FEDERAL COURT OF AUSTRALIA Kancheff v Charles Darwin University [2013] FCA 1252 Citation: Kancheff v Charles Darwin University [2013] FCA 1252 Appeal from: Application for leave to appeal: Kancheff v Charles Darwin University & Ors [2013] FCCA 1564 Parties: GAVIN MICHAEL KANCHEFF v CHARLES DARWIN UNIVERSITY, GRAHAM PEGG and DAN BASCHIERA File number: SAD 308 of 2013 Judge: BESANKO J Date of judgment: 25 November 2013 Catchwords: PRACTICE AND PROCEDURE – Application by applicant for leave to appeal – where Federal Circuit Court Judge made an order that the applicant pay security of costs – whether, in all the circumstances, the decision is attended with sufficient doubt – whether substantial injustice would result if leave were refused. Held: The application for leave to appeal be dismissed. Legislation: Disability Discrimination Act 1992 (Cth) ss 4, 5 Disability Discrimination and Other Human Rights Legislation Amendment Act (2008) (Cth) Federal Circuit Court of Australia Act 1999 (Cth) s 80 Federal Circuit Court Rules 2001 (Cth) r 21.01 Federal Court of Australia Act 1976 (Cth) s 25(2) Human Rights and Equal Opportunity Commission Act 1986 (Cth) Cases cited: Coulton v Holcombe (1986) 162 CLR 1 Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 House v King (1936) 55 CLR 499 Instyle Contract Textiles Pty Ltd v Good Environmental Choice Services Pty Ltd and Others (2009) 181 FCR 360 Kancheff v Charles Darwin University & Ors [2013] FCCA 1564 Lucas v Yorke & Anor (1983) 58 ALJR 20 Merribee Pastoral v ANZ Banking Group [1998] HCA 41; (1998) 193 CLR 502 Purvis v NSW (Department of Education) (2003) 78 ALJR 1 Spencer v The Commonwealth of Australia (2010) 241 CLR 118 Date of hearing: 19 November 2013 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Mr A Short Solicitor for the Respondents: Minter Ellison Lawyers IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 308 of 2013 BETWEEN: GAVIN MICHAEL KANCHEFF Applicant AND: CHARLES DARWIN UNIVERSITY First Respondent GRAHAM PEGG Second Respondent DAN BASCHIERA Third Respondent JUDGE: BESANKO J DATE OF ORDER: 25 November 2013 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 308 of 2013 BETWEEN: GAVIN MICHAEL KANCHEFF Applicant AND: CHARLES DARWIN UNIVERSITY First Respondent GRAHAM PEGG Second Respondent DAN BASCHIERA Third Respondent JUDGE: BESANKO J DATE: 25 November 2013 PLACE: ADELAIDE REASONS FOR JUDGMENT INTRODUCTION 1 On 27 July 2011, Gavin Michael Kancheff commenced a proceeding in the Federal Circuit Court against Charles Darwin University, Professor Graham Pegg and Mr Dan Baschiera. On 29 August 2012 the respondents issued an application seeking an order that the applicant pay security for the respondents' costs in the amount of $30,923.50, and that the proceeding be stayed until that security was paid. 2 The respondents' application was heard by a Federal Circuit Court Judge who decided that the applicant should provide security for the respondents' costs (Kancheff v Charles Darwin University & Ors [2013] FCCA 1564). He made the following orders: (1) The applicant do pay to the respondents within forty two days and by way of security of costs the sum of THIRTY THOUSAND DOLLARS ($30,000.00). (2) The Application-in-a-Case filed 29 August 2012 and Response filed 5 February 2013 be dismissed. (3) That all other extant Applications-in-a-Case and Responses other than the Response filed 20 December 2011 do stand dismissed. (4) Further consideration of this matter be adjourned to Thursday 21 November 2013 at 9.30am. 3 On 24 October 2013 the applicant filed and served an application for leave to appeal from the orders made by the Federal Circuit Court Judge. The grounds of the applicant's application for leave to appeal are as follows: 1. The impecuniosity of the applicant. 2. The judgment that the amount awarded as security for costs for the respondent will have the consequence of shutting down the matter ADG 194/2011. 3. The costs security that is currently afforded to the respondent by insurer Unimutual Ltd. 4 Under s 25(2) of the Federal Court of Australia Act 1976 (Cth) an application for leave must be heard and determined by a single judge unless the judge directs that the application be heard and determined by a Full Court. I see no reason to direct that the application be heard and determined by a Full Court. the reasons of the federal circuit court 5 The Federal Circuit Court Judge noted that the applicant made an application for damages, interest and costs arising out of alleged breaches by the respondents of the Disability Discrimination Act 1992 (Cth). He noted that the applicant had a number of disabilities being disabilities which arose from the fact that he suffered a stroke in 1998 and as a result, left side paralysis and learning difficulties. 6 In 2008 the applicant gained entry to a Bachelor of Behavioural Science course at Charles Darwin University in Darwin. He moved from Adelaide to Darwin in order to take part in the course. 7 The Judge noted that some aspects of the applicant's claim related to his treatment in that course. The applicant subsequently applied for a transfer to a second course being a Bachelor of Humanitarian and Community Studies. The applicant's transfer was denied by the second respondent and that was one aspect of the applicant's claim. The applicant successfully appealed against the refusal and he was transferred to the Bachelor of Humanitarian and Community Studies course. The third respondent was the co-ordinator of that course. 