Kancheff v Charles Darwin University

the reasons of the federal circuit court 5 The Federal Circuit Court Judge noted that the applicant made an application for damages, interest and costs arising out of alleged breaches by the respondents of the Disability Discrimination Act 1992 (Cth). He noted that the applicant had a number of disabilities being disabilities which arose from the fact that he suffered a stroke in 1998 and as a result, left side paralysis and learning difficulties. 6 In 2008 the applicant gained entry to a Bachelor of Behavioural Science course at Charles Darwin University in Darwin. He moved from Adelaide to Darwin in order to take part in the course. 7 The Judge noted that some aspects of the applicant's claim related to his treatment in that course. The applicant subsequently applied for a transfer to a second course being a Bachelor of Humanitarian and Community Studies. The applicant's transfer was denied by the second respondent and that was one aspect of the applicant's claim. The applicant successfully appealed against the refusal and he was transferred to the Bachelor of Humanitarian and Community Studies course. The third respondent was the co-ordinator of that course. 8 One of the compulsory units in the course was unit number SWK-260 known as the "Remote Project Experience" course. The Judge noted that that course was designed to provide students with the necessary logistical and practical instruction to operate competently and safely in areas of reduced infrastructure. It involved an excursion to Katherine and Casuarina. The Judge noted that a number of aspects of the applicant's claim related to his experience on that excursion and in particular to his experiences in travelling in a troop carrier. 9 The Judge noted the legislative provisions relevant to the respondents' application being s 80 of the Federal Circuit Court of Australia Act 1999 (Cth) and Rule 21.01 of the Rules of Court. He also noted the principles explicated by Brennan J (as his Honour then was) in Lucas v Yorke & Anor (1983) 58 ALJR 20 at 21 and Kirby J in Merribee Pastoral v ANZ Banking Group [1998] HCA 41; (1998) 193 CLR 502. I will not repeat what the Judge said because it is not suggested that he did not state the principles correctly. The Judge noted that Hill J in Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 identified the additional matters to those identified by Kirby J. 10 The Judge noted that he was not determining an application for summary judgment although an evaluation of the merits of the proceeding was a factor to take into account. The Judge noted that the High Court had recently stated the relevant principles with respect to an application for summary judgment in Spencer v The Commonwealth of Australia (2010) 241 CLR 118. The Judge noted that in considering the merits of an applicant's case, a judge should be mindful of the fact that a full and clear statement of the case may not emerge until oral evidence has been given or the proceedings have advanced to some further stage antecedent to the trial. The Judge said that he was satisfied that the applicant had had an opportunity to put before the Court all of the factual matters which he said indicated that he was the subject of discrimination by reason of his disability by the respondents. He said that he considered that the application itself was really the most informative document. 11 The Judge then turned to consider whether it was likely that he would make an order for costs at the conclusion of the proceeding. He referred to authorities which have considered the principles dealing with an award for costs under the Disability Discrimination Act or the Human Rights and Equal Opportunity Commission Act 1986 (Cth). It is not necessary for me to refer to those principles because again they are not in dispute. 12 The Judge set out the applicant's seven particulars of disability discrimination (at [45]). The Judge had medical reports before him and he said that on the basis of those reports, he accepted that the applicant suffered from a disability within the Disability Discrimination Act and he set out the nature of those disabilities. The Judge referred to the definition of direct discrimination in s 5 of the Disability Discrimination Act and the elucidation of principles relevant to direct discrimination by the High Court in Purvis v NSW (Department of Education) (2003) 78 ALJR 1. The Judge referred to an amendment by the Disability Discrimination and Other Human Rights Legislation Amendment Act (2008) (Cth) of the definition of disability in s 4 of the Act 13 The Judge then turned his attention to indirect discrimination and he set out the definition in s 6 of the Act. 14 The Judge noted that the material he had from the respondents consisted of medical reports and unsworn statements of the second and third respondents and of a lecturer in the Bachelor of Behavioural Science course. The Judge did not consider it inappropriate for him to inform himself of the nature of the case that would be presented. He said (at [59]): I am not making findings of fact; I am dealing with an interlocutory application. I will decide the application on the basis of what each of the parties tell me their case will be at trial, in the absence of any matter being put to me which would suggest that such an approach is unwarranted. 15 The Judge then turned to consider the strength of the applicant's case with respect to each of the seven particulars of disability discrimination. 16 The first particular was that the applicant claimed that when he was accepted for the Bachelor of Behavioural Science course, the first and second respondents agreed to provide him with examples of the work of previous students in the course. However, subsequently the lecturer in one of the subjects which was part of that course (Psychology A) refused to do so on the grounds of protecting student confidentiality. 17 The applicant claimed that the Judge made a clear error in dealing with this particular. In order to understand the applicant's submission it is necessary for me to set out the paragraphs in which the Judge deals with the particular: 60. The answer given to the complaint about the denial of access to previous student work is that the respondent through its officers and employees never agreed to the provision of this work being part of the reasonable adjustments they needed to make on account of Mr Kancheff's learning disabilities. A statement of the Student Facilitator (a Ms Coulter) of the first respondent is provided: she attaches the Confidential Access Plan designed for the applicant. It provides that the applicant "may request (my emphasis) to see previous assignments or exams if having difficulty grasping the concept" but contains no indication that the same will be provided. In any event the Student Facilitator provides this clarification, after noting the applicant's entitlement to make this request: This had regard to uncompleted previous assignments or exams. Student's [sic] work was confidential. Students are entitled to privacy in relation to their work. Assessment criteria would not be met if students were able to see previous students' work. This was reasonable. 3. There was never an agreement that the Applicant be provided with previous students' work. 61. The applicant says that Ms Coulter agreed orally to his requests to see previous students' work in the presence of his witness Ms Welter. 62. However, Ms Welter's affidavit does not corroborate that assertion. 