Perkiss v State of New South Wales

The primary judge's reasons summarised 5 The primary judge relied upon the following paragraphs from the appellant's outline of written submissions below as accurately summarising the nature of the proceedings. 7. The Applicant is deaf and has been so since birth. She is 53 years old. She is unable to hear sounds at all. 8. The Applicant is able to 'lip read' spoken English in circumstances where she is in a close one-on-one conversation with another person. She is unable to lip read speech in a group environment or where she is more than approximately one metre away from the person speaking. Her primary form of communication with others and her first language is Australian Sign Language (Auslan). 9. An Auslan interpreter translates the Applicant's Auslan communication into speech for a person who does not communicate in Auslan and with whom she is communicating. Conversely, the Auslan interpreter translates the spoken English of the person with whom the Applicant is communicating into Auslan for the Applicant. 10. The Applicant is [a] Disability Support Pensioner and has received government income support or worked in supported employment for all of her adult life. 11. In Semester 2 of 2010 the Applicant enrolled with the Respondent in a Certificate 1 course called "Statement of Attainment in Skills for Work and Training" at the Respondent's TAFE Illawarra Dapto Campus. On the Applicant's request, the Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction for this course. Because of the course was taught in a small-group format, and an individualised learning plan was developed for each student, the Applicant did not require and so did not request, a note-taker to take notes for her during class. The Applicant achieved competency in the four units of study she undertook in the course for that Semester. 12. In Semester 1 of 2011 the Applicant enrolled again with the Respondent and completed more units in the "Statement of Attainment in Access to Work and Training Course." The Applicant successfully completed the Skills for Work and Training Course by the end of Semester 1 of 2011 and was awarded a Statement of Attainment for that course. 13. In Semester 2 of 2011 the Applicant enrolled with the Respondent in the "Course in Language, Literacy and Numeracy" at the Respondent's TAFE Illawarra Dapto Campus. On the Applicant's request, the Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction and with a note-taker for class for the course. 14. The Applicant successfully completed the "Course in Language, Literacy and Numeracy" in Semester 2 of 2011, and was awarded a Statement of Attainment for that course. 15. In Semester 1 of 2012 the Applicant enrolled with the Respondent in the Certificate II course called "Skills for Work and Training" at the Respondent's TAFE Illawarra Shellharbour Campus. On the Applicant's request, the Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction and with a note-taker for class for the course. 16. The Applicant successfully completed the Certificate II course called "Skills for Work and Training" over Semesters 1 and 2 of 2012, and was awarded the Certificate for that course at the end of 2012. 17. In Semester 1 of 2013 the Applicant enrolled with the Respondent m [sic] the Certificate IV course called "Photo Imaging" at the Respondent' s TAFE Illawarra West Wollongong Campus. The Applicant took this course over Semesters 1 and 2 of 2013. 18. The Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction and with a note-taker for class for most hours of classroom instruction in the course. 19. From August 2013 the Respondent continued to provide the Applicant with an Auslan interpreter to interpret each hour of classroom instruction and commenced providing her a note-taker for class for all hours of classroom instruction in the course. 20. The Applicant successfully completed the Certificate IV course called "Photo Imaging" over Semesters 1 and 2 of 2013, and was awarded the Certificate for that course at the end of 2013. 21. In Semester 1 of 2014 the Applicant enrolled with the Respondent in a Diploma of Photo Imaging at the Respondent's TAFE Illawarra West Wollongong Campus. 22. On or about 4 February 2014, prior to Semester 1 starting on 5 February 2014, the Respondent informed the Applicant that it would provide her with an Auslan interpreter to interpret each hour of classroom instruction for the Diploma course, but would not be providing her with a note-taker for class. 23. The Applicant was stressed and upset about the Respondent not offering her a note-taker for class, but, because she had enrolled and was eager to do the Diploma course, she attended the first class of the course on 5 February 2014. 24. The Applicant observed that the course was high-level and the teaching and classroom interaction was fast-paced compared to her previous courses of study. The Applicant tried to take her own notes of the classroom instruction and discussion but could not do so without missing parts of what was being interpreted by the Auslan interpreter. She felt very stressed and anxious because of this. On 17 February 2014 the Applicant lodged a formal written complaint with the Respondent about its refusal to provide her with a note-taker for the Diploma in Photo Imaging. 