The trial judge's reasons for judgment
27 At [2] of his reasons for judgment, the trial judge found that it was common ground that the appellant suffered from a number of disabilities including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger's syndrome. At [3]-[8], his Honour set out the appellant's schooling history. From January 2001 to December 2006, the appellant attended Branxholme. For the first half of 2007, he attended a private school, which he was asked to leave because of his behaviour. During the second half of 2007, he received distance education and education through the Southern Grampians Adult Education Youth Program ("SGAE"). On 19 November 2007, he began attending Baimbridge on a part-time basis as part of a transition program. He attended Baimbridge on Mondays and Thursdays in the mornings, as well as attending SGAE for one and a half days per week and undertaking some distance education. In 2009, these arrangements continued as he pursued his studies in Grade 8.
28 In the course of some general comments about the case, at [65]-[67], the trial judge said:
It will, shortly, be necessary to essay, in some detail, an account of Alex's educational and other experiences at Branxholme and Bainbridge [sic]. As will become apparent, there is no doubt that events occurred, in the course of his attendance at these schools, which may properly be considered to fall within paragraphs (a) and (c) of s 22(2). Alex was, for example, suspended on a number of occasions as a disciplinary measure. As a result he was denied access to the normal classroom learning activities provided by the schools. Whilst at school he was, sometimes, segregated from other students and, during these periods, was prevented from enjoying social interaction with them. He was not permitted to attend at least one school excursion. He was, for a period, denied the opportunity to experience travelling on the school bus.
Many of the complaints raised by Alex in advancing his indirect discrimination case related to alleged failures by the Department to make particular resources available in order to improve his educational opportunities. As will be seen, I have concluded that some of these allegations are unfounded. Others are not explained with sufficient precision to enable a finding to be made that any requirement or condition of the kind alleged was imposed. Yet others, on analysis, amount to allegations of direct rather than indirect discrimination. The one complaint which I have found to have substance was that a requirement was imposed on Alex that he "access" his education at Branxholme without "one-to-one assistance in his academic subjects". The imposition of this requirement may, in my opinion, constitute a detriment for the purposes of s 22(2)(c) of the DDA.
The central question on these applications is whether conduct on the part of the Department which had the effects identified in s 22(2)(a) and (c), was discriminatory within the meaning of ss 5 or 6 of the DDA.
29 At [68], his Honour moved to dealing with the allegations of discrimination by less favourable treatment (as defined in s 5 of the Disability Discrimination Act). He identified five specific allegations of such discrimination against the appellant:
not permitting him to attend school during recess and lunchtime at Branxholme;
not permitting him to attend school excursions at Branxholme;
preventing him from attending Baimbridge at all during the third term of 2007;
thereafter preventing him from attending school full-time at Baimbridge; and
preventing him from travelling on the school bus during 2008.
30 At [70]-[72], his Honour discussed authorities, particularly the judgment of the High Court in Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92. The two points that his Honour made were that there is a need to establish a causal nexus between the appellant's disability and the treatment of which he complained, and the requirement to consider the relevant circumstances when making the comparison required by s 5. With respect to the second of these matters, his Honour set out at length a passage from the joint judgment of Gummow, Hayne and Heydon JJ in Purvis at [222]-[225], in which their Honours said that the proper comparison for the purposes of s 5 of the Disability Discrimination Act is between the person with a disability and a person who behaves in the same way as the person with the disability, even though not disabled. This is so even though the disability is said to be the cause of the behaviour in the case of the person with a disability, and is unlikely to occur in the case of the person without the disability.
31 The trial judge then turned to examine the five allegations of discrimination by less favourable treatment. First, in relation to the recess and lunchtime regime at Branxholme, his Honour devoted [73]-[117] to making detailed findings of fact concerning a number of occasions on which the appellant had engaged in unacceptable behaviour in the school playground. The findings culminated in a reference to the development during 2005 and 2006 of a written student management plan at Branxholme, applying to all students and providing for action in the event of a contravention of the school's student code of conduct. His Honour found that Branxholme's responses to the appellant's misconduct were guided by this plan. At [119], his Honour found that any other student without the appellant's disabilities would not have been treated any differently from the way in which the appellant was treated. At [127], his Honour concluded that the appellant was not dealt with under the management plan less favourably than another student without the appellant's disabilities would have been treated had he or she engaged in the same or substantially the same misconduct.
32 In relation to school excursions while the appellant was at Branxholme, at [130]-[134] his Honour made detailed findings about the excursions that the appellant had attended while at Branxholme, as well as the reasons for his exclusion from some excursions because of his behaviour. At [136], his Honour found that he was not satisfied that the appellant was prevented from attending school excursions while at Branxholme, save for the end of the year trip in November 2005. His exclusion on that occasion was prompted by the principal's concern for the appellant's safety and for the safety of fellow students.