8 One of the compulsory units in the course was unit number SWK-260 known as the "Remote Project Experience" course. The Judge noted that that course was designed to provide students with the necessary logistical and practical instruction to operate competently and safely in areas of reduced infrastructure. It involved an excursion to Katherine and Casuarina. The Judge noted that a number of aspects of the applicant's claim related to his experience on that excursion and in particular to his experiences in travelling in a troop carrier. 9 The Judge noted the legislative provisions relevant to the respondents' application being s 80 of the Federal Circuit Court of Australia Act 1999 (Cth) and Rule 21.01 of the Rules of Court. He also noted the principles explicated by Brennan J (as his Honour then was) in Lucas v Yorke & Anor (1983) 58 ALJR 20 at 21 and Kirby J in Merribee Pastoral v ANZ Banking Group [1998] HCA 41; (1998) 193 CLR 502. I will not repeat what the Judge said because it is not suggested that he did not state the principles correctly. The Judge noted that Hill J in Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 identified the additional matters to those identified by Kirby J. 10 The Judge noted that he was not determining an application for summary judgment although an evaluation of the merits of the proceeding was a factor to take into account. The Judge noted that the High Court had recently stated the relevant principles with respect to an application for summary judgment in Spencer v The Commonwealth of Australia (2010) 241 CLR 118. The Judge noted that in considering the merits of an applicant's case, a judge should be mindful of the fact that a full and clear statement of the case may not emerge until oral evidence has been given or the proceedings have advanced to some further stage antecedent to the trial. The Judge said that he was satisfied that the applicant had had an opportunity to put before the Court all of the factual matters which he said indicated that he was the subject of discrimination by reason of his disability by the respondents. He said that he considered that the application itself was really the most informative document. 11 The Judge then turned to consider whether it was likely that he would make an order for costs at the conclusion of the proceeding. He referred to authorities which have considered the principles dealing with an award for costs under the Disability Discrimination Act or the Human Rights and Equal Opportunity Commission Act 1986 (Cth). It is not necessary for me to refer to those principles because again they are not in dispute. 12 The Judge set out the applicant's seven particulars of disability discrimination (at [45]). The Judge had medical reports before him and he said that on the basis of those reports, he accepted that the applicant suffered from a disability within the Disability Discrimination Act and he set out the nature of those disabilities. The Judge referred to the definition of direct discrimination in s 5 of the Disability Discrimination Act and the elucidation of principles relevant to direct discrimination by the High Court in Purvis v NSW (Department of Education) (2003) 78 ALJR 1. The Judge referred to an amendment by the Disability Discrimination and Other Human Rights Legislation Amendment Act (2008) (Cth) of the definition of disability in s 4 of the Act 13 The Judge then turned his attention to indirect discrimination and he set out the definition in s 6 of the Act. 14 The Judge noted that the material he had from the respondents consisted of medical reports and unsworn statements of the second and third respondents and of a lecturer in the Bachelor of Behavioural Science course. The Judge did not consider it inappropriate for him to inform himself of the nature of the case that would be presented. He said (at [59]): I am not making findings of fact; I am dealing with an interlocutory application. I will decide the application on the basis of what each of the parties tell me their case will be at trial, in the absence of any matter being put to me which would suggest that such an approach is unwarranted. 15 The Judge then turned to consider the strength of the applicant's case with respect to each of the seven particulars of disability discrimination. 16 The first particular was that the applicant claimed that when he was accepted for the Bachelor of Behavioural Science course, the first and second respondents agreed to provide him with examples of the work of previous students in the course. However, subsequently the lecturer in one of the subjects which was part of that course (Psychology A) refused to do so on the grounds of protecting student confidentiality. 17 The applicant claimed that the Judge made a clear error in dealing with this particular. In order to understand the applicant's submission it is necessary for me to set out the paragraphs in which the Judge deals with the particular: 60. The answer given to the complaint about the denial of access to previous student work is that the respondent through its officers and employees never agreed to the provision of this work being part of the reasonable adjustments they needed to make on account of Mr Kancheff's learning disabilities. A statement of the Student Facilitator (a Ms Coulter) of the first respondent is provided: she attaches the Confidential Access Plan designed for the applicant. It provides that the applicant "may request (my emphasis) to see previous assignments or exams if having difficulty grasping the concept" but contains no indication that the same will be provided. In any event the Student Facilitator provides this clarification, after noting the applicant's entitlement to make this request: This had regard to uncompleted previous assignments or exams. Student's [sic] work was confidential. Students are entitled to privacy in relation to their work. Assessment criteria would not be met if students were able to see previous students' work. This was reasonable. 