Travers v New South Wales - [2001] FMCA 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Stephanie Travers by her next friend, Wendy Travers v State of New South Wales [2001] FMCA 18

DISABILITY DISCRIMINATION – indirect discrimination – access of student with spina bifida to nearest toilet – whether access to disabled toilet should have been given where no specific need for a disabled toilet – whether arrangements could have been made to accommodate the needs of other disabled students to allow access to applicant – discrimination established

Disability Discrimination Act 1992 (Cth) ss.6, 22, 41
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.46PO(4)

CASES REFERRED TO Waters v Public Transport Corporation (1991) 173 CLR 349, Finney v The Hills Grammar School (2000) EOC 93-087, Kalich v Es (1999) EOC 92-961, Hall v Sheiban Pty Limited (1998) 20 FCR 217, Murphy and Ors v State of New South Wales (2000) EOC 93-095 [other cases on damages], Alex Purvis on behalf of Daniel Hoggan v The State of New South Wales (Department of Education) (unreported HREOC, Commissioner Innes, 13 November 2000), Kerryn Haar v Maldon Nominees Pty Ltd (t/ as McDonalds) and Ors [2000] FMC 5

Applicant:Stephanie Travers

by her next friend,

Wendy LorraineTravers
Respondent:  State of New South Wales
File No:SZ 100 of 2000
Delivered on:  21 March 2001
Delivered at:  Sydney
Hearing Date:  8, 9 & 14 March 2001
Judgment of:  RAPHAEL FM
REPRESENTATION:
Counsel for the Applicant:            Mr Nicholas Poynder
Solicitors for the Applicant:           Public Interest Advocacy Centre
Counsel for the Respondent:    Ms Sylvia Winters
Solicitors for the Respondent:      Crown Solicitors Office

ORDERS:

The respondent pay to the Public Trustee of New South Wales in trust for the applicant until she shall attain the age of 18 years the sum of $6,250.00 by way of damages for unlawful discrimination.
The Public Trustee shall immediately release the sum of $250.00 to Stephanie Travers for her to spend as she may in her absolute discretion decide.

The respondent pay the applicant’s costs in this court and in the Federal Court which, if not agreed, are to be taxed in accordance with the Federal Court Rules.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYDNEY REGISTRY

No SZ 100 of 2000

STEPHANIE TRAVERS BY HER NEXT FRIEND, WENDY LORRAINE TRAVERS

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

WHAT IS THE NATURE OF THE DISPUTE?

This application is bought by Stephanie Travers, by her next friend and mother Wendy Lorraine Travers, against the State of New South Wales as an educational authority defined in s.41 of the Disability Discrimination Act responsible for the activities and control of the Parramatta West Public School. The claim is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) [HREOC Act] and claims that Stephanie was a person discriminated against in breach of s.6 and s.22 of the Disability Discrimination Act 1992 (Cth).
Stephanie Travers is twelve years old. She has spina bifida. Her condition is serious but unlike some sufferers from this terrible disability she is not confined to a wheelchair. She does suffer from two major conditions. The first is dysasthesia which causes her legs to experience intermittently numbness, paralysis or pain. She experiences these “dysasthesia attacks” at any time and they can last between five minutes to one or two days. They may be triggered by bumps or falls but also occur spontaneously without any trigger. At their most dangerous they can be life threatening. The second problematical condition from which Stephanie suffers is bowel and bladder incontinence. This is also intermittent but generally speaking she has an average of twelve seconds from the time the urge to use her bladder or bowels is signalled to her to get to the toilet and relieve herself. If she does not reach the toilet in time an accident will occur.
It is alleged that during the first term of 1996 Stephanie was denied access to the nearest accessible toilet being a toilet less than 12 twelve seconds from her classroom and was required to utilise a mainstream toilet at least some 40 seconds away. The respondents say that the nearest toilet which was a few yards outside Stephanie’s classroom in E Block was a disabled toilet for which Stephanie had no need and which was in any event reserved for the exclusive use of another disabled child.
The proceedings were originally commenced in the Federal Court of Australia where they were the subject of a notice of motion upon which judgment was given by Lehane J on 3 November 2000. The notice of motion to dismiss the complaint was itself dismissed by Lehane J who stated at paragraphs 15 and 16:
“15… the effect of a refusal to allow access to the disabled toilet in the manner requested was that she would not have access to a toilet which she could reach within that time. That, again, is the way in which the Disability Discrimination Commissioner understood the complaint: that appears from her letter seeking the comments of the Director General.
16 Once that is accepted, it follows that the refusal to leave the disabled toilet unlocked or to provide the applicant with her own key (if that is what ultimately is proved to have happened) elicited a complaint the substance of which might be expressed in this way: the applicant was required to attend classes in a classroom from which she could not walk to a toilet, to which she had ready access, within twelve seconds. Counsel for the State submitted that that was a construction of the complaint that its terms did not permit (I have indicated why I do not accept that submission) but did not suggest that, if the complaint (and the claim in this court) were construed in that way, it would not amount to a claim of indirect discrimination within s.6”.
The applicant articulated the act of discrimination at the end of the proceedings in the following manner.
The Act of Discrimination
That between 30 January and 16 February, the respondent denied or limited access by Stephanie Travers to the disabled toilet on the ground floor of E Block.
Particulars of Indirect Discrimination
That the school failed to provide Stephanie with a toilet which she could access within twelve seconds, and this involved the imposition upon her of a requirement or condition (to use the toilets which were more than twelve seconds away) with which a substantially higher proportion of non-disabled persons (the other students) were able to comply and Stephanie was unable to comply without seriously embarrassing and distressing consequences, and this was not reasonable in the circumstances.

WHAT FACTS DOES THE APPLICANT RELY ON TO ESTABLISH HER CLAIM?

