Hinchliffe v University of Sydney

Document Sample
Hinchliffe v University of Sydney Powered By Docstoc
					REASONS FOR JUDGMENT

Introduction and background

1. This is an application brought pursuant to s.46PO of the Human Rights and Equal
Opportunity Commission Act 1986 (Cth) ("the HREOC Act") by Christina Rose
Hinchliffe. The proceedings arise out of a course of study undertaken by Ms Hinchliffe at
the University of Sydney (the respondent). It is not disputed that Ms Hinchliffe suffers
from a disability for the purposes of the Disability Discrimination Act 1992 (Cth) ("the
DDA"). She suffers from oculocutaneous albinism, which is characterised by nystagmus,
severe photophobia and reduced visual acuity.

2. Ms Hinchliffe commenced a four year full time course of Bachelor of Applied Science
(Occupational Therapy) at the university in January 2001. She originally asserted that
the university discriminated against her contrary to ss.5, 6 and 22 of the DDA but the
reliance upon s.5 of the DDA was later abandoned. The asserted discrimination is based
upon the university failing to provide her, in a timely way, with course material in the
form of natural voice audio tapes or, alternatively, in written form in 24 point Arial font
on light green paper, together with enlarged diagrams. The university denies that it has
discriminated against Ms Hinchliffe.

3. Ms Hinchliffe made a complaint to HREOC on 16 January 2002 in the form of a letter
prepared by Blind Citizens Australia. The complaint was amended by a further letter
from Blind Citizens Australia dated 6 May 2002. On 4 February 2003 the then President
of HREOC terminated the complaint on the basis that there was no reasonable prospect of
the complaint being settled by conciliation.

4. Ms Hinchliffe instituted proceedings in the Federal Court under the HREOC Act on 4
March 2003. Her application has been transferred to this Court by order of Hely J on 26
March 2003.

5. The matter was listed for hearing before me for three days commencing on 23
February 2004. The first day was entirely taken up with argument over jurisdiction and
objections to evidence. The following rulings or concessions were made:

a) Ms Eastman conceded that no jurisdictional issue arose in relation to the limited
application provisions of the Act, having regard to my decision in O'Connor v Ross &
Anor (No 1) [2002] FMCA 210;

b) I ruled that the applicant could amend her application to add a claim for general
damages;

c) Mr Poynder conceded that the application was limited to events occurring on or before
6 May 2002 (the date of the amended complaint to HREOC): Charles v Fuji Xerox
[2000] FCA 1531;
d) Mr Poynder did not press an application for leave to amend the application to add an
asserted breach of s.24 of the DDA (Ms Eastman had objected to this amendment on the
basis that s.22 of the DDA covered the field in relation to discrimination in education:
Ferneley v Boxing Authority of NSW [2001] FCA 1740; cf Clarke v Catholic Education
Office & Anor [2003] FCA 1085);

e) I ruled that the applicant was entitled to rely on paragraph (a) and paragraph (c) of
s.22(2) of the DDA;

f) I struck out paragraph 7(e) of the applicant's particulars of claim filed on 9 July 2003
on the basis that the allegation did not form part of the complaint to HREOC or, if it did,
the complaint had not been terminated: see s.46PO(3) of the HREOC Act; Travers v New
South Wales [2000] FCA 1565 at [8]; Charles v Fuji Xerox op cit at [41];

g) I ruled that paragraphs 7(a)-(d) of the applicant's particulars of claim must be limited
to allegations concerning course material, for the same reasons;

h) I received into evidence with deletions the applicant's affidavits filed on 4 March 2003
and 12 January 2003, as well as an affidavit by the applicant's mother (Katherine
Hinchliffe) filed on 12 January 2004;

i) I also received an affidavit in reply from the applicant sworn on 23 February 2004 and
filed in court pursuant to leave on 24 February 2004;

j) I ruled, for the purposes of s.79 of the Evidence Act 1995 (Cth) that David John
Woodbridge was qualified to give opinion evidence and received an affidavit by him
filed on 12 January 2004; and

k) I received an affidavit from Dr Frank Martin filed on 12 January 2004 and permitted
the applicant to lead additional oral evidence from him directed at obtaining opinion
evidence in relation to the need of the applicant to obtain course materials in the form of
sound recording or large format typescript on light green paper, subject to the proviso
that all documents provided to Dr Martin to enable him to form his opinion would be
made available to the respondent and the respondent would have the opportunity to cross-
examine Dr Martin.

6. The applicant's affidavit referred to a number of other documents exhibited to her
affidavit but not produced as evidence. At the commencement of the second day of the
hearing Mr Poynder told me that the applicant would not seek to rely on the documents
identified as exhibits CH 1-3; CH 5-8; and CH 10-11 in her affidavit sworn on
24 December 2003.

The evidence

7. The applicant relies upon her own affidavits filed on 4 March 2003, 12 January 2004
and 24 February 2004. She also relies upon the affidavits by David John Woodbridge
filed on 12 January 2004 and Dr Frank Martin, filed on 12 January 2004. All of the
deponents were required for cross-examination.

Christina Rose Hinchliffe

8. In her affidavits the applicant deposes as to her disability, her enrolment at the
university, and her difficulties in obtaining materials in a suitable format. In her first
affidavit the applicant deposes that the university was aware of her disability and her
special needs from January 2001 after the university sent her a form which she filled out
and after the university accepted her application to enrol in the Bachelor of Applied
Science (Occupational Therapy) course. Ms Hinchliffe deposes that she met Ms Sue
Hebblewhite on enrolment day in January 2001 and told her that she would prefer copies
of course material to be provided on disk. She also requested that if course material could
not be provided on disk, that the course material be printed on light green paper in 22
point Arial font. Ms Hinchliffe deposes that she found that no more than a few unit
outlines and one manual for her lectures for semester 1, 2001 were available on disk and
she assumed she would have to reformat the course material on to disk herself. She went
to the State library to use scanning software to scan the manuals onto disk and reformat
them. She deposes that this was very time consuming and left her with no time to study.

9. Ms Hinchliffe deposes that Imelda Bergman, one of her tutors in semester 1, 2001,
helped her to investigate ways in which she could reformat the course material. Ms
Bergman organised a note taker by approaching students in her tutorial group and also
put Ms Hinchliffe in contact with the Royal Blind Society of New South Wales (RBS).
Ms Hinchliffe deposes that she found out from the RBS about alternative format services
(braille, large print and audio) which the RBS offered.

10. Ms Hinchliffe deposes that prior to the commencement of the 2001 mid year break a
request was made to Ms Hebblewhite for the provision of material for the second
semester but only one manual was supplied to be put into large print. The text was too
low quality to enlarge and, as Ms Hinchliffe could not read braille, she decided the only
other option was to put it onto audio tape. She found this format to be extremely helpful
given the large volume of material she was required to read. Audio format also relieved
her parents of the need to read material to her. Ms Hinchliffe deposes that she suffers eye
strain when she has to read a large volume of material, even in large print. She deposes
that six of her seven semester two manuals were only provided to her in the original
format with no enlarged font and that no text books in semester two were made available
to her in large print or audio format.

11. Ms Hinchliffe deposes that all examination papers in 2001 were enlarged on to A3
light green paper but were not in 22 point font. Ms Hebblewhite consequently read to her
her exam papers.

12. Ms Hinchliffe deposes that there were discussions with Ms Hebblewhite in second
semester, 2001 about Ms Hinchliffe's problems. They discussed the inappropriateness of
the available technologies in the disability room in the library but the problems were not
resolved. Ms Hinchliffe deposes that in November 2001 Ms Hebblewhite told her that the
university would not be using the National Information Library Service (NILS) for large
printing or audio as they were too expensive. She deposes that Ms Hebblewhite told her
that the university could supply course materials on disk. Ms Hinchliffe deposes that she
told Ms Hebblewhite that reformatting material on disk was onerous. Ms Hinchliffe
deposes that she knew that little information was available on disk and that she would be
disadvantaged.

13. Ms Hinchliffe deposes that in November 2001 she was put in contact with Eileen
McFazdean from Blind Citizens Australia by the RBS.

14. Ms Hinchliffe deposes that at no time during 2001 was any material provided to her
in 22 point font. She deposes that it was not until 20 December 2001 that Ms
Hebblewhite asked Mr Brett O'Neill (course co-ordinator and academic liaison officer for
students with disabilities in the School of Occupational and Leisure Sciences) to facilitate
the provision of 2002 course materials to Dr Andrea Chan with a view to then being
transcribed by NILS. She deposes that Dr Chan told Ms McFazdean that the university
could make no decision about what format materials could be provided in until the
university budget had been approved. Dr Chan reportedly indicated that she had been
encouraged by the university to make as much course material as possible available on
disk. Ms Hinchliffe deposes that she contacted Dr Chan on 2 January 2002 and Mr
O'Neill on 8 January 2002 to enquire about progress in obtaining 2002 course materials.
On 16 January 2002 a complaint was lodged with HREOC. Subsequently, Dr Chan
telephoned Ms Hinchliffe to clarify the required format of each piece of course material.
Ms Hinchliffe deposes that it was hard to determine the most appropriate format for each
piece of material without sighting them or knowing how they were going to be used in
lectures and tutorials.

15. Ms Hinchliffe deposes that on 8 February 2002 she and her mother visited Dr Chan in
her office to clarify with her the required format for the course materials that Dr Chan
had received to that point. She deposes that it was only apparent upon that visit that it was
not practical to put everything onto audio tape as some material needed to be taken to
tutorials and practical classes while other material was highly diagrammatical. Dr Chan
gave Ms Hinchliffe some unit outline and case studies on disk which Ms Hinchliffe
volunteered to reformat herself. She says that she regarded student welfare services as
technically inadequate. Ms Hinchliffe deposes that it appeared to her that if she and her
mother had not visited Dr Chan on that day that no progress would have been made to put
material into an accessible format. Ms Hinchliffe had no further contact with Dr Chan
until she resumed university on 4 March 2002.

