protocols they you are potentially jeopardising the program outcomes.” He said that where CRP is delivered at the rate of only three or four times per week “the results begin to approach a point where there is very little benefit”.

14. Mrs Hirth gave evidence that she first contacted McGraw Hill when she was Principal at Strathewen Primary School, to make enquiries about implementing CRP. Strathewen Primary School was a one teacher school that had the assistance of an aide three times per week. The resources at Strathewen Primary were therefore such that CRP could only be implemented three times per week. Mrs Hirth gave evidence that she was advised by Ms Snell from McGraw Hill that so long as CRP was delivered in a timely manner, presenting CRP only three times per week would be sufficient to get results. Mrs Hirth gave evidence that had she been advised CRP would not be effective unless done five times per week, she would have looked for a different program. Ms Snell did not specifically recall her conversation with Mrs Hirth. Regardless, Mrs Hirth gave evidence CRP was implemented at Strathewen Primary School at the rate of three times per week and “it was extraordinarily successful”.  It was on the basis of such success that she implemented the program at Briar Hill. 

15. Dr Hempenstall said that children with extremely low or borderline IQs, such as Jade, do not typically return the same rates of progress in remedial programs as children with average IQs. He agreed that it may take up to two or three times longer for a student with an extremely low or borderline IQ to achieve the same result as a child in the average range. This is consistent with evidence given by Ms Hatfield. She confirmed that Jade did not progress as quickly through CRP as one of her classmates and that “there needed to be quite a bit of repetition” within each session and in subsequent sessions before Jade grasped some of the material.

16. However, the evidence of Jade’s teachers was that, despite progress being slow, Jade did make improvements in CRP. Mrs Hirth said that Jade’s raw data in relation to accuracy and comprehension improved at various stages (though it was not “an astronomical improvement”), and Ms Hatfield said in late 2009 that while Jade was having trouble retaining information, she had “definitely shown improvement.”

17. Dr Hempenstall asserted that “despite Jade’s limited cognitive capacity, she could have achieved a higher academic standard if she had been provided with appropriate interventions from the early stages of her school career”. However, when asked to estimate what reading age Jade might have reached had she undertaken the three remedial programs he recommended, Dr Hempenstall declined to do so. He did, however, assert that:

    according to the evidence children with a mild intellectual disability, when provided with suitable programs, are likely to achieve somewhere closer to the average of their class that to the extreme bottom of the class.

18. Professor Anderson disagreed with Dr Hempenstall’s assessment of the results to be gained from remedial programs, cautioning that there is no evidentiary basis for the assertion that the remedial programs recommended by Dr Hempenstall work with children with low IQs. She considered the results of a randomised trial carried out by Dr Hempenstall in respect of children who met the criteria for CRP, which was published in the Australian Journal for Special Education 2008. After considering Dr Hempenstall’s 2008 randomised trial, Professor Anderson commented that because the study did not control for IQ, it was not possible to tell from the results of the trial whether CRP was beneficial to children with an intellectual disability. She said the evidence is “not there” to prove remedial programs work for children who have an intellectual disability. Professor Anderson said further that while a low IQ does not preclude the development of some academic skills, “it is the case that lower academic skills and lower IQ are related.” She said that the educational environment is certainly important, and:

    the educational experience can maximise a child’s potential, but my view would be that it cant - it can’t go further than a child’s potential. So just as an example, if a child has an IQ of 70 in my experience I’ve never seen that child be able to move into the average range in terms of their abilities.
    (Emphasis added.)

    In that regard, Jade’s slow progress in CRP seems consistent with her cognitive ability.

19. In addition, several witnesses gave evidence that removing Jade from class to undertake the three remedial programs Dr Hempenstall recommended would not only be disruptive to her school day, but also that such isolation would have a negative impact on Jade’s self esteem. Mrs Hirth gave evidence that if Jade was to undertake remedial programs for 90 minutes per day, “there was potential for Jade to become disconnected from her general class programs and lose her social connectedness with her peers.” She said that a school is a “social learning environment” and that she had never known of such extensive isolated learning ever taking place. Mr Tainsh also promoted the benefits of class and group settings in education, stating that such a model “provides students with the skills and experiences necessary for participation in wider society…promoting teamwork and communicating with others.”

