Morsman (by his next friend Bampton) v State of Victoria

1. The Applicant's interlocutory application dated 1 June 2020 be dismissed.
2. Costs be reserved.
3. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 On 3 June 2020 I published my reasons for granting limited leave to the Applicant to further amend his pleadings: Morsman (by his next friend Bampton) v State of Victoria (Department of Education and Training) [2020] FCA 763. These reasons are to be read in conjunction with those published reasons. 2 In short summary, the earlier application was advanced on the premise that the Applicant had earlier amended his pleadings inter-alia to delete a number of claims which he now wanted to reinstate. His case was that his litigation guardian had consented to those deletions but had not fully understood the significance of her doing so. 3 For the reasons I gave, I rejected that a proper basis for permitting the abandoned claims to be re-pleaded existed. However, as my reasons reveal, I did not then discount that (subject to reserving the right of the Respondent to contend otherwise) there might still be merit in permitting the Applicant to advance, in a narrowed form, one of those claims: should the Applicant still wish to press it. 4 I observed: 63 … while Ms Gonzales' reports do overlap with some aspects of what the Applicant would wish to plead they fail to speak to other such matters. There appears to be nothing to engage with the detailed assertion of a need for any "adjustment" premised on Mr Morsman's disability causing "bad" behaviour. 64 The area where Mr Gonzales' report does overlap most significantly with the contentions proposed to be advanced in the Second Further Amended Concise Statement is the section addressing her expert opinion that Mr Morsman should have had access to speech pathology. That was also one of the matters raised in Ms Bampton's complaint to the AHRC. 65 In my view, although the Court should refuse leave to the Applicant to plead in his proposed Second Further Amended Concise Statement the Fourth Allegation of direct discrimination as proposed, it would not be inappropriate against those circumstances to give leave to the Applicant to revert to the Court within 28 days if he wishes to apply for leave to advance a narrower claim. That claim should be restricted to an asserted denial of the provision of speech therapy. Such a narrower case would arguably address (at least in part) Ms Bampton's wish to advance the claims that she identified in her original complaint to the AHRC. However, it would achieve that end without requiring the Respondent to respond to a claim that is sprawling; disconnected from the expert evidence adduced; and highly improbable of being made good. 66 If such a proposed amendment is sought, I will relist the matter to determine any objections that may be advanced to leave being granted. 5 The Applicant subsequently filed the present application. In it, he seeks leave to file a proposed Second Further Amended Concise Statement in the form provided in draft dated 1 June 2020. That application is opposed. The parties have made written submissions and are agreed that the Court determine the application on the papers. 6 I note at the outset that in substance this is an application not to file a Second Further Statement of Claim but to file a Third Further Amended Statement of Claim. That is because the Applicant simply has assumed his entitlement, without having exercised it, to have filed a Second Further Statement of Claim in conformity with my earlier orders. In some circumstances that might seem a distinction without a difference. In the present instance however it has significance because the document he now seeks leave to file and rely upon not only adds an additional new fourth allegation. It also makes a number of minor changes to the first, second and third allegations in his pleadings, which he was granted leave to amend on the earlier occasion. 7 The additional new fourth allegation which Applicant seeks leave to include in his pleadings and rely upon is as follows: Fourth Allegation: Failure to make reasonable adjustments to allow Riley opportunity to learn to his potential 18. Throughout the relevant period, the respondent failed to make reasonable adjustments to allow Riley to achieve his academic potential, in breach of ss 5(2) and 22 of the DDA. 19. The respondent should have made the following reasonable adjustment for Riley: 19.1 The provision of a comprehensive Speech Pathology Assessment and Speech Therapy. Particulars 19.2 "A comprehensive speech pathology assessment" in an educational setting is an assessment to determine if and how a person's language abilities may affect their access to the curriculum in order to: 19.2.1.1. inform a speech/language therapy regime; 19.2.1.2. develop a plan with goals, strategies, and measurable outcomes to ensure that the student could access the curriculum to the best of their abilities; 19.2.1.3. set out how those methods could be used to ensure full access to the curriculum; 19.2.1.4. monitor and evaluate the plan on an ongoing basis to ensure that any language barriers to access the curriculum on the same basis as others are addressed. 