16. Ms Hinchliffe deposes that within two weeks of starting first semester in 2002 it
became clear what amount of course material she would require. She deposes that she
had to constantly prompt the university to process her course materials so that it was put
into an accessible format. She deposes that, due to the university 's lack of organisation,
she received course material in an appropriate format later than other students.
17. Ms Hinchliffe deposes that prior to the mid semester assessment period in 2002 she
notified the university that her exams were to be made available to her in 24 point font.
She deposes that she explained the process of large print formatting to Dr Chan but that
she was not taken seriously. She deposes that she was told that she would "just have to
wait and see how it goes" as to whether attempts to put examination papers into 24 point
font would be successful. She received her examination papers in 12 point font. She
deposes that one of the examination papers was incomplete and that Dr Chan, who was
supervising the examination, would not investigate. She deposes that she was stressed
knowing prior to the exam that it would not be appropriately formatted. An amended
complaint was lodged with HREOC on 6 May 2002.

18. Ms Hinchliffe deposes that in the second semester of 2002 the situation improved.

19. In her second affidavit Ms Hinchliffe provides more detailed evidence concerning her
personal background and her disability. She deposes as to the various formats of written
material which she is aware of and her reasons for preferring some formats over others.
She deposes as to the reasons for choosing an occupational therapy course and provides
more detailed evidence of the circumstances leading up to her enrolment in that course.

20. Ms Hinchliffe deposes that she found out about the disability services available at the
university from a discussion with Brett O'Neill, her attendance at an open day at the
university and a forum conducted in the middle of 2000 at the State Library (which the
university of Sydney was not represented at). Ms Hinchliffe deposes as to the forms she
completed and returned to the university identifying her disability and needs. She deposes
as to her attendance at a university information day at the main campus in Camperdown
on 4 January 2001. She deposes that on 11 January 2001 she wrote to Jane Gamble
asking for special consideration for entry into the occupational therapy degree. She was
accepted and subsequently enrolled on 24 January 2001. She deposes as to her discussion
with Sue Hebblewhite on that day and says that she did not discuss audio formats with
Ms Hebblewhite at that time. She deposes that on 22 February 2001 (orientation day at
the Cumberland campus) she obtained some material from Sue Hebblewhite on disk. She
later obtained more disks from Ms Hebblewhite during the first two weeks of the
semester. She was also given the opportunity to look at the disability services room on
that day to see what facilities were available.

21. Ms Hinchliffe provides detailed affidavit evidence concerning her course subjects and
the material required in them in semesters one and two, 2001 and semester one, 2002.
She also deposes as to events in the lead up to the second year of her studies late in 2001.
Ms Hinchliffe confirms that she took it upon herself to reformat course material in
semester one, 2001 as she assumed it was her responsibility. She was, however, given the
assistance of a note taker. Ms Hinchliffe found this assistance helpful. Ms Hinchliffe
sought and received special consideration for her examinations at the end of semester
one. She deposes that Ms Hebblewhite told her she did not need to provide additional
medical evidence.
22. Ms Hinchliffe deposes as to the materials that were provided or required in her
various semester one subjects and the difficulties she experienced in putting these into a
format she found suitable. Her mother assisted in the reformatting of material and in
reading material to her. Her grandmother also assisted by providing an audio tape version
of tutorial readings. Ms Hinchliffe deposes that she was upset by the provision of
material in standard format, in particular video format. She deposes as to her difficulties
in reformatting library materials from the closed reserve section. She deposes as to the
provision of lecture material to her on disk form but her inability to access
diagrammatical components using her ZoomText software. She deposes as to her
difficulties in seeing visual material in lectures on Powerpoint slides or overhead
projections. She deposes as to the poor print quality of some of the voluminous written
materials provided to her in her courses. She deposes as to a lack of assistance from the
health sciences library at the Cumberland campus of the university. She deposes as to her
difficulty in doing a practical examination using cadavers because of the colour of the
cadaver. She was permitted to use models instead of real body parts.

23. Ms Hinchliffe deposes as to her approach to Sue Hebblewhite prior to semester two in
2001 about involving NILS in reformatting. She confirms that only one set of course
material for the second semester was given to Ms Hebblewhite by any of her lecturers for
the purposes of reformatting prior to the commencement of the second semester. This
was ultimately reformatted into audio due to the poor print quality and the remaining six
manuals were not reformatted. Ms Hinchliffe deposes as to similar problems she
experienced in semester two, 2001 to those she experienced in the first semester. She
deposes that she had difficulty in keeping up with students at times due to the
unavailability of material in an appropriate format and the absence of a reader. At times a
reader was provided but at other times not.

24. Ms Hinchliffe provides more detailed affidavit evidence concerning her conversations
with Sue Hebblewhite, Eileen McFazdean, Dr Andrea Chan and Brett O'Neill in the lead
up to semester one, 2002. She deposes as to the materials that were provided to her on
disk by Dr Chan on 8 February 2002. She deposes as to her request for material on audio
tape. She deposes as to additional material given to her on disk by Dr Chan during March
and April 2002. Ms Hinchliffe also provides more detailed evidence concerning the
reformatting of material on audio tape in semester one, 2002 through NILS. She deposes
as to the enlargement of other material. She deposes as to continuing problems she
experienced with some reformatted material and some material which was not
reformatted. She deposes as to difficulties in following physiology lectures using models.

25. Ms Hinchliffe makes the following concluding observations in her second affidavit:

In 2001 there were about 150 students enrolled in first year OT. In 2002 there were about
130 students enrolled in second year OT. I believe that in my year I am the only student
who has Oculocutaneous Albinism. I am aware that there was a student two years above
me who did OT at the university who had Oculocutaneous Albinism. I am not aware that
there were any OT students in my year in 2001 or in 2002 who had a vision impairment.
The university 's treatment of me has affected me in many ways. Undue stress has been
placed not only on myself but also on my family, in particular my parents. I have also
experienced considerable emotional distress. As a first year student, trying to find my feet
and also trying to investigate the options of how I could format the visual course material
myself so that it was accessible to me, was an arduous task. There was little or not help
from the university in this process. It was also stressful not knowing whether I would
receive my material in the correct format in a timely manner.

During my first year at the university, as a result of my own experience and my own
initiative, I learnt a great deal about available reformatting options for my visual course
materials. However, my experiences from my first year did not appear to lead to any
significant changes in the way in which the university treated me during my second year
at university. This caused me a great deal of frustration. For example, during my first
year at the university I found out about some of the reformatting services offered by
NILS. So when I went into my second year I was aware that to have my materials
reformatted into an accessible alternative format so that they were available to me at the
same time as the other students had access to the standard format materials, my materials
needed to be sent to a reformatting service in advance of the semester commencing. I
grew very frustrated with the university because, as with the first year, the second year's
course material were generally not available before the semester commenced in order to
be sent to a reformatting service in time for them to be reformatted.

In order to make an informed decision about what is the appropriate alternative format for
material, I need to view that material and I also need to know what the material is to be
used for. For example, if material is to be used as reading material outside of the lecture
or tutorial environment, then that material should be formatted into audio. However, if
material is needed in lectures and tutorials because there are practical exercises that
require me to write or insert additional information onto the material, then the appropriate
format is enlarged (at least 22 point) font on light green paper, which is a portable format
that can be used to record further information on it. I was generally not provided with the
relevant information before the semesters in 2001 and the first semester 2002 to enable
me to make the informed decisions that needed to be made in order to ensure that I had
available to me accessible alternative format materials at the same time that other
students had access to the standard format materials.

During my studies at the university, I have found that the university had no effective
process for identifying my needs, and no effective process of providing important
information to me. For example, I found out about the services of the RBS and NILS
available to universities, independently through my own endeavours in about May 2001,
only to be informed later by Sue Hebblewhite of Student Welfare Services that she had
known before my enrolment about the RBS services and had at no time informed me of
those services. I am not aware of any process that the university uses to identify what a
person's special education needs are, other than what occurs on enrolment days. when I
first enrolled, I was asked what I thought the university could do for me. However I think
this question was quite hard to answer because I didn't know what the university was able
to offer, and I was not told what the university was able to offer.
In addition, I feel that my academic potential was compromised. Whilst my results would
probably not be perceived as being poor I attribute this to being a conscientious and hard
working student. I believe that I would have performed better had I been provided with
my material in the correct format in a timely manner. The fact that my academic potential
was compromised has further ramifications. I feel that I may have had the potential to
achieve the marks required to be offered a place in the honours program. Had I attained
the marks needed to get into the honours program I would have considered accepting a
place in it.

OT is a very demanding course which requires not only many face to face hours but also
numerous hours of self directed learning. I believe that a lot of my time was spent
reformatting and chasing material. Other students would not have had to spend their time
in this way but would have instead spent it on study, research and completing
assignments. Therefore I feel that I have been disadvantaged. I also feel that this is a
factor contributing to me not fulfilling my academic potential. This time that I have had
to spend reformatting and chasing material especially in my holidays has meant that I
have been unable to acquire holidays jobs related to OT. I know that the experience
gained from working in such jobs would greatly enhance my opportunities for
employment when I have completed my degree.

26. In her affidavit filed on 24 February 2004 Ms Hinchliffe replies to Ms Hebblewhite's
affidavit and Dr Chan's affidavit.

27. Under cross-examination the applicant presented as a quiet but assured and intelligent
person. She gave her evidence clearly and succinctly. The applicant stated that she was
about to start her fourth and final year of her degree course at the Cumberland campus of
Sydney university at Lidcombe. She stated that she had attended an open day and had
enquired about her course options prior to enrolling at the university. She also stated that
she sought special consideration for entry into the course of her choice as she had not
achieved a matriculation score quite high enough to meet the normal entry requirements.
Special consideration was granted. Ms Hinchliffe stated that when she enrolled at the
university she spoke to Sue Hebblewhite to discuss Ms Hinchliffe's special needs. Ms
Hinchliffe had also filled out a form asking for note taking assistance during her course
and extra time in her examinations. When she spoke to Ms Hebblewhite Ms Hinchliffe
requested the provision of material in large print on green paper. This conversation
occurred in late January 2001, prior to the commencement of Ms Hinchliffe's studies.