The original complaint was made by letter dated 10 February 1997 from Mrs Wendy Travers to the Disabilities Commissioner at HREOC. That letter elicited a request dated 19 May 1997 to the Director General of the Department of School Education from the Commissioner which was responded to on 8 June 1997. Those letters and some accompanying material formed Exhibit “A2” in the proceedings before Mr Justice Lehane. The papers also included a one and half page report from the Acting Disability Discrimination Commissioner of 25 February 1999 which referred the matter to the Commission for enquiry under s.76(1) of the Disability Discrimination Act 1992. That enquiry now falls to be heard by this court pursuant to the amendments to the HREOC Act and in particular s.46PO.
Stephanie Travers gave evidence. Her affidavit of 31 July 2000 was read. She explained that between 1994 and the first half of 1995 she was at Tara Primary School where her classroom had its own bathroom attached. She sat nearest the toilet and whilst she had toileting accidents at that school they were mostly confined to times when she was in the playground and was therefore too far from the toilet. Stephanie moved to Parramatta West Public School in the second half of 1995. Her classroom was on the first floor of A Block. For a period of about one month she had a full time teacher’s aide Mrs Lilli Hruban. Stephanie was very fond of Mrs Hruban who, she said, “helped her feel safe and comfortable at the school”. When she needed to go the toilet they walked down two flights of stairs on the ground floor of A Block.
Although this is not stated in Stephanie’s affidavit we learnt from other evidence that Mrs Hruban’s funding was only for one month and thereafter Stephanie relied on part time teacher’s aides who would help her in the playground at recess and at lunchtime and she relied on a buddy system to go to the toilet if she was required to do so during classroom times. She deposed to an increase in accidents when this system was introduced.
Stephanie was not as happy with her new teacher’s aides or the buddy system as she had been with Mrs Hruban. She expressed her concern to her parents and also wrote contemporaneous notes to herself about her treatment.
Stephanie moved into year 2 at the beginning of 1996. This time her classroom was on the ground floor of E Block and her teacher was Ms Lee. This term she was again told to use the regular toilet on the ground floor of F Block and a student buddy was deputed to walk with her to the toilet. She stated that she continued to have bowel and bladder accidents and that a lot of these accidents happened because she could not get to the toilet in time. She was upset by these accidents and by having to clean herself up and by being teased by other children at the school. She would tell her parents of her concerns. She stated that she noticed that almost opposite her classroom in E Block there was a disabled toilet and she asked her parents whether or not she would be allowed to use this.
Stephanie stated that during the third week of term 1 she had a very bad accident in her classroom and she was too messy and upset to clean it up herself. She stated that she asked her teacher Ms Lee if she could call her mother or father to come and pick her up but Ms Lee declined and Stephanie sat in her dirty underwear for the rest of the day.
The next day Stephanie’s mother and grandmother took Stephanie into a meeting with Mr Lamaro, the principal of the school. They asked if Stephanie could have a key to the disabled toilet. Stephanie reports that her mother and Mr Lamaro started arguing and Mr Lamaro yelled at her mother, which made her very upset and frightened. Stephanie said that Mr Lamaro refused to give her mother the key.
Stephanie said that she did not return to Parramatta West Public School after this, she later started at St Monica’s School where she had access to the disabled toilet and had less toileting accidents.
In her oral evidence Stephanie admitted that she didn’t always tell the teacher if she had had an accident although she says she usually told an aide or a buddy. When she didn’t tell anyone she would clean herself up because she didn’t want to be embarrassed. She said that she had about five or six accidents in 1996 and told Ms Fox, one of the teacher’s aides, about them and also her sister and her mother.
Stephanie was cross-examined about the bowel accident which she had on 15 February 1996. She confirmed that she asked the teacher if she could call her mother and that she told the teacher that she had had an accident. She said that her buddy could see that she had had a bad accident and that it was all over her. She felt that the teacher must have seen it. Stephanie was also cross-examined about her attitude at the school and in particular her attitude to being disciplined by the teacher’s aides or the teachers about excessive activity in the playground. She admitted that she was a tomboy although she denied that she disobeyed instructions. She did, however, say that she wanted to play with her friends and didn’t want to be with Mrs Newton’s son. She agreed that she had been given detentions although she says that she didn’t understand what she had done wrong. She explained that a disabled toilet would be very useful to her because it would enable her to change in privacy, possibly even have a shower or to wash herself after an accident. She said that these facilities are not available in the F Block toilet although she did not recall what was in the E Block disabled toilet.
Ms Wendy Travers was then called to give evidence. She had also filed an affidavit dated 31 July 2000 in which she explained Stephanie’s disability in some detail. She gave a history of Stephanie’s schooling from pre-school through to the time in which she joined Parramatta West. She knew that Parramatta West had two students who were in wheelchairs, one of whom had spina bifida. She also knew that the school had disabled toilets and ramp access.