25. On 6 March 2014 the Applicant lodged a complaint with the Australian Human Rights Commission (AHRC) alleging that the Respondent had discriminated against her on the basis of her disability in the provision of education to her contrary to section 32 of the [Disability Discrimination Act 1992 (Cth) ("the DDA")], and/or in the alternative, contrary to sections 5 and 22, or in the alternative, contrary to sections 6 and 22 of the DDA. 26. By letter dated 7 March 2014, the Respondent responded to the Applicant's formal written complaint and offered the Applicant course notes for classroom instruction and a weekly two-hour individual learner support tutorial with a photography teacher and Auslan interpreter to revise learning materials and clarify content of the course. 27. The Applicant completed the Diploma of Photo Imaging in Semesters 1 and 2 of 2014 and received the Diploma at the end of the year. Notwithstanding this, she was not provided a note-taker for classroom instruction and discussion. She found the experience very humiliating and demoralising. 28. In the proceeding before this Court, the Applicant alleges that the Respondent has engaged in unlawful discrimination against her on the ground of her disability in contravention of sections 6, 22 and 32 of the DDA and Parts 3.4, 3.6, 3.7, 5.2 and 7.2 of the [Disability Standards for Education 2005 (Cth) ("the DSE")]. 29. Next to the alleged contraventions of the DSE, the Applicant only pleads indirect discrimination by the Respondent for: a. its imposition of an unreasonable requirement or condition that she make her own contemporaneous notes of classroom instruction, questions being asked, information being provided, and comments being made by other students, and responses being provided by teaching staff in the Diploma of Photo Imaging in 2014 receive classroom instruction; and b. its failure or refusal to provide her with a note-taker for classroom instruction and discussion, by way of a reasonable adjustment. 30. In terms of relief, the Applicant does not seek any compensation for economic or non-economic loss. She primarily seeks declaratory relief to prevent the Respondent continuing the unlawful conduct. 6 Her Honour also accepted at [10] of her reasons for judgment that the legal issues for determination in a substantive proceeding were as summarised by counsel for the appellant, namely: (a) whether a note-taker a was [sic] "reasonable adjustment" for the Applicant in the circumstances; (b) whether or not the Respondent's impugned conduct was "reasonable"; and (c) whether avoiding any unlawful discrimination that is found would have imposed unjustifiable hardship to the Respondent. 7 Referring again to the submissions made by the appellant's counsel, her Honour said at [13] that, for the purposes of the maximum costs order application, the relevant considerations for the Court were "common ground" and comprised: (a) the public interest nature of the proceeding, namely: i. the opportunity to improve educational and employment opportunities for deaf and hearing impaired people; and ii. the opportunity to clarify provisions under the DDA, namely, the interpretation and application of the DSE, the DDA being remedial and beneficial legislation; (b) the Applicant's substantive case in the proceeding is arguable and is not frivolous or vexatious; (c) the nature of the Applicant's case; (d) the timing of this Application; (e) the Application seeks an order that would not just cap the Applicant's costs exposure, but also that of the Respondent's costs exposure; (f) the proceeding does not involve particularly complex legal or factual issues; (g) the primary orders that the Applicant seeks are declarations and she does not seek any financial compensation; (h) the Applicant has conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible; and (i) the financial circumstances of the Applicant, her intention to abandon the proceedings if the Application is not successful and the undesirability of effectively compelling an applicant to abandon proceedings in a matter where an applicant has a case which appears to be arguable and the undesirability of an applicant being forced to abandon proceedings. 8 After noting at [15] that the respondent "conceded" the considerations in paragraphs (b), (c), (d), (e) and (g), her Honour stated that the relevant considerations for the Court to have regard to in the matter were: (a) the public interest nature of the proceeding; (f) the legal and factual complexity involved in the proceeding; and (i) the appellant's financial circumstances and her intentions if unsuccessful. 9 After identifying the evidence filed by both the appellant and the respondent, the primary judge then turned her attention to each of these three relevant considerations. 10 On the issue of public interest, her Honour summarised the submissions made by the appellant's counsel, including the legal authorities upon which he relied. Her Honour said at [26] that the appellant's claim included an alleged breach of s 32 of the DD Act, which made it unlawful for a person to contravene a disability standard. Her Honour noted at [26] that disability standards were provided for in the Disability Standards for Education 2005 (Cth) (the DSE), and her Honour made reference to and discussed cll 5.2 and 7.2 of the DSE. 11 In [29], the primary judge referred to a submission made by the appellant's counsel that the respondent "had engaged in direct discrimination in contravention of s 6 of the DDA by failing to make a reasonable adjustment for the applicant, namely, in failing to provide her with a note-taker". 12 In [30] the primary judge referred to another submission by the appellant's counsel that the respondent had discriminated against the appellant in breach of s 22(2) of the DD Act in denying her access to a note-taker. Her Honour added that s 22(2) relevantly provided that it is unlawful for an education authority to discriminate against a student on the ground of the student's disability. 