20. Dr Hempenstall saw little value in inclusion and connectedness in education. He saw no difficulty with Jade being withdrawn from class to undertake intervention programs for 90 minutes per day, stating that there were four other hours in the school day for “so-called connection to take place”. Professor Anderson agreed that it was “important to be using evidence based practice in some areas”, but further said that a sense of disconnection with her class may have a negative impact on Jade’s progress in such evidence based programs. She stated that:

    we can’t focus all our time on an individual education area. We really need to look more broadly…if a child is miserable and depressed and has poor self concept, they actually won’t benefit from – they’re unlikely to benefit as much from whatever intervention you give them than they are if they are happy and…had time with their peers…

    Professor Anderson further commented “kids with an intellectual disability, who have to work harder in school, will tire more quickly”, which has an impact on when intervention should be implemented, and for how long. This evidence accords with Ms Hatfield’s experiences of Jade, in that she said Jade sometimes had difficulties settling in and often had difficulty concentrating for more than 45 minutes.

21. There is no material before the Court about what progress Jade may have achieved had the three remedial programs Dr Hempenstall recommended been implemented according to SRA protocol.

    (iv) an Individual Education Plan incorporating the recommendations of the RMIT Psychology Clinic; Ms Marilyn Black, Speech Pathologist; Ms Bettina Kaplan, Speech Pathologist; Ms Sharon Cowan, Audiologist; and Dr Rick Jarman, Consultant Paediatrician; such plan to be developed in accordance with the Respondent’s own procedures and guidelines, and in collaboration with Jade’s mother

22. IEP was used interchangeably with “Individual Learning Plan” or “ILP” throughout the proceeding. As previously mentioned, an IEP is statement of learning objectives and goals with regard to a particular student.

23. For students receiving funding under the PSD, IEPs are developed in consultation with the child’s Student Support Group (referred to earlier as a SSG). SSGs have previously been known as “Program Support Groups” or PSGs, and both terms have been used interchangeably by Mr Hancock.  SSGs are comprised, in accordance with the Program for Students with Disabilities Guidelines, of the students parent/guardian/carer(s), school representatives including the students teachers and any treating professionals.

24. From at least April 2009, when the Program for Students with Disabilities Guidelines 2010 was published, SSGs have been mandatory for students who receive funding under the PSD. They are also strongly encouraged for any student with additional needs.

25. IEPs are not, and were not during any period of the claim, mandatory for any student, or for students in receipt of funding under the PSD. Mr Hancock submits that IEPs are “best practice for students with disabilities under Departmental policies and procedures”.

26. The recommendations of the experts mentioned in this element of Special Assistance were not the only recommendations made for Jade. Ms Beesley also made recommendations for Jade in 2005, but these have been omitted from this element of Special Assistance by Mr Hancock without explanation. In any event, there is no evidence that any of Jade’s treating practitioners contemporaneously recommended that an IEP be developed for her, let alone one that included every recommendation made by the experts consulted by Ms Witcombe. Professor Reilly recommended that Jade’s teachers and aides be assisted by a speech pathologist to develop an IEP that “creates a structured learning environment” taking into account Jade’s language deficits. However, this recommendation is prospective in nature, to be taken from the date of Professor Reilly’s witness statement, 7 June 2010, and is outside the period of the claim. 

27. In his written submissions Mr Hancock points to three documents which purportedly ground this particular element of Special Assistance:

    ·the first is a Royal Children’s Hospital Education Institute document called Including students with disabilities: a curriculum toolkit for schools and teachers (“Curriculum Toolkit”), published in 2006. At pages 22 to 24 of that document, the role of the PSG (now SSG) is defined. At page 28 the document also says what a Student Education Plan (now IEP) is, although it does not suggest that IEPs are mandatory. Mr Tainsh, under cross examination, agreed that the Department provided funding to the publishers of the Curriculum Toolkit, but said it was not a Departmental document. He said that the Department does not take responsibility for all documents that it commissions or accept such documents as part of Departmental policy;

    ·the second is a document titled Measuring Academic Progress Against each KLA. This document was published in August 2000. Mr Tainsh said this document is still available to teachers, although it is somewhat outdated. Mr Tainsh said that the Department recommends that teachers read references in the document to ‘KLAs’ as ‘Victorian Education Learning Standards’ (“VELS”) which has since taken over from KLAs as the term of reference; and

    ·the third is titled Victorian Essential Learning Standards: Students with Disability Guidelines, published by the Victorian Curriculum and Assessment Authority in 2005. Mr Tainsh stated that it was not a document that he knew intimately, but that this and other documents set the policy parameters in which Departmental staff operate. This document sets out role of the PSG (now SSG), stating that it is:

    a team of people that work collaboratively to develop, write, monitor and evaluate the individual learning plan, a document which links the specific needs of the student to [the VELS].

1. In light of the above findings, the alleged requirements in [15.1(a)] and [15.1(b)] of the applicant’s submissions are not addressed under the next heading in regard to Issue 13.