33 The trial judge then dealt with the allegations that the appellant was prevented from attending Baimbridge during the third term of 2007 and thereafter prevented from attending Baimbridge full-time. At [138]-[168], his Honour made detailed findings, including findings about the appellant's behaviour and the concerns of the principal of Baimbridge about that behaviour. At [169]-[170], his Honour made findings as to the time taken to prepare a smooth transition for the appellant into the secondary school environment, which explained why the appellant was not admitted to Baimbridge during term three in 2007. His Honour found that the appellant was not excluded because of his disabilities. At [171]-[172], his Honour found that the appellant attended Baimbridge on a part-time basis because he was also attending SGAE and pursuing distance education and because there was a concern to introduce him to the unfamiliar environment at Baimbridge slowly, so as not to place him under too much stress. His Honour found that the appellant was not prevented from attending Baimbridge on a full-time basis because of his disability.
34 His Honour then turned to the remaining allegation of discrimination by less favourable treatment, the allegation that the appellant was not permitted to travel to Baimbridge on the school bus in 2008. At [174]-[180], his Honour set out the history of this issue. The appellant's parents made private arrangements for transporting him to Baimbridge during the first half of 2008. On 18 July 2008, the appellant's mother raised for the first time the proposal that the appellant might travel on the school bus. The principal was concerned about the appellant's behaviour. In September 2008, the principal said he would be prepared to reconsider the issue if he observed a consistent improvement in the appellant's behaviour. There were further negotiations in November and December 2008, as a result of which it was agreed that, in 2009, Baimbridge would engage a supervisor to travel with the appellant on the bus for a trial period. This plan was implemented on 9 March 2009 and was successful, so that the appellant began travelling unsupervised from the start of term two in that year. At [180], his Honour accepted the principal's evidence that it was because of his concerns about the safety of the driver and the other students travelling on the bus that he did not respond positively to proposals in the latter part of 2008. His Honour accepted that the principal did not discriminate against the appellant because of his disabilities. Nor did he treat the appellant less favourably than he would have treated other students who did not have such disabilities but in respect of whom he had the same concerns. They would not have been allowed to travel unsupervised.
35 The trial judge then turned to issues of discrimination by requirement or condition (as defined in s 6 of the Disability Discrimination Act). After discussing a number of authorities, at [194], his Honour said:
It is clear from these authorities that considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain. Nonetheless, a reasonable degree of precision is necessary when relevant requirements or conditions are being identified. A respondent is entitled to know what requirements or conditions it is said to have imposed on an applicant. In many cases this will not be difficult because the applicant will be relying on some written rule or prerequisite which has been formulated by the respondent. In a case such as the present, however, where an applicant seeks to rely on inaction by an educational authority, clarity of the claim is essential. Without it the respondent will be unable to determine whether it has or has not imposed such a condition or to formulate defences on the ground that one or more of the criteria prescribed by s 6 of the DDA have not been satisfied.
At [195], his Honour said that the necessary precision was "notably lacking" in the appellant's case as pleaded and argued.
36 The trial judge then identified nine requirements or conditions that were said to be requirements or conditions with which the appellant was required to comply. The first was a requirement or condition that the appellant access his education without the formulation and provision of an individual education plan, based upon proper information, including opinions of experts, concerning the appellant so as to address his disabilities and the proper implementation of such a plan. His Honour discussed this alleged requirement or condition at length at [196]-[212]. He expressed criticisms of its formulation. He referred to evidence about individual education plans that were actually created at various stages of the appellant's schooling. At [211], his Honour said that he did not consider that this requirement could be regarded as a "requirement" within the meaning of s 6 of the Disability Discrimination Act. In addition, his Honour did not accept that the appellant pursued his studies at Branxholme and Baimbridge without the benefit of an individual education plan.
37 The second alleged requirement or condition was that the appellant access his education without the formulation, provision and proper implementation of a behaviour management plan. His Honour discussed this alleged requirement at [213]-[219]. At [214], his Honour said that this was not a "requirement" of the kind comprehended by s 6 of the Disability Discrimination Act. Again, his Honour found that many reports were prepared in an effort to improve the appellant's behaviour. There were also many discussions. A written behaviour management plan was prepared in July 2006. Objections to the plan by the appellant's parents were considered. Another plan was considered in conjunction with an individual education plan in May 2008 and thereafter. At [218], his Honour rejected a submission that, because of his disabilities, the appellant ought not to have been subjected to the disciplinary regimes maintained at Branxholme and Baimbridge.
