The ASOC
6 It is regrettably necessary to set out the relevant parts of the ASOC in full (errors in original).
E. The Discrimination
First Allegation: Requirement or Condition - evidence-based remedial literacy and numeracy programs
Indirect discrimination s 6(1)
11. The Respondent required students at St Joseph's, including Max and Jack, to comply with the requirement or condition as defined in s 6(1) that in order to obtain education by classroom instruction or teaching, students must access the curriculum without evidence-based remedial literacy and numeracy programs, implemented with fidelity (the requirement).
PARTICULARS
(a) "evidence-based" means based on the most contemporaneous scientific research at each point in time;
(b) "fidelity" means application with accuracy/exactness, being as per the manufacturer's instructions;
(c) the subjects in the curriculum that Max and Jack could not access on the same basis as others due to the imposition of the requirement, included;
i. English;
ii. Mathematics;
iii. Languages Other Than English;
iv. Religious Education
v. General studies;
vi. Information and Communications Technology;
vii. Design, Creativity and Technology;
viii. Personal Learning;
ix. Civics and Citizenship;
x. Thinking Process;
xi. Integrated Study;
xii. Geography;
xiii. History;
xiv. Ethical Capability;
xv. Intercultural Capability;
xvi. Science;
xvii. Library;
xviii. Interpersonal Development;
xix. Music.
12. Evidence-based remedial literacy and numeracy programs during the relevant period of Max's complaint and the relevant period of Jack's complaint were:
12.1 SRA Direct Instruction Programs:
12.1.1 Corrective Reading;
12.1.2 Spelling Mastery;
12.1.3 Reading Mastery;
12.1.4 Connecting Maths Concepts;
12.1.5 Corrective Maths;
12.1.6 DISTAR Arithmetic;
12.1.7 Phonemic Awareness.
12.2 Elementary Maths Mastery;
12.3 Jolly Phonics and Jolly Grammar;
12.4 Spalding;
12.5 MultiLit Reading Tutor Program, MacqLit, Word Attack Skills Extension Program, MiniLit Early Intervention Programme and PreLit Early Literacy Preparation;
12.6 Sounds-Write;
12.7 Phonics Books UK;
12.8 Letters and Sounds;
12.9 PLD Literacy and Learning;
12.10 No-Nonsense Phonics Skills;
12.11 Little Learner's Love Literacy;
12.12 Alpha to Omega;
12.13 Word Shark;
12.14 Number Shark.
13. None of the evidence-based remedial literacy and numeracy programs set out in paragraph 12 hereof were provided with fidelity to students at St Joseph's, including Max and Jack, between 2014 and 2018, in the following circumstances:
13.1 Teachers at St Joseph's were not required to deliver evidence based programs according to the manufacturer's instructions, and were permitted to use their "professional judgement" as to how such programs were applied, using only elements of each program if they so decided.
Particulars
13.1.1 The Applicants refer to a meeting dated 18 July 2017, attended by Principal Ronan O'Mahony, Sharon Anderson Learning Adjustment and Inclusion Officer, Jennifer Watts, Kerry Harvey and Alison Clarke, and Ms Anderson's confirmation of St Joseph's approach, which was not disputed by the said Principal.
13.1.2 The Applicants refer to:
13.1.2.1 the failure of St Joseph's to require all staff teaching students through evidence based programs to undergo formal training;
13.1.2.2 the failure of St Joseph's to require programs to be applied to students for the minimum number of days required, resulting in the programs being ineffective.
14 Because of the disabilities set out in paragraph 8 (a)-(f) hereof, Max could not comply with the requirement at any time between 2014 and 2018.
14.1 Max's disabilities, in totality, resulted in him having the following difficulties:
14.1.1 difficulties with working memory;
14.1.2 difficulties with cognitive processing speed;
14.1.3 deficits in language processing;
14.1.4 difficulties with phonological awareness and processing;
14.1.5 being unable to learn at the same rate as others;
14.1.6 difficulties with acquiring phonics knowledge;
14.1.7 difficulties with Additions;
14.1.8 difficulties with word reading (decoding);
14.1.9 difficulties with rapid automated naming;
14.1.10 difficulties with fine motor coordination skills;
14.1.11 requiring extra learning support sessions on a daily basis focusing on systematic and explicit teaching of phonics, reading, spelling and writing.
