Cavanagh v School of Nursing and Midwifery, University of Notre Dame

LEAVE UNDER s 46PO(3A) OF THE AHRC ACT 4 In Owen v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2020] FCA 1826 I considered the principles governing the grant of leave under s 46PO(3A) and noted (at [20]-[24]) that: 20 In James v WorkPower Inc [2018] FCA 2083, Mortimer J said (at [37]-[38]): 37 I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38 There may be a range of other permissible considerations including: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party. (Emphasis added [in the original].) 21 The views of Mortimer J were confirmed in Matthews v Markos [2019] FCA 1827 by Abraham J (at [29]-[33]) and also in Budini v Sunnyfield [2019] FCA 2164, where Charlesworth J said (at [52]): To her Honour's observations I would add the qualification that in a case where a respondent to a complaint alleges that the allegations have no reasonable prospects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part either because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or … (c) no reasonable cause of action is disclosed (Emphasis added [in original].) 22 As noted in Jones v Westpac Banking Corporation [2020] FCA 238 by Kerr J (at [87]), granting leave to commence a claim with 'no realistic prospects of success…' would be contrary to the purpose of s 46PO(3A) of the Act, 'which was designed to filter out cases where the merits are disproportionate to the time and resources likely to be consumed'. 23 That approach has also been recently applied by Gleeson J in Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080. I respectfully concur with all those analyses and would add that allowing misconceived applications to be maintained only produces an ultimately deleterious outcome for the applicant as well as the respondent. No good purpose at all can be served by mindlessly permitting such applications. 24 I do note also that Mr Owen seeks an extension of time within which to file the application. He explains the minor delay in filing the application and nothing in my assessment turns on that minor delay. Clearly the Court has a discretion under s 46PO(2) of the Act to extend the time in which an application can be made under s 46PO(1). The discretion is unconfined, other than by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (at 40). There was an adequate explanation for the delay. There is no prejudice to APM (in fact, APM does not wish to be heard on the application), but the real consideration is the prospects of success of the application if an extension were to be granted.

THE CLAIM 5 Mr Cavanagh is a student at the University. His complaint in the Commission relates to his treatment during a nursing practicum between 16 October 2017 and 27 October 2017 until he was removed from the program by the University. He says he suffers from schizophrenia, schizoaffective disorder, depression and insomnia. He says his removal was: ... because I have suffered from insomnia (which was being managed with antidepressants during the time of my nursing practicum). They also make mention of genetic mutation which impairs me, and depression (which was being managed with antidepressants during the time of my nursing practicum). According to the University, because of my circumstances, my practicum was ended. 6 The University's response to the complaint was as follows: Mr Cavanagh was removed from the placement due to performance issues; staff at the placement provider made complaints about Mr Cavanagh's behaviour, namely that he: slept through the orientation and turned up an hour late the following morning; failed to turn up to a meeting with staff which had been confirmed with him both verbally and by email; was unprofessional and inappropriate in his communication and dealings with residents including failure to develop a rapport with residents, regularly walking into residents' rooms without knocking, failing to look residents in the eye, sitting in a resident's room on the floor, pulling a pad from underneath a resident in an abrupt manner making them feel exposed and uncomfortable and generally making residents feel uncomfortable; carried his phone whilst working, putting it on the desk in the nursing station after being told at orientation that phones must be left in students' bags at all times; was pacing the ward continuously in an unsettled manner; was hyperactive and on edge; regularly mentioned that he was an Assistant in Nursing and acted superior to staff and other students; acted as if he did not want to be there. Mr Cavanagh met with a University staff member to discuss the performance issues raised by the placement provider and disclosed that he was suffering from insomnia; the University, in consultation with the placement provider, decided the practicum would end due to 'unprofessional conduct and inappropriate behaviour during the placement' but advised that Mr Cavanagh could undertake another placement as soon as he was certified fit to return; and the University then outlined a subsequent placement attempt ending on 8 June 2018 which resulted in a fail grade. The circumstances and outcome of that placement were not the subject of the Commission's inquiry. 7 The University also advised, as noted by the Commission, that Mr Cavanagh had already unsuccessfully appealed the failed grade which he received for the course.

