Sluggett v Flinders University of South Australia

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a single Judge of the Federal Court (Drummond J), who on 9 August 2002 dismissed Chandrakanthi Sluggett's appeal from a decision of the Human Rights and Equal Opportunities Commission ("the Commission") of 14 July 2000. 2 His Honour found that the applicant had not shown any reviewable error in the Commissioner's decision, and found that there was not an improper exercise by the Commissioner of the Commissioner's statutory power within s 5(1)(e) and (2)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). 3 It is necessary to set out the facts in some detail. 4 As a child the appellant suffered polio. This left her with a marked limp, but otherwise she seems to have been able to handle the usual trials of work and study quite well; at least until 1992. As the appellant herself has said, she did not view herself as disabled. 5 During 1992 and 1993 the appellant undertook post graduate studies with the first respondent. Had she successfully completed that study, she would have been qualified to be a social worker as from 1994. Unfortunately, the appellant's health became gradually worse during 1992 and 1993. Her symptoms included shortness of breath, chest pain and muscular weakness, particularly in the legs. The appellant complained to her lecturers that she was having difficulties. They made some accommodations for her in terms of receipt of late papers and such like, but these were insufficient to resolve her problems. She did not request that any of her courses be deferred, although it is not apparent from the evidence that any other course would have assisted her. 6 Her academic performance suffered apparently directly associated with her worsening health. As a result, she failed three subjects of the four she was required to pass in 1993. At the end of 1993 the appellant's condition was diagnosed as "post polio syndrome". It is probably fair to say that the effects of this condition were more serious than the appellant had thought and certainly were more serious than was disclosed to her lecturers. 7 The appellant initially sought to have her "fail" mark reviewed internally by the first respondent. They obliged by remarking at least some of the papers the appellant had submitted, but the fail marks were confirmed. The appellant then appealed to the Students Appeal Committee. The decision of that Committee was conveyed to the appellant by letter dated 5 April 1994. The Committee concluded that the relevant staff at the school had made special allowance for the appellant when they became aware of her problems; that neither the appellant, nor they, had been aware of the full extent of her problems; if they had "some further special consideration could possibly have been appropriate"; that the Committee resolved not to uphold Ms Sluggett's appeal; but that nevertheless the School be asked to consider allowing the appellant to resubmit work in the three topics for which she had failed. The School declined to do so, in part because two of the subjects were no longer offered. 8 By letter dated 29 May, 1994 the appellant made a complaint with the second respondent ("HEREOC") that the first respondent had discriminated against her contrary to the Disability Discrimination Act, 1992 ("the Act"). Her complaint was characterised as "less favourable treatment in access to services, harassment by university staff on the ground of disability, difficulties in accessing the University campus, and difficulties in accessing her office in a University supervised placement." The complaint was considered by a delegate of the Commissioner who declined to make an inquiry pursuant to s 71(2)(e) of the Act which relevantly provides: "The Commissioner may decide not to inquire into an act… in a case where some other remedy has been sought in relation to the subject matter of the complaint - the Commissioner thinks that the subject matter of the complaint has been adequately dealt with." 9 The appellant required that that decision be referred to the President pursuant to s 71(5) of the Act. On 21 September 1995 the President confirmed the decision not to inquire into the alleged harassment, the alleged discrimination in access to services or the alleged discrimination in education. However, the President set aside the determination in relation to access. 10 On 12 January 1996 the Commissioner referred the issue of access to the Commission under s 76(1)(a) of the Act. 11 The hearing before the Commission took twelve days starting on 27 August 1996 and concluding on 11 September 1997. The transcript is of 823 pages. Much of the evidence was not relevant to the issues before the Commission. 12 The case presented by the appellant to the Commission differed somewhat from her earlier complaints. This is not surprising. The ruling by the President meant that the issue had to be treated as one of access, rather than one of education. Before the Commission the appellant argued that she suffered "indirect discrimination" (as defined in s 6 of the Act) by reason of: (a) lack of access both at the University and on placement which, she alleged, caused the post-polio syndrome; and (b) lack of access both at University and on placement which, she alleged, caused her to fail the three subjects in 1993. contrary to s 23 of the Act. 13 Sections 6 and 23 of the Act provide, so far as is relevant: "6 Indirect disability discrimination For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. 23 Access to premises (1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates: (a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or (b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or (c) in relation to the provision of means of access to such premises; or (d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or (e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or (f) by requiring the other person to leave such premises or cease to use such facilities. (2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if: (a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and (b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access." 