Morsman (by his next friend Bampton) v State of Victoria [2020] FCA 763 | Case summary

Consideration 28 I have been greatly assisted by the good sense of the parties in the way in which they have advanced their submissions. In the course of doing so, they have narrowed the range of issues in dispute. 29 In the course of oral argument Ms Latif submitted that there are some significant differences in the way in which the Applicant would now seek to articulate the First, Second and Third Allegations in his proposed Second Further Amended Concise Statement. However, she acknowledged that in substance those allegations simply advance with greater precision claims that would have been capable of being advanced at trial under the existing pleadings. Ms Latif accordingly sought instructions in that regard. She then advised the Court that the Respondent no longer pressed its objection to those amendments being made. 30 I thank Ms Latif for that advice. On that understanding, I am content that I should order that the Applicant have leave to amend his pleadings in respect of those matters which are set out under the headings: "Background"; "Disabilities"; "Discrimination"; "Education"; and "Direct Discrimination" under the subheadings "First Allegation: Exclusion from Education", "Second Allegation - Suspension from school" and "Third Allegation: Requirement to take medication - February 2017 onward". 31 Mr Lewis, for his part, was equally constructive in narrowing the areas of dispute. Mr Lewis acknowledged that the claim that the Applicant now seeks leave to press in his proposed pleadings under the heading "Fourth Allegation: Failure to make reasonable adjustments to allow Riley [Morsman] the opportunity to learn to his potential" is a claim of direct discrimination contrary to s 5 of the Disability Discrimination Act 1992 (Cth). Mr Lewis acknowledged that that claim and other new claims the Applicant seeks to advance, being allegations of indirect discrimination as proposed to be pleaded in the alternative as his Fifth and Sixth Allegations, are mutually inconsistent. 32 The Court, of course, accepts that a party is entitled to plead mutually inconsistent claims when they are commencing a proceeding. As is self-evident however, this proceeding is not at a point at which it is being commenced. Rather, as Ms Latif submits, the proceeding is at a point at which the Applicant now seeks leave to make substantial changes to the pleadings for at least the fifth time. More specifically, the Court now faces a circumstance where - after apparently considered decision making by the Applicant's former legal representatives, there being no evidence advanced to suggest otherwise - leave is now sought to reinstate pleadings earlier abandoned after discussion with the Respondent's legal representatives. Mr Lewis further did not dispute that to make good any of the new claims would be time consuming, and challenging. 33 Having considered the forensic options open to the Applicant, Mr Lewis therefore advised the Court that - consistently with his own articulation of the relevant principles and having regard to what the High Court had determined in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 - the Applicant accepted that it was not open to him at this late stage to obtain leave to amend his pleadings as would permit him to revive several mutually inconsistent claims. Mr Lewis accepted that it would be appropriate, having regard to those principles, for the Applicant to now be required to choose how his case would be articulated. 34 Mr Lewis accordingly advised that the Applicant no longer sought leave to amend his pleadings so as to advance a case relying on indirect discrimination. He thus no longer pressed for the inclusion of the proposed Fifth and Sixth Allegations. I am grateful to Mr Lewis for that concession. I proceed on that basis. 35 That leaves for decision whether or not leave should be granted to the Applicant to amend his pleadings to advance the Fourth Allegation. What is asserted in the Fourth Allegation is that for the period Mr Morsman attended the Peninsula Specialist College the Respondent failed to make reasonable adjustments (as defined in his proposed pleading) to allow him to achieve his academic potential. 36 The reasonable adjustments that the Applicant wishes to plead should have been made to allow him to achieve that potential are those set out at paragraph [17] of the draft Second Further Amended Concise Statement as follows: 17.1 The provision of a Functional Behaviour Assessment as defined in the Schedule; 17.2 The provision of a Behaviour Intervention Plan as defined in the Schedule; 17.3 The provision of a comprehensive Speech Pathology Assessment and Speech Therapy as defined in the Schedule; 17.4 The provision of a Comprehensive Education Assessment and Individual Education Plan as defined in the Schedule. 