Walker v State of Victoria
[2011] FCA 258
•23 March 2011
FEDERAL COURT OF AUSTRALIA
Walker v State of Victoria [2011] FCA 258
Citation: Walker v State of Victoria [2011] FCA 258 Parties: ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) v STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT File numbers: VID 829 of 2008
VID 401 of 2009Judge: TRACEY J Date of judgment: 23 March 2011 Catchwords: HUMAN RIGHTS – Discrimination – education – onus on aggrieved person to establish discrimination - direct discrimination – whether treatment of an aggrieved person less favourable than of a non-disabled person in the same circumstances – ground not made out - indirect discrimination - whether requirements or conditions imposed upon an aggrieved person are unreasonable – requirements or conditions are to be broadly construed – reasonable degree of precision necessary in formulation – requisite precision absent in applicant’s case – ground not made out – breach of Disability Standards in force pursuant to Disability legislation alleged – no contraventions of Standards made out - victimisation charge – onus on aggrieved person to establish victimisation beyond reasonable doubt – proscribed act must be performed on grounds that victim has done thing prescribed by the Act – requisite causal relationship – claim not established to this standard – must fail – application and charge both dismissed Legislation: Disability and Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 11, 14, 22, 31, 32, 34, 42, Part 2
Evidence Act 1995 (Cth) s 140
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO, Part IIB
Disability Standards in Education 2005 Parts 3, 4, 5, 6, 7Cases cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 cited
Australian Medical Council v Wilson (1996) 68 FCR 46 cited
Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 cited
Browne v Dunn (1893) 6 R 67 cited
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 cited
Catholic Education Office v Clarke (2004) 138 FCR 121 considered
Crvenkovic v La Trobe University [2009] FCA 374 cited
Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 cited
Hinchcliffe v University of Sydney (2004) 186 FLR 376 cited
Hurst v Queensland (2006) 151 FCR 562 cited
Maghiar v State of Western Australia [2002] FCA 262 cited
Minns v New South Wales [2002] FMCA 60 compared
New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 considered
NSW v Amery (2006) 230 CLR 174 applied
Purvis v New South Wales (2003) 217 CLR 92 considered
Qantas Airways Limited v Gama (2008) 167 FCR 537 cited
Queensland v Forest [2008] FCAFC 96 cited
Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 cited
State of Victoria v Turner [2009] VSC 66 cited with approval
Thomas v SMP International (No 3) [2010] NSWSC 900 compared
Travers v New South Wales (2001) 163 FLR 99 cited
Waters v Public Transport Corporation (1991) 173 CLR 349 appliedDates of hearing: 2-4, 9-11, 12, 15-19 June 2009
19-23 and 27 April 2010
3, 10 and 18 May 2010Date of last submissions: 18 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 331 Counsel for the Applicant: Mr D Perkins and Mr D J Hancock (on 19-23 April 2010) Solicitor for the Applicant: Access Law Counsel for the Respondent: Mr J L Bourke and Mr M Felman Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 829 of 2008
BETWEEN: ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER)
ApplicantAND: STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
23 MARCH 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 401 of 2009
BETWEEN: ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER)
ApplicantAND: STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
23 MARCH 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 829 of 2008
BETWEEN: ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER)
ApplicantAND: STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
Respondent
GENERAL DIVISION
VID 401 of 2009
BETWEEN: ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER)
ApplicantAND: STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
Respondent
JUDGE:
TRACEY J
DATE:
23 MARCH 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Over the past decade Mr Alex Walker has attended two schools which are conducted by the State of Victoria acting through its Department of Education and Early Childhood Development (“the Department”). In these reasons I will refer to the Applicant (who makes his application through his next friend and mother Mrs Paige Walker) as “Alex” to distinguish him from his father to whom I will refer as “Mr Walker”. Alex alleges that the Department has, during most of this period, discriminated against him by various acts or omissions which are rendered unlawful by the Disability Discrimination Act 1992 (Cth) (“the DDA”). He seeks a number of remedies. He also alleges that the Department committed an offence under the DDA by taking prejudicial action against him because he had made a complaint about some of the alleged contraventions of the DDA.
BACKGROUND
Alex was born on 11 February 1995. It was common ground that he suffered and suffers from a number of disabilities including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome.
In January 2001, Alex commenced attending school at Branxholme-Wallacedale Community School (“Branxholme”). For the first three years, despite requiring significant special attention, he received positive reports regarding his educational progress. In late 2004, however, the school began to have concerns about Alex’s behaviour, both in class and towards other students, particularly during recess and lunchtimes. The school responded by implementing a number of strategies which were designed to assist Alex in the classroom and ensure that he was being supervised at other times. These strategies (some of which became the subject of complaint in this proceeding) included arrangements for Alex to spend certain lunch times at home and the provision of structured, supervised recess activities when he was on the school premises.
Alex’s behaviour did not improve. In both Grades 5 and 6 (which he completed in 2005 and 2006 respectively) serious incidents occurred in both the classroom and the playground which led to disciplinary action being taken against Alex. The level of interaction between Alex’s parents and the principal and other teachers increased as the school sought to deal with these problems. Action (and inaction) by the school during these two years was also the subject of complaint by Mr and Mrs Walker.
In December 2006, Alex completed primary school.
In January the following year, he began attending the Good Shepherd School, where he remained for the first half of 2007. This was a private school which was not conducted by the Department. No complaint has been made against it in this proceeding. As early as March 2007 concerns were expressed by the school to Alex’s parents regarding his use of foul and abusive language and shortly thereafter, he was asked to leave Good Shepherd. For the second half of 2007, he was educated by distance education and at the Southern Grampians Adult Education Youth Program (“SGAE”).
In July 2007, preparations commenced for a transition by Alex to secondary school at Baimbridge College, Hamilton (“Baimbridge”). On 19 November 2007 he began attending Baimbridge as part of the transition program. In each week he spent part of his time at SGAE, Baimbridge and working on distance education. This combination continued as he entered Grade 7 in 2008, with him attending Baimbridge on Mondays and Thursdays in the mornings, attending SGAE for one and a half days per week and also undertaking some distance education.
In 2009 these arrangements continued as Alex pursued his studies in Grade 8.
In January 2008, and again in April 2009, Alex (acting through his parents) complained to the Human Rights and Equal Opportunity Commission (“the Commission”) about many things which were done and not done by the schools in the course of their dealings with him and his parents. The conduct about which complaint was made was said to have involved discrimination against Alex because of his disabilities.
CONSOLIDATION
The jurisdiction of the Court to deal with Alex’s complaints was conferred by s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”). Under Part IIB of that Act it is necessary that an Applicant has first lodged a complaint with the Commission, the complaint has been considered by the Commission, the complaint has been terminated by the President of the Commission and the President has given notice of such termination to the Applicant.
Section 46PO of the HREOC Act provided that the unlawful discrimination alleged in any application commenced in this Court must either be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint. The Court has held that this provision prevents a complainant from relying, in a proceeding in the Court, on any act of unlawful discrimination which occurred after the relevant complaint had been lodged with the Commission: see Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580 (per Katz J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (per French J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (per Weinberg J); Crvenkovic v Latrobe University [2009] FCA 374 at [11] (per Tracey J).
The complaint which led to the commencement of proceeding VID 829 of 2008 was lodged in the Commission on 25 January 2008. The proceeding was commenced on 3 October 2008. In it Alex sought to rely on events which had occurred after 25 January 2008. The Department objected.
Alex responded, on the eve of the trial, by making a further complaint to the Commission on 17 April 2009. That complaint restated his earlier allegations and made further complaints arising from events which had occurred between February 2008 and April 2009. The Commission terminated the second complaint on 25 May 2009. On 29 May 2009 Alex commenced proceeding VID 401 of 2009.
Proceeding VID 829 of 2008 was listed for hearing, commencing on 2 June 2009. On that day Alex applied to have the two proceedings consolidated. The Department did not oppose this application. I ordered that the proceedings be consolidated. As a result Alex was at liberty to lead any evidence directed to establishing any act or omission on the part of the Department which he alleged constituted unlawful disability discrimination, and which occurred up to and including 17 April 2009. With the consent of the Department the same amended statement of claim which had been filed in proceeding VID 829 of 2008 was relied on in VID 401 of 2009 because it contained the allegations relating to events which had occurred between 25 January 2008 and 17 April 2009 on which Alex wished to rely.
THE COURSE OF THE RIAL
The pre-trial period was beset by a series of failures, on the part of those acting for Alex, to comply with procedural directions. This in turn necessitated the fixing of additional directions hearings and revisions to the timetable.
The trial commenced on 2 June 2009. The parties had provided an estimate of 12 days as being needed for the Court to hear evidence and submissions.
Despite directions having been given requiring the parties to exchange contentions of fact and law prior to the commencement of the trial, no contentions of fact and law were filed and served by the Applicant until 28 September 2009. This made it all the more important that Alex’s counsel should open his case with precision and in sufficient detail to ensure that the Court and the Department understood the case that was being put. Unfortunately this did not occur.
Five witnesses were called in support of the Applicant’s case. All these witnesses were cross-examined by counsel for the Department. The Applicant’s evidence was concluded on 11 June 2009, the sixth sitting day.
Cross-examination of the Department’s witnesses commenced on 12 June 2009. By 19 June 2009 – the twelfth and last day set aside for the hearing – only two of the Department’s witnesses had completed their evidence. This was because of the time taken in their cross-examination. The cross-examination was unstructured and was often repetitive and irrelevant.