14.2 In October 2013, an independent assessment by SPELD Victoria psychologist Jennifer Finemore found, inter alia, that Max:
14.2.1 was approximately 2 years behind in reading;
14.2.2 was approximately 2 years behind in spelling;
14.2.3 was approximately 2 years behind in phonological awareness;
14.2.4 was 1 ½ years behind in maths.
14.3 In August 2016, an Independent Assessment through the National Assessment Program-Literacy Numeracy administered by the Commonwealth Government found that Max:
14.3.1 was below both the national average and the range of achievement for the middle 60% of Year 3 students in Australia in reading, spelling and grammar and punctuation;
14.3.2 was below the national average in writing and mathematics.
14.4 In February 2017, an independent assessment by SPELD Victoria psychologist Jennifer Finemore found, inter alia, that Max:
14.4.1 was approximately 3-4 years behind in reading;
14.4.2 was 4 years behind in spelling;
14.4.3 was 3-4 years behind in mathematics.
14.5 In December 2017, an independent assessment by Speech Pathologist Alison Clarke concluded that Max had spelling skills at the 1st percentile.
14.6 In April 2018, an independent assessment by Speech Pathologist Alison Clarke concluded that Max had reading skills at the 3rd percentile.
14.7 In August 2018, an Independent Assessment through the National Assessment Program-Literacy Numeracy administered by the Commonwealth government, found that Max was:
14.7.1 below both the national average and the range of achievement for the middle 60% of Year 3 students in Australia in reading, writing, spelling, numeracy and grammar; and
14.7.2 below the national average, the range of achievement for the middle 60% of Year 3 students in Australia, and the national minimum standard for writing.
14.8 In February 2019, an independent assessment by Speech Pathologist Alison Clarke concluded that Max had:
14.8.1 reading skills at the 3rd percentile;
14.8.2 spelling skills at the 1st percentile.
15 The requirement is likely to have the effect of disadvantaging persons with Max's disabilities, and the Respondent thereby discriminated against him within the meaning of s 6(1).
Particulars
The disadvantage to persons with Max's disabilities is that they will be prevented from obtaining education by classroom instruction, or teaching, on the same basis as others, without the evidence based literacy and numeracy programs delivered with fidelity as set out in paragraph 12 hereof.
16 Because of all of the disabilities set out in paragraph 9 (a)-(c) hereof, Jack could not comply with the requirement at any time during the period 2014 to 2018.
16.1 Jack's disabilities, in totality, resulted in him having the following difficulties:
16.1.1 difficulties with working memory;
16.1.2 difficulties with word recognition;
16.1.3 deficits in language processing;
16.1.4 difficulties with phonological awareness and processing;
16.1.5 being unable to learn at the same rate as others;
16.1.6 difficulties with concepts and directions, word structure, recalling sentences and formulating sentences;
16.1.7 difficulties understanding language which would transfer to understanding class topic content;
16.1.8 difficulties recalling information he has heard;
16.1.9 difficulties following directions and understanding the teaching of new ideas and concepts in class;
16.1.10 requiring a clear, sequentially structured phonically based program provided for the teaching of reading and spelling.
16.2 In November 2015, an independent assessment by Speech Pathologist Liz Fitzpatrick found, inter alia, that Jack:
16.2.1 had significant language and literacy problems that placed him at the 3rd percentile.
16.2.2 was 2-2 ½ years behind in reading comprehension.
16.3 In September 2015, an independent assessment by SPELD Victoria psychologist Dr Sophie Weiskop found, inter alia, that Jack:
16.3.1 was between 1-2 years behind in reading and reading comprehension;
16.3.2 was almost one and a half years behind in spelling;
16.3.3 was two years behind in mathematics reasoning;
16.3.4 had "below average" phonological skills.
16.4 In August 2018, an Independent Assessment through the National Assessment Program-Literacy Numeracy administered by the Commonwealth government, found that Jack:
16.4.1 was below both the national average and the range of achievement for the middle 60% of Year 3 students in Australia in numeracy and writing;
16.4.2 was below the national average in reading and grammar and punctuation.
17 The requirement is likely to have the effect of disadvantaging persons with Jack's disabilities, and the Respondent thereby discriminated against him within the meaning of s 6(1).
Particulars
The disadvantage to persons with Jack's disabilities is that they will be prevented from obtaining education by classroom instruction or teaching on the same basis as others without the evidence based literacy and numeracy programs delivered with fidelity set out in paragraph 12.