28. Ms Hinchliffe conceded that at this time she did not ask for material in audio format
and that in February 2001 some course material was provided to her on computer disk.
She accepted that note taking assistance was provided to her with the assistance of Ms
Hebblewhite and that she was given access to a disability services room. This provided
Ms Hinchliffe with the free use of a photocopier and a computer as well as a stock of
green paper, at least until the stock ran out. Ms Hinchliffe could not remember whether
she asked for any more green paper when the stock ran out.
29. Ms Hinchliffe conceded that she did not complain to Ms Hebblewhite in the first
semester 2001 about the assistance provided to her. She also agreed that Ms Hebblewhite
had assisted her in completing forms during both semesters in 2001 for special
consideration for the conduct of examinations. The university provided a reader and
provided examination papers in large type on A3 size paper coloured green.
Ms Hinchliffe agreed that up until mid 2001 she had not complained to Ms Hebblewhite
about the formatting of material on her behalf by the university, although she had
commented to her about the time taken by her mother to reformat material. She agreed
that it was up to her to ask the university to reformat material provided to her in an
inappropriate format. She agreed that she had not asked for that reformatting up to that
time. Ms Hinchliffe agreed that she got the special consideration that she requested for
examinations in the first semester of 2001. She agreed that she did not request special
formatting assistance, she did not tell Ms Hebblewhite that she was having trouble
printing and formatting library material, and she did not ask for large print photocopying
assistance, although Ms Hinchliffe asserted that she had complained of problems with
exam papers on large size A3 paper.

30. Ms Hinchliffe agreed that in the second semester of 2001 she had requested a change
in the provision of material. She had requested the involvement of the Royal Blind
Society in the reformatting of material. Ms Hinchliffe agreed that one course manual was
reformatted in accordance with her request but she said that she had anticipated that all of
her course material would be reformatted. She agreed that she made no complaint to Ms
Hebblewhite and asserted that the university had shown a lack of capacity so a complaint
would not achieve anything.

31. Ms Hinchliffe said that she had received special exam conditions in the second
semester of 2001 and that her exam papers were provided on A3 size green paper in large
print. Once again, she was provided with a reader. Ms Hinchliffe accepted that she was in
regular contact with Ms Hebblewhite during semester two and that she did not raise with
Ms Hebblewhite formatting problems or photocopying problems, although she had
discussed a lack of assistance from library staff.

32. Ms Hinchliffe said that she decided during 2001 that the provision of material in
audio format would be desirable for her because of problems she had confronted in
viewing material in printed formats. She stated that she contacted Dr Martin in order for
him to write a letter of support. She agreed that she did not ask the university for advice
and said that she knew what she needed. She stated that she did not ask the university for
any reformatting assistance because she did not believe that that assistance would be
forthcoming. She agreed that when she had asked for assistance for particular matters,
that assistance had been forthcoming.

33. Ms Hinchliffe stated that Ms Chan took over as the disability services contact officer
in 2002 at the university. It was around this time that Ms Hinchliffe decided to make a
complaint to HREOC after receiving advice. Ms Hinchliffe denied suggestions that in
2002 she had not asked for materials to be reformatted. She agreed that material had been
provided on disk but asserted that the format was inappropriate. Ms Hinchliffe also
agreed that some course material in 2002 had been provided in large print format on
green paper. She also agreed that she declined an offer of reformatting assistance from
the student welfare office at the university. Ms Hinchliffe further agreed that some
material had been reformatted into audio format in 2002.

34. Ms Hinchliffe agreed that she had passed all of her subjects so far undertaken at the
university. She was generally pleased with her results in the first year when she obtained
one high distinction, four distinctions, three credits and eight passes. In her second year,
she received one distinction, seven credits, six passes and one pass conceded. Ms
Hinchliffe was disappointed with the pass conceded as she felt that she should have
passed outright. The university may grant a pass conceded where a score of between 46
and 49 per cent is obtained.

35. Ms Hinchliffe accepted that she had been able to work part time during her course
and during university vacations.

36. Ms Hinchliffe was asked about her disability. She stated that she has some vision but
has difficulty in seeing the detail of objects. Her vision deteriorates with distance. She
can see people but has difficulty identifying the detail of faces. She stated that it is
difficult for her to read print on white paper because the glare causes her eyes to tire
quickly. She could only read two or three pages of standard print on white paper. Ms
Hinchliffe stated that she could read five to seven pages without a rest under ordinary
interior lighting with large print on large A3 paper. She commented that A3 paper is not
very convenient to handle but that large font print on A4 paper is also inconvenient
because very little can appear on a single page. Ms Hinchliffe was shown examples of her
handwriting which appeared normal. She agreed that she could read her handwriting.

37. Ms Hinchliffe was asked about her preference for receiving course material on audio
tape. She stated that she preferred this format because of the difficulty she found in
dealing with the printed word. She agreed that it was sometimes not possible for material
to be in audio format, for example, diagrams. She also stated that it was not practicable
for lengthy documents such as long text books to be reproduced in large font as the paper
document would simply be too bulky. She agreed that large scale reproduction on pale
green paper was suitable for pictures and other graphics. She agreed that she sometimes
viewed material on computer disk using a programme known as ZoomText and she also
agreed that ZoomText has an audio programme as part of the computer programme. She
agreed that she had this programme available to her. She agreed that at school she trialed
various technologies and found ZoomText to be the best.

38. Ms Hinchliffe was asked about her seating practices. She said that she used the front
seats in lectures but did not ask to sit in a special seat closer (ideally no more than four
metres from the relevant presentation) because she would have to crane her head up to
see. She stated that she had a "visualette", a device to magnify text, except that hers had
no light. She did not use it at university although she had one at home. Ms Hinchliffe also
stated that she had a height adjustable chair at home but did not have one at the
university. She was asked about her sensitivity to fluorescent light. She said that a
majority of teaching rooms at the university had fluorescent lights which she found
difficult but did not request any change to.

39. Ms Hinchliffe was asked about an offer made in writing by the university dated 15
May 2003: exhibit R1. This letter details the university 's offer to Ms Hinchliffe to make
special arrangements for her. The letter had been tendered early in the proceedings and I
ruled that I would receive it as evidence for the purposes of the proceedings generally. In
that ruling I noted that Ms Hinchliffe had annexed to her application to the Federal Court
proposed terms of settlement with the university, to which the university was responding.
Ms Hinchliffe stated that she rejected the offer. She said that she had difficulties with the
offer made by the university, both in terms of the terms of it and the tone of it. She was
concerned that too much onus was placed upon her. She expected the university to make
appropriate arrangements for her without having to ask for them.

40. In re-examination Ms Hinchliffe stated that she found A3 format documents
unsatisfactory because text could not be produced in greater than 14 to 16 point. She
preferred A4 documents with larger font using 22 or 24 point. Exhibit A1 is an example
of an A3 document and exhibit A2 is an example of an A4 document with larger font
print. Ms Hinchliffe stated that although A4 documents with large print were bulky she
could divide the material into appropriate components.

41. Ms Hinchliffe also explained why she preferred a natural voice audio over synthetic
voice. She stated that properly trained readers pronounced technical terms correctly and
were easier to understand. She preferred natural voice recordings prepared by the
National Information Library Service. She found the recordings of that service were most
professional and comprehensive in including all relevant material.

42. Ms Hinchliffe stated that she did not use ZoomText at the university because it
required taking her laptop computer and she was concerned that she might damage it. She
also found the ZoomText software impracticable for university class use. Ms Hinchliffe
reiterated that she did not audio tape lectures because the audio was of limited value
without visual material. I asked whether she had considered videotaping or digitally
recording images and sound of lectures. She said she had not.

43. Ms Hinchliffe explained what difficulties she had experienced with documents
formatted by the university staff. She said that pages had been rotated 45 degrees and text
was missing. She lacked confidence in the ability of the university staff to undertake
reformatting tasks.

John Woodbridge

44. Mr Woodbridge is an adaptive technology consultant with a visual disability. He
deposes as to his expertise in adaptive technology. He deposes that on 13 September
2002 he assessed the adaptive technology needs of the applicant in relation to her access
to visual information in her occupational therapy course at the university. On
24 September 2002 he produced a report on the applicant's adaptive technology needs at
the university. He annexes a copy of that report.

45. Mr Woodbridge deposes that in assessing the applicant's needs, he considered a
number of different forms of adaptive technology. These were ZoomText, JAWS (Job
Access With Speech), Omnipage, closed circuit television (CCTV), audio and computer
disk. ZoomText is a form of computer software that enables the text on a computer screen
to be enlarged up to 16 times. A later version of ZoomText has a basic synthetic speech
program which is meant to be a backup rather than a true synthetic speech access
program. Mr Woodbridge deposes that ZoomText is a useful tool to assist someone who
needs to read in large print, however, the speech component is of limited use. ZoomText
is also of limited use to a person who suffers easily from fatigue. Mr Woodbridge opines
that ZoomText could be no more than a useful backup tool for a person in the applicant's
situation.

46. JAWS is a Windows computer program enabling the user to hear voice output from
the screen or keyboard. There is no text magnification. JAWS is not suitable for
accessing diagrams or graphs. Omnipage is an optical character recognition scanning
program. The document is placed on a flatbed scanner and scanned into Microsoft Word
via Omnipage so that it can then be accessed by ZoomText or JAWS. Good quality text is
required for scanning and proofreading can be very time consuming. Omnipage will not
describe diagrams or graphs. CCTV involves the enlargement of pages and is transmitted
by closed circuit television. Mr Woodbridge deposes that the problem with this form of
adaptive technology in the applicant's case is that it produces too much light, causing
discomfort.

47. Mr Woodbridge deposes that the applicant preferred audio format over other formats
discussed. He opines that this method of accessing material has some disadvantages,
primarily the time lag to get the audio material in an appropriate time frame with a result
that handouts from tutorials or lectures cannot be instantly accessed. Sometimes
accessibility by audio format also includes the use of a personal reader, although this has
a further disadvantage in that the person listening cannot return the material later when
needed or the physical time taken to sit down with the personal reader and go through
what actual information is required to be read.

48. The provision of material on computer disk requires the scanning of information
using OCR technology plus proofreading and putting the material into a document format
suitable for the client. The client then uses their own adaptive technology to access the
documents. The technology is of limited use for diagrams and graphs.

49. Mr Woodbridge, in his report, recommended that the majority of the applicant's
material be provided in audio format with large print diagrams. He made this
recommendation because this was the format that Ms Hinchliffe was already comfortable
with and even if she received information on computer disk, the diagrams and graphs still
needed to be available in large print. He opines that it would also have been appropriate
for Ms Hinchliffe to use information provided on disk or via e-mail to gain access to
information. While this was not Ms Hinchliffe's preferred method, it would have given
her more flexible access in reading some material in that skipping backwards and
forwards through a document is faster than using an audio tape and searching in a
document is possible on a disk and impossible on an audio tape. Mr Woodbridge stresses,
however, the desirability of scanning and proofreading being undertaken by a
professional service such as NILS.