Counsel advised the Court that another eight days would be needed to complete the hearing of evidence. Dates were fixed for later in the year. Unfortunately, due to the illness of leading counsel for Alex, those dates had to be vacated. The resumption of the trial was then fixed for 19 April 2010. Because of what had occurred during the first hearing period, restrictions were imposed on the length of time available for cross-examination of the Department’s remaining witnesses: cf the principles discussed by Pembroke J in Thomas v SMP International (No 3) [2010] NSWSC 900 at [12]-[24]. Three further witnesses were heard on 19 April 2010 and over the following four days. Despite the limitations, time continued to be wasted in cross-examination. Three of the many examples which could be cited may be mentioned. During his first day in the witness box Mr Crossley (the principal of Branxholme during Alex’s final year at the school) was cross-examined for about two hours on largely irrelevant matters which were said to be raised by eight paragraphs of his witness statement. Although given the opportunity to explain the relevance of the cross-examination the following morning counsel was unable to do so. The first question which greeted Mr Crossley on the third day of his cross-examination was: “Mr Crossley, I just wanted to ask you about the structure by which the responses made by employees of the respondent at the Branxholme School were structured.” He was then asked a series of questions over the next 40 minutes, most of which had no bearing on any issue in the trial. They included whether he had examined files containing assessments of teachers at Branxholme; whether his evidence had slipped “into homily and euphemism”; whether “education itself is regarded in this society as a good thing”; his familiarity with the “my schools website”; and whether test results displayed on the website were a fair reflection of the performance of the teachers and principal at Branxholme. On his last day in the witness box Mr Vecchiet (the principal of Baimbridge) was taxed for some 40 minutes with a semantic examination of a short letter which he had written. The questioning was, at best, of marginal relevance.
In order to avoid losing Court time during this second hearing period, counsel for Alex were required to reduce any evidentiary objections they had to material appearing in the witness statements of the last three witnesses and the Department’s counsel were directed to file and serve written responses. It was as well that these directions were made. Because of the large number of objections I spent some two days in chambers considering them and my rulings were subsequently announced in open Court.
The Respondent’s case was closed on 23 April 2010. Oral and written submissions were subsequently made and filed.
THE RELEVANT LEGISLATION
Alex’s primary claim is that the Department contravened ss 22(2)(a) and 22(2)(c) of the DDA by directly and indirectly discriminating against him on the basis of his disabilities.
At the relevant times, s 22(2) of the DDA provided that:
“(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.”
Proscribed discrimination may be direct or indirect in form. At relevant times s 5 of the DDA defined direct discrimination as follows:
“(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.”
Alex also alleges that he suffered from indirect discrimination. He contends that the Department imposed certain conditions on his education which were not reasonable and with which he was unable to comply.
Section 6 defined indirect discrimination as follows:
“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.”
It should immediately be noted that the definitions of direct and indirect discrimination are mutually exclusive: see Australian Medical Council v Wilson (1996) 68 FCR 46. That does not mean, however, that a complainant is prevented from establishing a factual spring board from which to allege that he or she has been the victim of either direct or indirect discrimination: see, for example, New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 at 83; Tate v Rafin [2000] FCA 1582 at [69].
The statutory definitions were amended by the Disability and Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The amendments did not, however, come into force until 5 August 2009 and they were not, therefore, applicable to the complaints made by Alex.
Alex further claims that the Department breached Parts 3-7 of the Disability Standards in Education 2005, which are promulgated under the DDA: see s 32, which makes it unlawful for a person to contravene a disability standard. Parts 3-7 of the Disability Standards relate to 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.
The Department relies, by way of partial defence, on s 34 of the DDA which provides that if a person acts in accordance with a Disability Standard, Part 2 of the DDA, which includes s 22, does not apply to that act.
In the event that an adverse finding of discrimination was to be made under s 22(2), the Department foreshadowed reliance on a defence under s 22(4) insofar as the discriminatory conduct might have occurred after 10 August 2005. Section 22(4), when read with s 11, provided a defence if avoidance of the discriminatory conduct would have imposed an unjustifiable hardship on the schools concerned.
A statute of limitations defence was also raised in respect of any conduct occurring prior to 3 October 2002.
Alex charged the Department with victimisation in contravention of s 42 of the DDA.
At the relevant times, s 42 provided that:
“(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a)has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(b)has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or
(c)…; or
(d)…; or
(e)…; or
(f)has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(g)has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).”
ONUS OF PROOF
Alex bears the onus of proof in establishing his claims in relation to disability discrimination and victimisation: see Qantas Airways Limited v Gama (2008) 167 FCR 537 at 561 [65] (per French and Jacobson JJ), and 575 [132] (per Branson J). The relevant standard is the balance of probabilities. The strength of the evidence necessary to meet that standard “will vary according to the nature of what is sought to be proved”: Gama at 577 [139] (per Branson J). In this case the allegations made by Alex are indeed serious and this must be borne in mind when assessing the strength of the evidence adduced in support of Alex’s claims: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; Evidence Act 1995 (Cth) s 140.
THE WITNESSES
The witness statements filed by the parties prior to the trial suggested that it would be necessary to resolve a large number of factual disputes. In the event this proved to be unnecessary. There were a number of reasons for this. Some of the contentious material was not read. More significantly, however, a number of the witnesses, particularly the principal witness for Alex, Mrs Paige Walker, agreed under cross-examination that they had made factual errors when recounting relevant events.
Six witnesses were called for the applicant. Alex himself gave short evidence. As already noted, Mrs Walker was the principal witness on the applicant’s side. The other four witnesses were Mr Walker, Mr Robert Dick, Ms Janine Bounds and Ms Bronwyn Doran.
The Department relied on the evidence of five witnesses. They were Ms Juliana Smith, Mr Michael Castersen, Mr Stephen Crossley, Mr Robert Vecchiet and Mr Greg Storer.
With rare and immaterial exceptions, I consider that each witness made a genuine attempt to respond truthfully to questions put to him or her. Not surprisingly, when they were asked to recall details of events which had occurred, in some cases, up to six years earlier, they gave qualified or tentative answers. On many occasions their doubts were resolved when contemporaneous documents refreshed their memories on matters such as when meetings were held, who attended them, what issues were discussed, and what decisions were made.
At this point it will be convenient to make some general observations about each witness.
Although Alex was only in the witness box for a short time, he impressed me as an intelligent, responsive, polite and articulate young man. He was an honest witness. He readily agreed, for example, that he had engaged in misconduct, from time to time, whilst at the two schools.
Mrs Walker was a quiet and measured witness who conscientiously sought to answer questions during cross-examination. She reluctantly accepted that a number of things which she said in her witness statements were exaggerated or wrong. She was plainly a devoted mother who sought to achieve the best possible outcomes for Alex at not insignificant personal cost. Her disappointment at Alex’s lack of progress at school led her to express strong views to the teachers and administrators at the schools which he had attended. Her forthright manner brought her into conflict with successive principals and class teachers whom she considered were not doing what was in Alex’s best interests. These conflicts coloured her evidence. In her lengthy witness statements, for example, she made no positive statements about Alex’s experiences at Branxholme or Baimbridge despite her willingness, under cross-examination, to acknowledge that he had, during his time at these schools, made considerable progress.
Mr Chris Walker, like his wife, “couldn’t see the positive side” of Branxholme although he was prepared to acknowledge that the school had assisted Alex to achieve certain milestones during his six years there. He too had had disagreements with the principals and teachers and these conflicts also had an impact on his appreciation of events. For some reason, which he was unable to explain, he distinguished between principals and teachers engaged by the Department and those at Good Shepherd, notwithstanding the fact that those at Good Shepherd responded to Alex’s misconduct in much the same way as did Departmental staff. Despite these matters I consider that he endeavoured to give a truthful account of the matters about which he gave evidence.
Mr Robert Dick was an advocate engaged to represent the interests of Alex and his parents during some meetings with Departmental staff. He did his best to remember events about which he was questioned. He had a very limited recall of what was discussed at programme support group meetings which he attended at Branxholme. He repeatedly said that he didn’t recall particular matters being discussed but agreed they may have been. His evidence was, as a result, of limited assistance.
Ms Bounds is an experienced educational psychologist. She was consulted, in her private practice, by Mr and Mrs Walker. She examined Alex from time to time and administered tests to enable her to assess his progress. She provided a series of reports on her findings. Those reports were in evidence and she was questioned about them. She also participated in some meetings with Alex’s teachers at which she made suggestions as to how Alex could best be assisted in a learning environment. Ms Bounds was an objective and highly credible witness.
Ms Doran was presented as an expert on disability education and expressed a number of opinions which were critical of the manner in which Alex was dealt with at Branxholme and Baimbridge. In giving her evidence she was combative, argumentative and non‑responsive. I do not accept that she is an expert in the field and thereby qualified to give the opinions which she expressed. She had never given evidence before in a disability case. She was asked to give evidence in this case by an advocate for Alex. She had not undertaken any academic research in relation to matters about which she expressed opinions. She had made no contributions to the relevant literature and had no resort to such literature to support her opinions. She had very little practical experience in the field of disability education. Despite these shortcomings I consider that the views which she expressed were genuinely held by her.
Mr Castersen was the principal at Branxholme during Alex’s early years at that school. He was a calm and careful witness. He readily conceded a lack of detailed memory of some incidents about which he was questioned. He displayed great sympathy to Alex and was clearly concerned to do all within his power to assist Alex’s educational progress. He was inclined to understate the seriousness of some of Alex’s conduct, including an assault on him in front of other students.
Ms Smith was Alex’s class teacher in Grades 2, 4, 5 and 6 at Branxholme. She was an impressive witness. She was clearly a conscientious, experienced and dedicated teacher. She was genuinely concerned for Alex’s well-being both educationally and socially. Her descriptions of Alex’s conduct were measured and reflected an understanding of his disabilities.
Mr Crossley succeeded Mr Castersen as principal at Branxholme. He too was closely involved with Alex and demonstrated a desire to assist Alex with his education to the greatest extent possible. He had had many acrimonious exchanges with Mr and Mrs Walker during his early years at Branxholme. He clearly resented some of the allegations made against him under cross-examination but nonetheless did his best to remain objective when his opinions were sought.