3. There was never an agreement that the Applicant be provided with previous students' work. 61. The applicant says that Ms Coulter agreed orally to his requests to see previous students' work in the presence of his witness Ms Welter. 62. However, Ms Welter's affidavit does not corroborate that assertion. 63. So, that there was an agreement to this particular adjustment is a matter of controversy; all that is acknowledged is the entitlement to make a request; there is also a dispute as to whether completed student work was to be made available to the applicant. If the applicant is unsuccessful in persuading the Court of the accuracy of his account, then it might be inferred he would then argue that the University failed to make reasonable adjustments for his disability. 64. If we reach that point, the confidentiality explanation proffered by the respondents seems, prima facie, a reasonable one. In other words the jettisoning of the confidentiality protection for other students would have entailed not a reasonable adjustment but an unreasonable one. 65. The allegation here is not so much as to the discriminatory effect of requirement with which the applicant needed to comply and therefore of indirect discrimination. The issue is whether the applicant's request ought to have been acceded to. However, even taking the view that the "requirement" is constituted by the need to submit an essay per se, and that the refusal to show completed previous student work was a failure to make a reasonable adjustment in terms of s.6(2)(c) of the Act, the problem appears to be one of persuading the Court that such an adjustment would be a reasonable one given the confidentiality obligation to other students. This aspect of the applicant's case appears tenuous. 18 The second particular of disability discrimination was that the second respondent insisted on the applicant providing a written apology to that lecturer following upon what is alleged was the applicant's use of abusive language and his general belligerence towards her. 19 The Judge noted that the university had a by-law regulating the way in which misconduct by students was dealt with. The Judge questioned whether this particular was intended itself to be an allegation of an occasion of disability discrimination. The Judge said that the reasons the second respondent asked for written confirmation of the apology were reasonably self evident and he concluded that the request would have been made of any student including those students who did not have a disability in circumstances where an oral apology only had been proffered. The Judge considered that if the particular was a separate allegation of disability discrimination, it was a weak one. 20 The third particular of disability discrimination was that when the applicant applied for a transfer to the Bachelor of Humanitarian and Community Studies, the first and second respondents insisted upon him obtaining and providing a medical clearance. The Judge noted that it was clear that the unit SWK-260 involved extensive, even somewhat rigorous, physical activity. The Judge described the contention that this particular was a particular of disability discrimination as "highly ambitious". He considered that the request for a medical clearance could be seen "as respectful recognition of the difficulties the applicant would possibly face if he participated in the unit, which was a compulsory part of the course; to admit him to the course heedless of his possible difficulties would not be non-discriminatory so much as reckless" (at [75]). The Judge concluded that prima facie the request for a medical clearance was not an instance of disability discrimination. 21 The fourth particular of disability discrimination was that when the applicant gained entry to the Bachelor of Humanitarian and Community Studies course and undertook unit SWK-260, the third respondent warned other class members of the risks arising from the applicant's visual impairment. The Judge set out evidence in the third respondent's statement which dealt with this matter. The Judge concluded that this particular did appear on its face to be an occasion of disability discrimination. 22 The Judge referred to the fifth, sixth and seventh particulars of disability discrimination. He said (at [82]): 82 My understanding of this part of the claim will be augmented by the oral evidence at trial. Issues that will be clarified include: i) My ability to find whether Mr Baschiera's claims that Mr Kancheff was belligerent and disruptive and uncooperative throughout this episode will have a significant bearing upon the comparator selection; ii) Whether and in what manner Mr Kancheff was given an opportunity to use the alternative of a gate to access the pump rather than having to negotiate the fence; iii) Whether Professor Burn's opinion as to Mr Kancheff having an ability to sit in the rear of the troop carrier notwithstanding his disabilities was an assessment of his which I should give any weight given the absence of an opportunity by Professor Burns to sight the troop carrier; iv) The significance and validity of the other criticisms made by Mr Baschiera concerning Mr Kancheff's fulfilment of other course requirements such as reading of core texts; v) Whether further information about the troop carrier may be required before an adjudication of the indirect discrimination aspect of the matter; vi) Whether the attempts by Mr Baschiera to assist Mr Kancheff in entering the troop carrier and dealing with the leg spasm at the fence amount to reasonable adjustments. 