50. Under cross-examination Mr Woodbridge stated that his opinion was based on the
history provided to him by Ms Hinchliffe orally. He made his assessment after a two hour
consultation with Ms Hinchliffe. He was not given university documentation to examine.
He was only given a verbal overview of a report prepared by Messrs Jagers and Phillips
and was not told of the recommendations in that report.

51. In re-examination Mr Woodbridge said that knowledge of the recommendations in
the report would not have changed his opinion. His opinion was based principally on the
issue of fatigue experienced by Ms Hinchliffe from reading small print documents on
white paper.

Dr Frank Martin

52. Dr Martin is a paediatric opthamologist who has treated Ms Hinchliffe since her
childhood. Dr Martin swore two affidavits, the first sworn on 12 January 2004 and the
second sworn on 24 February 2004.

53. He deposes that Ms Hinchliffe has been under his ophthalmic care since 27 June
1983. He was requested to prepare a report for the purposes of these proceedings on 16
October 2003 and prepared a report about the applicant's vision impairment on 27
October 2003. He annexes the report. He was asked to address a number of questions
concerning the applicant's vision impairment and was shown a selection of written
material the applicant was required to read as part of her university studies. His report
confirms the difficulty Ms Hinchliffe has in reading written material in small print. Dr
Martin states that Ms Hinchliffe also had difficulty in seeing detailed anatomical and
technical drawings as found in normal textbooks and tables and graphs that were not
enlarged. He states that Powerpoint presentations and computer displays might cause her
difficulty, depending on the circumstances. Overhead projection slides would cause her
some difficulty unless she sits very near to the screen. Videotape would not be a problem
provided Ms Hinchliffe was near to the screen.

54. In his second affidavit Dr Martin deposes as to his qualifications and experience. He
deposes that he examined Ms Hinchliffe on 17 February 2004 to check her vision. There
has been no change in her eyes or her vision since Dr Martin last examined her on 30
November 1998. Dr Martin expresses agreement with reports prepared by Marianne
Jaggers (optometrist) and Leonie Phillips (orthoptist) dated 13 September 2002 and
annexed to his affidavit. Dr Martin deposes that in order to be able to access written
information over an extended period of time Ms Hinchliffe would need to be provided
with documents formatted in text of at least 22 or 24 point. He deposes that the text
should be in a font such as Arial that is easy to read and the colour of the text and paper
should be in a combination that would reduce glare. Diagrams should also be enlarged.
Dr Martin deposes that, as an alternative, Ms Hinchliffe could be provided with
documents in an audio format using natural voice.

55. Under cross-examination Dr Martin stated that his opinion was formed from his
treatment of Ms Hinchliffe over a number of years. He had received the Jaggers and
Phillips report. He had also received copies of some university course materials. Dr
Martin agreed with the recommendations in the Jaggers and Phillips report.

Katherine Hinchliffe

56. Mrs Hinchliffe is the applicant's mother. She deposes that she has provided assistance
to her daughter during the course of her university studies. This assistance has included
reformatting of visual material such as by photocopying and scanning of written material,
reading texts and providing explanations of visual information, such as diagrams or
actions provided in video format. Mrs Hinchliffe deposes that in 2000 she became
familiar with some of the facilities available at the State Library of New South Wales and
attended a seminar called "Setting Directions". She deposes that in March and April 2001
she and Ms Hinchliffe went to the State Library in order to test the computer facilities
there. Mrs Hinchliffe found using the computers at the library onerous and tiring. She is
not computer literate. The program used was a scanning and text enlargement program.
The visit lasted about three hours and they made three more visits to the library. They
concluded that the process was too time consuming and that it was better for Mrs
Hinchliffe to read the material to her daughter. Mrs Hinchliffe deposes that she read a lot
of material to Ms Hinchliffe during the rest of the 2001 academic year.

57. Mrs Hinchliffe deposes that during 2001 and 2002 she went to the Fisher Library on
the main campus of the university on a number of occasions in order to help her daughter
to find library books that were not available at the Cumberland campus. These visits
lasted around four hours. Ms Hinchliffe was given permission to borrow books for an
extended period from the general library collection. This gave her an additional couple of
weeks borrowing time. Mrs Hinchliffe provided similar assistance to her daughter at the
university 's Cumberland campus library. She also helped Ms Hinchliffe with
photocopying and enlarged photocopies in the disabilities room in the library.

58. Mrs Hinchliffe deposes that there were poor quality photocopies in the manuals she
read to Ms Hinchliffe throughout 2001. Ms Hinchliffe often went to sleep when Mrs
Hinchliffe was reading to her. After university classes Ms Hinchliffe was often tired. Mrs
Hinchliffe read large font material as well as small font text because her daughter had eye
fatigue and had difficulty even reading large font. Sometimes the pages in the manuals
provided were not in the correct order. Mrs Hinchliffe also read and interpreted
anatomical diagrams for her daughter. Ms Hinchliffe had difficulty deciphering things
like muscles and ligaments when they were in an unenlarged format. Mrs Hinchliffe has a
nursing background which helped.
59. Mrs Hinchliffe deposes that her mother, Nora Olennick (who is familiar with taping
books) offered to read one of Ms Hinchliffe's manuals on to audio tape. Mrs Hinchliffe
assisted her mother in this process. The process took her mother two full days. The
manual was recorded onto about 12 to 16 hours of audio tape. Mrs Hinchliffe had to
ensure that the manual pages were in the correct order and found that "many pages" were
not in the right order. The process was complicated in that Mrs Olennick was used to
using a special Royal Blind Society tape recorder but because Ms Hinchliffe could not
play those tapes (she did not have the correct equipment) Mrs Olennick had to use an
ordinary tape recorder with which she was not familiar. Nevertheless, the tapes were
helpful to Ms Hinchliffe as she was able to listen to them on her walkman while she
travelled to the university.

60. Mrs Hinchliffe deposes that in January or February 2002 she went to the Cumberland
campus to meet with the new disabilities officer on one occasion. She met Sylvia Black.
The purpose of the meeting was to find out what help the university was going to give Ms
Hinchliffe to reformat her materials for 2002. Andrea Chan also attended the meeting, as
did Ms Hinchliffe. Mrs Hinchliffe deposes that Dr Chan was vague and gave no firm
answers to questions about what material would be available and what format it would be
in. Mrs Hinchliffe deposes that in April 2002 she met Sylvia Black's replacement,
Margaret Arena. Ms Hinchliffe also attended. Mrs Hinchliffe deposes that she was
concerned that Ms Arena was not sending material off to the Royal Blind Society in time
to have the material reformatted for her daughter to use in her studies. The meeting took
about two hours. Ms Hinchliffe voiced similar concerns. Mrs Hinchliffe deposes that Ms
Arena said that she had lost Ms Hinchliffe's address and that was why material had not
been sent. Mrs Hinchliffe deposes that Ms Arena said "you're not the only person. You're
not the only student here, you know", and , "I hope you get top marks after all the help
we've given you". Mrs Hinchliffe deposes that this upset her daughter who was in tears
afterwards because she felt like she was being a nuisance. Mrs Hinchliffe deposes as to
her observations of the effect upon her daughter of the difficulties she had in accessing
material during her course.

61. Under cross-examination Mrs Hinchliffe said that the applicant has two male siblings
who both have the same condition as the applicant, although to lesser degrees. Mrs
Hinchliffe said that she had dealt with the university at its main Camperdown campus in
relation to one of her sons and had found no difficulty. She noted, however, that his
disability was less severe than that of her daughter. She stated that she had attended
several times (at least 10) at the Cumberland campus library to assist her daughter. Based
on reports from her daughter she found the support available at the Cumberland campus
inadequate. She did not pursue enquiries on behalf of her daughter with the disability
support staff at the Cumberland campus. She relied on what her daughter told her about
her inability to obtain appropriate support through the university and its Cumberland
campus.

62. The applicant's evidence was completed by the tender of an edited copy of a letter
dated 5 June 2003 in response to the settlement offer from the university: exhibit A3. The
applicant, prior to the close of her evidence, withdrew her claim for orders requiring the
university to provide disability support services to her. Mr Poynder told me that the
applicant now sought only a declaration and damages and costs.

The respondent's case

63. The respondent relies upon the affidavits of Katherine Mercer filed on 2 April 2003,
Sarah Jane Heesom, filed on 19 September 2003, Brett Patrick O'Neill, filed on 13
February 2004 and the documents exhibited to it, Andrea Jean Chan, filed on 13 February
2004 and the documents exhibited to it and Suzanne Marguerite Hebblewhite, filed on
13 February 2004 and the documents exhibited to it.

Brett O'Neill

64. Mr O'Neill is the undergraduate occupational therapy course manager in the school of
Occupational and Leisure Sciences at the Cumberland campus of the university of
Sydney. He deposes that he has been in that position since 1999. Since 1997 Mr O'Neill
has acted in the position of academic liaison officer for undergraduate occupational
therapy students in the school of Occupational and Leisure Sciences. He acts as the
primary contact in the school for students who have questions in relation to disability
issues and accommodations specific to their particular degree. He works in conjunction
with the disabilities services officer at the Cumberland campus. His responsibilities as
ALO include liasing with staff members from other schools who manage units of study in
the occupational therapy course, and making requests for specific information that would
assist in identified students' progression throughout the course.

65. Mr O'Neill deposes that on the basis of a review of documents concerning Ms
Hinchliffe's admission, on 7 December 2000, the university advised Ms Hinchliffe that
she would be considered under the concessional admission scheme of the university. On
11 January 2001 Ms Hinchliffe sent a letter to Jane Gamble asking for special
consideration for entry into the university 's Bachelor of Applied Science (Occupational
Therapy) course. Mr O'Neill made a recommendation with Ms Gamble to the student
administration division of the university that Ms Hinchliffe be accepted into the course.
On 24 January 2001 Ms Hinchliffe was offered entry into the course.