Mr Vecchiet was the principal at Baimbridge during Alex’s first three years at the school. He oversaw a much larger institution with many more students and teachers than were to be found at Branxholme. For this reason he was more detached from the planning and management of Alex’s education than were Messrs Castersen and Crossley. Direct responsibility for Alex fell to specialist teachers and aides. Nonetheless, Mr Vecchiet was kept informed of relevant matters by his staff and had direct contact, from time to time, with Mr and Mrs Walker and Alex. He impressed me as a highly professional educator.
Mr Storer was a parent of children at Branxholme and was the co-ordinator of the Auskick programme which was conducted on the school grounds. Alex had caused distress to his son by wrestling him to the ground in the school yard. He had also seen Alex dealing over‑vigorously with younger children. While he was plainly unhappy with what he observed he did not appear to bear any personal animosity towards Alex and sought to give an accurate account about his observations of Alex’s conduct and his dealings with Mr Crossley about that conduct.
DISCRIMINATION RELATING TO EDUCATION
The Department did not dispute Alex’s claim that he suffered a “disability” within the meaning of s 4 of the DDA or that it (or Branxholme and Baimbridge) was “an educational authority” within the meaning of s 22(2). Nor did the Department dispute that its schools should be available to assist with the education of students who were suffering from disabilities.
Issue was, however, joined as to whether the Department had contravened either or both paragraphs (a) or (c) of s 22(2) of the DDA.
Education is but one of a number of fields of human endeavour to which the DDA applies. The proscriptions which s 22(2) contains were considered by Gleeson CJ in Purvis v New South Wales (2003) 217 CLR 92 at 99-100 [7]. His Honour there noted the tensions which will often arise between the duties imposed by s 22 in respect of individual children and the wider legal responsibilities which teachers and administrators owe to all students. His Honour said:
“The Act deals with discrimination in a normative, not a value-free, context. Section 22, with which this case is concerned, proscribes discrimination ‘against’ a person on the ground of the person’s disability … The question is whether the Act treats certain action taken in respect of conduct that affects, not only the person said to be the victim of the discrimination, but other persons whom the alleged discriminator is obliged by law to protect, as unjust and unlawful discrimination. The first respondent owed a duty of care towards its pupils and its staff. That is part of the legal background to the operation of the provisions of the Act dealing with education. In its application to educational authorities, the Act enters an area of relationships governed by legal obligations designed to protect the young and vulnerable. In the development of common law principle, it is appropriate, and sometimes necessary, for a court to take account of the need for coherence in the law … The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.” (emphasis added).
This case provides a very good example of the practical difficulties which confront educational administrators when they endeavour to perform their duties in a manner which is consistent with the requirements of the DDA.
By the end of the trial it had become clear that the dispute between the parties essentially concerned and arose out of the differing appreciations of Mr and Mrs Walker on the one hand and the Department on the other, of the efficacy and effectiveness of the teaching and socialising regimes which were put in place at Branxholme and Baimbridge in order to cater for Alex’s disabilities. Mr and Mrs Walker considered that, had different strategies and additional resources been devoted to Alex’s education, he would, despite his disabilities, have been able to reach the same levels of literacy and numeracy as those achieved by his peer group.
The Department’s contention was that this expectation was not realistic. It accepted that Alex was intelligent and was able (as he did) progressively to improve his numeracy and literacy. His disabilities, however, meant that his progress was slower than that of others in his academic year group who were not so disabled. Progress was, nonetheless, made to the point where the Department submitted that Alex had benefited educationally from his attendance at both Branxholme and Baimbridge. The Department drew attention to a number of the conclusions reached by Ms Bounds which suggested that the assistance provided to Alex at both Branxholme and Baimbridge had enabled him to make good academic progress notwithstanding his disabilities.
Six reports from Ms Bounds were in evidence. In none of them did she level criticism at either school in relation to the educational methods which they employed to assist Alex. Nor did she criticise the regimes which were put in place in order to ensure that, when interacting with other students, Alex behaved in a socially acceptable manner and he was made aware that consequences would follow if he did not abide by the schools’ requirements. In April 2008 Ms Bounds expressed the opinion that Alex would never reach his chronological year level in literacy and numeracy. Nonetheless she considered that, when Alex’s disabilities were taken into account, he was thriving in a mainstream school environment and was able to cope in most subjects as well as his peers. By February 2008 she had come to the view that Alex no longer had a specific learning disability in reading because of significant improvements in his reading capacity.
There were also differences about how Alex’s admitted misbehaviour should have been managed. The factual sub-stratum from which these differences emerged was largely uncontroversial.
One example of many which could be cited which illustrates the differences of perception between the parties, as to how best Alex’s conduct might have been regulated, is provided by some questions which were put to Mr Vecchiet during cross-examination. He was being asked about an incident which occurred at Baimbridge in February 2008. The following exchange occurred:
“MR PERKINS [Counsel for Alex]: And the document that you included said:
28 February 2008, late for class. Went in and said, ‘Hello, teacher dude.’ He was reprimanded, and Mr Bell said he will not call him that again.
What’s that about?---That sounds as if it’s about the teacher asking Alex not to speak, call him “dude” again, but to call him Mr Bell and to show an element of courtesy.
And your position about this is, “Here’s the note, it’s not something I ever investigated but look at this.” That’s your opinion. You didn’t investigate this, did you?---No, I didn’t investigate every incident that’s there, your Honour.
It is absolutely correct to say you didn’t ever encourage anybody to put a greeting like that in perspective, did you?
MR BOURKE [Counsel for the Department]: What perspective?
MR PERKINS: Perspective that the child in question had an autism spectrum disorder?—I’m sorry, am I expected ---
You didn’t - I’m putting it to you – you didn’t ever encourage anyone to put that in the perspective that the child had autism spectrum disorder.
HIS HONOUR: I think what you’re being asked is, when members of your staff from time to time reported to you that Alex had behaved in an inappropriate way, did you make a point of saying to them, “But you understand that he’s suffering from particular disabilities”?---The fact that Alex was suffering from particular disabilities was brought to the attention of all his teachers. It’s normal practice for our integration program to create a book of each of the students in the program with a précis of their condition and how it may manifest itself, and how it may be able to be addressed. That’s placed in the staff room as a general rule, so staff have access to that. In the case of Alex, if you like, with a more severe range of behaviours, there was even – that had even – a higher profile, so that staff were given even more information about Alex’s condition.
MR PERKINS: Look, proper leadership would have been very simple in that situation, I suggest to you, and it would have been along the lines, “Don’t treat that as sufficiently important in the context of Alex Walker being an autism spectrum disorder person,” that, I – what I’m putting to you is that that greeting was totally without importance, and a proper leadership approach would have said that’s the way to approach it?---Am I being asked for an opinion about that approach, your Honour?
Yes, about proper leadership approach to the use of such an expression by an autism disorder sufferer?---My reading of the comment in the document was not that Mr Bell berated Alex, it was simply that he corrected him on the appropriate way to address him. So I didn’t feel that it had been taken badly.
Really? Yes, go on?---Equally, there are other items in the diary that talk about the good days, so I’m not – I wasn’t concerned terribly about Mr Bell’s reaction. I didn’t think it was a strong reaction.
What on earth could it be about saying “hello, teacher dude” which is – which requires – that a child who says it, with Asperger’s syndrome – I’m sorry, autism spectrum disorder – needs to be rebuked?---Well, part of what we were trying to do – if – was that we were trying to make sure that Alex learned some social skills, so that if he did behave inappropriately and say something that might be misconstrued in another environment, that he was, it was explained to him that it wasn’t correct. And so this would simply be the same sort of correction that we would make to any other child in terms of how they might address a child.
The same sort of correction you might make to any other child?---Correct.
In other words, not an intervention that’s designed for Alex Walker as someone with ASD?---It was part of teaching Alex social skills, like it would be teaching anybody social skills.
Indeed it was, but the manner of the intervention or the manner of dealing with it, Mr Vecchiet, had to be different for a person with autism spectrum disorder, didn’t it?---I don’t believe it was necessarily to treat Alex completely differently for every single case, every single behaviour.” (Emphasis added).
As the tenor of this and other lines of questioning make clear, it was a significant part of Alex’s case that he should, by reason of his disabilities, have been treated differently from other students in matters of discipline. The school principal, for his part, considered that it was necessary to enforce disciplinary norms in order that Alex might gain social skills in the school environment.
Mrs Walker explained her position in her second witness statement as follows:
“The difference between the Principals’ approach and ours can be seen by comparing the way they speak about Alex, compared to what we know about Alex’s disabilities and their impact on him. They speak about Alex in a blaming way that concentrates on his behaviour. We have always tried to understand the world from Alex’s perspective, and sought to think of constructive ways to lessen his stress. These are completely different perspectives and approaches – one seeks to marginalise Alex and the other seeks to understand and include him.”
The principals and teachers, on the other hand, were aware of Alex’s disabilities and considered that the strategies which they employed in order to deal with the manifestations of his disabilities struck a balance between the need to assist Alex and the educational needs and safety of his fellow students. From their standpoint the two objectives need not be in conflict. The enforcement of the school discipline code, for example, was seen to assist in the socialisation of Alex and to protect other students from his disruptive conduct.
At one point counsel for the Department went so far as to submit that the educational outcomes achieved by Alex at the two schools was so beneficial that it should be found that he had not suffered any detriment within the meaning of s 22(2) of the DDA. I do not agree.
It will, shortly, be necessary to essay, in some detail, an account of Alex’s educational and other experiences at Branxholme and Bainbridge. As will become apparent, there is no doubt that events occurred, in the course of his attendance at these schools, which may properly be considered to fall within paragraphs (a) and (c) of s 22(2). Alex was, for example, suspended on a number of occasions as a disciplinary measure. As a result he was denied access to the normal classroom learning activities provided by the schools. Whilst at school he was, sometimes, segregated from other students and, during these periods, was prevented from enjoying social interaction with them. He was not permitted to attend at least one school excursion. He was, for a period, denied the opportunity to experience travelling on the school bus.