Mrs Travers met Mr Lamaro in May 1995 and told him about Stephanie’s requirements. She provided him with written material about Stephanie’s disability which includes a reference to the requirement that Stephanie have access to a toilet within about twelve seconds in a report by Dr Grant. Mr Lamaro told Mrs Travers that Stephanie’s enrolment would have to be discussed with Sue Richards, an integration advisor of the Department of Education and other persons including Ms Vicki Russell, the integration coordinator and Assistant Principal of the school. On 30 May a further meeting took place at the school with Mrs Travers, Stephanie, Mr Lamaro, Ms Richards and Ms Azzard, Ms Russell and Ms Kym Reynolds who was to be Stephanie’s year 1 class teacher. At that meeting an action plan for Stephanie was discussed and a view of Stephanie’s classroom and the toileting arrangements was held. Mrs Travers reports in her affidavit some concern about these arrangements as Mrs Travers thought that the toilet was too far away from the classroom. Eventually an occupational therapist was brought in who said that she thought that Stephanie could make it safely to the toilet from her classroom with the assistance of an aide. Mrs Travers reluctantly agreed to trial the proposal and thereafter she had a meeting with Mrs Hruban and on the day before Stephanie started at the school Mr and Mrs Travers gave an inservice talk to all of the teachers at the school and provided them with copies of the material about Stephanie and spina bifida. Mrs Travers deposed that:
“I asked Mr Lamaro whether it would be possible next year for Stephanie’s classroom to be closer to a toilet, and he said “ I will look into it, but don’t worry, as next year she will be in the E Block near the disabled toilet”.”
Mrs Travers’ affidavit continues with events during 1995 which indicate a growing dissatisfaction with the way she believed the school was dealing with Stephanie’s integration.
Mrs Travers’ affidavit then dealt with her recollection of the events of January and February 1996. She confirmed that Stephanie’s classroom was on the ground floor of E Block and that she used the toilet in F Block, being taken there by a student buddy when she needed to go. Mrs Travers deposed to the fact that Stephanie had further bowel and bladder accidents and would come home crying on occasions. She mentioned then the possible use of the disabled toilet in E Block.
Mrs Travers stated that she attended a meeting on 14 February 1996 at the school with her husband and Mr Lamaro. She says that it was a brief meeting during which time she asked Mr Lamaro if Stephanie could have a key to the disabled toilet in E Block and that Mr Lamaro’s response indicated that he was unaware that toileting was an issue. He stated that “he would see what he could do” and he would check with Vicki Russell. Mrs Travers states that no further meeting was scheduled after the meeting on 14 February and in particular no meeting had been scheduled for 21 February.
On 15 February Mrs Travers picked up Stephanie from school and discovered that she had had a bowel accident. She states that she was very angry as Stephanie had sat in soiled pants all afternoon. She decided to return to the school and discuss with Mr Lamaro the possibility of Stephanie utilising the disabled toilet. She did return to the school at 9.00a.m. on 16 February with her mother and with Stephanie. What occurred at that meeting is very much in dispute. What is not in dispute is that the exchange was heated, that it involved Mrs Travers requesting access for Stephanie to the disabled toilet in E Block, it involved a visit to the toilet in E Block at which stage Ms Russell joined the party and as Mrs Travers felt that no resolution of the issue had been forthcoming she, her mother and Stephanie left the school. Mrs Travers stated that she formed the view that Stephanie was not going to get access to the disabled toilet without the intervention of a third party and that Stephanie could not cope at the school while she did not have access to the disabled toilet.
Mrs Travers contacted the Education Department and a meeting was originally arranged for 20 February but Mrs Travers did not attend that meeting as she was sick and Stephanie was sick. But sometime after 26 February she received a call from a Ms McKerihin from the Department who made reference to a meeting which it was suggested was meant to have taken place between Ms Travers and the school on 21 February. Ms Travers indicated that she had no knowledge of this meeting.
Thereafter Mr and Mrs Travers decided that they would not send Stephanie back to Parramatta West School and they arranged for her to attend the St Monicas Catholic School in North Parramatta. On 15 April she wrote to Ms McKerihin advising that her family were no longer seeking to resolve outstanding issues with the school and in February 1997 she made a complaint to the Human Rights and Equal Opportunity Commission.
In cross-examination Mrs Travers agreed that Stephanie did not have any physical need to use a disabled toilet. In other words she can use an ordinary toilet perfectly well. The benefit of a disabled toilet is that it has facilities to enable her to clean herself up in private. Mrs Travers agreed that whilst there was nothing in her correspondence about Stephanie utilising the E Block disabled toilet she said had spoken to Ms Russell and Mr Lamaro and the occupational therapist about this. Mrs Travers indicated in her cross-examination that she felt ignored and brushed aside by Mr Lamaro and Ms Russell. She didn’t feel that she could communicate with them properly and felt that they were not prepared to understand that there was an issue in relation to the toileting. She conceded that she was very upset on the 16 February and that voices had been raised. She felt that Mr Lamaro had been hostile and aggressive and had been rude to her mother. She denied that Mr Lamaro had said that Stephanie could have access to the E Block disabled toilet. She said that all he did say was that all the teachers had a key. She denied that she ever got the letter of 26 February from the school or that she was aware that a meeting had been scheduled for 21 February. She said that she felt that Stephanie did not want to return to the school, that she herself was worried about more accidents and she was not comfortable with the teacher’s aides who had been assigned to Stephanie. She felt that if Stephanie had been given a key to the E Block disabled toilet she would have been independent and there would have been no need for aides except in the playground or if she suffered an attack or was required to climb stairs.
The next witness was Mr Travers. He confirmed the conversation of 6 June 1995 when Mr Lamaro said that next year Stephanie would be in E Block near the disabled toilet and generally corroborated the evidence of Mrs Travers. He deposed to a suggestion that the school believed that he and Mrs Travers and a Ms Higgins were planning to “gang up against” Ms Russell which he denied.