19.2.2. "Speech therapy" refers to at least fortnightly dedicated appointments with a Speech Pathologist to provide Riley with one of the following, depending on the results of his Comprehensive Speech Pathology Assessment: 19.2.2.1 direct assistance to improve his articulation; and/or 19.2.2.2 direct assistance to learn to communicate through an alternative low or high technology communication method. 20. As a result of the failure to provide these adjustments, Riley was treated less favourably than another student without his disabilities would have been treated. Causation 21. Riley's disabilities were a reason that he was not provided with these adjustments because the respondent systematically withholds the adjustments from children with Riley's disabilities. 8 In that regard, on the Applicant's behalf Mr Lewis submits: 14. The proposed amendment has merit. The report of Dr Linda Gonzalez states as follows: "…in my opinion it is likely that Riley could be assumed to have had a similar learning profile as a younger child. He may have required supports or modifications to help tap that capacity given his ASD symptoms, but this should have been an achievable goal in a Specialist School where educators are trained to work with children with disabilities." … "It is difficult to make a definitive statement regarding Riley's prospects for employment. At this point in time his literacy skills are not functional and would not be adequate to allow him to work in the open work force in any job that required him to read, write or perform mathematical calculations. His capacity to obtain employment largely depends on the progress that can be made towards improving these academic skills. Such progress is likely to be slow, as the window of brain plasticity has now closed. It is also possible that he has an underlying SLD, meaning that there are barriers to his academic achievement beyond inadequate instruction. Further, he will be attending high school with very limited literacy skills, which is a challenging endeavour. It is imperative that he receives intensive speech therapy and support from special education teachers to help develop his basic academic skills as far as is possible in that setting." 15. Further, in relation to the specifics of the adjustments required, the report reads: "Based on my skillset as a Clinical Neuropsychologist, I am not able to quantify the individual or cumulative impact of the variables outlined above on Riley's ability to achieve academically. However, in my professional opinion the absence of an IEP and lack of access to therapy are likely to have had a significant impact on Riley's academic achievement. It is likely that there was a significant interaction between these variables, meaning that the combination of these two factors added an additional barrier to his learning. … The lack of access to therapy and any means to develop his functional communication would also have impeded his academic achievement. There is a significant relationship between language competence and academic achievement meaning that gains in language function would have increased the likelihood of improved academic achievement. Even if he struggled to make gains in his spoken language, active speech therapy would have provided him with an opportunity to develop other means for communication, which in turn would most likely have had significant positive benefits for his capacity to engage with his peers as well as his ability to express his emotions, both of which would be expected to result in significant improvements in his behaviour." 16. As such, there is already expert evidence which the applicant intends to rely upon, which demonstrates that there is merit to support the argument on which proposed allegation four depends. 17. The addendum report provided by Dr Linda Gonzalez of Melbourne Paediatric Neuropsychology also sets out an estimated cost of remediating damages in terms of addressing the setback of Riley's communication skills. The report estimates amounts between $55,869.20 - $93,300.48 in that regard. Further damages, in terms of potential future earnings are not included in that figure. (Footnotes omitted). 