Reasonableness s 6(1)
18 The requirement was not reasonable, having regard to the circumstances of the case.
Particulars
The relevant circumstances relied upon by Max and Jack are:
a. Max and Jack's academic delays were evident at the beginning of their enrolment with the Respondent;
b. Max and Jack's academic delay was evident in every year during the relevant period of Max's complaint and the relevant period of Jack's complaint;
c. the Respondent promotes the use of evidence based programs as set out in the following publications:
i. Effective Practices for Learning Support Officers piii, 2, 4, 5, 9, 10, 12, 13, 17, 25 Catholic Education Commission of Victoria
ii. CECV Program Support Group Meeting Guidelines p 3
iii. CECV Supporting Positive Student Behaviour p 2, 3 4, 6, 8, 9,
iv. CECV Intervention Framework pi, 2, 3, 5, 7, 12, 24
d. the Respondent promotes the practice of implementing programs with fidelity, as set out in the following publications:
i. Effective Practice Is the Learning Support Officers p8, 9,22, 24;
ii. Catholic Education Commission of Victoria CECV Intervention Framework p 12, 21, 23.
e. As persons with disabilities, Max and Jack have a right to an education as set out in Article 24 of the Convention on the Rights of Persons with Disabilities, through which the DDA ought to be applied as set out in s12 (8), and the imposition of the requirement limited that right.
f. As persons with disabilities. Max and Jack have a right to habilitation as set out in Article 26 of the Convention on the Rights of Persons with Disabilities, through which the DDA ought to applied as set out in s 12(8), and the imposition of the requirement limited that right.
g. Max and Jack were withdrawn from St Joseph's, in part, by reason of the imposition of the requirement.
h. The psychological detriment experienced by Max by reason of his inability to access the curriculum was significant, and he relies upon expert evidence to be adduced at trial in addition to notification to the Respondent of such, by emails to St Joseph's from Mrs Harvey/her representative, dated:
[The ASOC then sets out 16 dates between 25 February 2015 and 23 October 2018.]
i. Max was required to miss school regularly due to the requirement to obtain private tutoring by reason of the imposition of the requirement upon him, thereby differentiating him from his peers, which contributed to his psychological detriment, such tutoring requiring visits between 2014 and 2018, as follows:
i. fortnightly between 2014 and 2018;
ii. twice per week as from Term 1 2018 throughout the relevant period of Max's complaint.
Discrimination in education - Section 22
19 By imposing the requirement, the Respondent discriminated against Max and Jack within the meaning of s 6(1) by limiting their access to a benefit provided by the Respondent, in breach of s 22(2)(a).
Particulars
The benefit provided by the Respondent that was limited was education by classroom instruction or teaching.
…
E. Disability Standards For Education
Fourth Allegation: Breach of Disability Standards - Section 32
34 The Respondent is an education provider for the purpose of Part 5.2(1) and 5.2(2) of the Disability Standards for Education 2005 ("the Standards").
35 The Respondent has breached s.5.2(1) and s.5.2.(2) of the Disability Standards for Education 2005, as follows:
35.1 The Respondent failed to take reasonable steps to ensure that Max and Jack could participate in their educational program on the same basis as students without a disability, and without experiencing discrimination, as a result of not properly undertaking its responsibilities set out in s.5.2(2), such responsibilities interpreted pursuant to the Convention on the Rights of Persons with Disabilities through which the DDA ought to be applied pursuant to s 12(8);
Particulars of the Reasonable Steps
35.1.1 following the guidelines of the Respondent, as set out in paragraph 44 hereof;
35.1.2 the formation and operation of a Program Support Group for Jack pursuant to the Respondent's Guidelines;
35.1.3 the operation of a Program Support Group for Max pursuant to the Respondent's Guidelines;
35.1.4 the provision of Individual Education Plans, as set out in paragraph 21 hereof.
35.2 The Applicants refer to and repeat the First to Third Allegations inclusive above, as if they were set out seriatum hereto.
35.2.1 With the requirements imposed as set out in the First to Third Allegations:
a. Max and Jack were not able to access the curriculum on the same basis as others;
b. Max's anxiety required him to leave the school to remediate his mental health;
c. Max and Jack had significant academic delays throughout their enrolment, as set out in paragraphs 14.2 to 14.8, and 16.2 to 16.4 hereof, which were not addressed during that time.
35.3 The Respondent failed to meaningfully consult, pursuant to its obligations set out in General Comment 7 of the Convention on the Rights of Persons with Disabilities, as follows:
35.3.1 The Applicants say that any attempts to consult with them were merely tokenistic, and as such did not comply with the Disability Standards for Education, as applied through s.12(8) of the DDA.
