Sklavos v Australasian College of Dermatologists [2017] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 Appeal from: Sklavos v Australasian College of Dermatologists [2016] FCA 179

File number: NSD 405 of 2016

Judge: BROMBERG, GRIFFITHS AND BROMWICH JJ

Date of judgment: 16 August 2017

Catchwords: HUMAN RIGHTS – disability discrimination – Disability Discrimination Act 1992 (Cth) ("DDA"), ss 5 and 6 – where the appellant was refused admission to the Australasian College of Dermatologists having failed to meet the College's entrance examination condition – where the appellant suffered from a disability described as a specific phobia of the College's examination – where the appellant claimed the refusal to be simultaneously direct and indirect discrimination – whether direct discrimination and indirect discrimination are mutually exclusive – direct discrimination is concerned with disparate treatment whereas indirect discrimination is concerned with adverse impact – whether the primary judge misconstrued s 5(2) of the DDA – (see below in relation to the proper construction of s 5(2) of the DDA) – the primary judge did not so err – refusal for failure to meet the examination condition involves no nexus between the conduct and the disability – s 5 not relevant to whether the College discriminated against the appellant on the ground of his disability STATUTORY INTERPRETATION – consideration of the proper construction of s 5(2) of the DDA – whether the introduction of an obligation to make reasonable adjustments changed the causation requirement in s 5(2) as compared to s 5(1) – s5(2) still requires there to be a nexus to disability from conduct (unfavourable treatment) and not from effect HUMAN RIGHTS – disability discrimination – DDA, s 6(3) – whether the primary judge erred in holding that the examination condition was reasonable – where the primary judge relied upon a case not made by the College to find the condition reasonable – no error in drawing upon the evidence of an applicant to discharge a respondent's burden of proof – any denial of procedural fairness was capable of being cured on appeal – no additional evidence sought to be adduced or relied upon by the appellant – the evidence adduced in the trial supported the findings made by the primary judge HUMAN RIGHTS – disability discrimination – Disability Standards for Education 2005 (Cth) cll 5.2 and 6.2 – whether the primary judge provided sufficient reasons to dismiss a claim of a breach of the Standards – where the Standards require a process of consultation and decision-making separate from the making of any adjustment – implicit cross-reference to earlier findings and reasons of the primary judge sufficient to discharge the obligation to provide reasons DAMAGES – whether the primary judge erred in finding that appellant had not proved that he had suffered any damage by being refused fellowship – where evidence adduced of the income of a successful dermatologist and of an unsuccessful general practitioner – duty of the Court to do the best that it can in assessing damages does not extend to speculating about whether any loss had been suffered at all when it is within the power of an applicant to call such evidence