In relation to the 1996 year he stated that he approached Ms Russell on a number of occasions to try and arrange a meeting to discuss Stephanie’s toileting situation but received answers to the effect of “we will discuss it later”. He confirmed that he attended a meeting on 14 February 1996 at the school in which his wife asked if Stephanie could have access to the disabled toilet in E Block. He confirms that he was unaware of a proposed meeting on 21 February. He also deposed to a discussion between himself and Mr Lamaro about the disabled toilet when he told Mr Lamaro that he would be happy to pay for the replacement of the lock on the disabled toilet. He said in cross-examination that he often discussed with Mr Lamaro why Stephanie couldn’t use the toilet in E Block.
Ms Fay Morris, Stephanie’s grandmother, gave evidence of the meeting on 16 February 1996. She confirmed that Mrs Travers asked if Stephanie could have a key to the E Block disabled toilet and said that Mr Lamaro “initially said no” and eventually said maybe. She confirmed that the discussion was heated and that after they had gone up to see the toilet itself no decision that Stephanie would have a key was made.
Ms Nerily Dixon provided two affidavits in which she deposed to the fact that she was a Bachelor of Applied Science in Occupational Therapy and was employed as a Grade 1 Occupational Therapist at the Sydney Children’s Hospital in Randwick. She did not visit Parramatta West Public School but in her affidavit of 2 August she examined what she had been instructed was the school’s stated policy in relation to the disabled toilets. The disabled toilet in E Block was used by one student who had spina bifida more seriously than Stephanie and who was required to catheterise himself at regular intervals. His catheterisation equipment was kept in that toilet and one of the concerns of the school was that if Stephanie was allowed to use the toilet there might be danger to this student’s hygiene and health. Ms Dixon explained that catheterisation required clean or hygienic rather than sterile conditions and indicated that a lockable cupboard could have been provided which would have had this effect. She stated in paragraph 17:
“Where multiple use of an accessible toilet is an issue, or the needs of a number of students with disabilities needs to be taken into account, consultation between aides or carers is important. In this case, knowing that there were two other students at the school who used the accessible toilet for catheterisation, the toilet would only be used for a short period during the day, most likely at recess and/or lunch. At other times, the toilet could have been accessible to Stephanie.”
In response to a question from me Ms Dixon stated that a child who required catheterisation would be able to wait a few minutes beyond the appointed time if this became necessary e.g. because Stephanie was using the toilet at the time. If the worst came to the worst the child would suffer an accident but the effect of failing to catheterise in time would be unlikely to be more severe than that.
The affidavit of Ms Hruban was read. She confirmed that she had been Stephanie’s teacher’s aide and that when Stephanie needed to go to the toilet she would have a sudden urge and then the need to rush. She stated that whilst she was looking after Stephanie she rarely had toileting accidents. Ms Hruban also deposed that Ms Fox once said to her:
“Stephanie is a spoilt brat”.
Ms Russell on one occasion, said to her words to the effect of:
“Stephanie’s mum is overdoing it, she is too overprotective.”
Finally, the affidavit of Dr West of the New Children’s Hospital Westmead was read. This affidavit provides details of the effect of spina bifida on a child and the requirement of a child with spina bifida and some urinary and bowel incontinence. In a report dated 19 July 2000 annexed to her affidavit she stated:
“I think the essence to Stephanie was to be able to access the toilet suitable to her needs as quickly as possible however I am not in a position to comment about whether in fact this requirement was fulfilled in the best possible way.”