Particulars
a) Correspondence on the subject of Max and Jack's education was often not responded to, as set out in paragraphs 36.1 and 36.2 hereof.
b) Concerns expressed by Mr and Mrs Harvey about the failure by St Joseph's staff to improve the significant academic lag that Jack and Max experienced were often not acted upon, as set out in paragraphs 36.1 and 36.2 hereof.
c) Requests for particular supports to ameliorate the effects of Max and Jack's disabilities as set out in paragraphs 36.1 and 36.2 hereof, were not properly considered or provided.
d) The Applicants rely upon correspondence and meeting minutes, which may be inspected at the offices of the Applicants' solicitors by prior appointment, as well as an absence of meetings/meeting minutes.
F. Victimisation
Sixth Allegation: Breach of s 42 of the DDA
36 In breach of s.42(2)(f), Mrs Harvey and Max have been victimised as a result of asserting Max and Jack's rights as a student with a disability, by reason of the following events, occurring after Mrs Harvey began asserting those rights:
36.1 St Joseph's staff refused to provide evidence of documentation supporting the effectiveness of their educational strategies for Max and Jack. The First Applicant refers to:
36.1.1 her email to teacher Ms Joanne Coldebella dated 17 August 2018 requesting evidence of claimed achievements for the year for Max and Jack, which documentation was not provided;
36.1.2 her email to teacher Mr Leigh Granger dated 26 July 2018 requesting lesson content for Max, which documentation was not provided;
36.1.3 her email to teacher Leigh Granger dated 8 June 2018 requesting the scope and sequence for spelling for the remainder of that term, which was not provided;
36.1.4 her email to Principal Mr Ronan O'Mahony and Mr Leigh Granger dated 31 May 2018 requesting the scope and sequence for the spelling word list, which was not provided;
36.1.5 her email to teacher Ms Kylee Bertacco dated 18 April 2018 asking for a copy of Jack's report, which was not responded to or provided;
36.1.6 her correspondence to Mr Ronan O'Mahony dated 22 November 2017 requesting copies of all pre-and post testing for literacy and numeracy, and workbooks including intervention work, which were not provided;
36.2 St Joseph's staff refused to answer most queries in writing, or at all, from Mrs Harvey or from Max's private practitioners, instead only allowing discussions in relation to Max's education to occur at meetings, typically of a duration of 20-30 minutes, at the school's direction. The First Applicant refers to:
36.2.1 her emails to teacher Mr Leigh Granger dated 27 August 2018, which were not responded to;
36.2.2 her email to teacher Ms Joanne Coldebella dated 17 August 2018, which was not responded to;
36.2.3 her email to teacher Mr Leigh Granger dated 26 July 2018 requesting information about timetabling, teachers, and the structure of activities for Max, which was not responded to;
36.2.4 her email to principal Ronan O'Mahony, teacher Joanne Coldebella and teacher Ms Kylee Bertacco dated 23 July 2018 where Mrs Harvey expressed her concern about the school refusing to put anything in writing, which was not responded to;
36.2.5 her email to teacher Joanne Coldebella dated 23 July 2018 asking a number of specific questions about the National Collection of Data, requesting an individual learning plan and meeting for Jack and details of how his progress was being monitored, which Ms Coldebella did not answer;
36.2.6 her email with her husband to Principal Mr Ronan O'Mahony dated 15 June 2018, which was not responded to;
36.2.7 her email to Principal Mr Ronan O'Mahony dated 15 June 2018 complaining that as a general rule, communicating with he and teaching staff is met with constant resistance, which was not responded to;
36.2.8 her email to Principal Mr Ronan O'Mahony dated 1 June 2018, raising amongst other things Max missing from the school grounds and previous emails that had been sent and not responded to, which was not responded to;
36.2.9 her email to Principal Mr Ronan O'Mahony and Mr Leigh Granger dated 31 May 2018 in relation to Max's anxiety and inability to access the curriculum, which was not responded to;
36.2.10 her email to Principal Mr Ronan O'Mahony and Mr Leigh Granger dated 24 May 2018 regarding the possible humiliation of Max in the classroom, and the uninformative communication coming from the school, which was not responded to;
36.2.11 her email to teacher Ms Joanne Coldebella dated 15 May 2018 requesting to know changes to specialist classes, which was not responded to;