38 The third requirement alleged was that the appellant access his education without one-to-one assistance in his academic subjects from a teacher or teacher's aide trained in the management of his disabilities, who could implement the individual education plan and behaviour management plan. This alleged requirement or condition was discussed at [220]-[228]. At [221], his Honour said that he was prepared to assume that there was an identified requirement to which s 6 of the Disability Discrimination Act applied. At [224], his Honour found that the appellant did not have one-to-one assistance at all times while he was at Branxholme. He did have such exclusive assistance at Baimbridge.
39 The fourth requirement or condition identified was that the appellant access his education without the assistance provided by program support group meetings. His Honour dealt with this allegation at [229]-[232]. His Honour found that, at both schools, groups were convened on a regular basis, involving the relevant class teacher and the appellant's parents. Some meetings were attended by psychologists and other specialists. The appellant's progress and conduct were reviewed and the groups devised education programs and strategies to assist the appellant. At [231], his Honour expressed his doubt that the absence of assistance from such a group had a sufficient proximate nexus to the provision of educational services to constitute a "requirement" for the purposes of s 6 of the Disability Discrimination Act. His Honour was not satisfied that any such requirement was ever imposed.
40 The next alleged requirement or condition was that the appellant not attend in the schoolyard during recess and lunchtimes at Branxholme and not join other students on school excursions. This was discussed at [233]-[236]. His Honour said that Branxholme did impose such limitations on the appellant at certain times, but they did not constitute a requirement within the meaning of s 6 of the Disability Discrimination Act because they were decisions which applied expressly only to the appellant.
41 At [237]-[239], the trial judge dealt with the alleged requirement or condition that the appellant only attend Baimbridge on two mornings per week. His Honour was prepared to accept that, at least for part of the time, such a condition was imposed on the appellant. It was not a requirement or condition within the meaning of s 6 of the Disability Discrimination Act, however, as it was specifically imposed on the appellant and was not on its face neutral, in the sense of being imposed on students generally.
42 At [240]-[242], his Honour dealt with an alleged requirement or condition that the respondent refused or failed to provide proper funding for him to receive a full-time education, especially at Baimbridge. His Honour said that this lacked the necessary precision, in that the level of funding that would be "proper" was not identified and "a full time education" was uncertain. The alleged condition had not been expressed with the required degree of precision.
43 At [243]-[246], the trial judge dealt with the other two alleged requirements or conditions, namely the application of a funding regime which discriminated against the appellant because it failed to take his particular circumstances into account, and the invention of rules for the purposes of preventing the appellant travelling on the school bus. His Honour found that both of these were simply complaints, and not requirements or conditions within the meaning of s 6 of the Disability Discrimination Act.
44 The trial judge then returned to the one requirement or condition he had found to fall within s 6 of the Disability Discrimination Act, namely the requirement that the appellant access his education at Branxholme without one-to-one assistance in his academic subjects. At [249]-[254], his Honour discussed the question of comparative groups, concluding that the students in the same class as the appellant at relevant times, or the student body as a whole at the particular school he was attending, were able to undertake their education as members of a class without the need for one-to-one assistance. It followed that the requirement that the appellant receive his education without such assistance was one with which a substantially higher proportion of his peers who were not similarly disabled were able to comply.
45 At [255]-[263], his Honour discussed the issue of reasonableness. His Honour pointed out at [258]-[259] that virtually no attention had been given in the appellant's case to the circumstances of the case, to which attention was directed by s 6(b) of the Disability Discrimination Act. At [260]-[262], his Honour referred to the circumstances that had been disclosed by the evidence. At [263], his Honour concluded that he was not satisfied that, in all of the circumstances, it was necessary that the appellant receive one-to-one assistance from a teacher or an aide at all times when he was at school, or that it was unreasonable not to provide such a level of assistance.
46 His Honour then turned to the issue of the appellant's inability to comply with the requirement or condition, as s 6(c) of the Disability Discrimination Act mandated. At [264]-[268], his Honour discussed this issue and concluded that he did not accept that the appellant was unable to receive education at Branxholme without one-to-one assistance in his academic subjects.
47 The next section of his Honour's reasons for judgment, at [270]-[290], was devoted to the question of alleged contravention of the Disability Standards. His Honour was critical of the way in which the allegations had been pleaded, especially as they included allegations of events that occurred before the Disability Standards had come into operation. His Honour discussed individual provisions of the Disability Standards and concluded that no allegation of contravention had been made out.
48 At [293]-[330], the trial judge dealt with the complaint of victimisation, based on s 42 of the Disability Discrimination Act. His Honour discussed the evidence on this issue at length, referring to the failure of counsel for the appellant to challenge the evidence of the alleged victimiser, the principal of Branxholme, about crucial issues. His Honour concluded that the principal did not exclude the appellant from the school grounds on the occasion in question (when there was an after school hours football clinic in progress on the school premises) on the ground that the appellant had done any of the things identified in s 42(2) of the Disability Discrimination Act.