9 He submits that no prejudice might be assumed to follow from the inclusion of the proposed fourth allegation: 18. The respondents have been on notice of the factual matters raised in proposed allegation four since the matter was at the Australian Human Rights Commission. Given that the new allegation is within the scope of the previously made allegations, and the fact that no trial date has yet been set down, it is difficult to see that significant prejudice to the respondent will arise from allowing the amendment. (Footnote omitted) 10 The Respondent resists the application on three grounds: 1.1 Reasons why leave should be refused (a) The Fourth Allegation in the Further Application is in the same terms as the Court refused leave to pursue on 26 May 2020 At the interlocutory hearing on 26 May 2020 (the Interlocutory Hearing), the Applicant was refused leave to pursue the Fourth Allegation in the form then before the Court. The Court carved out a further opportunity to raise a claim in respect of speech therapy insofar as it gave the Applicant 'leave to file a further application to amend his pleadings in the terms indicated by the Court at the interlocutory hearing on 26 May 2020, being an application to add a confined claim concerning the Respondent's asserted failure to provide him with speech pathology services'. The Respondent submits the Further Application should be refused because rather than taking up the opportunity to replead the Fourth Allegation in accordance with the Court's reasons, the Applicant has elected to press a form of allegation that is substantively the same as the form of Fourth Allegation the Court rejected at the Interlocutory Hearing. The Respondent notes the only differences between the current form of Fourth Allegation and that rejected by the Court at the Interlocutory Hearing are that: • the references to a functional behaviour assessment, behaviour intervention plan, comprehensive education assessment and individual education plan have been removed; and • the definitions of 'comprehensive speech pathology assessment' and 'speech therapy' have been moved from the Schedule to the particulars. These differences are not substantive and the Respondent submits leave to pursue this form of allegation should be refused. (b) The Further Application is unresponsive to the narrow leave conferred on 26 May 2020 The Court's reasons in the Interlocutory Hearing Decision clarify the nature of the leave granted to the Applicant in respect of repleading his claim regarding speech pathology. The leave conferred was limited in scope and required the Applicant to replead the Fourth Allegation as a matter of substance. The further application should be refused because instead of repleading the allegation in the narrow terms identified by the Court, he has elected to press a form of allegation that has already been ruled out. At [65] of the Interlocutory Hearing Decision, Justice Kerr gave leave for the Applicant to apply to advance a 'narrower claim' than the form of the Fourth Allegation that was before the Court on 26 May 2020. The Court's leave was expressly 'restricted to an asserted denial of the provision of speech therapy'. The Court expressly stated that in granting leave, it was giving the Applicant the opportunity to reinstate the claim identified in the Australian Human Rights Commission complaint, without exposing the Respondent to a claim that is 'sprawling; disconnected from the expert evidence adduced; and highly improbable of being made good'. The reference to 'improbable of being made good' at [65] may be understood in the context of [49] of the Interlocutory Hearing Decision, where the Court described the 26 May 2020 form of the Fourth Allegation as being 'attended with more than ordinary difficulty' by reason of the 'inherent implausibility' of a reasonable adjustment required because of the Applicant's disability being refused because of the disability. We refer to the Court's reasons at [49] and [65] of the Interlocutory Hearing Decision and say the Court has already ruled the Applicant should not have the opportunity to pursue a reasonable adjustments claim constructed in the manner of the Fourth Allegation that was before the Court on 26 May 2020. We consider the Further Application is outside the narrow leave provided by his Honour and runs contrary to the Court's indication that it would only allow a claim with some prospect of success being advanced. (c) The Further Application is destined to fail At paragraph 21 of the current draft pleading, the Applicant asserts causation in respect of the current form of the Fourth Allegation will be proven as follows: Riley's disabilities were a reason that he was not provided with these adjustments because the respondent systematically withholds the adjustments from children with Riley's disabilities. This approach to causation was rejected by the Court at [49] of the Interlocutory Hearing Decision. The current form of the Fourth Allegation is attended by the same limitations as were identified by the Court at the Interlocutory Hearing. The Respondent therefore repeats and relies upon paragraphs 2.6 and 4.1.3 of its written submission dated 22 May 2020 and oral argument on 26 May 2020 in respect of causation established by reference to a tendency or system evidence. By reason of the arguments set out above, the Respondent submits: • the Court has already denied the Applicant leave to pursue a reasonable adjustment claim under s 5(2) of the Disability Discrimination Act 1992 (Cth) on this speculative basis; and • for the same reasons as were identified as operative in the Interlocutory Hearing Decision, the Court should refuse the Further Application. (Footnotes omitted). 