WHAT FACTS DOES THE RESPONDENT DISPUTE AND HOW IS THAT DONE?

The first witness called by the respondent was Ms Vicki Russell who at the relevant time was assistant principal at Parramatta West Public School and also in charge of integration. According to her evidence Stephanie was a very active child who sometimes hid or ran away from the teacher’s aides. Ms Russell believed that Stephanie occasionally put herself at risk and felt that this could best be dealt with by short periods of detention. She was concerned that Stephanie never underwent this detention because her mother would remove her from the school before it was completed. Ms Russell went into some detail of events on 13 and 14 February 1996. On 13 February Stephanie had been given a detention. She stated that the detention was given by Ms Kym Reynolds but at that stage Ms Reynolds was no longer Stephanie’s class teacher and it is possible that this was incorrect. She deposed to the fact that Mr Travers came and saw her on that day and told her that Stephanie was upset about the detention and that the upset had caused her to have gastric problems. Although Ms Russell was concerned about putting the detention off she agreed to do so and she also looked out for Stephanie that day and on the 14 February. On the 14 February Stephanie complained of pains in her stomach and Ms Russell called Mr Travers who arrived shortly thereafter. Ms Russell states that she mentioned to Mr Travers that:
“We will have to sort out a way for Stephanie to use the toilet in E Block adjacent to her classroom in emergencies if she is having problems”.
She explained about the use of that toilet by a child who was required to catheterise himself and the risk to his health and confirmed that Mr Travers said to her:
“I have a contact in the kitchen manufacturing industry who I can contact and arrange for him to come and look at the room when he has time with a view to installing some sort of lockable cupboards and bench system which will be accessible to the other child. “
Ms Russell went to the toilet in E Block with Mr Lamaro and Mrs Travers and Ms Morris on 16 February. She deposes:
Mrs Travers asked: “Can Stephanie use this toilet?”
Mr Lamaro asked: “How often might Stephanie need to use it?”
Ms Travers replied: “Maybe once, five times.”
Mr Lamaro said: And maybe not at all.”
Mrs Travers repeated her request, “Can Stephanie use this toilet?”
Mr Lamaro said: “Stephanie will have access to the toilet.”
He also said: “Mrs Lee has a key.”
Mrs Lee was Stephanie’s classroom teacher at the time.
Mrs Travers asked: “Can Stephanie have a key?”
Mr Lamaro said: “Stephanie will have access to the key.”
Mrs Travers then turned and asked me: “Can Stephanie have a key today?”
I replied: “We will need to discuss it.”
Ms Russell denied that Mr Lamaro had said that Stephanie did not have a bowel or bladder problem.
In cross-examination Ms Russell denied that she had ignored Mr and Mrs Travers and stated whilst she knew that Stephanie had had accidents in 1995 she thought they were infrequent and that the same situation obtained in 1996.She did not believe that toileting was a continuing concern to Mr and Mrs Travers.
Mr Robert Lamaro was then called. He was the principal of Parramatta West Public School at the relevant time. In his evidence he confirmed his initial contact with Mr and Mrs Travers on 4 May 1995 and the meetings which took place between that time and the time Stephanie commenced at the school on 7 June 1995. He confirmed that quite detailed information had been provided to himself and the school about Stephanie’s condition and that as a result an action plan had been developed and a full time teacher’s aide employed for Stephanie’s first month.
Mr Lamaro gave evidence about the circumstances surrounding the review meeting in October 1995 and the signing by Mr Travers of the review of integration program form. Mr Travers had signed this form which in relation to Stephanie’s toileting states as follows:
“Toilet – Stephanie is able to independently toilet. She has had no urgent need to go during class time and always asks when she needs to go. Toilet accidents have been minimal.”
Mr Travers had given evidence that he believed that he had signed this form on 7 November 1995 under duress. The duress being that Mr Lamaro had indicated to him that unless he signed the form funding for Stephanie’s teacher’s aide would not come through. Mr Lamaro denied this although he agreed that he might have told Mr Travers that the form was required in order to continue the funding.
In paragraph 20 of his affidavit Mr Lamaro stated:
“It was felt that Stephanie could manage her toileting independently by using the toilets at the end of F Block, which she could access without having to use stairs. Whilst this was a 40 seconds walk at a moderate pace, it was the preferred strategy in year 1 as it avoided Stephanie using the stairs which may have placed her at risk. Mr and Mrs Travers were involved in and supported this decision.”
Whether or not Stephanie used the toilet in F Block if she had to leave her classroom in A Block was a matter of considerable dispute.
Mr Lamaro dealt with the occurrences between the 14 and 16 February 1996. He confirmed that Stephanie’s toileting arrangements were brought up on 14 February and produced a typed note of the remarks made at the meeting. These include that:
“Mrs Travers has expressed that she is sick of the “shit hanging off her arse” (Stephanie)”.
There is no reference to the toilet in E Block in the notes but there is a reference to “sterile environment” which would seem to indicate that some discussion of the disabled toilet was held and indeed Mr Lamaro does not deny this.
Mr Lamaro does deny much of Mrs Travers’ evidence concerning the meeting on 16 February and in particular the suggestion that he tried to get Mrs Morris to leave the meeting. He denied shouting at Mrs Travers or saying words to the effect:
“Stephanie doesn’t have a bowel or bladder problem.”
He denied saying that Stephanie was unable to use the disabled toilet and said that:
“Stephanie could have access to the disabled toilet key via her teacher or other staff at the school.”
In paragraph 39 of his affidavit Mr Lamaro denies ever saying:
“She can’t use the disabled toilet because it’s a sterile environment.”
Or:
“She either comes to the school and uses the toilet allocated, or she doesn’t come at all.”
He also said that he did not hear Mrs Travers say:
“How would you like it if your child came home with shit hanging off her arse.”
The gravamen of Mr Lamaro’s evidence was that he was under the strong impression that Stephanie really did not have very much of a toileting problem. He had not been advised by any of his staff or by any teacher’s aides that Stephanie was regularly having toilet accidents, in fact the situation, according to him, was quite the contrary. He drew this conclusion from the integration reports prepared by Ms Hruban and the discussions which he had with all parties involved including Mr and Mrs Travers following thereon. He appreciated that he had no independent medical evidence about her condition and therefore the best qualified evidence that he had was the 12 second recommendation that had been given to him by Mr and Mrs Travers prior to Stephanie’s enrolment. He believed that the school had been very supportive to Stephanie and had tried very hard to develop and implement an effective and successful integration program for her. He denied making himself unavailable to the Travers.
The State then called Ms Hardacker, one of Stephanie’s teacher’s aides who disputed some of the matters relating to herself mentioned in Stephanie’s affidavit and who also stated:
“I do not remember Stephanie having any bowel or bladder accidents at school. I never recall Stephanie telling me that she had an accident or needed assistance in cleaning herself up. I also never saw her sister Kristina take her to the toilet.”
Ms Mimi Lee was Stephanie’s class teacher for the three weeks of the 1996 year which she spent at the school. She denied that she required Stephanie to stay in the class after she had soiled herself on 15 February 1996 although she confirmed that she knew that Stephanie needed to go to the toilet as quickly as possible once she had indicated an urge to go. She did not remember any accidents in the three weeks although she did recall that Stephanie had asked to go to the toilet during class time.
Ms Kym Reynolds was Stephanie’s teacher in her first year at school. She denied any hostility to Mr and Mrs Travers or saying that Stephanie was “a little creep”. She noted that Stephanie did have some disciplinary problems particularly with the teacher’s aides. She spoke regularly to Mr and Mrs Travers. She states:
“At the end of term 2 at Stephanie’s review meeting it was decided that Stephanie’s toileting was not causing major concern. In my recollection Stephanie’s problems with toileting occurred rarely and in some cases I believe that such problems are caused due to her eating the wrong sorts of food. “
In paragraph 7 of her affidavit she states:
“To the best of my knowledge Stephanie only had two or three toileting accidents whilst she was in class 1/2J… if her toileting had been a major concern then an alternative to her toileting procedures would have been implemented.
Affidavits of Tanya Fox, Susan Assad, Roxanne Newton, Susan Richards and Alison Doughty were also read. These were intended to corroborate the evidence previously given and in particular indicate that Stephanie did not have regular toileting problems and that she was from time to time naughty in the playground.