   The Special Assistance requirement and “ability to comply” (Issue 13)

2. In [15.1(c)] of Mr Hancock’s submissions and [16] of the pleading it is said that Jade is not able to comply with the requirement or condition that she access her education without Special Assistance. The withholding of Special Assistance is also the sole condition or requirement raised in Issue 12. This pleading is based primarily upon the expert reports annexed to the witness statement of Ms Witcombe, and the recommendations therein.

3. In Hurst v Queensland (2006) 151 FCR 562 at [134] the Full Court stated that if:

   a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can “cope” with the requirement or condition…

   the “not able to comply” element of s 6(c) of the DD Act will be satisfied. See also Devers v Kindilan Society [2009] FCA 1392 at [29]; approved in Devers v Kindilan Society [2010] FCAFC 72 at [101]. The Full Court concluded in Hurst that a disabled person’s inability to achieve their full potential in education can amount to serious disadvantage; see at [134].

4. The distinction between the evidence before the Court in Hurst and the facts before the Court in this matter is that in Hurst there was a body of evidence that the student in question, who was deaf, had suffered serious disadvantage by being denied an Auslan teacher or interpreter for the period of the claim. The evidence included research which revealed that deaf students who have access to sign language as a first language have consistently higher literacy skills than those who have no access to sign language or who only have access to signed English, and that the student “would not reach her full educational potential” without access to Auslan.  See also the similar facts and evidence in Clarke.

5. As previously discussed, there are flaws in the way each element of Special Assistance is pleaded. Its elements are ambiguous. Not all the elements were required by Jade for the entire period of the claim. Evidence is lacking as to the degree to which the absence of any or all elements of Special Assistance caused Jade a serious disadvantage in her education, or as to what level of academic attainment Jade might have achieved had the Special Assistance been provided.  

6. No further specificity regarding the elements of Special Assistance has been provided in the pleading of indirect discrimination. Paragraphs [16] – [19]  of the pleading, under the heading “Indirect Discrimination”, state:

   16. …the Respondent required Jade to comply with a requirement or condition, namely to access her education without the special assistance referred to in paragraph 11 hereof.

   17. Jade was, and remains, unable to comply with the requirement or condition.
   
   
   18. A substantially higher proportion of persons without Jade’s disabilities were, and remain, able to access their education without special assistance.

   19. The condition was not reasonable having regard to the circumstances of the case.

7. As for Issues 12, 13, 14 and 15 of the joint list of issues, [16] – [19] of the pleading is simply an extrapolation of the statutory definition of indirect discrimination contained in s 6 of the DD Act (as it was during the claim period). A generalised claim that the requirement or condition is that Jade access her education without Special Assistance is too vague to formulate a requirement or condition that satisfies s 6 of the DD Act; see Kirk at [26]. Each part of Special Assistance must be assessed separately:

   Full time aide condition (Issue 12.1)

   Was the condition or requirement imposed?

8. The State accepts that it imposed the condition or requirement that Jade access her education without a full time aide trained by a person expert in language disorders and learning disabilities.

   Was Jade unable to comply?

9. The recommendation that Jade have a full time aide was not made by any expert who gave evidence in the proceeding. Only Ms Black, in her 2005 report, made a recommendation that Jade have an aide. The recommendation did not mention that the aide be allocated to Jade full time, or that the aide need be trained in any particular discipline.

10. Further, evidence is lacking as to the degree to which the absence of such an aide caused Jade a serious disadvantage in her education, or what level of academic attainment Jade might have achieved had such an aide been provided; see [85] to [94] above. The evidence does not support the proposition that Jade has suffered serious disadvantage in her education caused by the absence of a full time aide of the sort referred to above.

    Remedial Programs condition (Issue 12.2)

    Was the condition or requirement imposed?

11. There is a lack of clarity in the way this aspect of the Special Assistance is pleaded; see [95] to [110] above.  Mr Hancock contends that the State failed to:

    ·have a person trained by an expert deliver Jade the three remedial programs recommended by Dr Hempenstall simultaneously, for a total of 90 minutes per day; and

    ·administer CRP strictly in accordance with the protocol advocated by Dr Hempenstall (being 5 times per week).

12. It is accepted that such a condition was imposed from the time Dr Hempenstall made his recommendations in October 2008. The State did not provide Jade with either the Spelling Mastery or Corrective Maths programs. CRP was provided, but it was not provided in accordance with the protocol. It is further accepted that CRP was not administered by a person formally trained by a professional expert in language disorders and disabilities.  

    Was Jade unable to comply?