Many of the complaints raised by Alex in advancing his indirect discrimination case related to alleged failures by the Department to make particular resources available in order to improve his educational opportunities. As will be seen, I have concluded that some of these allegations are unfounded. Others are not explained with sufficient precision to enable a finding to be made that any requirement or condition of the kind alleged was imposed. Yet others, on analysis, amount to allegations of direct rather than indirect discrimination. The one complaint which I have found to have substance was that a requirement was imposed on Alex that he “access” his education at Branxholme without “one-to-one assistance in his academic subjects”. The imposition of this requirement may, in my opinion, constitute a detriment for the purposes of s 22(2)(c) of the DDA.
The central question on these applications is whether conduct on the part of the Department which had the effects identified in s 22(2)(a) and (c), was discriminatory within the meaning of ss 5 or 6 of the DDA.
DIRECT DISCRIMINATION
Alex alleges that the Department directly discriminated against him by treating him less favourably than a person without his disability by:
·not permitting him to attend school during recess and lunchtime at Branxholme;
·not permitting him to attend school excursions at Branxholme;
·preventing him from attending Baimbridge at all during the third term of 2007;
·thereafter preventing him from attending school full-time at Baimbridge; and
·preventing him from travelling on the school bus during 2008.
In order for him to establish this part of his case, it is necessary for Alex to demonstrate that the Department did (or failed to do) one or more of these things “because of” his disabilities thereby treating him less favourably than the Department would have treated someone without his disabilities in the same, or not materially different, circumstances.
There must, therefore, be a causal nexus between Alex’s disability and the treatment of which he complains. In Purvis, Gummow, Hayne and Heydon JJ held (at 163) that:
“… the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability. Motive, purpose, effect may also bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’”.
In his judgment Gleeson CJ (at 102) was also concerned to identify “the true basis” of a decision to expel a student from school. His Honour said that:
“The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled … If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 [of the DDA] are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority’s responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil’s disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal’s decision was the danger to other pupils and staff constituted by the pupil’s violent conduct, and the principal’s responsibilities towards those people.”
See also at 143-4 (per McHugh and Kirby JJ); Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [68]-[70].
The Court is, therefore, required to determine, as a question of fact, why (in the sense of the “real reason” or “true basis”) the impugned conduct occurred.
It must also be shown that the Department treated Alex less favourably than it would have treated other students who did not suffer from his disabilities in the same or substantially similar circumstances. The importance of identifying and bringing into account the relevant circumstances when making the comparison required by s 5 was emphasised by members of the High Court in Purvis. In their joint judgment Gummow, Hayne and Heydon JJ said (at 160-1):
“It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the ‘circumstances’ to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. …
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended on an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘discriminator’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
In the present case, the circumstances in which [the student] was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without [the student’s] disability? (ii) If [the student’s] treatment was less favourable than the treatment that would be given to a person without the disability, was that because of [the student’s] disability? Section 5(1) could be engaged in the application of s 22 only if it were found that [the student] was treated less favourably than a person without his disability would have been treated in circumstances that were the same or were not materially different from the circumstances of [the student’s] treatment.” (Emphasis in original).
See also at 100-101 (per Gleeson CJ); Zhang v University of Tasmania (2009) 174 FCR 366 at 384-5 [63]-[64] (per Jessup and Gordon JJ).
Recess and lunchtime regime at Branxholme
In 2004 Alex was in Grade 4. He was one of 25 students who were taught in a combined Grades 4, 5 and 6 class at Branxholme. His teacher was Ms Julie Smith. Ms Smith had earlier taught Alex in Grade 2 and was aware that he had a short concentration span. She adopted a number of measures in an effort to assist him. She made him a member of a small group which she called “the Treasures”. This group was given shorter tasks than other groups within the class but were nonetheless challenged so that they could enjoy a sense of achievement at the completion of assigned activities.
In 2004 Ms Smith divided her class into four groups based on academic ability. Each group had a separate curriculum. Alex was one of four students who formed part of the Treasures group. Students moved between groups depending on the subject being taught and a student’s level of progress in the subject. Although Alex spent most of his time as part of the Treasures group he worked in another group for some subjects.
Ms Smith had the assistance of a teaching aide, Ms Katrina Pigdon, on four days a week during the 2004 academic year. Ms Pigdon regularly worked with the Treasures group, assisting them to perform tasks and activities which had been given to them by Ms Smith. From time to time Ms Smith also worked on a one to one basis with Alex.
During this year Ms Smith received a number of reports relating to Alex. They came from Ms Lauren Campbell, an educational psychologist employed by the Department, Mr Tim Rayner, an audiologist and Ms Janine Bounds, a psychologist in private practice. Each report made recommendations which were adopted by Ms Smith. Ms Bounds’ report raised, for the first time (at least as far as Ms Smith and Branxholme were concerned), the possibility that Alex might be suffering from Asperger’s Syndrome.
Mr Michael Castersen became acting Principal at Branxholme at the start of term 4.
During the year Alex had displayed some minor behavioural problems in the classroom. From time to time he niggled other students and he would occasionally use bad language. Despite this Ms Smith considered that she had been able to manage his conduct.
Towards the end of the year, however, Alex commenced to misbehave in the school playground during recess and lunch breaks. He tended to mix with younger students rather than his own year level. On 5 October 2004 he swung a yo-yo around his head and it struck two other students. On 16 November 2004 Mr Castersen received a complaint from the mother of a younger girl who complained that Alex had called her daughter a “bitch”. Mr Castersen spoke to Alex about this matter. Alex’s response was: “you don’t have the authority to keep me behind these gates beyond school hours.” On 22 November 2004, Alex called a preparatory or Grade 1 girl a “big fat cow”.
These events caused Mr Castersen to convene a meeting on 23 November 2004 which was attended by him, Ms Campbell, Ms Smith and Mrs Walker. Mr Castersen expressed his concern about Alex’s conduct. He raised the possibility of Alex going home during some recess and lunch breaks in order to relieve any stresses which might lead to anti-social behaviour by him in the playground. This suggestion was supported by Ms Campbell and Ms Smith. Mrs Walker wanted time to consider the proposal and it was agreed that she and Mr Castersen would discuss the matter further on 26 November. They did so. Mrs Walker told Mr Castersen that she was opposed to Alex going home at lunchtime and that his behaviour was the school’s problem.
Mr Castersen nonetheless insisted that Alex should go home for some lunch times each week unless this was inconvenient to Mrs Walker on a particular day. The Walker home was only a few doors away from the school.
This regime was put in place. When Alex was at school during the lunch break he was closely supervised by the teacher on duty.
Despite this his misconduct continued. As students were leaving the school on the afternoon of 25 November 2004 Alex was heard to use the word “fuck” in the hearing of a teacher. On the following day he knocked another student’s lunch off a seat.
On 29 November 2004 Mr Castersen had a meeting with Mr and Mrs Walker. They discussed strategies for managing Alex’s conduct for the remainder of 2004 and during the following year. The issue of Alex going home at recesses and lunch time was again raised. Both Mr and Mrs Walker said that they did not agree with Alex coming home. Mr Castersen said that it would be necessary for there to be a behaviour management plan for Alex and weekly meetings to review how he had behaved.
Alex’s misbehaviour continued. During recess on 30 November 2004 Mr Castersen passed Alex and said “hello”, to him. Alex’s response was “up yours, Castersen”. In early December 2004 Alex made a sexual gesture to a female teacher in class. On 10 December 2004, during a recess, Alex threw another student’s ball onto a roof. Upon being advised of this incident Mr Castersen rang Mrs Walker and asked her to take Alex home. He did so because he was concerned that Alex’s conduct was becoming more dangerous and there was a risk that he might injure another child or that a child might become injured attempting to retrieve a ball which had been thrown away.
At about this time Mr Castersen made a point of observing Alex’s behaviour in the school yard during recess and lunch time breaks when he was present. Mr Castersen often saw Alex acting as if he was going to hurt another student. Alex made a range of gestures (punching, throwing and gun shooting) at other students and regularly made gun shooting gestures towards Mr Castersen. Alex would also, from time to time, stick his fingers up at other students or interrupt other students who were playing marbles by kicking their marbles away.
In 2005 Alex moved into Grade 5. He was part of a combined Grade 4, 5 and 6 class of 27 students. The class was again taught by Ms Smith. As she had done in the previous year Ms Smith divided the class into groups. Alex spent most of his time in the Treasures group but also joined other groups for particular subjects or activities.
During 2005 Ms Smith was assisted by three aides, two of whom worked mainly with Alex.
During this year Alex was, at most times, well behaved in the classroom. There were occasions, however, where he disrupted classroom activities by making inappropriate statements and failing to abide by his teachers’ directions.
Alex’s behaviour outside the classroom continued to deteriorate. There were many incidents. Some examples will suffice.
During the lunch break on 7 February 2005 Alex threw another boy’s bag into some bushes. When asked why he had done so he responded: “because he is a pain.” He told the yard duty teacher to “get fucked”. When these matters were reported to Mr Castersen he directed that Alex remain after school for 30 minutes and rake leaves. Alex refused to do this. Mr Castersen told him that his attitude was not satisfactory and that he would have to perform the task on the next day. Alex responded: “I am going to kill you” and “I am not going to do this”. He made a shooting gesture.
During recess on 9 February 2005 Alex tripped a younger girl. She fell to the ground and was covered in grass and dirt. When asked what had occurred Alex said that the tripping was an accident which occurred while he was playing with two girls. The girls denied that Alex was involved in their game.
Following this incident Mr Castersen advised Mr and Mrs Walker that he considered it necessary for regular meetings to resume to review Alex’s behaviour.
During recess on 3 March 2005 Alex threw a basketball and tennis bats at other students. He missed some of his targets but hit one student on the back of the head with a basketball and another on the neck with a tennis bat.
On 15 June 2005 Alex threw a rock at another student. The rock hit the student near his eye. This unprovoked attack occurred in the presence of parents and students, including the mother of the victim. Mr Castersen suspended Alex for three days.