36.2.12 her email to teacher Mr Leigh Granger and Ms Joanne Coldebella dated 6 May 2018 expressing a reluctance by the school to share information, requesting details of Max's classroom program, expressing concern about Max's academic delay, issues which were not responded to other than by an email from Ms Coldebella implying that if Mrs Harvey did not attend a Program Support Group meeting, communication would not occur;
36.2.13 her email to teacher Ms Joanne Coldebella dated 4 May 2018 requesting evidence of any positive outcomes for Max from attending meetings, and expressing concern that there had been no co-operation and collaboration around Max's education, to which there was no response;
36.2.14 her email to teacher Ms Kylee Bertacco dated 3 May 2018, asking numerous questions about Jack's education, to which there was no response;
36.2.15 her email to teacher Ms Kylee Bertacco dated 18 April 2018, asking numerous questions about Jack's education, to which there was no response;
36.2.16 her email to teacher Ms Joanne Coldebella dated 2 May 2018, setting out her concern in relation to the lack of collaboration and communication from the school, the inability in a 20 minute Program Support Group meeting to adequately discuss issues, failure by the school to respond to Max's practitioner, and the school's failure to use evidence-based and best practice approaches in teaching Max, which was not responded to;
36.2.17 Max's private tutor's email, sent with the permission of Mrs Harvey, to teacher Leigh Granger dated 26 April 2018 requesting specific details about Max's learning program in order that she could support that program in her private work with him, requesting detail about any accommodations being made, which was not responded to;
36.2.18 her email to Ms Joanne Coldebella dated 23 April 2018 referring to the feedback provided by her to the Individual Education Plan which had been ignored, which was not responded to;
36.2.19 her email to Mr Leigh Granger on 17 April 2018 which was not responded to;
36.2.20 her email dated 28 March 2018 to teacher Ms Joanna Coldebella which was not responded to;
36.2.21 her email to Principal Ronan O'Mahony which was not responded to;
36.2.22 her email to Ms Joanne Coldebella dated 28 March 2018, which was not responded to;
36.2.23 her email to Mr Ronan O'Mahony dated 19 March 2018 where amongst other things, she raised the reluctance by the school to communicate with her and the failure to respond as to whether any evidence-based remedial program was being provided, issues which were not responded to;
36.2.24 her email to Mr Ronan O'Mahony and Ms Joanne Coldebella dated 16 March 2018, to which there was no reply;
36.2.25 her email to Mr Leigh Granger requesting information about Jack's learning, to which there was no reply;
36.2.26 her correspondence to Mr Ronan O'Mahony through Max's advocate, on 9 March 2018, to which there was no reply;
36.2.27 her correspondence to Mr Ronan O'Mahony through Max's advocate whereby Mr O'Mahony had responded on 13 December 2017 referring queries to Mr Martin Keogh, who when contacted, by letter dated 22 February 2018 referred queries to Mr O'Mahony;
36.2.28 her correspondence to Mr Leigh Granger dated 23 February 2018 involving another student's physical and verbal abuse of Max, which was not responded to;
36.2.29 her correspondence to Mr Leigh Granger dated 23 February 2018 involving another student's bullying of Max, which was not responded to;
36.2.30 her email to Mr Leigh Granger dated 13 February 2018 asking him to clarify what literacy and numeracy interventions he was planning on doing with Max, which was not responded to;
36.2.31 her email to Mr Leigh Granger and Mr Ronan O'Mahony dated 8 February 2018 raising amongst other things the difficulties Max was having accessing the curriculum, the failure by the school to share information and the psychological and academic consequences for Max, which was not responded to;
36.2.32 her email to Mr Leigh Granger dated 6 February 2018 requesting information about timetabling, which was not responded to;
36.2.33 her email to Mr Leigh Granger dated 2 February 2018, which was not responded to;
36.2.34 her email to Mr Ronan O'Mahony dated 12 December 2017 in relation to school refusal from Max and Jack, which was not responded to;
36.2.35 her correspondence to Mr Ronan O'Mahony dated 11 December 2017 setting out in detail the significant problems that Max was experiencing at the school, and the school's failure to collaborate and provide documents to Mr and Mrs Harvey and provide supports to Max, which was not responded to;