66. Mr O'Neill deposes as to the academic requirements of the Bachelor of Applied
Science (Occupational Therapy) course in 2001 and the subjects undertaken by Ms
Hinchliffe. Ms Hinchliffe achieved a distinction, two credits and four passes in semester
one and a high distinction, three distinctions, a credit and four passes in semester two,
2001. Mr O'Neill deposes that in many cases in semester two the subject outlines,
materials and assessment requirements for individual subjects were not available until
shortly before the commencement of the semester. This was due to the fact that the
majority of academic staff take part of their annual leave during the mid semester break
and often do not start preparing these materials until shortly before the commencement of
the semester.
67. Mr O'Neill deposes that for the same reason in many cases course materials and
subject outlines were not finalised until shortly before or at the commencement of
semester one, 2002. Mr O'Neill deposes as to the subjects undertaken by Ms Hinchliffe in
semester one, 2002. She achieved three credits and four passes in those subjects. Her raw
mark average for 2001 and semester one of 2002 was 65.65 per cent.

68. Mr O'Neill responds to Ms Hinchliffe's affidavit in relation to the possibility that she
may have gained entrance to the occupational therapy honours program. He deposes that
in order to be eligible for a place in that program a student must have achieved at least a
credit grade point average in their undergraduate degree. Of these eligible students,
places in the honours program are offered on the basis of the student's academic
performance as compared to other students within their degree. The majority of students
who are accepted into the honours program have a distinction grade point average, and
some have a high distinction grade point average. Approximately 10 to 12 people are
accepted into the honours program for occupation therapy each year. Mr O'Neill further
deposes that over the past four years approximately 95 per cent of occupational therapy
graduates found employment within approximately six months of graduation. He deposes
that academic results are not generally a determining factor for employers, who place
more emphasis on interviews with applicants and performance in clinical placements.

69. Under cross-examination Mr O'Neill stated that he discussed the acceptance of the
applicant in the occupational therapy course as a disadvantaged student with the head of
school Jane Gamble. He confirmed that he met with Ms Hinchliffe and her father on or
about 4 January 2001 at an information day at the main Camperdown campus at the
university. He confirmed that the applicant's father had told him that Ms Hinchliffe had
had a difficult year in her final year at school. They had discussed her disability. Mr
O'Neill said that he had considered later in 2001 the need for material to be reformatted
for Ms Hinchliffe and identified an e-mail he prepared on 14 May 2001 seeking the
assistance of university staff in having material reformatted.

Suzanne Hebblewhite

70. Ms Hebblewhite was between February 1999 and 31 December 2001 employed on a
part time basis by the university as a disability services officer at the Cumberland
campus. She deposes that in that position she was the principal point of contact and
support officer for current and prospective students of the Cumberland campus of the
university who had a disability, illness or other health related condition.

71. Ms Hebblewhite deposes as to the activities she performed in the position of
disability services officer. She deposes that there were approximately 85 students,
including the applicant, registered with the disability services office at the Cumberland
campus as having a disability in 2001. In 2001 there were nine other students registered
with a vision impairment. Ms Hebblewhite deposes that individual student requests for an
adjustment to the university 's courses and assessments were assessed on a case by case
basis within the framework of the university 's equal opportunity and education policy
and its disability action plan. The latter was registered with HREOC in 1999. Specific
service and accommodations requested by each student were usually identified in medical
documentation provided by the student and in discussions between Ms Hebblewhite and
the student. Decisions regarding accommodation and services were made by
Ms Hebblewhite in consultation with the affected student and, if relevant, with other staff
involved. Ms Hebblewhite deposes that she relied upon each student to inform her of the
nature of the disability and the best way that she could assist to accommodate that
disability. She deposes that where exceptional financial resources were required in order
to accommodate a student's request, she would consult with the head of student welfare
services, Dr Andrea Chan.

72. Ms Hebblewhite deposes that in her experience it was extremely rare for students to
request that material other than examination papers be reformatted into larger print.
When such a request was made she would attempt to do it herself. She was aware that, on
rare occasions, the university would use the services of the Royal Blind Society of New
South Wales. Ms Hebblewhite deposes that she also assisted student liasing with
lecturing staff about particular services and accommodations requested in particular
courses. She also would often assist students to complete special consideration and
special condition applications in relation to examinations. She also sent out newsletters to
remind students about the services that were available through her office and the steps
required in order to take advantage of those services.

73. Ms Hebblewhite deposes that at the Cumberland campus the university had purchased
and installed adaptive technology in a dedicated room in the health sciences library. The
software available on computers included voice recognition software providing speech to
text. The room was equipped with two personal computers, a scanner and a
printer/photocopier for the exclusive use of disabled students at the Cumberland campus.
Ms Hebblewhite deposes that light green paper was provided in a cupboard in the room.
She deposes that she would periodically visit the room and check the supply of green
paper.

74. Ms Hebblewhite deposes that she met the applicant on 24 January 2001 when they
discussed the services requested by Ms Hinchliffe. Ms Hebblewhite deposes as to a
further meeting she had with Ms Hinchliffe on 30 January 2001 when they discussed the
provision of material on computer disk enabling her to read the material on her laptop
computer using ZoomText. Ms Hebblewhite deposes that she arranged for course
manuals to be provided to Ms Hinchliffe for the first semester of 2001 and gave these to
her on 22 February 2001. Ms Hebblewhite deposes that she provided further manuals on
computer disk in the first two weeks of semester one.

75. Ms Hebblewhite deposes that during semester one she assisted in arranging a
notetaker for Ms Hinchliffe and that she also arranged special conditions for Ms
Hinchliffe's mid semester examinations. Ms Hebblewhite deposes that she regularly
spoke to Ms Hinchliffe about her progress and that at no time did Ms Hinchliffe tell her
that she was having difficulties reformatting materials.
76. Ms Hebblewhite deposes as to her involvement in making arrangements for Ms
Hinchliffe to undertake her end of semester examinations in 2001. She acted as a reader
at the examinations and noted that some terms used in the examination papers were
unfamiliar to her and she apologised in advance for her pronunciation. Ms Hebblewhite
checked Ms Hinchliffe's examination results at the end of semester one and thought them
at least satisfactory. Ms Hebblewhite was not aware in semester one of any difficulties
encountered by Ms Hinchliffe that were not already being accommodated.

77. Ms Hebblewhite deposes that Ms Hinchliffe did not in semester one make any
requests for the services of the Royal Blind Society/NILS to be used to reformat material.
However, there was some discussion about the reformatting of semester two materials.
She arranged for the reformatting of the manual for Occupational Therapy Theory and
Process 1B by NILS and this was ultimately placed on audio at the applicant's request.

78. Ms Hebblewhite deposes as to her discussions with Ms Hinchliffe about her mid
semester examinations in semester two and the steps taken to provide special assistance
and conditions. She also deposes as to the arrangements made for Ms Hinchliffe's final
semester examinations in semester two, 2001. She also deposes as to the approval of
funding for reformatting of material in semester two by NILS. Ms Hebblewhite deposes
that Ms Hinchliffe did not tell her that she was having difficulties with reformatting any
materials provided to her or that she was having difficulties obtaining copies of
overheads or handouts in advance or that she was having difficulties in locating and
reformatting library materials or that she found the cost of photocopying library materials
into a large format prohibitive. She deposes that if she had learned of such problems she
could have made special arrangements to assist Ms Hinchliffe. She deposes that she was
unaware that Ms Hinchliffe was having difficulty reading certain textbooks and that she
would prefer an alternative format or that she was having difficulties reading
enlargements on A3 paper.

79. Ms Hebblewhite deposes as to her involvement in preparing for semester one, 2002
prior to her departure from the Cumberland campus. She deposes as to a conversation
with Ms Hinchliffe in which she alerted her of the introduction of a new cost structure at
NILS in 2002 that would make it difficult for the university to fund reformatting of
material in audio format by NILS. She deposes as to her exchanges by email with Brett
O'Neill concerning formatting requirements for Ms Hinchliffe in 2002.

80. Under cross-examination Ms Hebblewhite said that there was no formal or written
procedure for the provision of services to disabled students and that issues were worked
out on a case by case basis by discussion. She admitted that first year students could find
the transition from school to university difficult but nevertheless stated that she relied
upon students to draw to her attention problems they might be experiencing so that she
could address them. She stated that most vision impaired students came prepared with
their own equipment to assist them to study materials provided by the university.
Ms Hebblewhite was shown material provided by Ms Hinchliffe to the Universities
Admissions Centre and Mr O'Neill. She stated she had not seen it before. She stated that
she only had access to material given to her and kept on her own file. Ms Hebblewhite
explained that she did not get involved in course related issues unless a student raised a
particular issue of concern. She generally left it to students to raise with academic staff
anything that needed addressing in respect of academic course materials. Ms Hebblewhite
could remember very little about material that was reformatted for Ms Hinchliffe.
Ms Hebblewhite could recall that Ms Hinchliffe had indicated a preference for material to
be provided in 22 point large format on light green paper but stated that it was up to Ms
Hinchliffe to raise with her any particular difficulties she had in getting material
reformatted. She left it to Ms Hinchliffe to put requests to her lecturers and tutors for the
provision of material in an appropriate format. She stated that Ms Hinchliffe had not
expressed dissatisfaction with the provision of material to her on A3 sized paper. Ms
Hebblewhite stressed that she was not a mind reader and needed to know about any
problems with the provision of course material before she could do anything about it. She
stated that Brett O'Neill had the relevant responsibility for the provision of course
materials. She admitted that her role included reformatting assistance but said that this
only arose if a student made a request. Ms Hebblewhite stated that she met with Ms
Hinchliffe weekly and Ms Hinchliffe did not tell her about any particular problems. Ms
Hebblewhite stated that where she got involved in the provision of materials in
alternative formats she regarded herself as just a conduit and she did not check to see
whether the material provided was complete. Ms Hebblewhite stated that the onus was on
the student to draw attention to problems and not the other way around. Students were
expected to stand on their own feet.