After school on 16 August 2005 a teacher asked all students to pick up five pieces of paper and put them in the bin. Alex responded by saying: “I don’t have to and there’s nothing you can do about it.” He eventually complied with the teacher’s direction but said that “I can do anything I like and I can get away with it.”
On 17 August 2005 during the lunch break Alex jumped on a sandcastle created by younger students. Following further misbehaviour that afternoon Alex was sent home.
A more serious incident occurred on 15 September 2005. Alex was leaving his classroom in a rush. He knocked a girl to the ground. Mr Castersen was passing the classroom at the time. He asked Alex what had occurred. Alex made no comment and walked back inside the classroom. Mr Castersen directed Alex to collect his bag and come with him. As Mr Castersen turned away from Alex, Alex punched him in the back and kicked his leg. Mr Castersen turned back and, as he did so Alex pushed him to the ground in the corridor. Alex then ran off. Mr Castersen telephoned Mrs Walker and told her what had occurred.
In the course of the year many meetings took place between Mr Castersen and Mrs Walker to discuss Alex’s behaviour. Some of these meetings were also attended by Ms Smith, Ms Bounds and Mr Walker.
During these meetings Mr Castersen maintained that, if Alex’s behaviour warranted it, he should go home at lunch times so that he could calm down away from any stresses he was experiencing at school. Although Mr and Mrs Walker persisted, in the earlier part of the year, in their opposition to this strategy, at a meeting with Mr Castersen on 22 August 2005, they agreed that Alex should be sent home if he engaged in defiant behaviour at school. It was also agreed that Alex would have an option during recess of pursuing indoor activities such as using a computer or playing games. He could seek permission to go outside and this would normally be approved. Alex usually chose to remain inside. At lunch times he went home unless this was inconvenient for Mrs Walker.
In October 2005 there was a meeting attended by Mr Castersen, Ms Smith, Mr and Mrs Walker and Ms Bounds to review the recess and lunch time arrangements. All present agreed that Alex should continue to have a structured recess timetable of activities and that he would continue to go home at lunch time. It was thought that the lunch time break would not only relieve stress but might also improve Alex’s concentration during class in the afternoon.
In term 4 Mrs Walker was away from home more often and, as a result, Alex did not go home at lunch time on many days. On the days on which he remained at school during the lunch break he was given the option of structured activities indoors, an option which he often took up. When in the playground he was closely supervised.
On 27 October 2005 Ms Bounds produced a report in which she reviewed various aspects of Alex’s behaviour. She recorded that Alex had ongoing difficulties at school and that some of these difficulties related to his conduct during recess and lunch times. She noted that Alex preferred to play with younger children and did not do so appropriately.
In 2006 Alex moved into Grade 6. He was part of a combined Grade 4, 5 and 6 class of 18 students. Save for term 3, when she was away, the class was taught by Ms Smith. She followed her previous practice of dividing the class into groups. In this year she did not have a Treasures group. She was assisted by two aides.
Mr Castersen had left the school at the end of 2005 and an acting principal was appointed for term 1 of 2006. Mr Stephen Crossley became the principal at the end of March 2006.
Alex continued to use inappropriate language in the classroom. On 19 April 2006, for example, he told Mr Crossley: “you’re a fucking stupid principal” and “you don’t know how to run a fucking school”. These words were uttered in the presence of other students and led to a two day suspension.
On 12 July 2006 Alex had misbehaved all morning in the classroom. When Mrs Walker came to collect him at lunch time Mr Crossley told her what had happened. Mr Crossley and Mrs Walker went into the classroom and Mr Crossley invited the teacher to explain what had occurred to Mrs Walker. As the teacher was doing this Alex intervened saying (of the teacher): “she’s a retard”, “she was crap”, and “this is bullshit”. Alex spoke these words while walking around the classroom in the presence of Grade 4 students.
Alex was suspended.
On 17 July 2006 a meeting was held at the school between Mr Crossley, Mrs Walker and Alex. One of the issues discussed was the continuation of the recess and lunch time arrangements. Mrs Walker agreed that Alex should continue to go home at lunch times except on Mondays and Fridays. On these days Alex was supervised when in the playground. It was agreed that structured activities would continue to be provided during recess periods.
These strategies were, unfortunately, not successful in curbing Alex’s anti-social behaviour outside the classroom. Serious incidents continued to occur. Again, some examples will suffice.
During the lunch break on 21 July 2006 (a Friday) Alex wrestled a Grade 1 boy to the ground and engaged in simulated sex on him. He told a Grade 2 girl that her “brother [was] gay”.
On 14 August 2006, during afternoon sport, Alex told a Grade 4 girl that he would “get a knife and kill you.” On the same day he told another girl that “Josh has a one centimetre thing and he will stick it up [your] bum”. The girl burst into tears.
As the year progressed Alex continued to harass the girl whom he had threatened to kill. On 19 October 2006 he struck her during the lunch break. He then said words to the effect: “I should have smacked her in the face”, “Chloe … is an idiot” and “if she comes near me … cos I will smack her face off”. On 28 November 2006 he threw basketballs at the girl saying: “who hates Chloe?” and pushed her over.
In the course of 2006 regular meetings occurred to review Alex’s behaviour. Most involved Mr Crossley and Mrs Walker. Some of these meetings were also attended by Ms Smith, Mr Heinicke (one of the aides), Ms Liz Jones (the student wellbeing and diversity manager for the region) and Mr Robert Dick (a disability advocate engaged by Mr and Mrs Walker).
During 2005 and 2006 a written student management plan operated at Branxholme. It applied to all students and dealt with what was to occur in the event that a student contravened the school’s student code of conduct. The plan provided for a range of consequences depending upon the seriousness of the student’s misbehaviour. The consequences ranged from warnings, notification of parents, the tendering of an apology, payment of repair costs for damage, after school community service (a form of detention) through to suspension and expulsion.
Branxholme’s responses to Alex’s misconduct (including the imposition of community service and suspensions) were guided by this plan.
Alex completed his studies at Branxholme at the end of 2006.
Alex contended that, in excluding him from the playground and from school during recess and lunch breaks between 2005 and 2006, the Department directly discriminated against him, contrary to the provisions of 22(2) of the DDA. This contention must fail.
It must fail because it cannot be said that the Department (or Branxholme) would have treated another student without Alex’s disabilities any differently from the way in which it treated Alex. This is because the relevant comparator is a student displaying the same behaviour as Alex did but without the disability, not a student without the disability and without the behaviour. Furthermore, Alex has not established that, in imposing the relevant regime, the Department subjected him to any detriment.
In making the comparison required by s 5 of the DDA, it is first necessary to have regard to the behaviour which led to the imposition of the regime. That behaviour was disruptive of the learning and recreational activities of other students at Branxholme. More significantly, it was threatening to other students and, in some cases, like the stone throwing incident, physical harm was caused to another student. Alex’s actions regularly caused distress to other students.
In these circumstances Mr Castersen and Mr Crossley had no option but to devise strategies which were designed to assist Alex and protect other students.
Mr Castersen and Mr Crossley were both alert to Alex’s psychological problems. They were aware that, if he were tired or stressed, he would often exhibit anti-social behaviour. That behaviour sometimes occurred in the classroom, but more serious manifestations of it occurred on a regular basis in the playground during the morning recesses and lunch times. They were ever mindful of their duty of care to other students.
Both principals considered that one way of relieving the stress experienced by Alex and avoiding threatening and dangerous behaviour on his part, was to place him away from the school playgrounds whenever possible. This strategy was approved by Ms Bounds and, in time, by Mr and Mrs Walker. Having regard to the number of times Alex misbehaved when he was in the playground under supervision I readily infer that there would have been many more such incidents had Alex not been inside the school or at home during recreational periods.
The next question is whether the imposition of the regime was a less favourable step than would have been taken in the case of another student who had acted in the same disruptive fashion but who did not labour under the same disabilities as did Alex.
Both Mr Castersen and Mr Crossley said that they had dealt with Alex in the same way as they would have dealt with any other student who had acted in the same manner. They did so consistently with their professional expertise in order to promote Alex’s welfare and protect the welfare of other students. They applied the student management plan that was applicable to all students. I accept this evidence.
The Department did not call detailed evidence about how other students who had contravened the school’s code of conduct had been dealt with under the management plan. This was probably because the case put by Alex was not one of asymmetrical treatment but rather that, because of his disabilities, the management plan should not have been applied to him. The general evidence of Messrs Castersen and Crossley concerning the consistency and fairness with which they applied the management plan to students was not seriously challenged.
I, therefore, conclude that Alex was not dealt with, under the management plan, less favourably than another student who did not have Alex’s disabilities would have been treated had he or she engaged in the same or substantially the same misconduct.
Relevantly, the response complained about was the putting in place of arrangements under which Alex spent time in the school building or at home during many recess and lunch time periods. These were a form of suspension. It is not strictly accurate to say that this regime involved him being excluded from the playground. This is so because it was open to him to ask for permission to go into the playground during recess and, if he asked, that permission would usually be given. He was also able to go into the playground during lunch times when it was not possible for him to go home because his mother would not be there. Alex usually preferred to amuse himself in the school building during recess and appeared to enjoy the structured activities which were there provided for him. The luncheon breaks reduced some of the stress which he experienced and he appeared to be calmer in class on afternoons when he had been home at lunch time.
To this extent the application of the student management plan to Alex appears to have operated to his benefit.
Excursions at Branxholme
During his time at Branxholme Alex attended many school excursions. These included an eisteddfod, swimming programmes, a camp at Bendigo, a performance at the Hamilton Performing Arts Centre, a t-ball competition, a wood, wine and roses festival, an Anzac memorial service, an AFL football clinic and a school concert.
In his final written submissions this aspect of his complaint was shortly dealt with. The submissions referred to a mention of excursions in a behaviour management plan (“a BMP”), to an end of year camp and to an excursion to Kryal Castle.
