CITATION: CP ob HP v NSW Department of Education and Training [2008] NSWADT 281 DIVISION: Equal Opportunity Division APPLICANT HP PARTIES: RESPONDENT State of NSW (NSW Department of Education and Training) FILE NUMBER: 071062 HEARING DATES: 29 September 2008 SUBMISSIONS CLOSED: 29 September 2008 DATE OF DECISION: 16 October 2008 BEFORE: Smyth M - Judicial Member; Mooney L - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member CATCHWORDS: Leave sought for independent expert assessment - Application under section 105 of the Anti-Discrimination Act 1977 MATTER FOR DECISION: Preliminary Legislation LEGISLATION CITED : Anti-Discrimination Act 1977 Italiano v Carbone and Ors [2005] NSWCA 177 CASES CITED: Phu v State of NSW (NSW Department of Education and Training) [2008] NSWADT 233 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Sali v SPC Ltd (1993) 116 ALR 625 APPLICANT In person REPRESENTATION: RESPONDENT P Ginters, barrister ORDERS: The application is dismissed. REASONS FOR DECISION 1 This decision contains personal information regarding a child and her disabilities. The Tribunal has decided not to publish her name or that of her father who made the complaint on her behalf to protect the child's privacy. The child is referred to as HP and her father as CP. CP has two applications. He seeks an order under section 105 of the Anti-Discrimination Act 1977 (the AD Act) on behalf of his daughter, HP. He also seeks leave to arrange for an independent expert psychologist to assess his daughter and provide the Tribunal with her report. The Respondent opposed both applications. Background 2 CP lodged a complaint of disability discrimination in the provision of education on behalf of his daughter on 18 October 2006. In particular, the complaint is that she has been denied access or had her access limited to benefits provided by the educational authority contrary to section 49L(2)(a) of the AD Act and/or that she has been subjected to a detriment contrary to section 49L(2)(c) of the AD Act. That Tribunal heard the evidence in the matter over five days in June 2008 and the matter is listed for final submissions on 20 October 2008. 3 HP is a 13 year old girl with autism, severe global developmental delay and neurofibromatosis type 1. She attends a special school. As a result of her disabilities she does not have verbal communication. She engages in self-injurious behaviour at home and at school, for example, by hitting herself on her face and head and biting herself. Her self-injurious behaviour escalated in the later part of 2005 and intensified throughout 2006. 4 The interim order is sought to require the Respondent to increase the level of support provided to his 13 year old daughter at the school including feeding support, to allow CP to visit the school to observe his daughter's learning, eating and self injurious behaviour at school and to require the school to provide daily reports about his daughter's behaviour. 5 There is a long history of dispute between the school, the Department of Education and Training and CP regarding the best way to manage and prevent HP's self injurious behaviour and to support her learning and feeding at school. 6 CP has consistently sought one-to-one care and support for his daughter requesting a teacher's aide for her. He says that this is necessary to reduce the incidence of her self-injurious behaviour, to prevent her injuring herself, to ensure that she has sufficient support for feeding herself and to assist her learning. 7 Among other measures, since part way through 2007 the Department of Education and the school have provided some additional staffing resources to assist HP. On the Respondent's evidence these measures have been focused on preventing and reducing her self-injurious behaviour and encouraging her to develop independence and communication skills. As part of their programme the school has also provided an additional teacher's aide and/or student teacher in her classroom. That allowed HP to have additional one-to-one support. 8 By letter dated 3 June 2008 the Principal of the school, Mr Gallan, informed CP that the school believed that they were at the stage where they were able to begin fading out or reducing the amount of support that HP received. 9 CP applied for an interim order to prevent the Respondent implementing that decision. That matter was heard at the end of the evidence in the case and prior to final submissions, which are listed for 20 October 2008. The Tribunal refused that application [Phu v State of NSW (NSW Department of Education and Training) [2008] NSWADT 233]. 10 On 26 August 2008 CP made a further application for an interim order and asked the Tribunal to arrange a conference. CP alleged that the school had: stopped providing one-to-one full time care and support at school for his daughter; ceased recording his daughter's behavioural data daily and did so once a week or once a fortnight, although he said that after he reapplied for an interim order the school had temporarily agreed to record her self injurious behaviour daily; only allowed the classroom teacher to record his daughter's behaviour on data sheets with the result that the sheets are not recorded when that teacher is busy or attending to other work stopped providing HP with feeding support completely since April 2008 and cut her eating and drinking time from 90 to 70 minutes. refused to allow him to observe his daughter learning, eating and engaging in self injurious behaviour at school to prevent him revealing "the true story of some bad things, which could happen at school." and refused to allow his daughter to be present at a meeting held at the school on 11 September 2008 with the Acting Principal, Department of Education officials and a speech therapist to discuss his daughter's programme. 