FINDINGS OF FACT

As in most cases, there is in this dispute a substratum of facts which are accepted by both parties. In this case there is no dispute that Stephanie suffers from spina bifida, that she enrolled in the school on 7 June 1995 and that prior to her enrolment considerable information was provided to the school by her parents and medical practitioners concerning her condition and needs. Amongst this information was the critical information that she would need, on average to be within 12 seconds walk of a toilet in order to be confident that most toileting accidents could be avoided.
It is also agreed that Mr and Mrs Travers were regularly at the school and available to be contacted by the staff. It is agreed that there was a meeting on 14 February 1996 and that Mrs Travers, her mother and Stephanie attended the school on 16 February 1996 when an interview was held with Mr Lamaro and the party then, together with Ms Russell, inspected the E Block disabled toilet. Finally, it is agreed that after 16 February 1996 Stephanie no longer attended the school.
The facts which are in contention and which need to be resolved in the context of these proceedings are the following:
(i)What toilet did Stephanie use after Mrs Hruban ceased to be her teacher’s aide?
The school maintains that with the begrudging acceptance of Mr and Mrs Travers Stephanie was required to use the F Block toilets to which she would walk with a buddy after Ms Hruban ceased to be her teacher’s aide. Stephanie’s evidence would tend to indicate that she still continued to use the toilet in A Block immediately beneath her classroom. Evidence of her class teacher and of at least one other in the school suggested that Stephanie used the F Block toilet. I think the probability is that Stephanie used the A Block toilet when she needed to rush and the F Block toilet at some other times.
(ii)Did Mr and Mrs Travers have reason to expect that Stephanie would have access to the disabled toilet in E Block in her second year?
Mr and Mrs Travers gave evidence that Mr Lamaro told them that Stephanie would be able to use the toilet in E Block in 1996. Mr Lamaro says that he does not recall these conversations but on this point I would prefer the evidence of Mr and Mrs Travers. The remarks were allegedly made fairly early on in the piece at a time when Mr Lamaro was being given information about Stephanie’s condition and when that information indicated to him that she was a person who may well have need of the disabled toilet. In paragraph 56 of Mr Lamaro’s affidavit he says:
“I believe that it was desirable for Stephanie to be in E Block in 1996, which would give her classroom access to the disabled toilet in that block if necessary.”
As Stephanie progressed through the school different views were expressed about her toileting requirements and his knowledge of these may have influenced his thoughts as to what he might have said to Mr and Mrs Travers in 1995.
(iii)What was Stephanie’s conduct at the school?
I accept the evidence given by the school authorities in general as to Stephanie’s conduct at the school. I can quite understand that she wished to play with her friends in the playground rather than sit quietly with a teacher’s aide. She described herself as “a bit of a tomboy”. I accept that the staff were concerned that Stephanie might harm herself by overactivity and that on occasions it was thought necessary to discipline her. I accept that Mrs Travers disagreed with this discipline policy.
(iv)What was Stephanie’s toileting history whilst at the school?
According to Mr and Mrs Travers and Stephanie, Stephanie had frequent toileting accidents. According to the school these accidents were infrequent and rarely occurred in class. Stephanie admitted that she did not always tell her teachers or her teacher’s aides when she had had an accident. Ms Russell gave evidence that the school had a number of incontinent pupils and would time to time take expert advice upon them. I am of the opinion that Stephanie’s situation was very much a matter of perception. I think it is likely that the school were informed about accidents less than Mr and Mrs Travers believed but at the same time I believe that the school considered the problem as a lesser one than Mr and Mrs Travers considered it. There was evidence that at an infant’s school toileting accidents were a fairly frequent occurrence and they were therefore not placed high in the pantheon of problems that such a school might experience. This is an important finding because I believe it affects the way which Mr Lamaro and Ms Russell reacted to Mr and Mrs Travers at the critical period in February 1996.
(v)Did Stephanie have a toileting accident on 15 February 1996?
Both Stephanie and Mrs Travers are adamant that Stephanie had a bowel accident on 15 February 1996. Ms Lee denies this. These are the persons most directly involved but Ms Russell in her evidence gives a clue to the possible cause of such an accident, namely the eating of lasagne on 14 February. Stephanie’s evidence is that she told Ms Lee about the accident and she was not allowed to leave the classroom. This is strongly denied by Ms Lee. Bearing in mind that Mr and Mrs Travers had gone to the school and discussed Stephanie’s toileting on 14 February something must have happened to make Mrs Travers go in again on 16 February and take her mother with her. I accept that Stephanie did have a serious bowel accident on 15 February and that this was what triggered Mrs Travers’ attendance at the school on 16 February. In these circumstances it is probably not necessary to decide the dispute between Stephanie and Ms Lee as to whether that accident occurred in class or whether Ms Lee knew about it.
(vi)What occurred at the meeting with Mr Lamaro on 16 February?
It is agreed that Mrs Travers, her mother and Stephanie all attended upon Mr Lamaro without an appointment on the morning of 16 February. There is a dispute about whether the door was opened after it had been closed by Mr Lamaro in a manner which indicated that he did not wish Mrs Morris to remain. Mr Lamaro gave evidence that what occurred was that the door had been deliberately closed and he preferred to conduct the interview with the door open and therefore he opened it. I accept this evidence. It is agreed that the atmosphere in the meeting got heated. There is a dispute as to whether or not Mr Lamaro repeatedly told Mrs Travers that Stephanie did not have a toileting problem. Because of the finding which I have already made as to what I believe to have been Mr Lamaro’s state of knowledge of Stephanie’s condition I think it is possible that these words were used. Whether they were used with the venom which Mrs Travers described I cannot say but in the end it may not be of any moment.
It may also not be important to decide exactly what was said in relation to the key. It is certainly agreed between all parties that Stephanie was not offered the opportunity to have the key to herself. The best that was suggested was that the key might be hung up in the classroom for her to take. It is not entirely clear whether Mrs Travers accepts that even this offer was made but she does accept that the offer to allow Stephanie to access the key through her teacher most certainly was.
(vii)What occurred after the meeting on 16 February?
It is agreed that no further meetings were held with the school and Stephanie did not return to Parramatta West after 16 February. Mr Lamaro maintains that he agreed with Mr and Mrs Travers on 14 February that a meeting would take place on 21 February. At that meeting it was intended to discuss again toileting arrangements for Stephanie. Both Mr and Mrs Travers deny that such a meeting was arranged. Mr Lamaro kept notes of his meetings with Mr and Mrs Travers. These were originally made in handwriting and then typed. The handwritten notes are Exhibit “P” to his affidavit. One of the matters written down there is “need for handicapped toilet in emergency need nearest.” Another is “numerous accidents” and another is “privacy”. These notes were typed out and became Exhibit “Q”. In neither Exhibit “P” or “Q” is the meeting of 21 February referred to. There is reference to that meeting in Exhibit “R” which is a document headed “Complaints lodged by Wendy and John Travers 14 February 1996”, it was not a contemporaneous document. I asked Mr Lamaro about the meeting and he agreed that it was possible that both himself and Mr and Mrs Travers went away from the meeting on 14 February with two different understandings of what was to happen next. He thought that he was going to arrange a meeting but he may not have communicated that to Mr and Mrs Travers. I think this is the most likely scenario. I therefore do not think that Mr and Mrs Travers deliberately avoided the meeting on 21 February, or that it was a later invention of Mr Lamaro’s.

OTHER FINDINGS

I have made a number of other findings of fact which are important in coming to my final decision in the matter. I find that the integration process which occurred in 1995 was thorough going and appropriate. I was particularly impressed that Mr and Mrs Travers were allowed to give inservice training to the teachers in the school and that all persons who were likely to have dealings with Stephanie were involved. I find that during this time Stephanie’s condition and in particular her toileting requirements were made known to the school. These included the necessity for Stephanie to be within approximately 12 seconds of the nearest toilet.
I find that Stephanie and her parents were not particularly happy with Parramatta West Public School independently of the toileting situation. This is evident from the notes made by Mr Lamaro and the evidence given by Stephanie and Mr and Mrs Travers about the disciplining and the teacher’s aides. Things started very well when Mrs Hruban was Stephanie’s teacher’s aide but it is obvious that there were personality differences between Stephanie and the other aides. These probably arose because the aides took their responsibility to Stephanie very seriously having had a comprehensive “inservicing” from Mr and Mrs Travers and the school. I find that Stephanie felt that she was the subject of teasing from her classmates and possibly even from her teacher. I accept that Ms Reynolds denies this but I am impressed by the extract written by Stephanie herself and attached to her affidavit. I also find that the school felt that Mr and Mrs Travers were “high maintenance”. I asked this question of Ms Russell and she agreed. I am of the view that Mr and Mrs Travers sensed this. They were at the school every day picking up or dropping off Stephanie, collecting her if she had had an accident or a dysasthesia attack. They did not hesitate to seek interviews with staff members. This is perfectly understandable in parents of a child suffering from spina bifida. It is also understandable that in a busy school where there are other children who are also disabled that the staff might from time to time react with what would appear to be apparent impatience.
I find that in respect of Stephanie’s toileting requirements that the staff had a different view about them than Mr and Mrs Travers. I find that the staff believed that in most cases Stephanie was well able to reach the designated toilet without having an accident and that their knowledge of her accidents was probably not as good as that of Mr and Mrs Travers. I have already explained that I believed there were probably two reasons for this, firstly that this type of accident was just not treated as seriously by the school as it was by the parents because it was quite a common occurrence at the school and secondly that Stephanie may well not have told the school every time she had an accident.
I find in relation to Mr Lamaro that in his mind he distinguished between a disabled toilet and an accessible toilet. It was agreed by all parties that Stephanie did not need a disabled toilet because of any physical attributes that such a toilet might have i.e. she did not need a toilet set lower into the ground, she did not need bars to help her manoeuvre onto the toilet or extra space within the toilet. What Stephanie needed was a toilet close to her classroom and preferably one which had inside it washing facilities so that she could, in the event of an accident, change and wash herself in privacy. The toilet in E Block had these facilities but it was called a disabled toilet. It was used by another child whose name was Ben Newton who also suffered from Spina Bifida. This child had to catheterise himself at regular intervals. In Mr Lamaro’s mind the E Block toilet was reserved for Ben. When he thought of Stephanie’s disability he did not think of it in the same terms as that of Ben. He explained this in answer to questions from myself and I surmise from those answers that when he came to consider what toileting arrangements should be made for Stephanie in the 1996 year the E Block disabled toilet did not come into his thinking. As he said in response to a question from me:
“I didn’t think of Stephanie in terms of a disabled toilet user.”