13. It is not accepted that this was a condition with which Jade was unable to comply in the sense that she would suffer serious disadvantage in its absence. The first recommendation for Jade to attend the three ‘evidence based remedial programs’ was made by Dr Hempenstall in October 2008. By that time Jade had already been undertaking CRP, which she commenced at Briar Hill in Term 3 2007. The decision was made by Briar Hill to introduce CRP initially, for resourcing reasons, and to then consider implementing Spelling Mastery and Corrective Maths; see at [100] above.

14. CRP was provided to Jade at Briar Hill at the rate of two or three times per week for approximately half an hour to 45 minutes per session. While such a rate was not in accordance with that recommended in the program’s protocol, Mrs Hirth gave evidence that she received advice from the publishers of CRP that delivery of the program at the rate of three times per week would be effective. She had personal experience of very successful results when the program was delivered at that rate. Jade experienced positive results in CRP with it being delivered at that rate; see [103] above.

    The IEP condition (Issue 12.3)

    Was the condition or requirement imposed?

15. This condition is not articulated with the required specificity; see [112] to [123] above. Further, Jade was not required to access her education without IEPs as IEPs were in fact prepared for Jade in 2007, 2008 and 2009. However, to the extent that Jade’s teachers did not prepare IEPs incorporating the recommendations made by every expert who has prepared a report about Jade, it is accepted that such a requirement was imposed.

    Was Jade unable to comply?

16. There is no evidence that this was a condition in respect of which Jade was unable to comply. There was no contemporaneous recommendation by an expert that IEPs of the type suggested by Mr Hancock were required for Jade, or evidence that she suffered serious disadvantage in the absence of such IEPs.

    The Speech Pathology condition (Issue 12.4)

    Was the condition or requirement imposed?

17. Multiple versions of a “school based speech pathology program” have been traversed in the pleading and in the evidence; see [124] – [127] above. The condition is therefore not pleaded with sufficient specificity. Further, multiple offers of speech therapy were made to Jade. In 2005, the Department offered to provide Jade with speech therapy pursuant to a system under which she was likely to have waited between one and six months for one to one sessions to commence. Such was the system in place and the resources available at the time. Ms Witcombe declined this offer, preferring to take Jade to a private provider who could commence sessions immediately. Ms Kaplan attempted to contact Ms Witcombe to discuss the matter further without success.  Speech therapy from a Departmental speech pathologist was offered by the Department again in 2008. Ms Witcombe declined this offer also.

    Was Jade unable to comply?

18. The evidence establishes that Jade required speech therapy from at least mid 2005. It is accepted that Jade might have suffered serious disadvantage in her education in the absence of speech therapy had no offer of speech therapy been made by the Department.

    Additional Comment

19. No element of Special Assistance is pleaded with sufficient clarity to ground an indirect discrimination claim. Despite the inadequacy of the pleading in regard to indirect discrimination and the findings on Issues 12 and 13, I will address Issues 14 and 15 for completeness. In doing so I will address only the Special Assistance requirement as pleaded in [16] of the pleading as it is the only condition or requirement addressed in Issue 12. 

    14Was any condition or requirement found to have been imposed on Jade one with which a substantially higher proportion of persons without Jade’s disabilities are able to comply (s 6(a) of the DD Act)?

20. If a complainant establishes the existence of a relevant requirement or condition, it is necessary to make the comparison between appropriately defined groups: see Clarke at [145]. As noted above, the requirement or condition is not pleaded with the necessary precision to support a finding of indirect discrimination against the State. However for completeness I will address Issue 15.

21. Section 6(a) of the DD Act requires that any requirement or condition imposed on an aggrieved person be one “with which a substantially higher proportion of persons without the disability comply or are able to comply.”

22. Mr Hancock has classified the relevant comparator group as “persons without [Jade’s] disabilities”; see [18] of the pleading. In Walker, a case where a student alleged the State had discriminated against him by failing to provide a full time aide in his academic subjects who was trained in the management of his disabilities and by failing to provide IEPs and PSG meetings, Tracey J at [252] and [253] found that the correct comparator was other students in the class without disabilities.  Mr Hancock’s classification is therefore appropriate.

23. There is no evidence before the Court regarding the ability of students without Jade’s disabilities to comply with any condition or requirement alleged to have been imposed on Jade (and I note again the shortcomings of the conditions or requirements as defined by Mr Hancock). However, it can be readily accepted that other students in Jade’s classes throughout the period of the claim were able to access their education without Special Assistance.

    15 Was any condition or requirement found to have been imposed on Jade “not reasonable” having regard to all the circumstances of the case (s 6(b) of the DD Act)?

24. In Clarke (at [145]-[146]) Sackville and Stone JJ summarised the principles which had been developed in the application of s 6(b) of the DD Act. They were:

    (i)    The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there;

    (ii)    The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83, per Lockhart J.