11 CP claims his daughter's learning, eating and self injurious behaviour have deteriorated and that she had a high risk of sustaining further face and eye injuries. He submitted that due to his daughter's "ongoing expressive and receptive language incapability" she needed him to "observe her eating; Sibs (self injurious behaviour); feels and needs and learning at school" to help the school act quickly and properly. 12 By letter of 26 August 2008 CP also requested leave to allow him to get a "doctor/specialist" to assess his daughter at the school and file further additional reports prior to the final hearing date set to hear submissions. At present the evidence in the case has been completed and the Tribunal will hear submissions on 20 October 2008. 13 In addition to the evidence previously heard in the case the Tribunal had CP's application and letter dated 26 August 2008 as well as CP's letters of 3 September 2008 and 29 September 2008 and attachments in evidence before it. An affidavit from the school's acting principal dated 23 September 2008 was also in evidence. Both the Applicant and Respondent made oral submissions and the Respondent also provided written submissions. The law - Interim order application 14 The Tribunal has the power to make an interim order under section 105 of the AD Act 1977. Section 105(1) of that Act states (1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or Respondent at any time, make an interim order: (a) to preserve the status quo between the parties to the complaint, or (b) to preserve the rights of the parties to the complaint, or (c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint. 15 In Phu v State of NSW (NSW Department of Education and Training) [2008] NSWADT 233 the Tribunal considered the legal principles that apply to applications made under s. 105 and said the following at 11-12. The discretion of the Tribunal to grant an interim order for this purpose is unfettered. Previous decisions of this Tribunal have dealt with the granting of interim orders. In Masters v Rail Corporation New South Wales [2007] NSWADT 45 the Tribunal analysed principles in regard to the granting of interlocutory orders in other contexts and some previous decisions of this Tribunal. The Tribunal applied a two part test asking is there a real issue to be tried? And if so, where does the balance of convenience lie? In Masters v Rail Corporation the Tribunal noted that there was no requirement in section 105 that an interim order only be granted where it is necessary to secure the effectiveness of the determination. The Tribunal said that any damage, the Applicant may suffer is something to be weighed by the Tribunal when determining the balance of convenience. 16 In accordance with long held principles regarding interim proceedings there was no cross examination by the parties. Discussion and findings – interim order 17 In the previous interim order application the Tribunal dealt with the Applicant's concerns about the Respondent's planned reduction of support to HP. In the current application CP claimed that his daughter is now suffering damage in the form of increased self-injurious behaviour and is consuming less food. In essence he seeks the order to increase the level of one-to-one care and support for his child, to require the Respondent to collect data on his daughter's self injurious behaviour daily and to allow him access to the school so that he can monitor his daughter's progress personally. Although not stated in these terms the application is that an order is necessary to preserve the rights of HP pending final determination of the matter. [section 105(1)(b)]. 18 This Tribunal needs to consider whether there is a real issue to be tried, and if so, where the balance of convenience lies. Given that the previous interim order application concerned the plan to implement changes to the level of support for HP and substantially similar issues the Tribunal considers it relevant to focus on whether there has been a change in HP's circumstances since the last occasion the matter was before the Tribunal, such that the Tribunal should exercise its discretion to grant an interim order. 19 At this stage of the proceedings the Tribunal has not had the benefit of final submissions and has not reached any final views on the ultimate issues before it. Exclusion of CP from observing his daughter at school 20 CP requested that the Tribunal order that he should be able to observe his daughter's learning and feeding at school for the reasons outlined above. The Respondent contended that there was no change regarding the school's position on CP observing his daughter at school. The Assistant Principal's evidence in an affidavit before the Tribunal is that the school has declined CP's requests on the basis that having parents present in the classroom is disruptive of routines at school and can be distressing for students. CP is in the same position as other parents and is able to attend the school for meetings about his daughter's programme and for school events. For example there was a recent science day when he was able to come to the school and work with his daughter and there will be a Christmas production. 21 Section 105 gives the Tribunal the power to grant an interim order pending the final determination of the complaint. The complaint before the Tribunal is one lodged by CP on behalf of his daughter alleging that she has been subjected to disability discrimination in the provision of education under section 49L(2). Section 49L(2) applies to discrimination against students and CP is not a student of the school. 