11 By contrast, the Applicant submits that the amendment now sought is of a considerably smaller scope than that which was earlier advanced. He submits that proposed allegation four does no more than put in issue that he was denied a reasonable adjustment by the absence of the provision of speech pathology: 10. The respondent contends that this iteration of the pleadings is still not narrow enough, and that the court had intended that the applicant file a narrower version than that which is set out in the proposed concise statement. However, the respondent has not expanded as to why the breadth of proposed allegation four could be problematic, nor has it given reasons as to why the proposed concise statement should be narrowed any further than it is currently. As currently pleaded, the adjustment in proposed allegation four encompasses both a "comprehensive speech pathology assessment" as defined in proposed paragraph 19.2.1. and speech therapy itself. The two processes are pleaded as one adjustment. The applicant contends that the specific speech pathology provided needed to be informed by a "comprehensive speech pathology assessment". Speech pathology itself is strictly defined in paragraph 19.2.2. With respect to the respondent's submission that this allegation is still not narrow enough, it is the applicant's submission that this adjustment for speech pathology in this context is pleaded in a form that is plainly quite narrow or strictly defined. 12 I reject Mr Lewis's submission that what he now advances as the Applicant's proposed fourth allegation (which would, if permitted, now be at least the sixth version of the Applicant's case) is capable of being fairly described, in either substance or form, as restricted to the Applicant having been denied a reasonable adjustment by reason of speech pathology not having been made available to him. 13 Rather, it seeks to reinstate through the limited dispensation offered what is substantively a rearticulation of the pleadings the Court earlier declined leave to be reinstated as are referred to at [35]-[41] of its earlier reasons. 14 As to the question of the merits of the proposed pleading, I am reinforced in my conclusion that it would be inappropriate to grant leave to add a new allegation in the terms sought having regard to the reasoning of Moshinsky J in Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770 at [45]-[57]. There, his Honour struck out a pleading bearing considerable resemblance to a significant part of the Applicant's proposed fourth allegation as having no prospects of success. At paragraph [50], his Honour reasoned that a failure to carry out a Functional Behavioural Assessment is incapable of constituting a failure to make a reasonable adjustment. His Honour's reasoning in support of that conclusion appears to me to be equally apposite to the "comprehensive speech pathology assessment" as defined in proposed paragraph 19.2.1. His Honour's dismissal of the application then before him cannot be dispositive of this application. However, his Honour's conclusion that failing to conduct an assessment is incapable constituting a failure to make a reasonable adjustment is consistent with my observations in the earlier proceeding that what was then sought to be pleaded (and is now sought to be reiterated, albeit in modified terms) is highly improbable of being made good. 15 Offered the possibility of an inch, Mr Lewis has sought to take a mile. The proposed pleading is not simply confined to an alleged failure to provide speech pathology services. 16 I refuse the application. I will reserve the question of costs. 17 Having reached that conclusion, I should say something about the present state of the Applicant's pleadings. They will need to be tidied up so that what is and is not in issue is clear. His case does not appear presently to be before the Court in a form that permits it to go to trial. 18 That is because, as I have noted above, the Applicant has not yet exercised the leave granted to him to file a Second Further Amended Concise Statement of Claim. To the extent that his present application as I have rejected also proposed some further (said to be minor) changes to his existing three allegations, if those alterations are not opposed by the Respondent (which is not clear from my reading of the parties' respective submissions) a consent application can be made for the Second Further Amended Statement of Claim to be filed in accordance with that agreement. 19 In any event however, the Applicant must regularise his pleadings. In the absence of a consent application, he should file his Second Further Amended Statement of Claim in the terms in which he has been given leave to do so. He may then make any further application as he may be advised. 20 The parties will be granted liberty to apply. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.