    (iii)    The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank v HREOC at 112-113, per Sackville J; and

    (iv)    The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC at 88, per Beaumont J; Victoria v Schou (2004) 8 VR 120 71 at [26], per Phillips JA.

25. As noted in the above extract, the onus is on the applicant to demonstrate that the requirement or condition was unreasonable; see Clarke also at [115]. It is then for the Court to examine the reasonableness of the requirement or condition itself; see State of Victoria v Schou (No 2) (2004) 8 VR 120 at [26]. Each element of Special Assistance will be discussed in turn:

    Full time aide condition

26. The obligations of the State in respect of individual children must be considered alongside the wider legal responsibilities which teachers and administrators owe to all students; see Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [7] per Gleeson CJ and Walker at [55]. The PSD is designed to achieve that purpose by implementing objective eligibility criteria for students to access additional funding.

27. As discussed at [47] and [77] above, Jade was not eligible for funding under the PSD until late in 2008, when her IQ was reported to be 68. Before that time, provision of a full time aide for Jade was beyond the financial capability of her school. 

28. Mr Tainsh gave evidence about the enormous cost that would be associated with providing a full time aide to all students who had a IQ in the vicinity of Jade’s before she qualified for the PSD (see [94] above). Such an imposition would double the current PSD budget requirements and result in a need for the State to engage 20,000 extra staff. 

29. Jade’s teachers made significant efforts to implement the recommendations made by experts in relation to Jade, to the extent that was practical and within budget constraints. Given that no expert recommended Jade be provided with an aide in the terms pleaded by Mr Hancock, in all the circumstances, is not unreasonable that such an aide was not provided.

    The remedial programs condition

30. The public school system is structured upon education in groups and in a classroom, rather than individually. Implementing the remedial programs in the way suggested by Mr Hancock would mean that Jade was out of the classroom for an one and a half hours of a five and a half hour  school day, every day. Mrs Hirth said that the idea of such extensive isolated intervention “takes my breath away”, and gave evidence that in her view such intervention was out of touch with the realities of the school environment. Mr Tainsh gave evidence that the benefits of group education, including the socialisation of students, are recognised and are part of a broader strategy in relation to the manner in which primary school students are educated. Jade’s teachers, and Mrs Hirth in particular, gave evidence that removing Jade from class for 90 minutes per day would make it more difficult for her to engage with the curriculum, and may also damage her ability to connect with her peers. Professor Anderson also stated that a balance must be struck between providing Jade with individual instruction and promoting her “connectedness with the classroom.”

31. The evidence from Jade’s teachers and aides regarding her difficulty concentrating and low stamina is also relevant. It suggests that even if the funding and resourcing were available to implement the programs advocated by Mr Hancock, at the rate suggested by Dr Hempenstall, the provision of remedial programs at a high frequency and for longer sessions may not have been sustainable or beneficial for Jade.

32. Mr Hancock further submits that the remedial programs should be delivered to Jade by a person formally trained by someone “expert in language disorders and language disabilities”. In that regard I note the evidence that formal training is not required for a person to be capable of administering CRP. To the contrary, the evidence of Dr Hempenstall, an ardent advocate of the CRP protocol, was that the heavily scripted nature of the program meant that a lay person could be trained to implement it. Indeed, Ms Witcombe gave evidence that she was trained to implement the program in only a few hours. Therefore the requirement that Jade undertake remedial programs without a person of the type identified at Issue 12.2 of the list of issues delivering the programs to her is not unreasonable. 

    The speech therapy condition

33. It is not unreasonable for the State, with its finite resources, to maintain a waiting list for children to access speech therapy, where that list is prioritised according to the children’s needs and the availability of speech therapists. That Jade’s mother might be disappointed, or even out of pocket as a result of such a system, does not amount to the imposition of an unreasonable requirement concerning Jade’s access to education in the sense contemplated by s 6 of the DD Act.

    The IEP condition

34. The IEPs prepared for Jade were drafted by teachers who knew her well, who had read and written Jade’s school reports and who were monitoring her progress. Those IEPs were provided to Ms Witcombe, who liaised with Jade’s teachers on the IEPs and had an opportunity to comment on them. Mr Hancock submits the IEPs are not detailed enough because they do not include every one of the 96 recommendations made for Jade during the period of the claim. There is no evidence that the failure to make the IEPs so detailed caused any detriment to

    Modifications made for Jade

35. The State submits that the many modifications and adjustments to the curriculum introduced by Jade’s teachers were an alternative method of assisting her to access her education. Such an alternative to the provision of Special Assistance is relevant in assessing the reasonableness of the State’s conduct; see Schou (No 2) at [25].

