Varasdi as Litigation Representative for Mimi Varasdi v State of Victoria

KERR J 1 The Court has before it an interlocutory application on behalf of the First and Second Respondents for orders pursuant to r 30.11(c) of the Federal Court Rules 2011 (Cth) (Federal Court Rules), that the proceedings in VID518 of 2019 be consolidated with the proceedings in VID367 of 2017. Alternatively to the order sought for consolidation, the Respondents seek that pursuant to r 30.11(d) of the Federal Court Rules the proceedings in VID518 of 2019 (the second proceedings) and the proceedings in VID367 of 2017 (the first proceedings) be heard together, and that the evidence in one proceeding be evidence in both. 2 Each of the Applicants and the Respondents rely on affidavits which have been read in these proceedings, to which no objection was taken as to admissibility. The relevant Federal Court Rules that are the subject of this application provide that the Court can order consolidation of proceedings before trial if several proceedings are pending, inter alia, which: (a) involve some common questions of law or fact, or (b) are the subject of claims arising out of the same transaction or series of transactions. The Rules provide that any party may apply. 3 The orders sought are resisted by both the Applicant in proceedings VID367 of 2017 and the Applicants in proceedings VID518 of 2019. By way of preliminary observation, I should indicate that the material difference is that there is a single applicant in the first proceedings whereas in the second proceedings the litigation representative of Ms Mimi Varasdi also makes a claim in his own right. Mr Varasdi is the father of Ms Mimi Varasdi. Otherwise, the parties in both proceedings are in common. 4 The proceedings in the first matter are in respect of a number of matters which themselves have been earlier consolidated, and turn on a number of complaints under the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) in respect of Ms Mimi Varasdi's circumstances and the provision of education to her at Ivanhoe East Primary School (IEPS). The second proceedings, as were filed in 2019, also turn on circumstances arising in respect of Mimi's education at IEPS, albeit in the period between 2017 and 2018. 5 There is a time overlap in respect of the two proceedings which affects only 2017. The Respondents nonetheless submit that consolidation of both proceedings is appropriate, having regard to a number of matters. Firstly, the Respondents draw on the similarity of the proceedings and common issues of fact and law. The Respondents submit that each involves the same Applicant and First Respondent. Each concerns allegations of unlawful disability discrimination under the Disability Discrimination Act, including allegations of discrimination by way of segregation of Mimi from her peers, and allegations of victimisation of Mimi. 6 They submit that both involve matters relating to Mimi's schooling at IEPS, and involve allegations which overlap in time, between February and December 2017. The Respondents submit that should the proceedings be heard separately, the Court would be required to make separate findings of fact as to the nature and existence of Mimi's disabilities and the First Respondent's knowledge of those disabilities, and matters relating to the alleged segregation of Mimi. They submit that that creates a risk of inconsistent findings of fact across the two proceedings, and an unnecessary duplication of work. 7 Further, the Respondents submit that a common issue of law arises in both proceedings, as to whether the Federal Court would have jurisdiction to hear and determine allegations of victimisation brought under s 42 of the Disability Discrimination Act in the context of a civil proceeding. That issue arises having regard to the obiter observations in Walker v State of Victoria [2012] FCAFC 38 at [98]-[100]. 8 The Respondents further submit that there will be witnesses common to both proceedings, and that the consolidation of the proceedings will involve substantial savings of time, there being no difficulties in relation to trial management or other procedural issues given the similarity of the parties. 9 The Respondents submit there are no trial management or other procedural issues that would make consolidation unachievable. They submit that the progression of the proceedings will not be prejudiced, the Respondents having only recently been served with an amended pleading in the first proceeding. In that matter, pleadings have not yet closed, and the matter has not been listed for hearing. They submit that the Applicants' statement of claim in the second proceeding is, in any event, deficient in several material respects which have they have identified to the Applicants in writing. 10 The Respondents note that the Applicants have also foreshadowed a further application for consolidation in the second proceedings in relation to a second complaint made by the First Applicant to the Australian Human Rights Commission. However, in respect of the latter matter, it is common ground, having heard from counsel from all parties, that the second proceedings do not currently involve any claims advanced as to a breach of the Disability Discrimination Act at the school Mimi presently attends, which is a high school. 