VIEW

On 12 March 2001 I attended at the Parramatta West Public School. I viewed Stephanie’s original classroom in A Block and the A Block toilets downstairs. I viewed her classroom in E Block and the E Block disabled toilet and I walked from E Block to the F Block mainstream toilet.
Stephanie’s classroom in A Block was immediately above the toilet and even allowing for the fact that we are dealing with a very small child it would appear to have been possible to travel down those stairs in a period of time quite close to the 12 second average time requirement. I appreciate that going up and down stairs itself presents a problem for someone with Stephanie’s condition and in particular the danger of falling and causing dysasthesia would not make the journey to the toilet ideal.
The journey from E Block to the F Block mainstream toilet was a much longer one. It required Stephanie to leave E Block, go down a ramp and then negotiate another ramp up to the rear of F Block and into the toilets. It was generally admitted in evidence that this would probably take around 40 seconds. On the other hand the disabled toilet was just across the corridor from either of the two rooms which were nominated as having been her classroom. It is clear that this was the most accessible toilet for Stephanie during 1996.

CONTENTIONS OF LAW

Section 22 of the Disability Discrimination Act 1992 (Cth) [DDA] states:
“(1) …
(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)… ; or
(c)by subjecting the student to any other detriment.”
Discrimination is defined in s.6 of the DDA as follows:
“(6) Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the grounds 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."
It is said by the applicant that the school failed to provide Stephanie with a toilet which she could access within twelve seconds, and this involved the imposition upon her of a requirement or condition (to use the toilets which were more than twelve seconds away) with which a substantially higher proportion of non-disabled persons (the other students) were able to comply and Stephanie was unable to comply without seriously embarrassing and distressing consequences, and this was not reasonable in the circumstances.
It is also suggested that declining to give Stephanie access to the disabled toilet was in breach of s.22(2)(a) and hence subjected her to a detriment under s.22(2)(c).
It is accepted that Stephanie is a person under a disability. She is therefore entitled to the benefit of the DDA. It is accepted that the respondent is an educational authority and has the responsibilities placed upon it under s.22 and under s.6
It is submitted on behalf of the respondent that there was no requirement or condition which was imposed upon Stephanie. This was because Stephanie was using the F Block toilet in 1996 as a continuation of the agreed arrangements made in 1995. In those circumstances the test has no application. It is also submitted that it was not unreasonable for her to be required to utilise the mainstream toilets in the manner in which she did, i.e. by being permitted to attend the toilets at any time, by being given either a buddy or a teacher’s aide to take her to the toilet and by ensuring that the toilet to which she was directed was the nearest toilet to her classroom or place where she was positioned at any particular time.
The respondent argued that once Stephanie’s parents had accepted a regime by which she was to utilise the F Block toilets any change in that regime without consultation would have been improper because of the request made by the parents that Stephanie be treated as a normal child. The weakness in this argument is that a reasonable interpretation of her parents’ request would not have included those facets of her condition that clearly required her to be treated differently. She required a teacher’s aide and she required speedy access to a toilet. Although the respondent does not consider it so, the school had in fact made a decision at the commencement of the 1996 year that it would not provide Stephanie with access to the nearest available toilet. It made that decision based upon information which it had collected about Stephanie’s toileting requirements and, notwithstanding the submission made by Ms Winters for the school that decisions concerning Stephanie were joint decisions, it did not involve Mr and Mrs Travers in the decision. This may have been because the school thought that the situation was an improvement on the situation pertaining when Stephanie used the classroom in A Block but the reason does not matter if the effect was to be discriminatory.