14 In so far as access to the University is concerned, it is clear that the University is built on a steep, but large site. For those with the knowledge to do so it is possible to move from top to bottom of the University without using stairs. Notwithstanding that possibility, it would appear that most people do need to use stairs and to walk long distances to get from one part of the University to another. It would certainly appear that the appellant was doing so. The appellant complained that stress of climbing these stairs and walking these distances was the cause of the post-polio syndrome. This was rejected by the Commissioner on the basis that the evidence did not establish the necessary causal relationship. 15 On the other hand it would seem clear from the evidence that the use of stairs and the requirements to walk relatively long distances, both at the University and at the premises where the appellant undertook some work placement, did have the effect of tiring the appellant. This may have had a direct effect upon her studies, although the evidence is unclear as to how the appellant would have performed academically if she still had the disease, but had not been made even more tired by the need to climb stairs or walk long distances. 16 The Commission found that the appellant did not make it clear to the University how dramatically she was being affected by the problems she faced. If she had done so then there were some solutions that the University could have offered. These may well have taken more time than the use of stairs or walking long distances. And there is no evidence that these solutions would have meant that the appellant would otherwise have passed all of her courses. Still they may have assisted. However, in the absence of any specific information from the appellant as to the extent of her problems, the Commission apparently accepted that the requirements of the University in relation to attendance at the University, attendance at placement and in relation to the particular courses offered were "reasonable". 17 The Commission dismissed the application on 14 July, 2000, this being only two months short of three years from the date of the last hearing. 18 On 14 March, 2001, eight months after the Commission's decision, the appellant applied to Federal Court to review the decision of the Commission. Such a review is pursuant to s 5 of the ADJR Act. 19 The grounds of appeal were: (1) that the decision of the Commissioner was improper in that the Commissioner: (a) took irrelevant considerations into account; (b) failed to take relevant information into account; (2) that the decision involved errors of law. (3) that there was no evidence or other material to justify the making of the decision 20 Justice Drummond heard the appeal on 20 August 2001. Both the appellant and the University were represented by counsel and solicitor. On 9 August, 2002 his Honour dismissed the applicant's application for review. Although His Honour was critical of some aspects of the reasoning of the Commissioner, his ultimate conclusion is set out in par 13 of his reasons: "It is difficult to see how means of access about which there is no complaint in 1992 can become the subject of discriminatory conduct by the University in 1993 solely because of a deterioration in Ms Sluggett's physical capacity which she did not draw to the attention of her lecturers, the unit within the University specifically set up to provide advice and assistance to disabled students or anyone else in the University. It was only her examination failures, at the end of the 1993 academic year that caused her, early in 1994, to make complaint to the Academic Registrar in the course of appealing against the failed grades she had received. If it were the case that the University did, in 1993, require Ms Sluggett to comply with a requirement or condition that she attend classes at the University or field work at the Health Service centre with which requirements she became increasingly unable to comply, it is difficult to see how it could be said that such a requirement or condition was in terms if section 6(b) of the Act, 'not reasonable having regard to the circumstances of the case'. That was ultimately the view to which the Commissioner came". 21 Drummond J said, at par 30: "[The applicant] did not, according to the findings made by the Commissioner, reveal her increasing problems in moving about the relevant premises through 1993 to any University staff or staff at the Health Service. Despite her difficulties, she did not seek advice or assistance from the unit within the University administration set up to assist disabled students, though she knew of its existence. All these considerations are, in my opinion, relevant to whether any requirement with respect to access that might have existed was 'not reasonable having regard to the circumstances of the case' within s 6(b)." 22 At par 31, in connection with complaints about access to the Health Service building where the appellant had a placement to do field work, Drummond J said: "…The Commission found that the applicant inspected the Health Service premises before she accepted a placement there and knew before commencing that her place of work would be on the second floor of the Health Service building. She did not during the initial inspection or at any time prior to signing the contract I have referred to, raise any concerns about access to her office. To get to it she had to walk up a conventional staircase from the footpath to the first floor and then a spiral staircase to the second floor. Ms Sluggett said that she in fact encountered serious problems using the spiral staircase and fell on several occasions. However, at no time, including at a meeting she had with her supervisors on 21 October 1993, did she tell anyone of the difficulties she was having. She acknowledged she knew of a second, conventional staircase at the back of the building which also leads to the second floor and which she could have used instead of