37 As the pleading indicates, the relevant terms are defined in the Schedule. Thus, where it is proposed to be pleaded that the Respondent failed to provide Mr Morsman with a "Functional Behaviour Assessment" that term is defined in the Schedule to mean an assessment designed to: 1. identify and define target behaviour through data collection and analysis; 2. use observations and information from a variety of sources to identify when challenging behaviour occurs, and the associated environmental events or bio-behavioural states; 3. generate and if necessary, test, hypotheses concerning events that preceded the occurrence of the behaviour, contingencies maintaining the behaviour, and the characteristics and patterns of challenging behaviour itself (a Functional Analysis); and 4. inform the development of a Behaviour Intervention Plan by the assessor, or someone supervised by the assessor, which is then: a) monitored and evaluated for its effectiveness by the author through analysis of data collected, at a frequency determined by the frequency of the targeted behaviours; and b) altered commensurate with evaluation. 38 A "Behaviour Intervention Plan" is defined in the Schedule as containing "all the following documented components": 1. Identifying information, including the name, age, and other identifying information about the student, the date of implementation of the plan, and the settings in which the plan is to be implemented; 2. Operational definitions of the behaviours to be targeted, namely definitions that are objective, observable, and measurable; 3. The hypothesised or identified function of the challenging behaviours targeted for decrease (functional assessment data); 4. The replacement behaviours targeted for increase, namely behaviours that allow the individual to access the reinforcers maintaining challenging behaviour in more socially appropriate ways; 5. Proactive strategies that are designed to minimise the likelihood of challenging behaviour and maximise the likelihood of appropriate/replacement behaviour, such strategies: a) specifying how and when the therapist/teacher/parent should prompt the occurrence of appropriate/replacement behaviour; and b) how often reinforcement should be delivered for appropriate/replacement behaviour; 6. Teaching strategies that specify how therapists/parents/teachers will teach new skills, such strategies specifying: a) how and when the therapist/teacher/parent should prompt the occurrence of the new behaviour; and b) how often reinforcement should be delivered for the new behaviour; 7. Consequence strategies that describe how therapists/parents/teachers should respond if challenging behaviour occurs; 8. Data collection procedures: a) that staff are trained in; b) specifying how target behaviours will be increased or decreased, written in terms that allow others to observe and measure the behaviours; c) that require changes to the behaviour plan based on progress, as indicated by recorded data; 9. Duration of plan/criteria for mastery of plan that specifies how long the plan will be in place, and any criteria that should be met before fading out the plan. 39 A "Comprehensive Speech Pathology Assessment" is defined in the Schedule as being, "in an educational setting": an assessment to determine if and how a person's language abilities may affect their access to the curriculum in order to: 1. inform a speech/language therapy regime; 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; 3. set out how those methods could be used to ensure full access to the curriculum; 4. monitor and evaluate the plan on an ongoing basis to ensure that any language barriers to accessing the curriculum on the same basis as others are addressed. 40 What is meant by "speech therapy" is defined in the Schedule as: at least fortnightly dedicated appointments with a Speech Pathologist to provide Riley [Morsman] with one of the following, depending on the results of his Comprehensive Speech Pathology Assessment: a) direct assistance to improve his articulation; and/or b) direct assistance to learn to communicate through an alternative low or high technology communication method. 41 A "Comprehensive Education Assessment" is defined in the Schedule as containing the following elements (having regard to "several of the Respondent's guidelines"); 1. Identifying the impact that a student's disabilities are having upon that student's access to the curriculum and social aspects of their school life, and what supports are required to facilitate such access. 2. Gathering information to develop an Individual Education Plan. 3. Ascertaining the effectiveness of any strategies/supports that are in place throughout the relevant period to assist students in accessing their education. 4. Identifying appropriate scheduling of future needs assessments. 5. Undertaking consultation regarding a student's mental health, as affected by their schooling. 6. Undertaking data collection concerning academic progress. 7. Monitoring, evaluation and review of academic and social progress. 8. Analysing (upon finding a lack of or inadequate academic and social progress) the reason for such lack of or inadequate progress, and subsequent alteration of teaching interventions. 9. Undertaking the above steps at least once per school term. 10. Involving: a) the student and parent; b) school staff directly responsible for teaching the student; c) independent allied health professionals (speech pathologist, educational psychologist or neuropsychologist) in circumstances where the student's progress was found to be impeded by that student's disabilities and unsuccessfully mitigated. 