Under the sub-heading “Management of Behaviour” in a BMP dated 23 July 2006, it was recorded that:
“Alex will not attend any school excursions or camps or participate in any after school activities; if Alex cannot be adequately supervised at school because of these activities he is to remain at home; Alex may continue to prepare for Music Night at the end of term 3 but his participation is subject to his continued good behaviour.”
It was submitted that:
“Bearing in mind the above, [Alex] contends that it is impossible to know which excursions and camps Alex did not go on as his parents may not have been advised. However it is clear the intention of Branxholme was that he did not attend.”
This submission assumes that Alex may have been excluded from some excursions but does not identify any such event apart from one with which I will shortly deal. The submission fails to acknowledge that, at the next meeting to consider Alex’s behaviour which was held on 29 August 2006, the BMP was modified to read:
“Alex’s participation in any school excursions or camps or after school activities is to be negotiated with the Principal; if Alex cannot be adequately supervised at school because of these activities he should remain at home; Alex may continue to prepare for Music Night at the end of term 3 but his participation is subject to his continued good behaviour.”
The submission also overlooks Mrs Walker’s evidence that Alex went to all school excursions at Branxholme unless she refused permission.
The second matter which was referred to in final submissions related to an end of year camp in November 2005. The camp was to take place over two to three nights at a beach location near the Twelve Apostles. Attention was directed to some passages in Mr Castersen’s witness statement where he said:
“This was a camp which involved being at a beach in the water and in canoes. I spoke to Mr and Mrs Walker about Alex’s ability to manage his behaviour in an unstructured setting where he might run away. This was a camp that was not in a confined area and was close to water so I was concerned about Alex’s safety.
His behaviour at school was at such a level that I felt that we could not guarantee Alex’s safety (or if Alex was present, the safety of other students) and that it was better for Alex not to attend.”
In the event Alex did not attend. Mr Castersen’s evidence about why he refused to permit Alex to attend was not challenged. I accept his evidence.
The third matter referred to – the excursion to Kryal Castle – did not take place while Alex was at Branxholme. It took place in May 2009 while he was at Baimbridge. He was not permitted to attend for disciplinary reasons. In any event, the decision not to permit him to attend was made after the date of the second complaint and, for that reason, cannot be relied on by Alex in this proceeding.
I am not satisfied that Alex was prevented from attending school excursions while at Branxholme, save for the end of year trip in November 2005. The refusal on that occasion was prompted by Mr Castersen’s concern for Alex’s safety and the safety of fellow students. These were the real reasons for refusing permission for him to attend.
Attendance at Baimbridge
Alex complains that he was discriminated against by not being permitted to attend Baimbridge during the third term in 2007 and not being permitted, thereafter, to attend the school on a full time basis. It will be convenient to deal with these two complaints together.
At the beginning of 2007 Alex commenced his secondary education. He did so at the Good Shepherd Lutheran School in Hamilton. It was necessary for him to travel from Branxholme to Hamilton on the school bus.
Almost immediately Alex became disruptive in and out of the classroom. He was prone to use bad language, much of it sexually explicit. He was also using such language on the bus. The school regularly contacted Mrs Walker to tell her that this was occurring and that many complaints had been received from teachers, students and the bus driver.
By at least April 2007 Mrs Walker had come to the view that Alex’s behaviour at the Good Shepherd school was so bad that he may not be able to function in a school environment. She turned her mind to other options such as home schooling and distance education.
Towards the middle of the year Alex’s conduct at the Good Shepherd school had become so bad that the school asked Mr and Mrs Walker to remove him. They did so.
In June 2007 Mrs Walker went to Baimbridge and spoke to the principal, Mr Vecchiet. She told Mr Vecchiet that she wished to enrol Alex at the school. At that meeting Mrs Walker told Mr Vecchiet that Alex had been asked to leave the Good Shepherd School because that school could no longer cope with his behaviour.
Following the meeting, Mr Vecchiet contacted the regional office of the Department about the prospect of enrolling Alex. He was advised that, at Branxholme, Alex had engaged in some extreme behaviour, including overtly sexual behaviour, and that this had led to complaints by the parents of some of the other students. Mr Vecchiet formed the view that, if Alex was to be admitted to Baimbridge, it would be desirable for an aide or aides to be appointed to assist with Alex’s education. To this end he sought a formal direction to be given to Baimbridge to enrol Alex so that the chances of obtaining additional funds to engage an aide or aides would be improved. A decision was subsequently made that Alex would be admitted to Baimbridge.
In the meantime Alex undertook distance education in some subjects and on Tuesdays and Wednesday mornings he attended the SGAE in Hamilton where he participated in a programme designed for students aged between 15 and 19 years.
On 6 July 2007 the principal of the Good Shepherd School wrote a letter which outlined its concerns with Alex’s behaviour during his time there. The letter was sent to Baimbridge. The letter referred to Alex’s defiant attitudes to some teachers; his use of offensive language including language containing sexual innuendo; his use of computers to obtain access to “disgusting websites”; his disruptiveness in the classroom; his unwillingness or inability to complete even minimal work assignments; and kicking and swearing at fellow students.
On 18 July 2007 a meeting was held at Baimbridge to discuss strategies for Alex’s introduction to the school. The meeting was attended by Mr Vecchiet, some departmental officers from the region, Mr Scott McFadden, the middle school coordinator at Baimbridge, Ms Lauren Campbell, the network educational psychologist, and Ms Gaynor Eats, the integration coordinator at Baimbridge.
It was agreed at the meeting that it would be best for Alex if he did not commence at Baimbridge as a full time student. Rather, it was agreed, in principle, that he should commence by attending for short periods and progressively increase the time he spent at school. There would be a need for him to be supervised during recesses and for a male mentor to be appointed to assist him.
On 18 July 2007 Baimbridge made application to the Department for funding to employ an aide to assist Alex. The provision of funding was not approved until 19 October 2007.
After funding was obtained for an aide it took some weeks to obtain the services of an appropriate person. Shortly before Alex commenced to attend at Baimbridge, on 19 November 2007, Mr Peter Fry, a former principal of the school, was appointed to assist Alex.
Whilst awaiting funding Ms Eats prepared a more detailed plan for the introduction of Alex to Baimbridge. The plan provided for Alex to continue to attend SGAE on Tuesdays and on Wednesday mornings and with his distance education. Alex would attend Baimbridge on two mornings per week between 9:00 am and 12 noon. The reason that it was decided that there should be two half day attendances at Baimbridge during the transition stage was that longer periods in the school environment had previously proved stressful for Alex and it was thought that these stresses may have been exacerbated in a secondary school environment. Mrs Walker thought that it was advisable that such stresses be avoided if possible. He would receive one to one support from the aide outside the classroom structure. They were to work together on Alex’s distance education courses, science and technology, library, computer work and at the gymnasium. Alex was to have a recess time separate from other students. Baimbridge would fund four days of activities at SGAE for Alex until the end of 2007.
This plan was discussed with Mrs Walker and she agreed that it was appropriate. It was implemented. With hindsight she accepted that it had been successful.
Once he commenced at Baimbridge, Alex quickly established a good working relationship with Mr Fry. Mrs Walker expressed the opinion that Alex was enjoying the time he spent at Baimbridge and that he liked Mr Fry. Alex worked well during the final term of the year.
On 11 December 2007 a programme support group met at Baimbridge to review Alex’s progress. Those attending included Mr and Mrs Walker and Ms Eats. It was agreed that Alex would recommence year 7 in 2008 and would move into a classroom with other students.
Mr Fry’s appointment concluded at the end of the academic year.
At the start of 2008, Alex attended Baimbridge on Monday and Thursday mornings. He attended classes and the morning recess period. He spent one and a half or two days each week at SGAE and continued to pursue courses by distance education. Mrs Walker considered that these arrangements worked quite well.
In a second witness statement, which was prepared after Mrs Walker had read Mr Crossley’s account of events, she branded his account as “completely false”. She asserted that Mr Crossley had “ordered Alex off the grounds due our discrimination complaint (sic) – he plainly said it.” This had been done in the presence of Mr Walker who responded by saying “this is bullshit” and walking away. She said that the issue of the supervision of Alex had not been discussed. She said that she had not called Mr Crossley a bully although she found his demeanour to be bullying and she did not say that Mr Crossley was picking on Alex and his family. She did say that Alex was doing nothing wrong and that Mr Crossley’s actions were discriminatory.
Under cross-examination Mrs Walker agreed that, when Mr Crossley spoke to her and her husband, they were sitting in the family car in the car park near the entrance to the school grounds. Alex had left the car and was on one of the ovals. Mr Walker then got out of the car and walked towards where Alex was. After he had left, Mrs Walker and Mr Crossley had a conversation in which she had said to him that “Alex is doing nothing wrong.” She denied accusing Mr Crossley of being a bully or telling him that he was picking on Alex or his family. She denied that Mr Crossley had said: “If Alex is going to be on the school grounds when Auskick is on, he should be supervised properly” but she accepted that such supervision could not properly be provided whilst she and her husband remained in the car. Although she thought that Mr Crossley was discriminating against Alex at the time, she did not say so to him, at least in those words. She agreed that she might have mentioned the issue of discrimination. She denied that Mr Crossley said to her: “Come on, Paige, you are already suing the school.”
In his witness statement Mr Walker said that, on 20 May 2008, he and Mrs Walker were present at the Branxholme football oval. As the Auskick staff were setting up, some younger children were kicking footballs towards the goals and Alex was standing at the goal posts and giving the footballs to them. Mr and Mrs Walker were about 150 yards away from Alex. Mr Crossley approached and said that it was not appropriate for Alex to be there “considering the action we were taking against the school.” Mr Crossley said that he would prefer it if Mr and Mrs Walker removed Alex. Mr Walker was furious and got out of the car and started to walk towards Alex. Mr Walker called Alex over to him and took him back to the car park. Alex was protesting that he had done nothing wrong. Mrs Walker then took Alex home. Mr Walker remained until his two younger children had finished at the clinic. No member of the Auskick staff said anything to him.