81. Ms Hebblewhite stated that she was aware that NILS provided six audio tapes of one
manual in semester two, 2001. She did not know if any 2002 materials were reformatted.
She denied telling the applicant that the NILS service was too expensive and said she told
Ms Hinchliffe to be strong and firm in her dealings with the university if she wanted
NILS to be involved. Ms Hebblewhite commented that in her assessment, Ms Hinchliffe
was not a pushy person and she was concerned at the time she left the job that someone
else coming in to the job might not take note of her requests. Ms Hebblewhite conceded
that at the latter stages of her involvement she was concerned to see that as much as
possible was done in house due to the costs of the NILS involvement. She stated that
while a good deal of material was put on disk, that was what Ms Hinchliffe had initially
asked for. She was unaware of limitations on the ZoomText software and stated that that
was what Ms Hinchliffe said she used.

Dr Andrea Chan

82. Dr Chan is the head of student welfare services at the Cumberland campus of the
university of Sydney. She was appointed to that position in about September 1999.
Following the departure of Ms Hebblewhite in late December 2001 until around 6
February 2002 Dr Chan acted as the primary contact for students registered with the
disability services office. Dr Chan remained involved in a supervisory capacity following
the appointment of first Ms Sylvia Black and later Ms Margaret Arena as disability
services officer in 2002.
83. Dr Chan deposes that in 2002 there were approximately 110 disabled students
registered at the Cumberland campus. Not all disabled students chose to be registered. Dr
Chan deposes that each school within the faculty had an academic liaison officer dealing
with specific questions in relation to content and delivery of course material and Brett
O'Neill was the academic liaison officer for the Occupational and Leisure Sciences
School during 2002.

84. Dr Chan deposes that prior to her experience with the applicant she was not aware of
any students who had requested large volumes of material to be reformatted into large
font or placed on audio by NILS. She was aware of the services offered by NILS but was
also aware that the service involved time delays and there were some variations of quality
in the material produced. She was also aware of the cost of the service. Dr Chan deposes
that Ms Hinchliffe was the only student at the Cumberland campus in 2001 and 2002 who
requested and received materials reformatted by NILS. Other vision impaired students
made use of adaptive technology at home or at the university.

85. Dr Chan deposes that Ms Hinchliffe never contacted her during 2001 to make any
complaint in relation to the services provided by the university or by Ms Hebblewhite.
However, on 19 December 2001 Eileen McFadzean, of Blind Citizens Australia (BCA),
telephoned her about a complaint made by Ms Hinchliffe to BCA about the services
provided to her by the disability services office in 2001. Dr Chan discussed the complaint
with Ms Hebblewhite. Also in December 2001 Dr Chan received a letter from Dr Frank
Martin regarding Ms Hinchliffe's request that material be provided to her in audio format.
She deposes as to a telephone conversation with Ms Hinchliffe on or about 2 January
2002 in which Ms Hinchliffe suggested that four manuals were required in audio format.
Dr Chan deposes as to her dealing subsequently with Brett O'Neill and Ms Hinchliffe
regarding the prioritisation of manuals and course material for reformatting. She deposes
as to her efforts to obtain course material on computer disk.

86. On 14 January 2002 Dr Chan received oral notification from Ms McFadzean about a
complaint of disability discrimination by Ms Hinchliffe. Dr Chan deposes as to enquiries
made subsequently with academic staff to find out what material could be reformatted in
audio. She also deposes as to her efforts to obtain reformatted material in large format on
light green paper. Dr Chan also provided material to Ms Hinchliffe on computer disk. Dr
Chan deposes as to the steps undertaken in February and March to obtain reformatted
material on audio through NILS. Dr Chan further deposes as to the steps taken to
reformat material in April and May 2002.

87. In cross-examination Dr Chan stated that in 2002 there were two students, including
the applicant, who were vision impaired undertaking the occupational therapy course.
There were between 3,800 and 4,000 students at the Cumberland campus. Ten students at
the campus in total were registered as having a vision impairment. Dr Chan stated that
until January 2002 she was not aware of Ms Hinchliffe's preference for material in 22
point large font type. She had read Dr Martin's report which referred to "M18" font which
she did not understand. She denied having seen previously Ms Hinchliffe's letter to Jane
Gamble. Neither had she seen Mr Frank Martin's report.
88. Dr Chan was asked what the university 's position concerning Ms Hinchliffe's
requests was in December 2001. She answered that it was to find out what the student
needed and to assess the cost and effectiveness of the options (in terms of speed of
reformatting and quality). Dr Chan agreed that the university preferred the provision of
material in electronic format on disk. Dr Chan said, however, that the university was
prepared to arrange for material to be reformatted in audio, material that could not be put
on disk.

89. Dr Chan agreed that Ms Hinchliffe got course material later than other students. She
said that this was because material needed to be reformatted and reformatting in audio by
NILS was particularly time consuming. She stated that all students could buy course
materials at the start of semester one. Dr Chan admitted to particular problems in
reformatting a work book for the subject Occupational Health and Therapy 2A. She
agreed that the last course material for semester one, 2002 was received in reformatted
form on 22 May 2002. Dr Chan denied being aware of Ms Hinchliffe expressing anxiety
about getting material late. Dr Chan stated that the delay was unavoidable because NILS
could not work any faster. She said that all the material could have been provided in
electronic form on CD Rom. Dr Chan stated that she was advised by NILS not to send all
course materials in one block to be reformatted and to ensure that Ms Hinchliffe saw
course materials and gave approval for reformatting before the material was sent.

Submissions

90. I invited written submissions from the parties. Written submissions were filed on
behalf of the applicant on 11 May 2004. The applicant's submissions are as follows:

1. This is an application by Christina Hinchliffe, who at the relevant time suffered from a
visual disability, Oculocutaneous Albinism. The applicant alleges that the respondent, the
University of Sydney ("the University") unlawfully discriminated against her on the
grounds of her disability. The allegation arises out of events which occurred between mid
2000 and May 2002, during lead-up to and the applicant's enrolment in a course of
Bachelor of Applied Science (Occupational Therapy) at the university.

Summary of the complaint

2. The applicant alleges that the respondent unlawfully discriminated against her in two
areas, delineated in Part 2 of the Disability Discrimination Act 1992 (Cth) ("the DDA"),
being:

a) denying or limiting her access to benefits under s. 22(2)(a); and

b) subjecting her to other detriment under s. 22(2)(c).

3. The applicant alleges that the respondent indirectly discriminated against her by
requiring her to comply with a requirement or condition which other students without her
disability would be able to comply with, but which she could not comply, and which was
not reasonable in the circumstances.

Submissions on the evidence

The major factual issues

4. The major factual issues to be determined in these proceedings are as follows:

a) What facilities did the applicant require in order to be able to access information
contained in her course materials?

b) To what extent was the respondent made aware of the applicant's requirements during
the relevant period?

c) What facilities did the respondents actually provide to the applicant during the relevant
period?

d) To what extent did the applicant suffer any detriment during the relevant period?

What facilities did the applicant require in order to access visual information?

5. The applicant's evidence was that she has Oculocutaneous Albinism, which is
characterised by nystagmus[1], severe photophobia[2] and reduced visual acuity. The
applicant's claim to have a visual disability does not appear to be in issue.[3] The factual
issue is what facilities the applicant needs to be able to access (by which is meant, to read
and understand) visual information contained in her course materials. This included
booklets containing written text, diagrams, and tables; photocopies of journal articles;
overheads; Powerpoint presentations; video recordings; lecture and tutorial handouts
containing text, tables and diagrams; books including library books and set text books;
written examinations; physical models of anatomical parts and cadavers; calibrations on
technical equipment; and electronic information such as the library catalogue, databases,
web-pages, and WEBCT (online subjects).[4]

6. The applicant's case is that, as at the time that she commenced her course in 2001, she
needed her course materials to be provided to her in an enlarged format, with printed text
in 22 or 24 point Arial font, on light green paper. During Semester One, it also became
apparent that she would be able to access more voluminous course materials that could
not readily be enlarged by having them read in natural voice on to audio tapes.

7. The respondent's case appears to be that the facilities claimed to be required by the
applicant were merely a matter of choice, or preference, over other facilities which could
also meet her needs.[5]

8. The respondent did not call any expert evidence with regard to the applicant's disability
and her capacity to access information, nor was the applicant's expert evidence seriously
contested. The cross-examination of Mr Woodbridge[6] and Dr Martin[7] only went to
their instructions and the information upon which their opinions were based, and neither
witness expressed doubt about their conclusions. This issue must therefore be determined
by the applicant's own evidence and the evidence given by her expert witnesses (in
statements, examination-in-chief and cross-examination).

9. The applicant's case is not that she is unable to read material in small font or on white
paper. Rather, her case is that she cannot read such material for long periods of time
because of fatigue.[8] In the hearing she described this process as follows:[9]

A: ...the way I can read the document, is just really by the shape of the word I can
determine it that way. I have to say that I would quite often misread things so it's actually
quite time consuming to get through the document having to read it several times over
and I find that my eyes really begin to start stinging and it becomes quite uncomfortable
to read and persist with it.

Q: When you say that you make out the word by the shape of it, do you see the individual
letters in the word?

A: Not always.

10. The applicant was cross-examined about her ability to read printed documents in
different formats.[10] She said that, with 12 point Times Roman font on white paper, she
would have to "give up" after two or three pages.[11] With approximately 18-20 point
Times Roman font on green A3 paper, she estimated that she would be able to read about
five to seven pages in ideal conditions.[12] With 22 point Arial font on green A4 paper
she estimated that she could read "maybe 15 to 20 pages".[13]

11. The applicant's evidence is that poor quality photocopies take a lot longer to read; if
such documents are enlarged on to A3 paper it merely exaggerates the poor quality of the
document.[14]

12. The applicant was also cross-examined about her ability to read handwritten
documents.[15] She said that she had difficulty in reading some handwriting, although
she could read her own handwriting[16], as long as she "gets her head close".[17] She can
identify and read her mother's handwriting if it is printed but she cannot read her father's
handwriting very well.[18] She could read most of the handwriting of her notetaker at the
  University .[19]

13. The applicant's evidence is that material provided on electronic disks can be accessed,
but only in a limited way. If it was to be reformatted into "hard" copies accessible to the
applicant, this would take a long time and often caused considerable difficulty.[20] It was
also difficult and cumbersome to read it from a computer screen with "ZoomText"
software, because the software only allows a quarter of the screen to be seen at a time and
this would also have required the applicant to carry a computer with her to lectures.[21]
14. Photocopied material of the type that was collated in the manuals could not be
reproduced in electronic form.[22] This was because the material would have to either to
be re-typed in its entirety, or scanned, which could not be done with poor quality
photocopies.[23] In addition, diagrams could not be reproduced on disk.[24] Photocopies
of documents in 12 point font from A4 paper to A3 paper only increases the size of the
font to about 16-18 point.[25]

15. The applicant's evidence was that it became known to her during the course of
Semester One, 2001 - in around May/June 2001[26] - that the most appropriate format for
voluminous material to be provided to her would be with the text in natural voice audio
and diagrams in enlarged format. She had not included this in her enrolment forms, as she
had not been aware that this was an option at the time and she did not know what format
her material would be in.[27] The evidence was that the University already knew about
the option of obtaining material in this format from the Royal Blind Society, but did not
pass this on to the applicant.[28]

Was the respondent aware of the applicant's needs?

