De Kauwe as litigation representative of Joshua de Kauwe v State of Victoria

Teaching of functional communication 14 The first involves the Court giving consideration to whether there might be any basis to entertain the proposition that the lay evidence as is sought to be pressed could go to establishing a system or practice of the Respondent not teaching functional communication to students who are non-verbal and have the same disabilities as the Applicant. 15 In that regard, the Applicant's submissions refer to paragraph [10] of Ms Tracey Hayes' statement of 9 May 2019. That paragraph is as follows: 10. Ms Marinelli worked at the school for approximately 6 months. We terminated her work with the boys when, at a meeting in August 2015, she told us she had been teaching the boys sign language as a communication method without our authority. This was not a communication method that we had agreed upon, and was not a communication method that we supported, due to the fact that only other people who understood sign language could benefit from any expressive communication they might use. 16 In my view, it is entirely implausible that the evidence Mr Bingham proposes to lead from Ms Hayes has any capacity to demonstrate (or go towards demonstrating) the existence of the system or practice contended for. It fails to even give colour to the allegation to which it is said to relate as identified at paragraph [64D] of the Applicant's SFASOC: viz, that the Respondent requires a majority of students in Victoria who attend government schools to comply with a requirement or condition that they access the curriculum and/or their education in the main orally and without the teaching of a Functional Communication Method. 17 The entirety of paragraphs [7]-[10] inclusive of Ms Tracey Hayes' statement are contextually linked. They relate to events and practices specific to her son. I am satisfied not only that those statements are not evidence of the fact alleged at [64D], but also that they are irrelevant to any of the more specific pleaded claims advanced on the Applicant's behalf. It is not pleaded that the Applicant was taught sign language. Having regard to my conclusion that the evidence does not go to any of those pleaded matters, it is irrelevant and inadmissible for that reason.

Lack of one-to-one support 18 The second entirely implausible instance involves the Court giving consideration to whether there might be any basis on which to entertain the proposition that the lay evidence sought to be pressed could go to establishing a system or practice of the Respondent not allowing students with disabilities as experienced by the Applicant to receive one-to-one support to assist them to learn and communicate; be supported in the mitigation of behaviours pursuant to a Behaviour Intervention Plan; and be supervised for safety reasons. It is uncontentious that the Applicant pleads (at paragraphs [45]-[50] of the SFASOC) that he required, but was not provided with, intensive one-to-one assistance by a dedicated staff member in all of his classes for those reasons. 19 In that regard, Mr Bingham's written submissions cite the evidence of Ms Hayes at paragraphs [8]-[9] and Ms Guedes at paragraphs [1]-[10]. 20 However, there is nothing in the evidence proposed to be led as set out in paragraphs [1]-[10] of Ms Guedes' witness statement as might be understood to ground the proposition that the Respondent had a system or practice of denying such assistance to students requiring those supports. The same is true of paragraphs [8]-[9] of Ms Hayes' witness statement. 21 It may be accepted that the evidence proposed to be led from Ms Hayes is in respect of her dissatisfaction with the way in which two of her sons - who she describes as having severe autism spectrum disorder - were educated. They were educated at Kilberry Valley Primary School. That is significant, because the Applicant's SFASOC at paragraphs [45]-[50] refers to his suffering from a lack of one-to-one assistance between February 2011 and July 2016. That was a time when he was attending Marnebek Special School. I note that paragraph [64A] of the Applicant's SFASOC also confines his alternative claim to the period during which he attended Marnebek. 22 What is advanced at paragraphs [8]-[9] of Ms Hayes' witness statement therefore does not demonstrate, or go towards demonstrating, that the Respondent had a system or practice of not offering one-to-one assistance to students with needs comparable to those of the Applicant at Marnebek Special School. Instead, it relates to a single instance at a different school in respect of different children whose interests were being addressed in a different manner. It is not evidence of a system. 23 Standing in isolation from any (rejected) capacity to establish a system, those paragraphs are without relevance to the Applicant's pleaded case. They are inadmissible for that reason. However if I am wrong in that regard I am satisfied that I am entitled, as Tracey J was in Kiefel v State of Victoria [2011] FCA 1301 at [15]-[16], to decline to permit that evidence to be adduced because the differences between the Applicant's position and that of the other students whose circumstances are addressed in the relevant evidence are of such significance that any probative value that the evidence might be thought to have is substantially outweighed by the danger that admitting the evidence would cause or result in undue waste of time at trial. It would be inconsistent with the quick, inexpensive and efficient determination of the present proceeding, to which both the parties and the Court are required to have regard in view of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Pursuant to s 135(c) of the Evidence Act, I therefore would not permit the Applicant to lead that evidence. 24 I now turn to the two instances where there is at least a colourable argument in the Applicant's favour that the relevant lay evidence is material as to the existence of a system or practice as is relevant to the Applicant's pleaded case.