22 The complaint before the Tribunal is about his daughter's treatment, not the treatment of CP. Consequently to prove a breach of section 49L(2) it is necessary to prove on the balance of probabilities that CP's exclusion from observing his daughter's learning and feeding at school constitutes direct or indirect disability discrimination against HP. CP has not indicated how his exclusion constitutes either direct or indirect disability discrimination of his daughter. 23 In terms of direct disability discrimination [section 49B(1)(a)] there is nothing to suggest that HP's disability is one of the reasons for CP being excluded or that she is being treated less favourably than students who do not have her disability in the same circumstances. The evidence is that HP is in the same position as the other students in the school in respect to having parents observe them learning and feeding at school. 24 In terms of indirect discrimination [section 49B(1)(b)] it may be arguable that HP is required to attend school without having a parent present to observe her learning and feeding. However the Applicant would then need to prove that she is unable to comply with this requirement, that a substantially higher proportion of students without her disability are able to comply and that the requirement is not reasonable in the circumstances. For example, we have no evidence as to the capacity of other students to comply with such a requirement. If the Applicant was able to establish these elements it would then be necessary to prove a breach of section 49L(2) 25 On the evidence before us at this stage of the hearing we are not satisfied that there is sufficient evidence for us to find a real issue to be tried for this aspect of his application. Is there a real issue to be tried? 26 We now turn to the rest of the application for an interim order. The Respondent submitted that there was not a real issue to be tried stating that there was no objective evidence of any deterioration in HP's situation or a dramatic phasing down of support for HP. 27 We consider that these submissions misconstrue the test the Tribunal must apply to determine whether there is a real issue to be tried. The question refers to the ultimate issues in the proceedings before the Tribunal. 28 The Applicant alleges that the Respondent has discriminated against HP on the ground of disability in the area of education. The Applicant alleges that the respondent's conduct constituted a breach of section 49L (2)(a) and (c) of the AD Act. The case is one of indirect disability discrimination and the onus is on the Applicant to prove each of the elements of indirect discrimination set out in section 49B(1)(b). 29 The Tribunal has heard extensive evidence in the case including expert evidence. The complaint covers an extended period of time and raises complex questions of fact and law. We have heard five days of evidence including evidence from experts. There is no dispute that HP is a student with a disability and the evidence indicates that for some of the time covered by the complaint pre March 2007 HP's level of self injurious behaviour at school was significant. The Tribunal has had evidence about the level of support provided to HP. That evidence indicates that during 2007 and 2008 the school did put in place a behaviour management strategy and increased support to HP, that she benefited from these measures and her self-injurious behaviour reduced significantly. 30 While the onus remains on the Applicant to prove the case, at this stage of the proceedings on the evidence before us, the Tribunal considers that there is a real issue to be tried. Where does the balance of convenience lie? 31 Although not stated in these terms the Applicant's case is that the balance of convenience is in HP's favour as there has been a deterioration in her circumstances since the last application for an interim order was heard. 32 There is a factual dispute between the Applicant and the Respondent regarding the incidence of self-injurious behaviour since the matter was before the Tribunal on the last occasion. The Applicant claimed that the level of self-injurious behaviour had increased. The Respondent disputed this. 33 The Applicant relied on the behavioural data sheets filled out by HP's class teacher and provided copies of notes from the classroom teacher to home for the period 23 July 2008 to 19 August 2008. In addition behavioural data recording sheets were provided for 23, 24, 25 and 28 July 2008. These recorded the incidence of HP's self-injurious behaviour which ranged from hitting herself 8 to 33 times in a day. The Applicant disputed the school's recent records saying they were not correct. The Applicant gave an example of a record from the school saying "only one banging and one hitting" but that his daughter's face was quite red when she came home from school. The Applicant submitted that the school will stop keeping records if his application is dismissed. 34 The Respondent's evidence contained in an affidavit from the Assistant Principal stated that there are three adults in the class at all times, the class teacher, a teacher's aide and a teaching student. The Assistant Principal stated that if HP required one-to-one assistance it was provided but that one-to-one full-time support was not provided as it was considered inappropriate and not in the students' best interests [at paragraph 4]. 35 That is consistent with the class teacher's daily note home of 7 August 2008 that CP tendered. The note reported that HP had 17 incidents of self-injurious behaviour and asked CP to let the teacher know if he needed her to change the data sheets. The teacher indicated that nothing had changed regarding support, that there were three people in the class at all times and sometimes four adults. The teacher indicated that she and one other person looked after HP while the other person supervised the other students when needed. 