16. There appears to be little issue that the applicant did not receive all of her course
materials in a form that she could read. Ms Hebblewhite conceded that this had been the
case in Semester One, 2001[29], and the evidence is clear that this had also occurred in
Semester Two 2001 and Semester One, 2002.

17. There is a major factual issue, however, about the extent to which the respondent had
been made aware of the applicant's needs during 2001 and 2002.

18. The evidence is that, by early 2001, the University was well aware of the applicant's
needs:

(a) The applicant and her father had met with the Academic Liaison Officer for the
School of Occupation and Leisure Sciences, Mr Brett O'Neill, on 4 January 2001 at an
Information Day held by the University, and they had told him about her vision
impairment.[30]

(b) At the suggestion of Mr O'Neill, the applicant had written to the Head of the School
of Occupation and Leisure Sciences, Ms Jane Gamble, on 11 January 2001, describing
her needs in some detail.[31] This letter, which had been read by Mr O'Neill shortly after
11 January 2001[32], included the following relevant material:

i) The covering letter said:[33]

Due to my lack of vision I have needed printed material to be enlarged, overhead
transparencies photocopied and so on. This, however, has not always been able to be
carried out. Therefore I have missed out on information that my sighted peers have had
access to. Thus preventing me from achieving my full potential.
ii) A report from Dr Maree Ploetz dated 11 September 2000[34] to the effect that the
applicant was suffering from major depression and setting out how this was effecting her
studies. The report concluded, "Please consider Christina's disabilities with compassion."

iii) A "Confidential Statement of Support" completed by the school
counsellor/psychologist at the applicant's high school, Mrs Carol Olivier, on 6 September
2000.[35] This was on a standard form in the applicant's Education Access Scheme
("EAS") application form, which had been completed and sent to the Universities
Admissions Centre (UAC")[36] as part of her application for approval under the
University's Educational Access Scheme.[37] The statement relevantly said:

Christina has Oculocutaneous Albinism which affects her vision considerably. Her lack
of vision requires teachers to enlarge all printed material supplied to the class. Christina
is also greatly affected by glare and unable to read the whiteboard and overheads. It has
not always been possible to supply enlarged materials or information in an alternative
format putting Christina at an educational disadvantage compared with her peers.

iv) A Medical Statement of Support completed by Dr Frank J. Martin on 3 September
2000, also from the EAS form, which relevantly said:[38]

A. Medical condition/disability

Describe the condition affecting the applicant

Oculocutaneous Albinism

Vision impaired

...Right Eye - 6/24[39] Left Eye 6/36[40]

Near = N18[41]

...

B. Effect on studies

Unable to copy work from blackboard/whiteboard

Unable to read normal size print at near.

Needs to rely on others to copy notes for her, and books need to be in an enlarged format.

...

Requires extra time to obtain information.
Fatigue + eye strain associated with vision impairment - requires regular rest periods.

v) Another Medical Statement of Support completed by Dr Brian Morton on 8 September
2000 which relevantly said:[42]

A. Medical condition/disability

Describe the condition affecting the applicant

(a) Albinism (oculocutaneous) - significant visual impairment: difficulty with glare
(blackboards/whiteboards)

Requires large format on special paper

(b) Depression: Decreased concentration + recall from short term memory: loss of
motivation + volition - detrimental effect on work + study performance.

vi) Another Medical Statement of Support completed by Michael Cavanagh,
psychologist, on 31 August 2000[43] to the effect that the applicant was suffering from a
major depressive disorder.

(c) Prior to 24 January 2001 the UAC had provided the University with a form completed
by the applicant in November 2000[44] which described her vision impairment as
"Albinism" and, at question 5, explained the services required at the University as:

Note taking, enlarged printed material, extra time in exams.

(d) On 24 January 2001 the applicant and her father had met the University's Disability
Services Officer, Ms Sue Hebblewhite, at the University's Enrolment Day. They
confirmed that the applicant needed the things set out in Question 5 of her UAC form,
being "note taking, enlarged printed material, extra time in exams." The applicant also
told Ms Hebblewhite that she preferred written material to be provided on disk, and
enlarged printed material in at least 22 point Arial font on green paper.[45] This
conversation was confirmed in a file note made by Ms Hebblewhite.[46]

19. By the beginning of Semester One, 2001, all the lecturers for the subjects to be taken
by the applicant knew that she had a vision impairment and that she needed her course
materials provided in an alternative format.[47] Moreover, the applicant's evidence was
that she emailed her lecturers in the first semester in 2001 to tell them that she had a
vision impairment and that she needed overheads provided in an accessible form.[48]

20. There can be no doubt that, prior to or shortly after commencing her course, the
applicant had provided the University with sufficient information to know what her needs
were, in terms of accessing course materials. She had had at least two meetings with
officers who had the responsibility of dealing with disabled students; she had provided
comprehensive medical information to the Head of the School which had also been read
by the Academic Liaison Officer, and she had made all lecturers and tutors aware of her
needs. One might well ask, what more could a student, recognised as having been given a
concessional entry under a targeted scheme for disabled students[49], do other than
provide such information about her disability and her needs?

21. The respondent's case is that there was an onus on the applicant to complain if
material was not provided to her in an accessible form.[50] For example, Ms
Hebblewhite recalled that she had conversations with the applicant telling her that she
needed to "keep at" the lecturers to provide her with overhead projections before
lectures.[51] On another occasion, Ms Hebblewhite gave evidence that she had told the
applicant that she must be "strong and firm" in requesting her needs for the 2002
academic year and that she was concerned that the applicant was not "pushy" enough in
her requests.[52]

22. Apart from the obvious stress and consumption of time involved, there were good
reasons why the applicant should not have been expected to "keep at" the University, or
to have to be "strong and firm" or "pushy" in chasing up materials in an accessible
format:

a) There was evidence that it is never easy making the transition from school to
university, and some students may be uncertain and unconfident about what they can and
cannot do. Ms Hebblewhite, who had had a number of years dealing with student
inquiries at the University, agreed that this was the case, and that disabled students in
particular may lack confidence in making this transition.[53]

b) The evidence was that the applicant herself was not a "pushy" person[54], or the sort
of person who would want to be a burden on other people.[55] At the time of her
enrolment she was suffering from major depressive disorder which affected her
motivation, a fact that was known to the University. The applicant herself said that she
was reluctant to cause any trouble[56], and she assumed at least in Semester One 2001
that it was her responsibility to obtain material in an accessible format.[57]

c) In any event, as was conceded by Ms Hebblewhite[58], the respondent had closely
followed the procedures for disabled students described in Ms Hebblewhite' s timetable
of activities for January prepared for the incoming Disability Services Officer in
December 2001.[59] Given that the University complied with its own procedures for new
disabled students, one is entitled to ask, what more should a person in the applicant's
position be required to have done to make the University aware of her needs?

d) In addition, there was evidence that, during the course of Semester One 2001, the
applicant did indeed bring her difficulties to the attention of the University. She told
Ms Hebblewhite about the problems that she had in reformatting material at the State
Library.[60] Ms Hebblewhite was of course aware of the applicant's difficulties in
reading course materials because she had to act as a reader in the applicant's exams.[61]
The applicant also raised her difficulties with lecturers, such as Ms Imelda Bergman[62],
Ms Hillman[63], and Ms Donnelly[64], which was one of the remedies suggested by
Ms Hebblewhite:[65]

...Christina could speak to her lecturer and say: I can't see the overheads, could I please
have a copy of them before the lecture.

e) By August 2001 the University had only provided one manual to the applicant in
reformatted form, and it was apparent to the applicant that she would not be getting
anything else from the respondent. In any event, it was too late for her to request further
material in audio format.[66]

23. On the evidence, it can be inferred that the applicant was not getting her material in a
way that she could adequately access because the University was either unwilling to
provide material in an accessible format, or it was simply so disorganised that it was
unable to provide such material. Ms Hebblewhite's evidence in particular was revealing
on this point. In cross-examination[67], she claimed never to have seen course materials
handed to her for identification, which was extraordinary given that she repeatedly
conceded that as Disability Services Officer it was her job to ensure that such materials
were provided to disabled students in an accessible form.[68] When confronted with an
extract from the University's own document confirming this role, she made a half-hearted
attempt to deny knowledge of the contents of the document, then she sought to qualify
her role to that of assisting with the provision of material in an accessible format when
requested by the student.[69] She repeatedly sought to evade responsibility for the
provision of accessible materials, either by denying knowledge of the material[70], by
suggesting that it was the responsibility of Mr O'Neill[71] or the other lecturers[72], or by
simply denying outright that it was her responsibility.[73] She claimed that Ms Chan had
provided material to the applicant on audio tape during Semester One 2001[74], which
was against all the evidence; in particular Ms Chan's evidence that she had no dealings
whatsoever with the applicant in 2001.[75] Ms Hebblewhite's denial that the provision of
information by the applicant prior to the commencement of Semester One 2001 did not
amount to a request for assistance[76] was simply not credible.