63. So, that there was an agreement to this particular adjustment is a matter of controversy; all that is acknowledged is the entitlement to make a request; there is also a dispute as to whether completed student work was to be made available to the applicant. If the applicant is unsuccessful in persuading the Court of the accuracy of his account, then it might be inferred he would then argue that the University failed to make reasonable adjustments for his disability. 64. If we reach that point, the confidentiality explanation proffered by the respondents seems, prima facie, a reasonable one. In other words the jettisoning of the confidentiality protection for other students would have entailed not a reasonable adjustment but an unreasonable one. 65. The allegation here is not so much as to the discriminatory effect of requirement with which the applicant needed to comply and therefore of indirect discrimination. The issue is whether the applicant's request ought to have been acceded to. However, even taking the view that the "requirement" is constituted by the need to submit an essay per se, and that the refusal to show completed previous student work was a failure to make a reasonable adjustment in terms of s.6(2)(c) of the Act, the problem appears to be one of persuading the Court that such an adjustment would be a reasonable one given the confidentiality obligation to other students. This aspect of the applicant's case appears tenuous. 18 The second particular of disability discrimination was that the second respondent insisted on the applicant providing a written apology to that lecturer following upon what is alleged was the applicant's use of abusive language and his general belligerence towards her. 19 The Judge noted that the university had a by-law regulating the way in which misconduct by students was dealt with. The Judge questioned whether this particular was intended itself to be an allegation of an occasion of disability discrimination. The Judge said that the reasons the second respondent asked for written confirmation of the apology were reasonably self evident and he concluded that the request would have been made of any student including those students who did not have a disability in circumstances where an oral apology only had been proffered. The Judge considered that if the particular was a separate allegation of disability discrimination, it was a weak one. 20 The third particular of disability discrimination was that when the applicant applied for a transfer to the Bachelor of Humanitarian and Community Studies, the first and second respondents insisted upon him obtaining and providing a medical clearance. The Judge noted that it was clear that the unit SWK-260 involved extensive, even somewhat rigorous, physical activity. The Judge described the contention that this particular was a particular of disability discrimination as "highly ambitious". He considered that the request for a medical clearance could be seen "as respectful recognition of the difficulties the applicant would possibly face if he participated in the unit, which was a compulsory part of the course; to admit him to the course heedless of his possible difficulties would not be non-discriminatory so much as reckless" (at [75]). The Judge concluded that prima facie the request for a medical clearance was not an instance of disability discrimination. 21 The fourth particular of disability discrimination was that when the applicant gained entry to the Bachelor of Humanitarian and Community Studies course and undertook unit SWK-260, the third respondent warned other class members of the risks arising from the applicant's visual impairment. The Judge set out evidence in the third respondent's statement which dealt with this matter. The Judge concluded that this particular did appear on its face to be an occasion of disability discrimination. 22 The Judge referred to the fifth, sixth and seventh particulars of disability discrimination. He said (at [82]): 82 My understanding of this part of the claim will be augmented by the oral evidence at trial. Issues that will be clarified include: i) My ability to find whether Mr Baschiera's claims that Mr Kancheff was belligerent and disruptive and uncooperative throughout this episode will have a significant bearing upon the comparator selection; ii) Whether and in what manner Mr Kancheff was given an opportunity to use the alternative of a gate to access the pump rather than having to negotiate the fence; iii) Whether Professor Burn's opinion as to Mr Kancheff having an ability to sit in the rear of the troop carrier notwithstanding his disabilities was an assessment of his which I should give any weight given the absence of an opportunity by Professor Burns to sight the troop carrier; iv) The significance and validity of the other criticisms made by Mr Baschiera concerning Mr Kancheff's fulfilment of other course requirements such as reading of core texts; v) Whether further information about the troop carrier may be required before an adjudication of the indirect discrimination aspect of the matter; vi) Whether the attempts by Mr Baschiera to assist Mr Kancheff in entering the troop carrier and dealing with the leg spasm at the fence amount to reasonable adjustments. 23 The Judge concluded that the above considerations meant that it could not be said that this aspect of the claim was, as he put it, prima facie, as weak as the other aspects. It suggested some limited possibility of partial success. 24 The Judge turned to consider other matters relevant to the discretion to order security for costs. He noted that the proceedings had been on foot for twelve months before the respondents asked the Court to secure their costs. He noted that there had been a lot of interlocutory skirmishing in those twelve months and that the application for security was the eleventh application in a case filed in the proceeding. 25 The Judge said he was satisfied as to the applicant's impecunious circumstances. He was satisfied that the applicant would not be able to meet an adverse costs order. 26 The Judge said that he was conscious that an order for security for costs may well have the consequence of "shutting down this litigation". On the other hand, it may not if the applicant had access to resources of which the Court was not aware or was the object of benevolence. The Judge considered these possibilities unlikely. 27 The Judge said that it was not appropriate to allow a proceeding that had little apparent merit to continue in the knowledge that the respondents would be put to significant expense which they can never recover. He said (at [93] and [94]): This circumstance puts in to focus the balancing exercise that is at the heart of the exercise of the discretion. It is not the case that the application has no merit following a prima facie assessment of it. The position is that it has little apparent merit. I have tried to bear steadfastly in mind that the merit in certain aspects of the application which are not apparent now may emerge at trial. I also bear in mind the respondents chose to bring this application and not subject themselves to the application of the reasonable prospects of success and Spencer principles. But my scrutiny of the evidence available to this point suggests that the apparent difficulties associated with successfully prosecuting the case will not be remedied by as yet unknown or unarticulated evidence or argument. 28 It was for these reasons that the Judge made the order for security for costs.