11 Ms Fitzgerald, who represents the Applicants in the second proceedings, identifies as a unique circumstance relevant to resisting the Respondents' application, that this application involves the course the Court ought to take in circumstances where despite the effective unity of the applicant parties, the Applicants have chosen (for reasons which they are not obliged to disclose, and have not disclosed) to engage different solicitors to conduct each of the relevant proceedings. However, it is common ground that the pleadings in the second proceedings have been drafted by the same counsel who also represents the Applicants in the first proceedings, Mr Hancock. Mr Hancock is currently retained on instructions in both. 12 Ms Fitzgerald contests both the merits of the application and its timing. Insofar as the issue goes to the merits, the Applicants submit that the matters relating to certain remedial programs in the second proceedings do not rely on the facts and circumstances as to their inception, which are relevant to the first proceeding. In developing those submissions orally, Ms Fitzgerald pointed out that the claims in the second proceedings filed in 2019 involve claims of direct discrimination rather than reasonable accommodations that might have been provided, or indirect discrimination, as is pleaded in those already consolidated matters. 13 For that reason, Ms Fitzgerald submits that the issues are likely to be significantly more confined, and that much of the evidence that would be necessary to establish the case pleaded in the already consolidated proceedings will not be material to the case that will be advanced in respect of direct discrimination. 14 I accept that there is some substance to that submission. However, it is uncontentious that certain matters of fact which will be required to be established in the second proceedings overlap with those which will be in issue in the first. 15 They include, for example, what, if any, knowledge the First and Second Respondents had as to the various matters or information pleaded in paragraphs 9 and 10 of the statement of claim filed in the second proceedings, and the reasons and background for what is said to be the isolation of Ms Varasdi which is pleaded as direct discrimination in the second proceedings. Those issues are engaged substantially in the first proceedings, albeit not in precisely the same terms. 16 In that regard Mr Ridley, who appears for the Applicant in the first proceedings, draws attention to the circumstance that the issue of isolation is pleaded only in respect of two events, whereas it is pleaded much more extensively in the second proceedings. However, that perhaps calls attention only to the difficulties that might arise with respect to possibly inconsistent findings on those factual matters which turn, for example, on the provision of what is said to be an evidence-based remedial program and the circumstances which required, on the Respondents' case, the separation of Ms Varasdi from her classmates for preparation to participate in the NAPLAN scheme. 17 It is incontestable that a number of witnesses, in any event, will be in common, albeit there will be many more witnesses in the first consolidated proceedings who will not be required for the second. 18 Mr Ridley's instructors, Arnold Thomas & Becker, filed written submissions opposing the consolidation of the two proceedings. It is important that the Court say something about some of the propositions that were advanced in those submissions. At paragraph 2(a), there is a submission that the second proceeding not only contains an additional applicant and respondent, but an additional school. It is submitted the additional school, and in particular the teachers, and witnesses, at that school have no connection to the Applicant's first proceedings. However, as I have indicated, the originating application which provides the bounds of the second proceedings makes no such claim. 19 It is also submitted that it would not be tenable for two firms to make strategic decisions with respect to their clients in respect of the proceeding, in the event the proceeding is consolidated. 20 Then at paragraph 7, what is said to be the most troubling aspect of the proposed joinder is that Mr Mark Varasdi is a separate applicant in the second proceedings. It is submitted that in the event the proceedings were to be joined, Mr Varasdi would be in a position where he would be required to simultaneously provide instructions with respect to his claim and with respect to Mimi's claim as her litigation guardian, and to different solicitors. It is submitted the Court should be extremely reluctant to create such a circumstance, given the obvious conflict that would be created between Mr Varasdi's own interests and his role as Ms Varasdi's litigation guardian, particularly if the Respondents were to propose to resolve the proceedings in circumstances that favour Mr Varasdi ahead of his daughter. 