Under cross-examination Mr Walker agreed that, when Mr Crossley spoke to them on the afternoon of 20 May 2008, he and Mrs Walker were sitting in their car which was about 150 metres away from where Alex was playing with younger children. They were playing with footballs. Mr Walker denied that Mr Crossley had said to him and Mrs Walker that “Alex should not be on the school grounds whilst unsupervised” and that “Alex is playing rough with young kids.”. He agreed that, when Mr Crossley approached, he got out of the car and said words along the lines of “this is bloody stupid” and then walked off towards where Alex was playing. He did not hear any exchanges between his wife and Mr Crossley after he left.
In his witness statement Mr Crossley gave a more detailed account of what he said had transpired on the afternoon of 20 May 2008.
He commenced by acknowledging that he had become aware in February 2008 that Mr and Mrs Walker had lodged a discrimination complaint with the Human Rights and Equal Opportunity Commission. His witness statement continued:
“228. On 20 May 2008, there was an Auskick program conducted at Branxholme. …
229.The Auskick program was conducted on one of the Branxholme ovals. School finishes at 3.15pm and the Auskick program will commence at 3.30pm. Although it is not a requirement, all the participants in this program are students from Branxholme. The children are all of primary school age. This program requires the participants to be between the ages of 5 and 12 and to have formally registered to participate in this program. Between 3.15pm and the commencement of Auskick at 3.30pm, many of the children have a snack before the program starts.
230.At some time between 3.15pm and 3.30pm I was under the verandah outside the multi-purpose room. … From this position, I do not have a clear view of the main oval where the Auskick was to take place.
231.During this period between 3.15pm and 3.30pm, I was advised by Margaret Cameron that Alex Walker was on the school grounds and was playing rough with ‘the little kids’ (which I took to be a reference to some of the young primary school students that would be involved in the Auskick program when it started at 3.30pm). I was also told that Alex’s parents were not supervising Alex but were in fact in their car parked out at the front of the school.
232.I believe within a couple of weeks of 20 May 2008, I was told at least a couple of times by Mr Greg Storer (one of the co-ordinators of Auskick and at the time also a school council member (now Vice-President)) that he was unhappy with Alex being in attendance during a previous Auskick program (not as a participant) because he had been seen playing rough with some young kids. I was concerned about this and felt that if Alex was to be on the school grounds during Auskick he needed to be properly supervised.
233.On 20 May 2008, I was very concerned about being told that Alex was playing rough with some young students at Branxholme and immediately walked towards the main oval to see for myself what was going on. Perpendicular to the main oval is another green patch of grass that I call the back oval. I thus walked past the old art room, past the shelter shed until I had a relatively clear view of part of the main oval and back oval. I could see from some 30 metres from the oval that Alex was near the goalposts at one end of the back oval and appeared to be playing with about eight prep/grade 1/grade 2 children a form of ‘no rules rugby’ or ‘keepings off’.
234.I could see that although Alex was not intending to be deliberately rough, it was a rough game and I saw the young children trying to wrestle Alex and get the ball off him and being knocked over. I was concerned that Alex was involved in such a rough, physical game with children that were a lot younger than him and there was no supervision of this activity. I did not consider it appropriate for Alex to be involved in this activity given his size in relation to the other children and the risk, especially in the absence of supervision, of a small child being injured. In forming this view, I could not also ignore the experiences Branxholme had had with Alex, including difficulties we had sometimes had with Alex in his dealings with young children. I knew Alex was not in attendance to participate in Auskick as he was too old. I knew that Alex would be there because his younger brothers were participating in Auskick.
235.After seeing Alex involved in this activity on the main oval, I started walking immediately up to the carpark area, where I had been told Mr and Ms Walker were located. This is an area on the street out the front of the school.
236.When I got to the area outside the school where cars are parked, I saw Mr and Ms Walker’s car with both Mr and Ms Walker in the front seat of the car and Ms Walker in the driver’s side seat. … I would estimate that it is approximately 130 metres from this location to the back oval. From this position, Mr and Ms Walker would have had an extremely limited view of Alex on the back oval near the furthest set of goalposts from where they were parked.
237.I approached Mr Walker on the front passenger side of the vehicle. Mr Walker opened the passenger side door so that I could speak to him. I said hello to Mr and Ms Walker. I don’t recall any response. I then said Alex should not be on the school grounds whilst unsupervised and he’s been playing rough with young kids.
238.Mr Walker got out of his car and said, under his breath, but I could hear it but he was not looking at me when he said it, ‘this is bloody stupid’. He then walked past me towards where Alex was located.
239.Ms Walker then began to speak to me. I remember slightly crouching to see her face. She said to me: ‘Alex is doing nothing wrong, you’re picking on Alex. You’re discriminating against Alex. You’ve always picked on Alex and the family. You are a bully’. Ms Walker had a raised voice and was clearly emotional and angry.
240.I said: ‘if Alex is going to be on school grounds when Auskick is on, he should be supervised properly and that means that you or your husband should be next to Alex.’ I made the comment that being as far away as they were in the carpark while Alex was playing with little kids, it was not a good enough level of supervision.
241.Ms Walker responded by saying again: ‘Alex is doing nothing wrong, you’re just picking on Alex. You’re discriminating against Alex. You’ve always picked on Alex and the family. You are a bully.’
242.I said: ‘Paige, all I’m asking is that you properly supervise Alex on the school grounds while Auskick is on’.
243.Mrs Walker again said to me: ‘You’re picking on Alex. You’re discriminating against Alex. You’re being unfair. You’re a bully.’
244.I wanted to explain to Ms Walker that we already had one case involving Alex with the school being sued and I didn’t need for Alex to be involved in any other incident, if, for example, a young child was injured. I began saying to Ms Walker: ‘c’mon Paige, you’re already suing the school’ but I did not get to complete my statement that we both didn’t need another potential incident if someone was hurt because Alex was not being properly supervised. Ms Walker, however, prior to me finishing what I wanted to say, said in a very angry manner: ‘you’re just a bully. You’ve always been a bully and you’re just picking on Alex.’
245.I said: ‘you’ve got to supervise Alex properly when he is at the school’. I then left.
246.During my exchange with Ms Walker, Ms Walker was highly emotional and angry. My demeanour was calm and professional when I spoke to her. I do not believe that Mr Walker was present. He may have heard the beginning of my conversation with Ms Walker, but I doubt this as he was walking away from me and towards Alex. I later saw Mr Walker approaching the car with Alex as I was leaving from speaking to Ms Walker.
247.My decision to request Mr and Ms Walker to adequately supervise Alex was entirely because I considered it appropriate that Alex be adequately supervised by his parents whilst around young children especially if he was going to engage with rough play with young kids on the school grounds. Further, I also had in mind my own previous experiences with Alex at Branxholme which heightened my concern about Alex being unsupervised on school grounds. Alex’s behaviour is unpredictable, and so I also wanted to ensure that Alex was adequately supervised so that any young children were adequately safeguarded in the event that Alex engaged in any inappropriate behaviour towards them. Issues between Alex and younger students had been a feature of Alex’s inappropriate behaviours in the past. This request had nothing to do with the fact that Ms Walker was suing the school for discrimination.
248.I did not require Alex to leave the school grounds. My only requirement was that Mr and Ms Walker adequately supervise him whilst on the school grounds. I did not suggest that Alex could not do Auskick. I never thought that Alex was going to be a participant in Auskick. My concern was that because of the Auskick program, there were many younger children in attendance, some being of a very young age.
249.In response to paragraph 209 of Ms Walker’s statement, it is correct that Alex, prior to me speaking to Mr and Ms Walker, was playing with other children near the goal posts. It was not correct that he was helping out with Auskick. Auskick had not yet started.
250.In response to paragraph 210 of Ms Walker’s statement, the conversation is not as recounted by Ms Walker but as I have stated above. It is incorrect that I asked Alex to leave. As stated above, what I asked for was for Mr and Ms Walker to supervise Alex in an adequate manner. It is not correct that Ms Walker had no choice but to take Alex home. Mr and Ms Walker could have remained with Alex provided they complied with my request to adequately supervise Alex.
251.In response to paragraph 39 of Mr Walker’s witness statement, it is correct that the Auskick program had not commenced and people may have been setting up for the program to commence. I agree that Alex was in the vicinity of the goalposts but he was not returning footballs. Alex was involved in what appeared to me to be a ‘no rules rugby’ or ‘keepings off’ game.
252.I dispute that I said anything to Mr Walker about the court case. That remark was made to Ms Walker after Mr Walker had left the car and walked towards Alex. I doubt whether Mr Walker was near enough to Ms Walker and me to hear me mention the court case, but he may have been.”
Very early in his cross-examination Mr Crossley was asked about his association with Mr Storer both through the school and within the wider local community at Branxholme. He was asked about when he became aware that the Walkers had made a complaint to the Human Rights and Equal Opportunity Commission and confirmed that, in May of 2008, he was well aware that the complaint had been made. Some questions were asked about the conduct of Auskick at the school grounds. Mr Crossley was then asked about the first occasion on which he had spoken to Mr Storer about Alex. When he said that this had happened in 2006 the cross-examination turned to a lengthy examination of an incident which had occurred, towards the middle of 2006, in which Alex had wrestled with one of Mr Storer’s children in the school yard and caused the child a good deal of distress. Much of this questioning was directed to the fine detail of the interaction between Mr Crossley and Mr and Mrs Storer in the wake of the incident. Mr Crossley was asked, for example, about whether he had reported the incident to Mrs Storer or Mr Storer first, if and when he had attended the Storer home to discuss the issue, what refreshments were offered when he did attend and how long he stayed. Counsel sought to suggest that Mr Crossley had not dealt with the incident appropriately. Once all this information was elicited, counsel for Alex moved on to a different topic, never to return to the events of 20 May 2008. Mr Crossley’s account of events on that afternoon was left unchallenged.