23 The Judge concluded that the above considerations meant that it could not be said that this aspect of the claim was, as he put it, prima facie, as weak as the other aspects. It suggested some limited possibility of partial success. 24 The Judge turned to consider other matters relevant to the discretion to order security for costs. He noted that the proceedings had been on foot for twelve months before the respondents asked the Court to secure their costs. He noted that there had been a lot of interlocutory skirmishing in those twelve months and that the application for security was the eleventh application in a case filed in the proceeding. 25 The Judge said he was satisfied as to the applicant's impecunious circumstances. He was satisfied that the applicant would not be able to meet an adverse costs order. 26 The Judge said that he was conscious that an order for security for costs may well have the consequence of "shutting down this litigation". On the other hand, it may not if the applicant had access to resources of which the Court was not aware or was the object of benevolence. The Judge considered these possibilities unlikely. 27 The Judge said that it was not appropriate to allow a proceeding that had little apparent merit to continue in the knowledge that the respondents would be put to significant expense which they can never recover. He said (at [93] and [94]): This circumstance puts in to focus the balancing exercise that is at the heart of the exercise of the discretion. It is not the case that the application has no merit following a prima facie assessment of it. The position is that it has little apparent merit. I have tried to bear steadfastly in mind that the merit in certain aspects of the application which are not apparent now may emerge at trial. I also bear in mind the respondents chose to bring this application and not subject themselves to the application of the reasonable prospects of success and Spencer principles. But my scrutiny of the evidence available to this point suggests that the apparent difficulties associated with successfully prosecuting the case will not be remedied by as yet unknown or unarticulated evidence or argument. 28 It was for these reasons that the Judge made the order for security for costs. the application for leave 29 The test on an application for leave to appeal involves a consideration of two matters, namely, "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court", and whether substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398. 30 The decision to order security for costs involved the exercise of a discretion and in those circumstances an appellate court will only intervene with the exercise of the discretion if an error of the nature identified by the High Court in House v King (1936) 55 CLR 499 at 505 is shown. 31 In my opinion, the decision has not been shown to be attended with sufficient doubt to warrant it being reconsidered by this Court and leave to appeal should be refused. 32 As to the grounds of appeal, the first ground is the impecuniosity of the applicant. The Judge did not overlook this matter. In fact he found that the applicant was impecunious and he found that making an order for security for costs might well have the consequence of "shutting down this litigation". This means that the second ground of the application is also without merit. 33 The third ground of the application was that security for costs should not have been ordered because the respondents were insured against the loss claimed by the applicant. The respondents advanced two submissions in response to this ground. First, they contended that this was not a matter raised before the Judge and that the applicant should not be permitted to raise the matter for the first time on an appeal. They referred to Coulton v Holcombe (1986) 162 CLR 1. The matter was not raised before the Judge and there is no explanation as to why that was not done. The applicant should not be permitted to raise the matter now. Even if that be wrong, the matter would not alter the result reached by the Judge. The fact that a respondent is insured is irrelevant to an application for security for costs: Instyle Contract Textiles Pty Ltd v Good Environmental Choice Services Pty Ltd and Others (2009) 181 FCR 360 (at 364 and 366 [24] and [32]). 34 At the oral hearing of the applicant's application, he raised a ground which is not in the application for leave to appeal. He contended that the Judge made an error in his statement of the applicant's case in relation to the first particular of disability discrimination. The applicant said that it was Professor Pegg not Ms Coulter who agreed to provide access to the work of previous students. 35 The answer to this submission is that provided by the Judge in that even if that point had been reached, the confidentiality explanation proffered by the respondents seemed, prima facie, a reasonable one. The Judge said that the waiving of the confidentiality protection for other students would not have entailed a reasonable adjustment but rather, an unreasonable one. 36 In his written submissions, the applicant complained that he was not given an adequate opportunity to put forward evidence in relation to the application. There are two answers to that contention. First, the Judge specifically asked the applicant to identify the affidavit material he relied upon (at [22] – [30]). Secondly, and more importantly, the Judge was aware of the need to be cautious because a full or clear statement of the applicant's case may not emerge until oral evidence has been given or the proceedings have advanced to some further stage antecedent to trial (at [19], [28], [94]). CONCLUSION 37 The application for leave to appeal must be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 25 November 2013