21 I need do no more than indicate that the Court raised with all parties its view that if there is a potential conflict of interest between Mr Varasdi and his daughter, Mimi, that would be an issue going to the appropriateness of him remaining her litigation representative at all. All parties accepted that that was the correct analysis, and that paragraph 7 of those submissions should be disregarded, and I do so. Whether or not Mr Varasdi does have a potential conflict of interest is a matter to which the parties may wish to give future consideration. I express no opinion on that question. 22 There is only one potential issue that would involve the possibility that the second proceedings should be dealt with as a matter of urgency. Save for that matter, the relief sought is limited to declarations and damages, and the Court apprehends that no basis was put that any greater urgency would attend to the management of either proceeding, such that they might not both properly be heard and determined at the same time. 23 There is thus only one issue in respect of which the availability of urgent relief is potentially significant. That is the claim for relief which is made in respect of the second proceeding at paragraph 57(e) of the statement of claim, which seeks from the Court an order for dedicated full-time assistance for Mimi at her current school. That I take to be a reference to the high school she is presently attending. The difficulty the Court has with accepting that the relief sought is a circumstance material to the disposition of this application is that nothing in the pleadings would seem to connect what is sought to anything related to the matters that are contended for by way of allegations of direct discrimination which are said to have occurred whilst Mimi was a student at IEPS. 24 The highest Ms Fitzgerald put the matter was that such relief might be a theoretically available measure by way of compensation to address the detriments that had been sustained by reason of the conduct of the Respondents, if the Applicant's case is established. The difficulty, however, with that proposition is that establishing the premise for such relief would require the very much broader analysis of reasonableness that Ms Fitzgerald says that the narrower pleadings scrupulously avoid. All of the considerations that will be significantly in contest in relation to the existing consolidated applications in the first proceedings, including expert evidence, would need to be canvassed. 25 Ms Harris for the Respondents says that in any case even that bare possibility does not exist because the issue does not fall within the terms of a complaint that has been determined by the Human Rights and Equal Opportunity Commission and cannot therefore be the subject of a proceeding brought under the statutory provisions which make that a precondition for the commencement of proceedings in this Court. In light of those submissions, Ms Fitzgerald very properly yielded to the extreme difficulty, if not implausibility, of the contention being advanced whilst not resiling from the submission that such relief might be a theoretical possibility. 26 I now turn to the principles that should guide the Court's consideration of this matter. There appears to be no dispute as between the parties that the relevant considerations are those which were conveniently summarised in the judgment of Greenwood J in Walsh, Liquidator of D.R. Community Services Pty Ltd (Receivers and Managers Appointed) (In Liq) Commissioner of Taxation [2018] FCA 1739 (Walsh) which draw on the reasoning of Besanko J in an earlier decision of Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699. At paragraph 18 of his judgment, Greenwood J summarised the nine factors that Besanko J had identified: 1. Are the proceedings broadly of a similar nature? 2. Are there issues of fact and law common to each proceeding? 3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? 4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law? 5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? 6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? 7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence? 8. Is one proceeding further advanced in terms of preparation for trial than the others? 9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time? 27 As with all discretions to be exercised by this Court, such a list should not be understood to be exclusive or confining the obligation of the Court to make orders which are appropriate to justly resolve the matters coming before it. However, it is convenient to address the various contentions advanced having regard to those nine factors. 28 Ms Fitzgerald also drew attention to a decision of Ferguson J in Traditional Values Management Ltd (In Liq) v Taylor [2012] VSC 299. I do not take it that it was suggested by Ms Fitzgerald that Ferguson J identified any principles inconsistent with those which Greenwood J referred to in Walsh. 29 First: are the proceedings broadly of a similar nature? I accept that there are substantial differences in the nature of the cases pleaded in respect of the first and second proceedings. So in that regard, I accept Ms Fitzgerald's submission that they involve different aspects of what might be said to engage the capacity for the grant of relief under the Disability Discrimination Act. However, they arise out of the same bedrock of common facts yet to be found in respect of Ms Mimi Varasdi's schooling at primary school. 