IN THE COMMISSION 8 The Commission's key reasons for terminating the complaint were expressed as follows: … Reasons for my decision By way of background, the Commission has the power to inquire into complaints of unlawful discrimination under the DDA, however, continued inquiry into alleged unlawful discrimination may not be warranted in all circumstances. When considering whether or not to continue an inquiry under section 46PH(1)(c) of the [AHRC Act], the types of factors the President's Delegate may consider include: the apparent merit of the claim (including where there is not sufficient material to support the claims); other actions that have been taken and/or other remedies that are available; and the prospects of a practical outcome or remedy being achieved through the Commission's process. Apparent merit of the complaint In circumstances where a person alleges direct disability discrimination under section 5 of the DDA, they are required to provide or point to information which supports that they have been treated less favourably because of their disability/ties than a person without their disability in the same or similar circumstances. Direct disability discrimination includes situations where a person with a disability has not been provided with reasonable adjustments. You claim that you were removed from your practicum placement because you have 'suffered from insomnia'. You say the University also made mention of 'genetic mutation which impairs me' and 'depression (which was being managed by antidepressants ...' and claim that because of your circumstances, your practicum was ended. Regarding your October 2017 practicum placement ending, the information before the Commission indicates the University had numerous concerns about your performance. Some of these appear to have been outlined in the University's 27 October 2017 email to you about feedback from the clinical placement provider (referring to sleeping during orientation, being late, forgetting appointments, eye contact difficulty and use of your mobile phone during practicum). Also, in the University's written response to your complaint, it says the reason for the ending of your placement was due to 'performance issues', saying complaints from the placement provider's staff were received about your behaviour inclusive of concerns about sleeping, non-attendance at a staff meeting, 'unprofessional and inappropriate' communication and dealings with residents (see paragraph (b) above). I understand that you dispute at least some of the feedback provided to you in the 27 October 2017 email and in your correspondence provided to this Commission on 1 July 2019 you provide information about the circumstances you were dealing with at that time. While I appreciate that you may not agree with all the feedback you received, the information before the Commission supports that the University held significant concerns about your performance and that those concerns were relayed to you at the time. When considering whether there was any less favourable treatment because of your disability/ties, it is relevant to consider how someone, who did not have your disabilities, but who conducted themselves in the same way in similar circumstances (inclusive of circumstances where the University has raised non-attendance and 'unprofessional and inappropriate' communication as issues of concern), would have been treated. Due to the serious nature of nursing work and patient care, it is potentially arguable that such a person would have been treated in the same way, in that they would have been removed from their practicum placement due to performance concerns about unprofessional conduct. Regarding a potential indirect disability discrimination claim under section 6 of the DDA, a person is required to provide or point to information which supports that: - they are required to comply with a requirement or condition that is the same for everyone; and - because of their disability they could not, or would not, be able to comply with the requirement or condition; and - the requirement or condition is likely to have the effect of disadvantaging people with the disability. It is noted that a requirement or condition will not be unlawful discrimination where it is reasonable in the circumstances. While your complaint appears to have been framed as a complaint of direct disability discrimination only, in terms of a potential claim of indirect disability discrimination, if any requirement or condition of general application could be said to apply, it is that nursing students are required to be present at nominated times and carry out work in an appropriate and professional manner while on a nursing practicum placement. It is not clear from the information before the Commission whether you were unable to comply with this requirement or condition because of your disabilities or that such a requirement or condition would have the likely effect of disadvantaging people with those disabilities. In addition, it may be open for the University to argue that a requirement for students on a nursing practicum placement to carry out work in a professional and appropriate manner, is a reasonable requirement. Other actions taken/remedies sought Considering any other actions taken and/or other remedies which are available in relation to this complaint, you have stated you are seeking for the fail grade to be overturned. The accepted allegation that the Commission is inquiring into is the ending of your placement on 27 October 2017 and the information indicates you subsequently applied for retroactive withdrawal for that semester so that no fail grade appeared (your application was Attachment A to the University's response). The fail grade appears to relate to subsequent interactions with the University in 2018 which are not part of the Commission's inquiry. In any case, I note that the information indicates you appealed the fail grade through the University's appeals process. Where students are challenging a decision of the University, I understand that students may choose to raise the issue through the University's internal review processes and/or the WA Ombudsman. … (Emphasis added.)