42 Finally, an "Individual Education Plan" (assuming that the word "documented", which does not appear in the draft pleadings, appearing may be ignored) is defined in the Schedule as follows: "A documented Individual Education Plan" means a plan that every year includes: 1. Goals for learning: a) functional literacy; b) functional numeracy; c) life skills; d) speech pathology (in the absence of a dedicated communication plan). 2. Strategies, including those for: a) in the absence of a dedicated communication plan: i. improvement of speech/articulation; ii. improvement of comprehension; b) expanding vocabulary; c) expanding sentence construction; d) improving spelling; e) addressing his sensory issues, including direct occupational therapy; f) understanding social expectations including visual rules and social stories; g) any strategies recommended in practitioner reports. 3. Measurable outcomes in order that strategies applied can be monitored for success and altered commensurate with monitoring results. 43 It will readily be seen that what the proposed Fourth Allegation asserts, having regard to those definitions, is that the Respondent failed to provide a very particular, detailed and specific programme of assessments and interventions in the provision of Mr Morsman's schooling. 44 I take the underlying proposition to be that absent those assessments and interventions "as defined" being made available to him, Mr Morsman was denied the opportunity to achieve his academic potential. Thus at paragraph [18] of the proposed Second Further Amended Concise Statement the Applicant proposes to plead that he was treated less favourably than other students without a disability by reason of the school's asserted failure to provide those adjustments. 45 At paragraph [19] of the proposed Second Further Amended Concise Statement the Applicant then proposes to plead that the reason Mr Morsman was not provided with the adjustments he required was: because the respondent systematically withholds the adjustments from children with Riley's disabilities. 46 Ms Latif stopped shy of submitting that such a pleading must be struck out. However, she submitted that the Court is entitled to take into account whether a claim pressed before it has any reasonable prospect of success. I do not take that proposition to be contentious. 47 Having regard to that submission, the Court inquired of Mr Lewis as to the approach that he proposed to take to make good the case that he sought to advance in paragraphs [18]-[19] of the proposed Second Further Amended Concise Statement. In response, Mr Lewis acknowledged that proving the Applicant's case in those regards would be challenging. He submitted that he intended to call witnesses to adduce either tendency evidence or evidence going to the existence of a relevant system of practice. 48 Mr Lewis is correct to acknowledge that that would be challenging. As to tendency evidence, the Evidence Act 1995 (Cth) requires a number of formalities to be complied with before such evidence may be adduced. It may be difficult to comply with those steps. As to the difficulty of asserting from a series of unique instances that a system exists, I refer to what was said 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]. 49 Such methods of proof, if challenging, can for present purposes be accepted to be theoretically available. At a more fundamental level however, it appears to the Court that the proposition that the Applicant seeks to advance in his proposed Fourth Allegation (being that the Victorian Department of Education systemically withholds reasonable adjustments required by students who have Autism Spectrum Disorder, because they have that disability) is by reason of its inherent implausibility likely to be attended with more than ordinary difficulty in those regards. 50 Having dealt with those preliminary matters, I return to the list of considerations listed at paragraph [27] above that both parties accept are relevant to the disposition of this application. I do so acknowledging that each case turns on its specific circumstances, and without suggesting that that list is exhaustive. 51 The first factor identified by Justice Charlesworth is the nature and importance of the amendment to the party applying for it. Insofar as the Applicant's litigation representative Ms Bampton speaks for herself and for Mr Morsman, I have no reason to doubt anything to which she deposes in her affidavit. I accept that she is strongly of the view that it is of great importance that she is able to articulate every aspect of the case that she sought to advance before the AHRC. That case included that Peninsula Specialist College did not make adjustments of the kind which - she wishes to plead - would have allowed her son to access his educational potential. This factor speaks in strongly favour of permitting the Applicant's Fourth Allegation to be advanced: notwithstanding that his litigation representative had earlier given instructions to abandon it, albeit without fully appreciating the significance of that course. 