36.2.36 her correspondence to Mr Ronan O'Mahony dated 29 November 2017 asking a number of questions about support for Max, which was not responded to;
36.2.37 her correspondence to Mr Ronan O'Mahony dated 22 November 2017, asking for a written reply, which was refused;
36.2.38 her correspondence to Mr Ronan O'Mahony raising numerous issues linked with Max's education and confirmation of supports, which was not responded to other than to suggest a meeting;
36.2.39 her correspondence to Mr Ronan O'Mahony dated 20 April 2017 expressing significant concerns about Max's lack of progression and indeed his academic gap widening throughout his schooling, his requirement to have equal access to the curriculum and expressing concerns that the evidence based programs provided by the College were not being run with fidelity and therefore were no longer evidence-based, which was not responded to other than to suggest a meeting;
36.3 The actions in paragraphs 36.1 and 36.2 hereof caused detriment to Max in the following ways:
36.3.1 St Joseph's would not collaborate with, or provide the information required by Mrs Harvey, unless she attended a meeting;
36.3.2 meetings, due to their brevity and the refusal to accept Mrs Harvey's input, did not result in positive educational or psychological outcomes for Max, as set out in paragraphs 14.2-14.8 hereof; and
36.3.3 because St Joseph's practices did not require evidence-based teaching methods, Max's parents wished to research any approaches suggested by the school to ensure that they were evidence-based prior to agreeing to them, however this was not possible without explicit explanation as to what such approaches were;
36.3.4 there was significant disagreement in relation to the manner in which Max was being educated, and there was insufficient time at meetings to comprehensively discuss Max's educational plans, which were lengthy and verbose running typically from 9-12 pages; and
36.3.5 by reason of the matters set out in the subparagraphs immediately above, discussions and decision making in relation to Max's education could not properly occur, and educational planning could not be finalised with parental input, such parental input being vital, as Max's parents were more familiar with his emotional and academic requirements that St Joseph's staff, and Max's academic lag did not reduce throughout the period of his complaint.
36.4 The detriment caused to Mrs Harvey was distress, frustration and humiliation, in that:
36.4.1 she was aware that she was being treated in a manner that was contrary to the Respondent's practices in relation to collaborative partnerships with families, and she refers to those practices and their guiding documents as set out in paragraphs 43.1, 43.2, 43.5, 43.6 and 43.7 hereof.
36.4.2 she witnessed Max's psychological deterioration due to his school experiences, and felt helpless in addressing that deterioration;
36.4.3 she was aware, from organising assessments, that Max's academic lag was worsening, and she felt distressed that she was unable to do anything constructive to stop that deterioration, until she withdrew him;
36.4.4 In the absence of St Joseph's staff and Mrs Harvey working collaboratively, Mrs Harvey felt that she had no option other than to withdraw Max, which was deeply upsetting to her, and required her to then travel an hour each day to take Max to school.
G. Breaches of the Competition and Consumer Act 2010
37 The Respondent is a supplier of educational and other services within the meaning of the Competition and Consumer Act 2010, Schedule 2, Chapter 1 (2)(1) ("the Consumer Act") and engages in trade or commerce within the meaning of Schedule 2 Chapter 1 (2)(1).
Particulars
In relation to engaging in "trade or commerce", the Applicants rely upon:
37.1 the definition of such terms in the Consumer Act being "trade or commerce within Australia or between Australia and places outside Australia" s4; and
37.2 the dictionary definition of the term "trade" and "commerce", both being the buying and/or selling of services.
38 The Respondent received monies from the First Applicant, a parent of the Second and Third Applicants, who were consumers within the meaning of the Consumer Act within the meaning of Schedule 2 Chapter 1 (3)(1), to provide educational services for the Second and Third Applicants.
39 The Respondent made numerous false and misleading representations in trade/commerce, as set out in paragraph 41 hereof, that its services were of a particular standard, quality, value and grade, in breach of s.29(1)(b) of Schedule 2 of the Consumer Act.