36. The modifications and adjustments implemented by Jade’s teachers are discussed above in answer to Issue 5, discussed at [81] to [137]. Such adjustments were made by Jade’s teachers exercising their own judgment and skill, having regard to the recommendations of the expert reports as they were written and the input of Ms Witcombe. Modification of the curriculum and using alternative strategies to educate Jade was done with two purposes. The first was to enable Jade to participate in the classroom and access the curriculum, having regard to the limitations imposed on Jade by her disabilities. In that respect, Jade’s teachers were guided by the recommendations contained in the reports of experts (from time to time) and their own experiences of Jade. Second, Jade’s teachers were also aware of the need to focus on Jade’s strengths and happiness at school in order to facilitate her social and communication skills and to increase her confidence. Other adjustments included providing Jade with as much one to one support as possible, from both teachers and aides. Jade was also frequently educated in a small group of students of similar ability and also took part in CRP and the reading recovery program to assist the development of her literacy skills.

1. Mr Hancock submits that “Jade had an inherent academic potential that was not realized [sic]” but does not specify what that ‘potential’ may have been. Instead, he refers primarily to the evidence of Professor Anderson that “intellectual ability and academic ability aren’t necessarily correlated” and “a low FSIQ does not necessarily lead to academic difficulties” as grounds for the claim that Jade could have achieved “better outcomes” if she had received Special Assistance.

2. Professor Anderson’s evidence is discussed at [90], [91], [101], [107], [109], [130] and [211] of these reasons. That evidence goes significantly further than the above extractions. Of particular relevance is Professor Anderson’s evidence given under cross examination that while “the educational experience”, including interventions put in place by the State, can maximise a child’s potential, her view was that it could not take a student beyond their potential; see at [108] above. The Court accepts this proposition. This is not a case such as Hurst or Clarke where there is evidence before the Court that a different mode of instruction would have tapped into an inherent academic potential in

3. Further, the evidence also establishes that Jade did at least in part ‘access her education’ by way of the arrangements put in place by the Department. Jade’s teachers modified tasks and lessons so that Jade could participate and engage with the curriculum. In non academic subjects such as art and sport, the evidence demonstrates that Jade was achieving highly. As such, it cannot be said that Jade suffered a serious disadvantage or failed to access her education by reason of the imposition of the condition or requirement that she do without the Special Assistance. She was participating in the classroom, albeit in a modified way, and making modest improvements; see Walker at [267] and [268].

   16If the court finds that the Respondent has directly or indirectly discriminated against Jade:

   16.1 Was the discrimination in relation to the terms and conditions upon which the Respondent was prepared to admit Jade as a student, as defined in [20] of the Amended Statement of Claim (s 22(1)(b) of the DD Act)?

4. The pleading at [20] alleges that the State discriminated against Jade in the terms it admitted her. It relied on s 22(1)(b) of the DD Act. It alleged that Jade was required to access her education without funding through the PSD, without the advice of external experts and the implementation of any recommendations they had made which may have required further funding and without Special Assistance.

5. Section 22(1)(b) states that:

   i. It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability….

   
   …….

   (b)  in the terms or conditions on which it is prepared
   to admit the person as a student.

   a.

6. There is no evidence of any condition or requirement imposed on Jade in relation to her admission (or her entitlement to remain admitted) at Glen Katherine or Briar Hill therefore s 22(1)(b) is not relevant.

   16.2 Did the discrimination amount to a denial or limitation of Jade’s access to any benefit provided by the Respondent, as defined in [21] of the Amended Statement of Claim (s 22(2)(a) of the DD Act)?

   16.3 Did the discrimination amount to subjecting Jade to a detriment, as defined in [22] of the Amended Statement of Claim (s 22 (2)(c) of the DD Act)?

7. At [188] in Walker Tracey J stated that the question posed by ss 6 and 22(2)(a) and (c) of the DD Act is:

   whether the educational authority, by imposing requirements or conditions which meet the criteria specified in s 6, thereby denied or limited the student’s access to any benefits provided by it or subjected the student to any other detriment…

8. The pleading makes no attempt to grapple with this issue. Rather, it merely alleges that the State discriminated against Jade by denying or limiting her access to the benefits provided by it. Paragraph [21] of the pleading alleges that those benefits are:

   ·access to the curriculum;

   ·participation in the classroom; and

   ·educational outcome

   but does not particularise these concepts further. In [22] of the pleading it is claimed that the State subjected Jade to a detriment contrary to s 22(2)(c) of the DD Act by denying her the above “benefits”. The pleading then refers to the widening of the “academic gap” between Jade and her peers. It further states that Jade’s educational outcome was “severely affected by the lack of special assistance, leading to a failure to achieve her academic potential”. No evidence is led regarding what Jade’s “academic potential” might have been.