52 However, most other factors weigh against granting the Applicant the leave that he seeks. 53 The second factor, the extent of the delay and the costs associated with the amendment, clearly weighs against amendment. I have already touched on the challenges of proof that paragraphs [18] and [19] of the proposed Second Further Amended Concise Statement present. Calling a sufficient body of witnesses as might be put forward to give evidence to prove the pleaded system - assuming that that project is not later abandoned - would add to the trial's length and expense. 54 The third factor, the prejudice to the Respondent that might be assumed to follow from the amendment, could at this time be assuaged by an order for costs thrown away. Going forward however, I accept Ms Latif's submission that given the detail of what is proposed to be pleaded as the reasonable adjustments which were withheld from the Applicant, the way in which the Respondent might need to conduct its defence could potentially increase its costs to a marked degree. 55 The fourth factor is the explanation for any delay in applying for leave to amend the pleadings. Ms Bampton's explanation is that as the Applicant's litigation representative, she did not fully understand that to which she was consenting when she accepted the advice of Mr Morsman's former solicitors. Her explanation negatives any suggestion of want of good faith on the part of those solicitors, or herself. However, that it is not an affirmative reason to grant the application. In the circumstances, I regard the fourth factor as neutral in the mix. 56 The fifth factor, the parties' choices to date in the litigation and the consequence of those choices, stands strongly against granting the leave that is sought. The instructions requested by the Applicant's former lawyers, which Ms Bampton provided, have not been challenged as having been improperly motivated or forensically unsound. Allowing a reversal will turn a focussed and tightly pleaded action into a wider, more costly inquiry: without the Applicant having established that the wider claim has any reasonable prospect of success. 57 The sixth factor is whether there will be detriment to other litigants in the Court. In that regard I take it not to be in dispute that if leave is granted the length of the trial will potentially be significantly increased. The degree to which that will be so is impossible at this present stage to determine. Nonetheless, I accept that the resources of the Court and accordingly the opportunities for other litigants to access its services would be disadvantaged if the amendments were permitted. 58 The seventh and final factor, the potential loss of public confidence in the legal system which can arise where a Court is seen accede to applications made without adequate explanation or justification, also weighs against the grant of leave. 59 Thus, save for the first factor which weighs heavily in favour of permitting the pleadings to be amended, the other factors are either neutral or weigh against the Court granting the leave sought. On the whole, I am satisfied that in the balance those factors - understood holistically - favour the Court exercising its discretion to refuse leave in the circumstances of the present case. 60 I should also refer briefly to one other consideration that has influenced my reasoning in the same direction. I understand that Mr Lewis points to Dr Gonzales' expert reports to establish that what the Applicant seeks leave to plead by the Fourth Allegation has a plausible foundation. 61 Neither of Dr Gonzales' expert reports give support to the claim the Applicant wishes to plead regarding the denial of certain relevant adjustments to the Applicant by his school. For example, the first two adjustments defined in the Schedule to the Proposed Second Further Amended Concise Statement are a "functional behaviour assessment" and a 'behaviour intervention plan'. The Applicant's proposed pleading is premised on Mr Morsman having required those adjustments, because his "bad" behaviour at school was caused by his disability. He therefore needed those adjustments to permit him achieve his academic potential. 62 The difficulty is that Dr Gonzales' December 2019 report refers at page 12 to his mother, Ms Bampton, having only mild concerns about her son's emotional control and behavioural regulation. Further, the report suggests that Ms Bampton had no concerns about the cognitive aspects of those skills. At page 14, Ms Gonzales then expresses her expert opinion that Mr Morsman does not meet the diagnostic criteria for any behavioural disorder, including oppositional defiance disorder. At page 3, she also observes that Ms Bampton has advised her that her son now attends Bittern Primary, a mainstream school, where he has flourished. She states: Ms Bampton reports that an aide is present most of the time, but this was deliberately reduced in the last few months of grade 6 to develop his independence. Ms Bampton reported that he coped well with this change and has become more independent as a result. 63 The, 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.

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

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