36 Since early September 2008 the Respondent has agreed to the Applicant's request for the daily collection of data regarding incidents of HP's self-injurious behaviour and sent this information home daily. In addition, the school has provided CP with a data sheet to record the food that he sends to school with his daughter and the food she brings home. None of the September 2008 records were in evidence before the Tribunal and neither was the data sheet recording food sent from home and returned home. 37 The evidence previously before the Tribunal was that in 2006 HP had hit herself frequently. For example, CP estimated that she had hit herself between 50 and 400 times a day. CP said that the incidence of hitting had deceased significantly to between 5 and 30 times a day after she was provided with one-to-one care and support at school. The Tribunal was given various dates for when that support started but it seems to have been in place since March 2007 until now. While there is one occasion in August 2008 where 33 hits were recorded all the daily records for the period since the previous interim order application record below 30 hits and some significantly so. 38 CP claimed that his daughter's eating had deteriorated as a result of the reduction in one-to-one full time care and support for her and that she had not had feeding support since 11 April 2008. On Friday 8 August 2008 he wrote to the class teacher telling her that his daughter was upset and hungry arriving back from school, had cried and moaned for food and had settled down after eating. The Respondent disputed the claim that HP was not provided with adequate feeding support and the Assistant Principal stated that HP is supervised at meal times, her meal times are 60 minutes and that there is capacity for additional time if needed. Her evidence was that the school encouraged HP to become more independent in her eating. 39 We have carefully considered the evidence and submissions before us and in this instance we are not satisfied the HP's level of self-injurious behaviour has deteriorated since the last application. Similarly, while we accept CP's evidence about one occasion where his daughter came home hungry, we are not satisfied that she is being denied feeding support at school. The school has agreed to CP's request for daily data collection regarding her self-injurious behaviour and done so since early September 2008. It has also developed a form to record what food is sent to school and what is returned home. 40 We are not satisfied in this instance, having taken into account all of the material before us and submissions, that the balance of convenience favours the Applicant. We have decided to dismiss the application for an interim order. Application for leave to arrange an expert assessment of HP at school 41 CP has applied for leave to allow him to engage an expert to conduct an assessment of his daughter at school and provide an expert report. Although not expressed in these terms, in effect it is an application for an adjournment to allow the Applicant to obtain further expert evidence to put before the Tribunal. 42 On 26 August 2008 when CP wrote to the Tribunal requesting leave, and at a subsequent case conference, he had not identified any expert to conduct such an assessment. At the hearing on 29 September 2008 CP told the Tribunal that he had an appointment with a psychologist, Ms Farr, for 1 October 2008 to discuss the matter with her but had not spoken to her directly. A draft and final behavioural programme for HP developed by Ms Farr when she was working as an intern psychologist in 2007 is already in evidence before the Tribunal. CP told that Tribunal that Ms Farr is a psychologist in private practice who specialised in children with autism. 43 Consequently at the time of hearing it was not clear whether Ms Farr would agree to assess the child and, if so, when an assessment would be completed and a report would be available. 44 In support of the application CP submitted that he had a right to have an adequate opportunity to present his case properly and to respond to the Respondent's allegations. He submitted that the Respondent had cross-examined his medical experts and raised the fact that his experts had not attended the school to see his daughter in her school environment. He had not been able to get one of his medical experts, Dr Nunn, to come to the Tribunal and was concerned that because of this the Tribunal would give less weight to Dr Nunn's evidence than he had previously thought. CP was concerned that if he did not have the opportunity to present fresh expert evidence he would lose his case. He claimed that Dr Kemp, the expert engaged by the Respondent, was not independent of the Respondent and that Ms Farr would provide the Tribunal with an independent expert opinion. 45 When asked by the Tribunal why he had not raised this issue previously he said that he did not know how to contact a specialist to provide an independent report and that Ms Farr had changed jobs and he had not been able to find her. He also told the Tribunal that he and his family were not rich people and did not have a barrister. He acknowledged that there would be some cost and delay but said that was overridden by his daughter's well-being and safety. 46 The Respondent opposed the application. In summary the Respondent submitted that the Tribunal had duty to act as quickly as practicable [section 73(5)(a) of the Administrative Decisions Tribunal Act 1977], the matter had been before the Tribunal for a considerable period of time and granting the application would lead to unnecessary delay. The delay would be significant as the expert was not yet engaged, they would need to conduct the assessment and prepare the report. If the Applicant chose to rely on the report it would have to be served on the Respondent. The Respondent would need an opportunity to respond, for example, by giving the report to their own expert to comment on. It is likely that any report would need to be tested and it may also require testing of further evidence by the Respondent's lay witnesses. 