9. As discussed at [183] to [188] above, the elements of Special Assistance are too imprecise to ground an allegation of indirect discrimination. So too are the claims made in [21] of the pleading. It cannot be found that Jade was denied a benefit or subjected to a detriment in her education on such a vague and imprecise basis.

   17Did Part 3 of the Disability Education Standards impose any obligations on the Respondent and if so, were such obligations contravened by the Respondent?

10. The Disability Standards were formulated pursuant to s 31(1)(b) of the DD Act. Any breach of the Disability Standards constitutes a contravention of s 32 of the DD Act. The Disability Standards came into operation on 18 August 2005. They apply from that date and not to the first four months of the claim period.

11. Part 3 does not of itself establish independent standards or duties. This is made clear by Part 3.1 (see Walker at [276]). It is also clear from the Guidance Notes to the Disability Standards, which state at [3] and [4.2] that Parts 4 to 8 of the Disability Standards “set out the standards that education providers must comply with to achieve the objects of the DD Act in relation to the provision of education and training”. What Part 3 does is “set out how a reasonable adjustment is to be identified” for the purposes of those other Parts.

12. As such, the State cannot have ‘contravened’ Part 3 of the Disability Standards as Part 3 does not impose any obligation on it.

    18Did the Respondent breach:

    18.1Parts 3.4 and/or 3.5 of the Disability Education Standards 2005 (“Standards”)?

13. As noted above ss 3.4 and 3.5 set out how a reasonable adjustment is to be identified. There can be no ‘breach’ of ss 3.4 or 3.5 as they impose no obligation on the State.

    18.2Part 4.2 of the Standards? [More properly described as s 4.2 of Part 4]

14. Section 4.2 of the Disability Standards is headed ‘Enrolment Standards’, and places an obligation on an education provider to take reasonable steps to ensure that a prospective student is able to seek admission to, or apply for enrolment in, an institution on the same basis as a prospective student without a disability, and without experiencing discrimination (see s 4.2(1)).

15. The pleading does not allege a breach of s 4.2. Neither is s 4.2 addressed in the written submissions filed by Mr Hancock. As noted at [223] above in relation to the alleged breach of s 22(1)(b) of the DD Act, there is no evidence regarding Jade’s admission to Briar Hill or Glen Katherine. The alleged breach of s 4.2 of the Disability Standards is unfounded.

    18.3Parts [Sections] 5.2(1) and/or (2) of the Standards?

    18.4Parts [Sections] 6.2(1), (2) and/or (3) of the Standards?

16. I will address sub-Issues 18.3 and 18.4 together.

17. Mr Hancock alleges that the Department did not take reasonable steps to ensure that Jade was able to participate in the courses, facilities and services provided by it, and that it did not develop an accessible curriculum for her (in breach of both ss 5 and 6 of the Disability Standards).

18. Both ss 5.2(1) and 6.2(1) place an obligation on the State to take reasonable steps to ensure Jade was able to participate in the learning experiences of the course or program provided by it, and to ensure Jade could use the facilities and services provided by it, on the same basis as a student without a disability and without experiencing discrimination.

19. Sections 5.2(2) and 6.2(2) provide that in doing the above, the State must engage in the process of consultation with the student or an associate of the student and must make reasonable adjustments to ensure the above obligations are met. There is no requirement that consultation take any particular form or occur at any particular time; see Walker at [284].

20. Sections 5.2(3) and 6.2(3) provide that the consultation and adjustment process must be repeated as necessary to allow for the changing needs of the student.

21. The evidence establishes that the Department and Jade’s teachers regularly consulted with Ms Witcombe regarding Jade’s experience at school and ways in which to increase Jade’s engagement with the curriculum. The curriculum was also modified to enhance Jade’s participation at school. Jade’s teachers also considered the reports of professionals treating Jade. The teachers implemented the recommendations as best they could. Consultation occurred in formal and informal meetings and by correspondence.

    18.5Parts [Sections] 7.2(2), (3) and/or 7.3 of the Standards?

22. In [27] of the pleading it is alleged that the State contravened Part 7 of the Disability Standards by failing to:

    ·take reasonable steps to ensure Jade had access to a service, in that it did not provide her with Special Assistance (s 7.2(1));

    ·actively seek specialist support in order to implement recommendations of Jade’s treating practitioners (s 7.2(3));

    ·implement remedial assistance to “address Jade’s poor academic achievement” (ss 7.2(2) and (3); and

    ·provide specialised services of staff trained in Jade’s disabilities and facilitate expert medical professionals to attend to Jade’s program (s 7.3(b) and (d)). 