13 After summarising some of the relevant evidence (which included the fact that the appellant had successfully completed the Diploma course without a note-taker even though she found the experience "very humiliating and demoralising"), her Honour concluded at [36] that, based on the evidence before her, she was satisfied that the appellant's complaints were "confined to her dissatisfaction with the adjustments that were made by her education provider". The primary judge stated that if these adjustments were found to have been reasonable in all the circumstances or caused the respondent unjustifiable hardship, there would be no breach of the DD Act. 14 Her Honour concluded at [37] that any public interest was "very limited" and did not rise to the height claimed by the appellant to the effect that public interest was to be found in the opportunity to improve education and employment opportunities for deaf and hearing impaired people. Her Honour found that this was not a case where the respondent had failed to provide any adjustments to the appellant or to deaf and hearing impaired students generally. This was because the appellant was provided with an Auslan interpreter and individual tutoring and these adjustments were in place when the appellant successfully completed her Diploma course. After finding that the appellant's complaint was "individual to her own specific circumstances", her Honour concluded at [39] that any public interest that may be found to exist was "extremely limited". 15 On the issue of factual and legal complexity, the primary judge referred to the 14 page long further amended statement of claim and other matters before finding at [41] that the respondent's foreshadowed defence of unjustifiable hardship would be neither simple nor straightforward in either a factual or legal sense. 16 On the issue of the appellant's financial circumstances and intentions if her interlocutory application was unsuccessful, the primary judge noted at [42] that it was not disputed that the appellant's financial circumstances were very modest. Her Honour also noted counsel's submissions that, without the protection of a maximum costs order, the appellant intended to abandon the proceeding. Her Honour then summarised various relevant authorities before concluding that the mere fact of financial impecuniosity was not of itself sufficient reason to impose a maximum costs order, nor was the fact that the application would impose a maximum costs order on both parties. Her Honour made reference to the competing evidence before her as to the likely length of the proceeding and estimates as to costs. Her Honour concluded that she preferred the respondent's evidence concerning these matters. Her Honour stated in [51] that she had had regard "to the significant unrecoverable costs that would be incurred by the respondent in the event the respondent was successful". At [49], the primary judge expressly accepted that the cost consequences may be a reason for the appellant to abandon the proceeding. 17 In the light of all these matters, and after noting that the respondent conceded that the matter was arguable, her Honour stated that, on the material then before the Court, the appellant's prospects of success were no more than "barely arguable" and were "low". Accordingly, her Honour concluded that this was not a matter where it was appropriate to make a maximum costs order.

The proceedings in this Court 18 Directions were made by this Court on 5 July 2016 for the application for an extension of time, leave to appeal and any appeal to be heard together on 27 September 2016. 19 The respondent did not oppose time being extended. The relevant principles are described in numerous cases, including in MZZMQ v Minister for Immigration and Border Protection [2015] FCA 557 at [33]-[35] per Katzmann J. It is unnecessary to repeat those principles here. I am satisfied that it is appropriate to extend time. 20 Nor did the respondent oppose the application for leave to appeal. The relevant principles are discussed in cases such Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [26]-[34] per Dowsett, Foster and Yates JJ and Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397. Having regard to those guiding principles, I am satisfied that leave to appeal should be granted. 21 This then requires primary attention to be focussed on the substance of the appeal itself, to which I now turn. 22 The appeal is against the decision of the primary judge which was arrived at in the exercise of her Honour's discretion under r 21.03 of the FCCRs. Accordingly, the appeal attracts the following well-known principles established in House v The King [1936] HCA 40; 55 CLR 499 (House) at 504-505 per Dixon, Evatt and McTiernan JJ (citations omitted): … The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King. 23 It is important to emphasise that the appellant carries the burden of demonstrating that there is some error in the exercise of the primary judge's discretion and it is insufficient that, if I had been in the primary judge's position, I might have taken a different course. 24 Ground 1 of the notice of appeal claims that the primary judge erred in law in failing to take the following relevant and material considerations into account: (a) the aspect of the public interest nature of the proceeding in it being an opportunity to improve educational and employment opportunities for deaf and hearing impaired people; (b) the appellant's substantive case in the proceeding is arguable and is not frivolous or vexatious; (c) the timing of the application in the proceeding; (d) the application seeks an order that would not just cap the appellant's costs exposure, but also that of the respondent's costs exposure; (e) the primary orders sought by the appellant are declaratory orders and she does not seek any financial compensation; and (f) the appellant has conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, in circumstances where the respondent had conceded that these considerations supported the application for a maximum costs order (save for (a)). 