the spiral staircase, but did not do so. The only complaint she made at any time in 1993 concerning this placement was difficulty in getting to the premises from her home." And at par 32, Drummond J noted that: "[The Commissioner] concluded that because the applicant did not draw to the attention of the University or anybody from the Health Service her difficulties in accessing the premises and the fact that those difficulties were not self-evident, that it was reasonable for the University to expect her to comply with that requirement, ie, that the University in that event would not have discriminated against her." 23 The question of the availability of lifts to ameliorate difficulties of access for the applicant was a matter that loomed large in the proceedings before the Commission. The Commissioner made specific findings as to the existence and availability to students of lifts. Drummond J noted at par 38: "The applicant did not challenge the findings as to the existence of the lifts, only that they were available to her, a challenge based on her ignorance of their existence and the University's failure to tell her that she could use them." Drummond J concluded at par 41: "On the findings made by the Commissioner, the applicant's ignorance of the lifts was due to her failure to seek information on such matters from a source within the University which she knew was in a position to provide her with information about access for disabled persons within the campus. Ignorance of the availability of these lifts due to the applicant's election not to make inquiry cannot provide any ground for attacking the Commissioner's finding that these lifts were available to the applicant." His Honour dismissed the claim that there was no evidence to support the "critical finding" about the availability of lifts. 24 Drummond J was of the view that the detailed investigation by the Commissioner into the question of "unjustifiable hardship" within s 23(2)(b) of the Act was irrelevant. Nonetheless, that error was "not one which can be said to have affected her decision that the University did not indirectly discriminate against Ms Sluggett in relation to the provision of access either to the University premises or the Health Service premises within ss 6 and 23(1)(c). The Commissioner gave reasons for reaching this conclusion which dealt with the issues raised by ss 6 and 23(1)(c) and the applicant has not shown any reviewable error in the Commissioner's decision on these matters." 25 The appellant appeared on her own behalf on her appeal from the orders of Drummond J of 9 August 2002, assisted by a Mackenzie friend. By amended notice of appeal dated 16 December, 2002 the applicant purported to appeal "the whole of the judgments by both Justice Drummond … and by Commissioner McEvoy." Some 26 grounds of appeal are given picking up all of the relevant grounds set out in s 5 of the ADJR Act as well as further grounds that both Justice Drummond and the Commissioner erred in particular factual findings or legal conclusions that they made. The grounds in the notice of appeal, and the written submissions of the appellant complain of errors said to be made by Drummond J and errors said to have been made by Commissioner McEvoy. 26 As the written summary of the oral argument which the appellant wished to present makes plain, the appellant sought to assert to this Court that: "The decision by Commissioner McEvoy is not legitimate as it contains a number of distinct legal errors" and that Drummond J: "erred in not finding that Commissioner McEvoy had erred in her jurisdiction" and had erred in finding that the Commissioner: "had applied procedural fairness." 27 Many of the grounds of appeal submitted are not properly open to the appellant as valid grounds, and it is difficult to extract with precision, what the appellant contends are the legal errors that infect the judgment of Drummond J. 28 In the course of her submissions to this Court, the appellant claims that when she enrolled in the University to commence her course in 1992, she disclosed that she had a disability and that, notwithstanding that, "they did nothing". However, a fair reading of the material indicates that the focus of the appellant's requests to the University concerned extensions of time to perform tasks rather than requests for improved physical access. Her submissions to this Court reflect a significant reformulation of the nature of her complaints from those first articulated to University officers. 29 The appellant referred, in the course of her submissions, to a letter dated 27 July 1993 from a student counsellor, one Lesley Bretag, to Professor J. Barber concerning Ms Sluggett. That letter says: "Chandra has attended for counselling and has discussed personal stresses, her physical disability and problems with access to the library and to field-work and practice placements in varied locations. My opinion is that this student has persued [sic] her tertiary education thus far under considerable difficulty. I would support your special consideration of her in terms of extension as appropriate." 30 On 3 August 1993, the appellant wrote to Professor Barber, the first two paragraphs of which reflect the tone of her then complaints: "I am writing to you for support in regarding to difficulties I have had during Semester 1 1993 which had resulted in affecting my final grades. These problems were both person and academic relate. The main barrier have been my disability (although I don't consider myself as disabled). I do have to face reality of accessing uni, fieldwork and as in the past, maintaining a job. As I can't afford Physiotherapy, I have learnt manage the best I physically could, however I have had relied on lecturers to be understanding." 31 On 30 September 1993 the appellant wrote to a Mr Moller: "I am writing to you in regard to the essay due on 8th October 1993. Due to overload of topics, as you know that I am still completing Integrated Methods (SI). Also, my physical disability is preventing me from accessing the university. Therefore unable to complete the assignment."