30 Second: are there issues of fact and law common to each proceeding? Plainly there are. I have recited some of the issues of fact that will be common, and there is the single common issue of law as to the availability of relief in respect of the victimisation claims which will be in issue. 31 Third: will witnesses, lay and expert, in one proceeding, be witnesses in one or more of the proceedings? Again, there is only one overlapping period of time, from February to December 2017, out of four years that are the subject of the consolidated proceedings. However, in respect of that period plainly there will be lay witnesses in common, and to the extent that it is at least theoretically available, for the relief that is sought in the second proceedings, expert and other witnesses. 32 Fourth: has there been an alternative proposal put forward, that there be a test case, and have the parties agreed to abide by the outcome, or at least the determination of common issues of fact and law? I do not see that as being material to these proceedings, and certainly no such proposal has been put forward. 33 Fifth: is there a prospect of multiple appeals, with substantial delays, if proceedings are not tried at the same time? I find that to be far too speculative a matter for the Court to place any weight on at the present time. 34 Sixth: will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? I am satisfied that there will be a substantial saving of court time if the proceedings are tried at the same time, compared with the proceedings being tried separately. 35 Seventh: will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues, and difficulties in determining cross-admissibility of evidence? I apprehend there being no difficulty in determining cross-admissibility of evidence, but I do accept that if a consolidation order is made, the requirement that the pleadings be restructured so as to, in a single pleading, pick up the new matters, would give rise to potentially significant difficulties in terms of time and cost for the parties. Whether that is comprehended within what Greenwood J was referring to as relevant to trial management or complexity of procedural difficulties is less certain. From the Court's point of view, consolidation might streamline the proceedings, but I take into account that it may delay matters while the parties have to go through the complex process of trying to re-plead what has already been a complex set of re-pleadings, to accommodate a new set of factual issues. 36 Eighth: is one proceeding further advanced in terms of preparation for trial than the others? In this regard, what I have before me is conflicting by way of evidence. Mr Ridley submits that the first proceeding is significantly advanced when compared to the second proceeding. Mr Ridley anticipates that having regard to his experience, it is not unlikely that there will be significant delay caused by the Respondents taking interlocutory steps before filing their defence. I am not prepared to act on the basis that that is an inevitable outcome, but it is not implausible that steps might be taken to require what Ms Harris accepts is already foreshadowed by correspondence passing between the parties as to the adequacy of the pleadings in the second proceedings. 37 So the submission that Mr Ridley makes I take to be that there is a concern that what are already well-advanced proceedings in the first matter might be delayed whilst those steps need to be taken in the second. Ms Fitzgerald, however, does not resile from a claim that there is some urgency to get the second matter on, and submits that the second proceedings are such that: "we anticipate a trial would run for less than two weeks". She expresses the fear that if the proceedings are consolidated, it would require a trial of about three to five weeks, and the trial in that consolidated matter might not be scheduled until the second half of 2020 or possibly 2021. It is submitted that Ms Varasdi urgently needs one-to-one assistance in order to access her education in a meaningful way. 38 But as I have indicated, I am entirely unpersuaded that there is any proper basis or plausible basis that the support in that regard that is sought in the proposed orders that I have referred to would be capable of being addressed without consideration of much of the material that is in issue in the consolidated proceedings, if indeed it is theoretically open for the Court to make such an order, of which there are grounds for some scepticism. 39 Ninth: are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time? It seems most unlikely that the trial of the second proceedings will not itself be the subject of the same kind of delays that have already afflicted the existing consolidated proceedings. I conclude that although there are different grounds or causes of action that are in issue in the consolidated first proceedings and the second proceedings, there are very significant issues of commonality that would benefit from being heard and determined in a single proceedings at the same time.

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