25 The respondent did not dispute that it had conceded below that all these considerations, except for (a), were relevant. 26 I cannot accept the appellant's contention that all the matters set out in [24] above were viewed by the primary judge as being irrelevant or were not taken into account. Her Honour noted the appellant's submission that the relevant considerations were common ground and each of them is set out in [13] of her Honour's reasons for judgment. Her Honour then focused on the three relevant considerations which were not conceded by the respondent. Contrary to the appellant's contention, this does not mean that the uncontested matters were not taken into account by the primary judge. It is significant that in [52] of her reasons for judgment, in stating her conclusion, the primary judge made an express reference to having had regard "to the overall interests of justice, and in seeking to balance all the factors relevant to the exercise of the Court's discretion" (emphasis added). Accordingly, I am conformably satisfied that in fact the primary judge did take into account and balance the considerations identified in ground 1 of the notice of appeal. Contrary to the appellant's contention, the primary judge was not obliged to quantify the weight she gave to any particular relevant consideration. Moreover, it is readily apparent from her Honour's reasons for judgment and, in particular [50] and [51] which matters weighed most heavily in the primary judge's balancing of their various relevant considerations. 27 With specific reference to the topic of the public interest nature of the proceeding, her Honour summarised the appellant's submissions and referred to the authorities which were relied upon. Her Honour then expressed her conclusions on this topic in [36] to [39]: 36. Based on the evidence before me, I am satisfied that the applicant's complaints are confined to her dissatisfaction with the adjustments that were made by her education provider. If those adjustments are found to have been reasonable in all the circumstances or cause the respondent unjustifiable hardship, then there has been no breach of the DDA. 37. In the circumstances, any public interest is very limited and not encompassed, other than in the most minor and general way, in the broad statement by the applicant that public interest was to be found in "the opportunity to improve education and employment opportunities for deaf and hearing impaired people". 38. On the evidence before me, there is an allocation of funds available to TAFE Illawarra Institute by the respondent to assist deaf and hearing impaired students and it was not suggested that that allocation is not adequate. Further, it was not suggested that all deaf and hearing impaired students would require a note-taker. This is not a case where the respondent has failed to provide any adjustments to the applicant or to deaf and hearing impaired students generally. Moreover, in relation to the applicant, it was not the only adjustment made. The applicant was provided with an Auslan interpreter and individual tutoring. The applicant successfully completed her Diploma course with those adjustments. 39. … The applicant's complaint is individual to her own specific circumstances. In such circumstances, any public interest that may be found to exist is, in my view, extremely limited. 28 In the light of these extracts, there is no foundation for the claim that the primary judge regarded the claimed public interest nature of the substantive proceeding as irrelevant or, alternatively, did not take it into account. This matter plainly was considered by her Honour, but was viewed by her as being outweighed by other matters (again, see [52] of the primary judge's reasons for judgment). 29 As to the legal and factual complexity in the proceeding, at [40] of the reasons for judgment below her Honour rejected the appellant's submission that this was not a case of significant complexity, factually or legally. Her Honour did so by reference to the matters set out in [41] of her reasons, which are summarised in [15] above. Accordingly, the primary judge did have regard to these matters and the appellant's claim to the contrary must be rejected. 30 The third matter relates to the appellant's financial circumstances and her intentions if the maximum costs application were unsuccessful. Again, it is plain by reference to the primary judge's reasons for judgment that she viewed these matters as relevant and took them into account, but considered that they were outweighed by other considerations. The primary judge's consideration of these matters is summarised in [16] above. Her Honour made express reference in [43] to the appellant's stated intention to abandon the proceeding if the maximum costs order was not made. It is also to be noted that, at [49], the primary judge expressly stated that the appellant might abandon the proceeding in the light of the costs estimates advanced in the respondent's evidence, which evidence was preferred. Again, it can be inferred from [52] of her Honour's reasons that these matters were weighed in the balance with other relevant matters. I