FINDINGS OF LAW

Discrimination can occur in many ways. It can be deliberate or inadvertent. It can be malicious or benign. Intention is not required to find a breach of DDA (Waters v Public Transport Corporation (1991) 173 CLR 349 at 359).
Whilst I have no doubt that Mr Lamaro and his staff at the Parramatta West Public School had no intention of discriminating against Stephanie Travers, the very fact that they required her to utilise a toilet which was not the most accessible toilet during 1996 amounted to discrimination under s.6 and s.22.
I do not believe that the actions of the school were reasonable having regard to the circumstances of the case. It was argued before me that the E Block disabled toilet needed to be kept locked and set aside for the use of the one student who required it to catheterise himself. It was suggested that if Stephanie utilised the toilet then there was a danger of infection occurring to this child and that possibly he would suffer from not being able to utilise the toilet. In fact the evidence did not support either of those contentions. Ms Dixon explained how a small cupboard could be built to accommodate the catheterisation equipment and she also indicated that people who had to catheterise themselves had to live in the real world and could not expect a sterile environment. She did not believe that the additional use of the toilet by Stephanie would put Ben Newton at risk. In response to questions from me Ms Dixon also indicated that even if Stephanie had been in the toilet when Ben Newton required to go and even if she could not be got out within ten minutes (a most unlikely occurrence) the worst that might happen in reality was that Ben Newtown would have an accident similar to that which Stephanie had from time to time. On the other hand the very nearness of the toilet to Stephanie’s classroom and the fact that it provided a private area in which she could both wash and change as necessary made it clear that the toilet was not only accessible but by far the most suitable for her. What would have been reasonable in all the circumstances was for Stephanie to have been given a key to that toilet or have had access to a key to that toilet from the beginning of term. There was considerable debate about giving Stephanie a key or having her ask the teacher for one. I can quite see the extra time that would be involved in asking a teacher for the key. If Stephanie was not to be trusted with the key herself then it could easily have been hung up just behind the door and Mr Lamaro in his evidence did accept that this was a possible solution.
This finding that I have made does not involve any particular “proactive” assessment on the part of the school. At all times the school had advice that Stephanie needed to be not less than 12 seconds from the nearest accessible toilet. I have found that the toilet in E Block was such an accessible toilet and that there were no satisfactory reasons for excluding it the case of Stephanie.
Because I have found that the school should have considered the E Block toilet the nearest accessible toilet and provided Stephanie with access to it from the commencement of term the events of the 14 to 16 February have less importance in considering the nature and timing of any discrimination. I am satisfied that Stephanie was discriminated against in the manner in which I have described but I am equally satisfied that the discrimination was not maliciously motivated. It arose out of a misapprehension of Stephanie’s needs and a failure to appreciate that a facility was readily available that could meet them.

WHY DID THE APPLICANT SUCCEED?

In order to succeed in her application Stephanie was required to establish that on the balance of probabilities the conduct of the respondent fell within the conduct proscribed by ss.6 and 22 of the DDA. I have come to such a conclusion after weighing up all the evidence and the manner in which it was given. It has not been necessary to make a finding in respect of every disputed point in the evidence of the very many witnesses who appeared at the hearing. It is accepted that Stephanie suffers from a disability and is therefore a person to whom the Act applies.
Stephanie succeeded because I found that the school misinterpreted its obligations to her in the 1996 year and by doing so acted in a discriminatory manner. It firstly came to the erroneous view that she did not have a toileting problem and secondly excluded from consideration as “the nearest accessible toilet”, the disabled toilet in ‘E’ block which she could have used without any reasonable apprehension of disturbance to the one other user of that toilet.
These actions had the effect outlined in the applicant’s articulation of her complaint found in paragraph 5 of this judgment.

DECISIONS AND ORDERS

The applicant claims relief and compensation under s.46PO(4)(b) and (d) HREOC Act. I deal with each in turn:
(i)Apology
During the course of the submissions I discussed with Counsel the efficacy of requiring a party to provide an apology. An apology is something that should be freely given and arise out of an understanding by one party that it was at fault in relation to its actions as they affected the aggrieved party. Whilst I would like to think that these reasons indicate to the respondent why it was at fault and that so realising, it voluntarily expresses it’s apologies to Stephanie and Mr and Mrs Travers, I am not prepared to force it to do so.
(ii)Damages
This claim is brought by Stephanie. It is not brought by Mr and Mrs Travers, see Finney v The Hills Grammar School (2000) EOC 93-087. Any damages must be paid to her and reflect compensation for the hurt, humiliation and distress suffered by her (see Kalich v Es (1999) EOC 92-961 and Hall v Sheiban Pty Limited (1998) 20 FCR 217 at pp522, 526 and 548). I have made findings that Stephanie was not entirely happy at the school before the incidents of February 1996 occurred. These incidents triggered the decision by Mr and Mrs Travers to remove her from the school. The events of February, being removed from her school and being placed in a new school would undoubtedly have been traumatic for Stephanie. However, it is now some years since these incidents and Stephanie appeared to me to be well adjusted, articulate and understanding of her condition. No medical evidence was called and there is no allegation that she is suffering from any psychiatric disturbance or post traumatic stress disorder. Given that I have found there was no intention to deliberately discriminate against Stephanie the award should not reflect any such culpability.
It was submitted by the respondent that there was no evidence that Stephanie had suffered damage. I am not in agreement with that submission. I think that Stephanie’s affidavit clearly indicates that she suffered compensable damage. In Finney an award of $5,000.00 for general damages was made. It was submitted that in this case in which the applicant also suffered from Spina Bifida the actual compensable harm was less than that which Stephanie suffered. Scarlett Finney was not admitted to The Hills Grammar School, Stephanie Travers was admitted to the school but left. This is a valid point but it is important to recall that I have found that Stephanie’s removal from the school was caused by a number of factors which contributed to her unhappiness there of which the discrimination, the subject matter of this complaint, was only one, albeit an important factor.
This case, in which I have found that there was no deliberate intention of the school to discriminate against Stephanie must be contrasted with Murphy and Ors v State of New South Wales (2000) EOC 93-095 in which very substantial damages of $25,000.00 were awarded to the complainants who included the parents of the disabled child. I have also considered the detailed views expressed on damages by Commissioner Innes in Alex Purvis on behalf of Daniel Hoggan v The State of New South Wales (Department of Education) (unreported HREOC, Commissioner Innes, 13 November 2000) where again a substantial payment was ordered. In that case the “ consequence for the complainant has been that he has not had the benefit of a secondary education with his peers and neighbours…this exclusion has been a great loss to Daniel and will affect him for the rest of his life.” This consequence has been avoided in Stephanie’s case and she is currently happy at another school. I have also noted and agree with the views of McInnis FM in Kerryn Haar v Maldon Nominees Pty Ltd (t/ as McDonalds) and Ors [2000] FMC 5. In Stephanie’s case I believe that an appropriate award would be $6,250.

COSTS

This matter was originally commenced in the Federal Court. There was a lengthy hearing of Notice of Motion before Justice Lehane and the case before me lasted 2 ½ days. If costs were not awarded Stephanie would lose the benefit of the entire judgment. I order that the respondent should pay the applicant’s costs to be taxed on the Federal Court scale if not agreed. The Federal Magistrates Court when it propounds its Rules will include within those Rules simplified procedures in relation to costs. This will include lump sums costs based upon events. These Rules are not yet promulgated and should have no bearing on any taxation, but if the parties wish the court to make its own binding assessment of costs the court would be pleased to do so provided it is so informed within seven days.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate
Dated 21 March 2001