40 Alternatively, each of the representations constituted conduct that is liable to mislead the public as to the nature, the characteristics, and the suitability for their purpose being provided through trade/commerce, in breach of s.34 of Schedule 2 of the Consumer Act. Such misleading representations included that the Respondent:
40.1 works collaboratively with parents, students and other community members to ensure a safe school environment;
40.2 personalises learning through the development of SMART goals for each child based on their developmental needs and interests, through the Program Support Group;
40.3 builds a positive learning community where students feel valued and respected;
40.4 plans reasonable adjustments for the student to access the curriculum;
40.5 monitors and evaluates the progress of the student;
40.6 holds the care, safety and wellbeing of children and young people as a central and fundamental responsibility of the school;
40.7 acts in a partnership with parents where both parties seek to achieve a common goal;
40.8 views the role parents play in their child's schooling as vital to their school's mission to educate each child;
40.9 undertakes honest, open and regular communication with parents;
40.10 is committed to nurturing respectful relationships and active partnerships with parents;
40.11 communicates with parents regularly regarding their child's learning, development and wellbeing;
40.12 relates with and responds to parents in a respectful and professional manner;
40.13 ensures a timely response to any concerns raised by parents;
40.14 encourages parents to play an integral role in their children's education;
40.15 will always act to protect students from any kind of harm;
40.16 seeks to achieve academic development as an important component for students;
40.17 strive for resolutions and outcomes that are satisfactory to all parties;
40.18 provides a learning environment that promotes independence;
40.19 supports each child's social, emotional and intellectual growth in a caring yet stimulating environment;
40.20 provides an inclusive educational environment where every child feels important;
40.21 strives for the implementation of a curriculum that is student centred and personalised;
40.22 believes and therefore facilitates, the right of each child to learn and reach their full potential.
41 The misleading personal representations were made to Mrs Kerry Harvey:
41.1 in a meeting with then Principal of St Joseph's, Mr Martin Keogh, in or about October 2013 wherein Mr Keogh asserted that;
41.1.1 staff at St Joseph's would constructively communicate with Max's practitioners in order to obtain the best outcomes for Max;
41.1.2 staff at St Joseph's would constructively communicate with Mrs Harvey in order to obtain the best outcomes for Max;
41.1.3 staff at St Joseph's had the expertise to provide the special interventions that would be required to meet Max's individual needs and effectively educate him.
41.2 in a meeting on or around 22 November 2018, wherein Mr Martin Keogh asserted that:
41.2.1 Max would require a very structured learning pattern which they would provide; and
41.2.2 the school was planning on providing an evidence-based SRA program named Word Attack.
42 The misleading public representations were made throughout 2014 and 2018 to Max's family through the following means, Mrs Harvey being directed to the general policies by email from Principal Mr Ronan O'Mahony dated 9 July 2016, and accessing others independently at dates that cannot be recalled:
42.1 The St Joseph's School Website including in the sections entitled:
42.1.1 Overview of Teaching and Learning;
42.1.2 Administrative Information;
42.1.3 Parent School Relationships Code of Conduct;
42.1.4 Annual Report 2016 in the School Overview and Principals Report.
42.2 The Catholic Education Commission of Victoria Program Support Group Meeting Guidelines in the Introduction, Aims, Role And Responsibilities, Practices and Processes sections.
42.3 The Effective Practices Framework for Learning Support Officers first published in 2012 and updated in 2014 Catholic Education Commission of Victoria:
42.3.1 Pages 22, 22, 23, 24 in relation to ensuring outcomes are measurable;
42.3.2 Pages iii, 2, 4, 5, 9, 10, 12, 13, 17, 25 in relation to the importance of using evidence and research in relation to the provision of education;
42.3.3 Pages 8, 9,22 and 24 in relation to the importance of fidelity when it comes to educational practices;
42.3.4 Pages 2, 4, 6, 9,11, 13, 19, 21, 22, 24, 33 in relation to the importance of monitoring and evaluation in relation to education;
42.3.5 Pages p 2, 4, 6, 14, 15, 19, 20, 21, 22 in relation to the importance of education plans.
42.4 The Whole School Approaches to Supporting Positive Student Behaviour publication published in 2016:
42.4.1 Pages 8 and 10 in relation to ensuring outcomes are measurable;
42.4.2 Pages 7 and 8 in relation to the importance of monitoring and evaluation in relation to education;
42.4.3 Pages 2, 3, 4, 6, 8 and 9 in relation to the importance of using evidence and research in relation to the provision of education;
42.4.4 Pages 1, 7 and 9 in relation to the importance of education plans.
42.5 The CECV Intervention Framework 2015:
42.5.1 Page i stating that learning and teaching inclusive of all;
42.5.2 Page 1 in terms of the commitment to provide an effective education for all students and welcoming environments for families;
42.5.3 Pages 12, 13, 21, 22 and 23 in relation to ensuring outcomes and measurable;
42.5.4 Pages 12, 21 and 23 in relation to the importance of fidelity in education;
42.5.5 Pages 2, 4, 6, 8, 9, 12, 18, 13, 19, 20, 21, 23 and 27 in relation to the importance of evaluation and monitoring in education;
42.5.6 Pages i, 2, 3, 5, 7, 12 and 24 in relation to the importance of using evidence and research in relation to the provision of education;