System or practice of using seclusion or restraint with students with disabilities 25 Mr Bingham submits that the following proposed evidence goes to establishing a system or practice of the Respondent using seclusion or restraint with students with disabilities: (a) Mr Freestone in his witness statement dated 9 May 2019 at paragraphs [1]-[4], [8] and [16]-[17]; (b) Mr Koenders in his witness statement dated 23 September 2019; (c) Ms Guedes in her witness statement dated 9 May 2019 at paragraphs [10], [11], [16], [22], [27], [30]; (d) Ms Crowley in her witness statement dated 9 May 2019 at paragraphs [1]-[23]; (e) Ms Woolley in her witness statement dated 17 May 2019 at paragraphs [37]-[59]; and (f) Ms Woolley in her witness statement dated 23 September 2019. 26 As to that submission, senior counsel for the Respondent Mr Young SC responds that there is no dispute that there was a time-out room at Marnebek. The dispute is whether the Applicant ever used the room. Further, he submits that there is no dispute that a harness was used with the Applicant on the school bus. 27 Mr Young submits that none of the challenged statements prove that the Applicant used the time-out room. Nor, he submits, could they. That is because in his submission it cannot seriously be suggested that it can be inferred from the existence of a time-out room used by some students that all students at the school (and therefore the Applicant) used it. What, then, the Mr Young asks rhetorically, does this evidence actually prove? 28 The Respondent, in answer, submits that if the Applicant succeeds in proving through other evidence in the form of documents or "admissions" that he had used (or perhaps as Mr Bingham would put it, been subjected to isolation in) the time-out room, the challenged evidence would have no utility. Conversely, if the Applicant fails to prove that fact, the challenged evidence cannot fill that gap. 29 Mr Young submits the same applies equally to an instance of restraint at school. He accordingly invites the Court to decline to admit the evidence in question as lacking a forensic purpose. 30 Mr Bingham does not press for the admission of the relevant paragraphs of the witness statements on the basis that the evidence goes to establishing by way of tendency or coincidence evidence that the Applicant was placed in the time-out room: see Part 3.6 Evidence Act. 31 I therefore am entitled to accept that - as the Respondent submits, but subject to the qualification below - the evidence that is proposed to be called is redundant and unnecessary to establish a fact genuinely in issue. Any slight probative value that evidence regarding when and in what circumstances other students attending Marnebek used or were required to use the time-out room or were subject to harnessed restraint might be thought to have is substantially outweighed by the danger that the evidence would cause or result in undue waste of time at trial. Pursuant to s 135(c) of the Evidence Act, I therefore will not permit the Applicant to lead the impugned evidence which goes only to the circumstances of other students.

Use of the time-out room at Marnebek 32 There would however seem to be a real dispute both as to the years during which the "time-out room" at Marnebek was in use, and how it was used. In that regard, I accept that the Applicant pleads that he was subjected to restraint and seclusion in the time-out room only as one particular of his claim that he was denied the provision of a Functional Behaviour Assessment/Behavioural Intervention Plan as he maintains would have obviated that need. That is identified in paragraphs [33]-[34] of the SFASOC. However, the measures to which the School subjected the Applicant (assuming that he can establish that that the School in fact applied those measures to him) cannot be dismissed before trial as immaterial. 33 I proceed on the basis that the Respondent intends to rely, inter-alia, on evidence to be led from Ms Weston who was an Assistant Principal at Marnebek School which the Applicant attended from February 2011 to July 2016. At paragraphs [33]-[35] of her draft affidavit, filed on 6 September 2019, Ms Weston states: 33. As to paragraph 35 to 40 of Dilini's statement: There is a spare room between two classrooms at Marnebek that used to be used for various purposes over the years, including as a therapy room and a psychologist's office. Before Joshua attended Marnebek, there was a student who was violent and would strip and smear. To calm him down when that student was heightened, he would go into the spare room with a crash mat and blanket. At one point this room was referred to as the 'time out room'. In around 2012, the room was converted into office space and has been used for that purpose ever since. Other than this, there are no other rooms at Marnebek that were ever used as a time out room or space. I do not recall a courtyard ever being used as a time out space. While the classrooms in the building where Joshua was have outside courtyards, they are spaces for play and activities inside and outside. Sometimes when students need a break from their classroom, they will go and play with gym equipment in an external courtyard. There are no internal courtyards at Marnebek. 34. When it was in use, various students used the 'time out room' as an alternative space when they were stressed, including students whose classrooms did not adjoin the room. The room had a sky light, paintings of animals on the walls, a door with a glass panel, and a large glass window looking outside, which was mostly covered with a large board with a jungle scene on it for the student's privacy and so the student couldn't break the glass. 35. There was always somebody with the student in the room unless it was unsafe to be with them, in which case the person would stand outside the room and talk to the student through the glass panel in the door. Students were never left alone in the room and the door could always be opened from the inside. There was a book outside the room which recorded times of who went into the room for how long. The picture referred to in paragraph 36 of Dilini's statement, and attached as DDK-6 to Dilini's statement, shows the time-out room. 34 Ms Weston thus proposes to give evidence regarding: (a) the period of time when the 'time out room" was used; (b) its physical description; and (c) whether students were left alone when removed to it. 35 Those aspects of Ms Weston's evidence are disputed by what appears to be admissible non-hearsay evidence that the Applicant proposes to call. That evidence is contained the witness statements of: (a) Mr Koenders dated 23 September 2019 at paragraphs [1], [3], the first line of paragraph [7] and paragraph [8]. Those paragraphs include a first-hand account by a former Marnebek student of the time-out room's physical description, and evidence that he had been left alone in the room and that the door could not be opened from the inside. (b) Ms Crowley dated 9 May 2019 at paragraphs [1] and [18]. Those paragraphs include a photograph of a room not matching the description given by Mr Weston. Other evidence, including that adduced in cross-examination, may establish this to have been the time-out room. (c) Ms Woolley dated 17 May 2019 at paragraphs [45]-[46]. Those paragraphs identify personal observations of the time-out room having blacked out windows, and evidence of its dimensions. (d) Ms Woolley dated 23 September 2019 at paragraphs [1]-[7]. Those paragraphs relate to Ms Woolley's direct observations as to the use of the time-out room, which are directly inconsistent with those which the Respondent proposes to lead through Ms Weston. 36 I will therefore permit the Applicant to call those witnesses, in order to adduce that specific evidence. 37 Otherwise, all of the non-hearsay evidence Mr Bingham submits should be permitted to be adduced relates to students other than the Applicant: including one attending a different school. I would not permit that evidence to be adduced, for the reasons I have given at [31] above.