reject the appellant's contention that the primary judge gave no consideration at all to the undesirability of her being forced to abandon the proceeding if the maximum costs order was not made. 31 Ground 2 in the notice of appeal is that the primary judge erred by taking into account an irrelevant consideration and/or by misconstruing the appellant's substantive case in that: (a) she did not plead unlawful direct discrimination in contravention of s 5 of the DD Act; (b) nor did she plead unlawful direct discrimination in the area of the provision of services, pursuant to s 24 of the DD Act. 32 During the course of oral address in the appeal, the appellant's counsel stated that ground 2 was not pressed. Accordingly, it is unnecessary to say anything further about either aspect of it. 33 Ground 3 of the notice of appeal claims that the primary judge erred by exercising her discretion on the basis of an incorrect legal principle and/or by misconstruing the DD Act because the appellant's substantive case was not one which claimed that the respondent had failed to provide any adjustments to the appellant individually or to deaf and hearing impaired students generally. 34 In support of this ground of appeal, the appellant submitted that the primary judge failed to consider the true nature of her substantive case, or its merits and prospects, when her Honour found that "the prospects of success of the appellant are no more than barely arguable and I would presently assess as low". It was also submitted that, in [36] and [38] of her Honour's reasons for judgment, the primary judge had misstated the relevant principles when she said that if it were found that the adjustments which had been provided to the appellant by the respondent had been reasonable in all the circumstances or cause the respondent unjustifiable hardship there would have been no breach of the DD Act. Counsel submitted that the correct legal principles were to be found in the definition of "reasonable adjustment" in s 4(1) of the DD Act when read together with s 11, as found by Manousaridis J in Hudson v Australian Broadcasting Corporation [2016] FCCA 917 at [31]. 35 I am not persuaded that her Honour misunderstood or misapplied the relevant legal principles. Her Honour was plainly aware that the appellant's complaint was primarily directed to the respondent's refusal to provide her with a note-taker. Express reference is made to that matter in many paragraphs of the reasons for judgment, including [9], [29], [31], [32], [33], [38] and [50]. In my view, her Honour's observations in [36] and [38] relating to other adjustments which were made must be read in their particular context, namely the primary judge's assessment and characterisation of the evidence which was before her in respect of other adjustments, such as the provision of an Auslan interpreter and individual tutoring. 36 I am not persuaded that it has been established that the primary judge applied an incorrect legal principle and/or misconstrued the legislation or fell into any other appealable error within the House principles. It was open to her Honour, in determining the interlocutory application, to make a tentative assessment of the merits of the appellant's substantive case. In performing this task, it was unnecessary for the primary judge to make preliminary findings in respect of each and every aspect of the claim. I am satisfied that the primary judge sufficiently understood the substantive case and it was open to her to make the preliminary assessment of its relatively poor strength as she did. 37 Similarly, the appellant's complaint that the primary judge failed to consider, and properly apply, relevant legal principles as set down by the Full Court in Hurst v Queensland [2006] FCAFC 100; 151 FCR 562 at [134] on the question of whether or not the appellant could comply with the requirement or condition imposed by the respondent, cannot be accepted. Her Honour made express reference to the adjustments which both parties agreed had been made by the respondent and, at [36], her Honour stated: If those adjustments [which were made by the respondent] are found to have been reasonable in all the circumstances or cause the respondent unjustifiable hardship then there has been no breach of the DDA. I do not accept the appellant's contention that her Honour proceeded on the basis that the appellant's complaint of indirect discrimination regarding the refusal to provide a note-taker was answered by the fact that she had been able to complete the course because of the other adjustments she received. 38 I also reject the appellant's contention that the defence of unjustifiable hardship was not adequately raised. In [28(d)] of the defence to the further amended statement of claim, the respondent pleaded that, pursuant to cl 10.2 of the DSE, it was only required "to provide reasonable adjustments in so far as providing the adjustments does not impose an unjustifiable hardship" on it. Furthermore, it is plain that the appellant conducted the case below on the basis that unjustifiable hardship was an issue raised by the respondent. In [10] of the primary judge's reasons for judgment, her Honour set out extracts from submissions made by the appellant's counsel (see [6] above) which identified as one of three legal issues for determination "whether avoiding any unlawful discrimination that is found would have imposed unjustifiable hardship to the Respondent".

Conclusion 39 For these reasons, the appeal should be dismissed and the appellant ordered to pay the respondent's costs, as agreed or assessed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.