42.5.7 Pages 2, 4, 9, 13, 17, 18, 19, 20, 21 and 24 in relation to the importance of education plans.
42.6 In the Parent Handbook for Primary Schools on the Catholic Education Commission of Victoria website:
42.6.1 in the Welcome section claiming that Catholic schools encourage parents to be involved in their child's learning;
42.6.2 in the Welcome section, implying that working together with parents, and timely communication are priorities;
42.6.3 in the Transition section stating that teachers and leaders aims to create safe and supportive environment for children;
42.6.4 in the Your Child's Learning section, claiming that high standards are maximised in all areas of the curriculum, particularly in literacy and numeracy;
42.6.5 in the Your Child's Learning section claiming that primary schools provide an environment which encourage children to be confident and excited about learning from the start of school life;
42.6.6 in the Your Child's Learning section claiming that teachers design learning experiences that are responsive to the different ways in which students achieve their best;
42.6.7 in the section on Additional Learning Needs, in relation to the importance of monitoring and evaluation;
42.6.8 in the Our Primary School Curriculum section which states that the curriculum is designed to prepare students to be lifelong learners;
42.6.9 in the English and Literacy section where claims that primary schools devote a high level of resources to literacy programs to improve learning, and monitor literacy achievement;
42.6.10 in the Mathematics section where it is claimed that primary schools developed numeracy capabilities that all students need in their personal and work lives;
42.6.11 in the Specialised Therapy in Schools section where it states that primary schools work in collaboration with specialised organisations in developing learning programs for students with special needs and these are tailored to meet the requirements of the St Joseph's School newsletter April 2018 which stated that " "The respectful individual student.
42.7 working relationship between the school staff and parents is another partnership that helps develop opportunities for our students, and it is a pleasure to observe the respectful interaction between staff and the parents of our students."
43 The representations misled the public because they were wrong.
43.1 The Program Support Group Guidelines are not followed by St Joseph's.
43.1.1 St Joseph's did not work in partnership or collaboration with Mrs Harvey to provide an excellent education and achieve positive outcomes for Max and Jack as set out in paragraphs 36.1 and 36.2;
43.1.2 there was no Program Support Group established for Jack;
43.1.3 there were no educational plans with SMART goals, that were monitored and evaluated for Max and Jack;
43.1.4 the most appropriate educational planning and reasonable adjustments were not provided to Max or Jack as set out in the First Allegation;
43.1.5 the relevant teachers for Max and Jack in each year the subject of the complaint did not provide evidence-based information regarding Max and Jack's progress to assist in evaluating the goals and adjustments;
43.1.6 sufficient time was not allowed to discuss the difficulties Max and Jack were having as Program Support Group meetings (to the extent they were provided) were limited to 20-30 minutes.
43.2 St Joseph's staff did not work collaboratively or positively with parents as set out in paragraphs 36.1 and 36.2;
43.3 St Joseph's did not provide a safe environment as evidenced by the deterioration in Max's mental health whilst attending referred to in paragraph 18 (h);
43.4 Mrs Harvey was not valued or respected and refers to paragraphs 36.1 and 36.2.
43.5 Max and Jack were not valued or respected as evidenced by the lack of concern expressed by St Joseph's staff of the ongoing difficulties they were experiencing at St Joseph's;
43.6 St Joseph's staff did not provide timely responses to Mrs Harvey as set out in paragraphs 36.1 and 36.2.
43.7 Max and Jack:
43.7.1 did not reach their academic potential;
Particulars
The Applicant will rely on the gains they have made since leaving St Joseph's.
43.7.2 found their school experiences distressing and anxiety provoking as set out in paragraph 18(h);
43.7.3 were not assisted to overcome their literacy and numeracy delays as set out in paragraphs 14.2-14.8 and 16.2-16.4;
43.7.4 were not provided with the educational skills they required as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;
43.7.5 left St Joseph's years behind their peers in areas of literacy and numeracy as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;
43.7.6 did not receive evidence based programs based on research applied with fidelity;
43.7.7 did not have data taken on their progress each term to allow monitoring and evaluation.
44 By reason of the foregoing, including the matters set out in the First to the Third Allegations hereof, the Respondent failed to render the services with due care and skill in breach of s.60 of Schedule 2 of the Consumer Act.
Particulars
The services would have been rendered with care and skill had Max and Jack's education received the benefits of the representations made by the Respondent as set out in paragraph 40 hereof.