In his witness statement Mr Storer said that he had, prior to 20 May 2008, observed Alex engaging in rough play with smaller children during Auskick clinics and that he had spoken to Mr Crossley about it.
When cross-examined Mr Storer said that he had become aware of the Walkers ‘complaint to the Human Rights Commission in his capacity as a member of the school council. He was asked about his association with Mr Crossley at and outside the school. He was asked what experience he had that made him an appropriate person to run the Auskick program. He was asked whether Mr Crossley had ever told him that he (Mr Crossley) had played football for Frankston and whether Mr Crossley had any particular expertise on football or the rules of football. He said that he had observed Alex over a period of 15 to 20 minutes playing with younger children on the oval. Alex had become progressively rougher in his interactions with the children. He was not, however, sufficiently concerned, to intervene. He confirmed that, after an earlier Auskick clinic, he had expressed his concern to Mr Crossley about Alex engaging in rough play. It was not put to Mr Storer that he had not advised Mr Crossley about his concerns about Alex playing roughly with younger children. Rather the questioning seemed designed to suggest that he was a friend of Mr Storer’s who might be expected to support him and that, as Vice President of the School Council he was inclined to throw his lot in with the Department once the Walkers had made their complaint. He was asked a considerable number of questions about the incident involving his own son two years earlier and his subsequent dealings with Mr Crossley about that incident.
Both counsel submitted that I should accept the account given by their witnesses as to what had occurred on the afternoon of 20 May 2008. They relied on the credibility of their witnesses and factors which were said to undermine the reliability of witnesses who had given conflicting accounts.
Counsel for Alex contended that Mr Crossley’s version of the incident was “implausible and unreliable”. This submission was based entirely on what was said to be inconsistencies between the evidence of Mr Crossley and Mr Storer about the incident in 2006 involving Mr Storer’s son and the aftermath of that incident. Counsel also relied on the fact that Messrs Storer and Crossley were friends and a suggestion that Mr Storer had a conflict of interest as Vice President of the School Council who “therefore had an interest in protecting the school.” He also referred to the fact that there was no suggestion that Alex had caused any harm to children attending the Auskick clinic before he was allegedly asked to leave.
Counsel for the Department submitted that the evidence given by Mr and Mrs Walker was unreliable because they both had “a deep animosity and hostility” towards Mr Crossley and were angry and emotional during their exchanges with Mr Crossley. They had each seen the other’s witness statements before they were filed and were thereby able to present a common version of what had transpired. It was further submitted that Mr Crossley’s denials must be accepted given that they were wholly unchallenged when he gave evidence.
The offence created by s 42 of the DDA attracts a maximum penalty of imprisonment for six months. A charge that a person has committed an act of victimisation is, therefore, a grave allegation. The onus was on Alex to establish the charge beyond reasonable doubt.
The failure of counsel for Alex to challenge Mr Crossley’s evidence relating to the events on the afternoon of 20 May 2008 did not constitute a contravention of the rule in Browne v Dunn (1893) 6 R 67 because Mr Crossley was on notice, having had access to Mr and Mrs Walkers’ witness statements, that his account was to be contested: see Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 (per Hunt J). Because such notice had been given, he was able (as he did) to deny the allegation and provide a detailed account of what he said had occurred. The failure by counsel for Alex to challenge any aspect of that evidence or to put to Mr Crossley the material parts of Mr and Mrs Walkers’ conflicting account does not, therefore, lead to the conclusion that Mr Crossley’s evidence must be accepted and Mr and Mrs Walker’s evidence, to the extent that it differs from that of Mr Crossley, must be rejected. The failure does, however, make my task in assessing Mr Crossley’s credibility on this matter more difficult than it otherwise might have been had I been able to observe him being questioned about these matters and hear his responses.
As I indicated at the start of these reasons I formed a generally favourable impression of Mr and Mrs Walker and Messrs Crossley and Storer. I think that they did their best to give truthful evidence. The fact that their recollections of what must have been a tense exchange which occurred over a year earlier and of which there is no contemporaneous record and assumptions based on their long running acrimonious association provide at least a partial explanation for their differing recollections.
When all of the evidence is considered some significant facts were not contested. Mr Storer had, on at least one occasion, prior to 20 May 2008, observed Alex playing roughly with younger children who were attending the Auskick clinic. He had reported these observations to Mr Crossley. On the afternoon of 20 May 2008 both Mr Crossley and Mr Storer had observed Alex engaging in some rough play with younger students near some goalposts while preparations were being made to commence the clinic. Nothing Alex did, however, led either of them to intervene. Mr Crossley was, nonetheless, concerned that Alex might become more vigorous and unintentionally harm a younger student. Shortly after making the observations he went and spoke to Mr and Mrs Walker who were sitting in a car about 150 metres away from where Alex was playing.
In the circumstances, it would have been understandable had Mr Crossley told the Walkers that he thought that Alex needed to be supervised more closely. An alternative course would have been for Mr Crossley to ask for Alex to be removed. This is what the Walkers say they were asked to do. Mr Walker appears to have understood that such a request had been made. He not only moved closer to where Alex was playing but he also called Alex over, walked with him to the car and Mrs Walker took him home. The removal of Alex could also be explained by anger on the part of the Walkers that a request had been made that he should be better supervised. In this context it is to be recalled that Alex had, to Mr Crossley’s knowledge, been present on the school grounds at Auskick clinics earlier in the year after the discrimination complaint had, to Mr Crossley’s knowledge, been made, and Mr Crossley had not taken any steps to ban his further attendance.
Had Mr Crossley done no more than request that Mr or Mrs Walker closely supervise Alex while he was on the school property, an extremely broad construction of the phrase “subjects … to any detriment” would have been required to establish that such a request constituted victimisation. A direction that Alex not be allowed to remain on the school grounds would, on the other hand, more readily have been found to constitute an act of victimisation.
The unsatisfactory state of the evidence does not allow me confidently to determine whether Mr Crossley merely requested that the Walkers closely supervise Alex or whether he directed that Alex be removed from the school grounds.
Whatever request or direction was given by Mr Crossley the central question is whether it was made or given on the ground that the Walkers had made a complaint to the Human Rights and Equal Opportunity Commission.
Mr Crossley acknowledges having said to Mrs Walker, towards the end of their exchange, that she was already “suing the school”. He said that he made this remark to emphasise his concern about Alex’s behaviour because the school was being sued as a result of another incident in which Alex had been involved. Mr Crossley was not asked to identify the nature of the incident or to provide details of the litigation to which he referred. If Alex, acting through Mrs Walker, was the plaintiff in such litigation, Mr Crossley’s remark that she was “already suing the school” could be understood as a reference to that litigation. If, on the other hand, the litigation involved the school being sued by somebody else by reason of something Alex had done, then the remark is less comprehensible. The position is left uncertain because Mr Crossley was not called on to clarify his evidence in this regard.
In her first statement Mrs Walker said that Mr Crossley had told her that it was not appropriate that Alex be on the school grounds because the Walker “family were suing the [Department]”. It is also notable that the letter written by Ms Phillips to the Department’s Regional Office later that day on instructions from Mrs Walker alleged that Mr Crossley had said that it was not appropriate that Alex be on the school grounds “because the family were suing the [Department].” Having read Mr Crossley’s account, Mrs Walker rephrased her evidence in her second statement. She said that Mr Crossley had “ordered Alex off the grounds due to our discrimination complaint – he plainly said it.” In neither statement did she attribute particular words to Mr Crossley.
In his witness statement Mr Walker said that Mr Crossley had said that it was not appropriate for Alex to be at the school “considering the action we were taking against the school.” If there was, indeed, other action being taken by the Walkers against the school this evidence would be consistent with that of Mr Crossley, assuming, of course, that contrary to Mr Crossley’s version, Mr Walker had heard the remark.
One may readily appreciate that non-lawyers might, loosely, describe the making of a complaint to the Commission as “suing” the Department. The witness statements were, however, drawn up with the assistance of lawyers. In their first statements both Mr and Mrs Walker attributed to Mr Crossley the phrase “suing the Department”. So did Ms Phillips, on Mrs Walker’s instructions given immediately after the conversation. It was only after Mr Crossley had said that the litigation to which he was referring when he used the word “suing” was an unrelated piece of litigation that Mrs Walker offered a paraphrased version of Mr Crossley’s statement which specifically mentioned the “discrimination complaint”.
In these circumstances I consider that it is more likely than not that Mr Crossley did refer to the Walkers “suing the Department” and that this was taken by them, mistakenly, to be an allusion to the making of their complaint. I also accept that it is more likely than not that Mr Crossley, in making the remark, was referring to a separate legal proceeding and not to the lodging of the disability discrimination complaint.
No other proscribed reason was relied on by Alex.
In order for a charge to be made out under s 42 it must be established that the impugned act has been performed “on the ground that” the victim has done one of the things identified in s 42(2) of the DDA. The required causal connection between the complainant’s act and the defendant’s response has been considered in a number of cases. They were reviewed by Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925 at [85]. His Honour concluded that:
“Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s 42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. The establishment of the suggested ground is as much a matter for proper proof as any other factual circumstance.” (Emphasis added).
For the reasons which I have given I am not satisfied beyond reasonable doubt that the making of a complaint to the Commission in January 2008 was a substantial and operative reason for any request by Mr Crossley that Mr and Mrs Walker supervise Alex or any direction given by him that Alex should be removed from the school property.
It follows that, even if Alex had been able to surmount the multiple hurdles which he faced in pursing the prosecution of the State of Victoria for an offence under s 42 of the DDA, the charge could not have been made out. It should be dismissed.
DISPOSITION
The application and the charge must both be dismissed. I will hear the parties as to any further orders which may be required.
I certify that the preceding three hundred and thirty-one (331) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 22 March 2011
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