23. Section 7.2 does not require a school to provide a student with access to a service; nor does it require a school to seek further specialist expertise in relation to a student, provide a student with remedial assistance or to train staff or “facilitate medical professionals to attend to Jade’s program”. Rather, in subsections (1) to (4) it provides a series of reasonable steps that must be taken by the State.

24. Section 7.2(1) provides that the State must take reasonable steps to ensure that a student with a disability is able to use support services at school on the same basis as a student without a disability and without experiencing discrimination. ‘Support services’ is defined in a note to s 7.1 to include “specialist expertise, personal education support for personal and medical care, without which some students with disabilities would not be able to access education and training.”

25. Section 7.2(2) requires that, if a specialised support service is necessary for a student to participate in the activities in which the student is enrolled, the State must take reasonable steps to ensure that the student has access to the service.  Section 7.2(3) provides that if the State does not provide the specialist service identified, the State must take reasonable steps to facilitate the provision of the service to the student by another person. Mr Hancock has not specified the support services he alleges were not provided by the State. If what is alleged is that the elements of Special Assistance are “support services” within the meaning of s 7.2, the problems with the elements of Special Assistance as pleaded have been well traversed in these reasons. The majority of the recommendations made in relations to Jade’s education were implemented and extensive efforts were made to enable Jade to access her education. The schools made significant efforts to address Jade’s learning difficulties, and to give her the best assistance they could, within budgetary limitations. Such efforts included modifying the curriculum, working one to one and in small groups with Jade and frequent contact with Ms Witcombe.

26. The effect of s 7.3(b) and (d) has also been misunderstood by Mr Hancock. Section 7.3 does not impose any obligation on the State, but instead sets out the “measures that the education provider may implement to ensure that the student is able to access support services…on the same basis as a student without a disability”; see s 7.3. There can be no contravention of s 7.3(b) and (d) by the State. 

    19If the Court finds that there has been unlawful discrimination, or there has been a breach of the Standards, would avoiding this discrimination or breach of the Standards have imposed an unjustifiable hardship on the Respondent (s 22(4) of the DD Act and Part 10.2(2) of the Standards)?

27. The Court has not found that there has been unlawful discrimination engaged in by the State with respect to Jade or any breach of the Disability Standards. Issue 19 does not arise.

    20Are the provisions of the DD Act and the AHRC Act required to be read down in light of the implied Constitutional limitation on the legislative power of the Commonwealth enunciated in Re Australian Education Union; ex parte Victoria (1995) 184 CLR 188, namely to the extent that either Act interferes with or impairs the right of the Respondent to determine the number and identity of the persons it wishes to employ?

28. Towards the end of the trial the State filed a notice of Constitutional matter under section 78B of the Judiciary Act 1903 (Cth), which raised the question of whether the provisions of the DD Act and the AHRC Act should be read down in light of the implied Constitutional limitation discussed in Re AEU; ex parte Victoria (1995) 184 CLR 188, namely to the extent that either the Act interferes with or impairs the right of the State to determine the number and identity of persons it wishes to employ; by reason of the fact that it:

    (a)purports to prohibit unlawful discrimination, where such unlawful discrimination is alleged to have been committed by reason of a decision by the respondent to employ or engage (or a refusal to employ or engage) numbers of staff in its schools, including teachers, teachers’ aides or speech therapists; and/or

    (b)purports to empower the Court to make any order by way of relief which has the effect of requiring the respondent to employ or engage additional staff in its schools, including teachers, teachers’ aides or speech therapists.

29. Given that the substantive application has failed on each aspect alleged this issue also does not arise for determination.

    21If the Court finds that the Respondent has unlawfully discriminated against Jade, or breached any of the Standards in respect of Jade, and no defence applies, did any of the unlawful conduct of the Respondent cause wholly or in part the damage to Jade as alleged in [28] and [22A] of the Amended Statement of Claim?

30. As the Court has found that no unlawful discrimination occurred and the Disability Standards were not breached in respect of Jade this issue also does not arise for determination.

    22If the Court finds that the unlawful conduct of the Respondent did cause damage to Jade, ought the Court grant the relief sought by Jade in [29] of the Amended Statement of Claim?

31. Having regard to the foregoing this issue does not require determination.

    Disposition

32. The application must be dismissed. There is no reason why the usual costs order should not be made. The order of the Court will be as follows:

    1.        The application is dismissed.

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

I certify that the preceding (249) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       21 February 2012