47 In addition, the Respondent submitted that re-opening the evidentiary stage would be prejudicial to the Respondent who had run their case based on the evidence served on it. They submitted that they should not now have to meet a new case. 48 The Respondent accepted that the Tribunal had a duty to ensure that a party had a reasonable opportunity to present their case and submitted that the Applicant had been provided with a fair opportunity. The Respondent submitted that the law did not impose a duty on the Tribunal to ensure that the Applicant had taken "the best advantage of the opportunity with which he is entitled". Citing Sullivan v Department of Transport (1978) 20 ALR 323 at 342.25.30 and Re: Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305.5. as authority for that proposition. 49 The Respondent submitted that the Tribunal could take into account the impact of an adjournment on Tribunal resources and other litigants and relied on the High Court case of Sali v SPC Ltd (1993) 116 ALR 62. In that case Brennan, Deane and McHugh JJ referred to case management and stated that in deciding whether to grant an adjournment judges in busy courts could consider the effect of any adjournment on court resources and other litigants competing claims waiting for hearing in addition to interests of the parties. [at 629] 50 The Respondent also alerted the Tribunal to the discussion on case management principles in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. That case concerned an application to amend a defence. The High Court referred to the discussion of case management in Sali v SPC Ltd and said that the principles of case management may have had particular relevance to that case. The Court went on to say However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. [Per Dawson, Gaudron and McHugh JJ] Discussion and decision 51 Although not stated in these terms the Applicant has applied for an adjournment to allow him to obtain further evidence to put before the Tribunal. The Applicant had got as far as making an appointment with a psychologist to find out whether that person could conduct an assessment of his child at school and prepare a report. It is evident that an adjournment will be required as, at present, the proposed expert evidence does not exist. 52 It is a well established principle that an adjournment should be granted where a refusal to do so will result in a denial of justice to a party and the granting of the adjournment application will not result in an injustice to any other party. [Sali v SPC Ltd (1993) 116 ALR 625 per Brennan, Deane and McHugh JJ at 628]. In Sali v SPC Ltd the Court set out a further proposition that an adjournment which, if refused, would result in a serious injustice to the Applicant should only be refused if that is the only way that justice can be done to another party in the action ((3) Walker (1967) 1 WLR, at p.330; Carryer (1969) 90 WN (Pt 1) (NSW.), at p.569.) [at 629] 53 The principle that a party shall be given a reasonable opportunity to present their case is well established and it is relevant to consider whether the Applicant has had a reasonable opportunity to present his case. In Italiano v Carbone and Ors [2005] NSWCA 177 Basten J stated [at 88] An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment", as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37]. 54 In this instance the case has been before the Tribunal for some time. The Applicant was provided with a copy of Dr Kemp's report at the end of May 2008. Although prior to the hearing the Applicant had not indicated he required Dr Kemp for cross-examination the Tribunal requested that she attend so that the Tribunal could ask her some questions. When Dr Kemp appeared before the Tribunal to give evidence the Tribunal provided the Applicant with the opportunity to test her evidence. Consequently he was well aware of her evidence at that time. The Applicant was also present when his own medical experts provided their evidence and were examined by the Respondent. Consequently he has been aware of their evidence and the line of cross-examination of his medical witnesses by the Respondent since the hearing in June 2008. 55 The evidence in the case was heard over five days at the end of June 2008 and a date was set for final submissions. At the Applicant's request the Tribunal vacated and rescheduled that date so that the Applicant could obtain a copy of the transcript of evidence in the matter and seek assistance in preparing and presenting his final submissions. 56 We do not consider that extreme circumstances apply in this matter such that the impact of any adjournment on the Tribunal resources and other litigants should prevent the Tribunal granting an adjournment. 57 If the adjournment is granted it is likely that the matter will not be able to proceed to submissions for some time. We have no idea whether Ms Farr is able to undertake the assessment and if so when any report may be provided. There is likely to be delay while any such report is considered by the parties and potentially another hearing date could need to be set to test the evidence. 58 While the Tribunal appreciates the difficulties faced by an unrepresented Applicant from a non-English speaking background litigating a case we consider that in this instance the Applicant has had a fair opportunity to present his case. We do not consider that it is in the interests of justice to delay the matter any further and have decided not to grant his application. The application is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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