ORAL SUBMISSIONS 9 I raised questions with Mr Cavanagh when he appeared on his application for leave about the merits of his application. In short, the answers he gave made it clear that Mr Cavanagh felt that he was unfairly treated by the University. But there are other avenues of redress for such complaints if they are valid. For the reasons which follow, I was not satisfied that any of his complaints, even at a prima facie level, amount to any form of discrimination under the AHRC Act and the DDA. 10 Mr Cavanagh was invited to address the matters raised by the Commission and explained his embarrassment at being mocked in relation to certain matters by staff members and of being spoken to in a cruel or oppressive way. 11 Mr Cavanagh explained that he has an occupation as a nursing assistant, so he has been doing similar roles as he was required to do as a student nurse in the practicum and was quite capable of doing anything he was asked to do, but was treated poorly. 12 He complained about lack of tolerance for his being late to a meeting with a staff member but that the lateness was caused only by his need to attend to the requirements of a patient. Generally speaking, there was much focus on the fact that he should have been treated better and should still be in the program. 13 Regrettably, none of these matters adequately answer the position correctly summarised by the Commission as to the deficiencies in the basis for any potential discrimination complaint raised by Mr Cavanagh. 14 It cannot be said that any of the feedback provided to Mr Cavanagh or the reasons why the University removed him from the practicum were anything but reasonable requirements that any person would be expected to meet during a nursing practicum. The Commission's reasons for terminating the complaint make this much clear, and are careful, detailed and considered. As noted by Mortimer J in James v WorkPower Inc [2018] FCA 2083 (at 38(3)]), a consideration relevant to the grant of leave is how thoroughly the Commission has dealt with the merits of the complaint and whether such treatment by the Commission reveals that the complaint is not reasonably arguable. That is clearly the case here.

THE DELAY 15 I also questioned Mr Cavanagh as to why there was such a delay. He explained that he had been unwell, that there had been numerous other commitments and that looking after himself was the first priority. In matters of this nature, a reasonable amount of flexibility on the part of the Court is not uncommon, but this delay is extreme. It is a factor that I have to take into account in considering whether leave should be granted.

CONCLUSION 16 Mr Cavanagh's delay in seeking leave is substantial. But the further fundamental difficulty is the lack of merit in the application. It is not possible to fault the reasoning of the President (or delegate) of the Commission which has been set out above. 17 In the circumstances, the complaint raised by Mr Cavanagh does not fall within the legislative ambit of the relevant discrimination legislation. The claim has no prospects of success under this legislation and leave of the Court should not be granted to pursue it. In this Court, Mr Cavanagh could be exposed to a claim for costs should he fail, which would be very likely. It is also highly preferable, I think, that such matters, when they have no realistic prospects of success should be concluded at an early stage before litigants are drawn into a relentless vortex of stress, costs and anxiety for no possible useful outcome. 18 Leave to bring the application must be refused. There will be no order as to costs, unless the University applies within 10 days for costs. In that event (which at least on the relevant factors as I know them seems unlikely in this instance), the parties should file and serve submissions not exceeding three pages and the question of costs will be resolved on the papers, unless the Court otherwise orders. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.