Students' attendance at school 38 I now turn to Mr Bingham's submission that the lay evidence he presses also goes to establishing the system or practice of the Respondent of not allowing students with disabilities to attend school full time. In that regard, he instances: (a) The witness statement of Ms Hayes dated 9 May 2019 at paragraphs [1]-[5], [7]; and (b) The witness statement of Ms Guedes dated 9 May 2019 at paragraphs [1]-[10]. 39 Ms Hayes' proposed evidence at paragraph [4] (which is the fulcrum of any relevance that her evidence might possess as to the existence of a system) is that upon their enrolment at Kilberry Valley Primary School her sons initially had not been permitted to attend full-time. Ms Hayes had been given no reason for that requirement. She had only been told it would be "better" for her sons if they increased their attendance gradually. 40 Ms Guedes' proposed evidence, the gravamen of which appears at paragraphs [5] and [6], is also in respect of the enrolment of her son at Kilberry Valley Primary School. Her proposed evidence is that her son was only permitted to start at the school in the mornings for two days per week. She was told by the school that that limitation was because her son "only had enough funding for 12 hours of support per week". Ms Guedes' evidence is that her son was never offered more time at school than 3 days a week. 41 I proceed on the basis that the Applicant was enrolled at Kilberry between June 2016 and the end of 2017 (although it appears he ceased to attend after April 2017). That period is conterminous with the period during which Ms Hayes and Ms Guedes sought to enrol their children. 42 However, I reject the proposition that those two instances are open to be relied on as being probative of the Respondent maintaining the system or practice which the Applicant asserts was in place. I reach that conclusion for reasons analogous to those set out in Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155; 266 FCR 631 per Allsop CJ, Middleton and Mortimer JJ at [208]. Those two quite differently explained instances are simply incapable of proving on the balance of probabilities that the Respondent had in place an invariable "system" or "practice" as to which Mr Bingham submits they are probative. 43 Mr Bingham does not press for the admission of the evidence on the basis of it establishing a tendency or coincidence to prove that the Applicant was denied full time enrolment at that school, under Pt 3.6 of the Evidence Act. In any event, the preconditions for its admission on that basis are entirely absent. 44 Standing in isolation from any (rejected) capacity to establish a system, those paragraphs are without relevance to the Applicant's pleaded case. They are inadmissible for that reason. That, of course, will not prevent the Applicant adducing direct or documentary evidence to establish the facts and circumstances of his own enrolment as may be relevant to his pleadings.

Conclusion 45 In the event, I am satisfied that the Respondent's interlocutory application should be granted with the exception of the proposed evidence to be adduced as specified at [35] above. I will make orders accordingly. 46 The Respondent has been substantially but not wholly successful in these proceedings. Having regard to that circumstance, the appropriate order is that the costs of this interlocutory application be the Respondent's costs in the cause. 47 Finally, I note that I have earlier made procedural orders for the further conduct of preparation for trial as have been agreed between the parties. What remains in contention is whether final orders should be made at this point in time as to how evidence is to be adduced in the trial, and whether or not any objections are to be determined prior to it. I am satisfied that I should adjourn the determination of those questions until after the parties have had an opportunity to consider these reasons. I grant liberty to apply. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.