24. The intention for Semester Two 2001, according to Mr O'Neill, was to provide
material to the applicant in:

...a format that was most appropriate for her, if there were lots of readings that they might
be placed into tapes or whether it was in large font, whichever was appropriate.[77]

25. It is clear that, by the middle of Semester One 2001, the University knew that the
applicant could not access her course materials in the format provided to other students,
and that a better effort would be needed for Semester Two. Mr O'Neill described the
position towards the end of Semester One as follows:

By the start of or prior to the end of semester 1 we were asked to look into providing
information for semester 2 in a formatted way, in a much more organised way.[78]
26. There would have been plenty of time for material to be sent to the Royal Blind
Society or NILS to be reformatted, a process that Ms Hebblewhite had been aware
involved a lead-in time of six weeks[79], and it is apparent that some steps were taken
before the end of Semester One to be ready with accessible materials for Semester Two.
As early as 14 May 2001 - five weeks before the end of Semester One[80] and almost
twelve weeks before the commencement of Semester Two[81] - Mr O'Neill had sent an
email to the unit managers for all subjects requesting that unit outlines for Semester Two
be forwarded to him so that they could be compiled and sent to an outside service,
identified by Mr O'Neill as the Royal Blind Society.[82] This is undoubtedly why, at the
commencement of her evidence, Ms Hebblewhite qualified par. 82(a) of her affidavit to
say that during Semester One 2001 the applicant had not made make any request to her
for materials to be sent to the RBS or NILS for Semester One materials[83], thereby
leaving open the probability that a request had been made for reformatting Semester Two
materials.

27. Given this information, the failure of the University to provide almost all materials in
any accessible format in Semester Two 2001 was extraordinary.

28. It was also extraordinary that, given the collective experience of the University and its
staff in 2001, Ms Chan (who was acting Disability Services Officer from the time that Ms
Hebblewhite resigned in December 2001) could say that as at the end of December 2001,
her only knowledge of the applicant's disability was the name of the disability and that it
required enlargement of text on pale green paper; "that was it, total knowledge".[84] She
claimed never to have seen the letter to Ms Gamble, or Dr Martin's report, nor any of the
other documentary material setting out the details of the applicant's disability and her
needs.[85] Curiously, only a few minutes later Ms Chan agreed that she had a discussion
with Blind Citizens Australia about the need to provide material in audio form to the
applicant.[86] Once again, there was a palpable reluctance on the part of the respondent's
witnesses to take responsibility for the provision of material to the applicant in an
accessible form; a reluctance which the applicant says is indicative of her entire period of
enrolment during the relevant time.

29. By the beginning of 2002 the University was more than aware of the facilities
required by the applicant in order to access her course materials. Once again, on 8
January 2002 Mr O'Neill sent an email to all unit managers to forward their workbooks
and unit outlines to Ms Chan to be sent away for audiotaping and reformatting.[87] Ms
Chan's evidence was also that material was to be reformatted by NILS.[88]

30. However, as has been its case, the University sought to put the onus on the applicant
to "chase up" lecturers to determine what material needed to be reformatted and in what
form.[89] Incredibly, Ms Chan sought to avoid responsibility for doing this herself by
invoking the provisions of the Privacy Act 1988.[90]

What facilities did the respondent actually provide to the applicant?
31. The different forms of materials required to be accessed by the applicant in her course
were canvassed by the respondent in cross-examination.[91] In summary, they consist of:

* A unit outline (described as a "course outline"), which contains contact details for
lecturers and staff in each course, summaries of some course topics, and lists of
compulsory and recommended readings.

* A manual put together by the lecturer which involved a collection of materials, such as
extracts from textbooks, diagrams and extracts from journal articles.

* Textbooks.

* Overhead projections and other handouts.

32. Annexed to this submission [but not annexed to these reasons - see paragraph 91
below] were two tables which summarise the applicant's evidence relating to the facilities
that she was actually provided with by the respondent in relation to her materials. Table 1
summarises the evidence for each subject taken in Semesters One and Two of the 2001
year, and Table 2 the evidence for each subject taken Semester One of the 2002 year.
Before discussing this evidence, it is noted:

(a) There are separate columns for manuals and lectures, as the applicant in her evidence,
which is footnoted in each case, differentiated between the manuals, being the collection
of documents put together by the lecturer, and lecture notes which were on occasion
handed out prior to lectures.

(b) There is also a column for "exams/assessment". However, as was made apparent from
the applicant's affidavit sworn on 24 December 2003 and her evidence in cross-
examination[92], it is not a major part of the applicant's claim that she was not provided
with materials in an accessible format during exams, although for reasons footnoted in
the evidence, the assistance that she was given in exams was at times far from
satisfactory.

33. The most striking thing about the material that was actually provided to the applicant
in a reformatted form, was how little was provided during the 2001 year. Leaving aside
any dispute about what was and was not said by the applicant to the University prior to
her enrolment, and leaving aside the issue of what was the most appropriate format for
material that year, the respondent repeatedly emphasised in cross-examination that the
applicant had "only" requested "note-taking, enlarged print material, extra time in exams"
in her UAC form.[93] While a notetaker was provided, it was never suggested by the
respondent that she would do anything more than assist the applicant by taking notes
during lectures.[94] The notetaker did not help the applicant access the voluminous
material required to be read outside lectures. Further, while assistance was provided in
exams, this was not the primary issue for the applicant in these proceedings.
34. The primary issue for the applicant was that she was not provided with written and
visual materials in a form that she could access. Put at its highest, and leaving aside the
evidence that by the end of Semester One the respondent was at least aware that the
applicant should have been given more voluminous written material in audio[95], on the
most favourable view of the respondent's case the applicant should have been provided
with written material in at least disk form or enlarged format. However, when one
considers the evidence, the sum total of material provided even in these formats during
2001 was utterly inadequate.

35. For Semester One, no unit outlines were provided, only two of the required manuals
were provided on disk but these had no diagrams, one document for a lecture in Module
B of Components of Occupational Performance 1A was provided, one set of tutorial
readings from Occupational Therapy Theory and Process 1A was provided but it was late
and in 16.8 font and no readings in the other subjects were provided, and some overheads
were provided in three subjects.

36. For Semester Two, no unit outlines were provided, no texts or tutorial readings were
reformatted, no overheads were provided, and no handouts were provided in an
accessible format. The only material that was reformatted in Semester Two was the unit
manual for Occupational Therapy Theory and Process 1B, which was reformatted into six
audio tapes by the Royal Blind Society and provided to the applicant in the first week of
Semester Two. None of the other required manuals was reformatted.

37. By Semester 1, 2002, the respondent appeared to have been more receptive to the
applicant's needs. However even then, materials were provided patchily and almost
always later than other students, a fact that was recognised by Ms Chan.[96] Material
received even two weeks late caused great difficulty for the applicant. An example of this
may be seen with the bundle of readings for Module 2 in Human Occupations 2A,
"Readings 2002". This consisted of photocopies of journal articles which had to be read
prior to tutorials. As could be seen from the sample pages exhibited to the applicant's
affidavit (at "CH" 607-617), the form of this material was not accessible to the
applicant.[97] The applicant had to "chase up" this matter with either Ms Chan or the new
disabilities officer, Ms Black, and she did not receive an audio version of the documents
until "at least a couple of weeks" into the semester.[98] This meant that her studies in this
subject were delayed because for this period of time she was unable to keep up with the
reading.[99]

38. The applicant continued to make it known that she was unable to access materials.
For example, her lecturer in Components of Occupational Performance 2A, Ms Kirsty
Stewart, was aware of the difficulties that she was having in accessing the diagrams
which could not be reformatted in that subject.[100]

39. At times the respondent's cross-examination of the applicant appeared to suggest that
she should not have expected the assistance that she had received at high school in
accessing course materials because the University was not required to "spoon-feed"
her.[101] If this was what the respondent was suggesting, it is misconceived. While the
applicant did not give detailed evidence of her experience at high school, it is apparent
that she was satisfied that material was provided to her in an accessible form during this
period of her education.[102] While it is to be expected that the transition to university
would be likely to required greater demands in terms of workload, this did not absolve
the respondent from providing its services in a non-discriminatory way, in circumstances
where it was made aware of the applicant's disability and the facilities needed to enable
her to access course materials.

What detriment did the applicant suffer?

40. While the applicant achieved excellent results during the period in question, it is the
applicant's case that this was achieved in spite of the difficulties that she had in accessing
the course material. Moreover, as appeared to be accepted by the University[103], and
indeed was emphatically agreed to by Ms Hebblewhite[104], participation in a university
education is much more than merely obtaining good academic results; It also includes the
general welfare of the student on campus.

41. The detriment suffered by the applicant was that she had been placed under constant
and undue stress.[105] With little or no help from the University, she had to find out how
to reformat the course materials herself, and then complete the arduous task of having to
spend many hours doing the reformatting herself. She never knew whether she would
receive materials in the correct format or in a timely manner:

...I just really could not focus on my studies when I was having to constantly chase
material and get it in the right format, or if it was late, then I was really behind the eight-
ball the whole time.[106]

42. When compared with non-disabled students, the applicant almost invariably received
her course materials later, or not at all. Other students did not have to spend their time
chasing or reformatting course materials, but would have instead spent it on study,
research and completing assignments; time that the applicant did not have.[107]

43. As a result, the applicant also feels that her academic potential was compromised. She
feels that she would have performed better had she been provided with the material in the
correct format in a timely manner.[108]

Submissions on the law

Disability:

44. The term "disability" is defined in s 4 of the DDA:

disability , in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's body; or

(f) a disorder or malfunction that results in the person learning differently from a person
without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of
reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists ; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person.

45. It is common ground that the applicant's Oculocutaneous Albinism is a disability
within the meaning of s. 4 of the DDA.

Discrimination in education:

46. Section 22(2) of the DDA relevantly provides:

It is unlawful for an educational authority to discriminate against a student on the ground
of the student's disability...:

(a) by denying the student access, or limiting the student's access, to any benefit provided
by the educational authority; or

(b) ...; or

(c) by subjecting the student to any other detriment.

47. "Educational authority" is defined in s 4 as:

a body or person administering an educational institution.

"Educational institution" is defined in s 4 as:
a school, college, university or other institution at which education or training is
provided.

48. In the present application it is alleged that the respondent discriminated against the
applicant in relation to s 22(2)(a) and (c), by limiting her access to the benefits provided
by the respondent and subjecting her to other detriment.

Indirect discrimination - s 6 of the DDA:

49. Indirect discrimination is defined in s 6 of the DDA as follows:

For the purposes of this Act, a person (discriminator) discriminates against another
person (aggrieved person) on the ground of a disability of the aggrieved person if the
discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply
or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

50. The difference between indirect discrimination and direct discrimination, which is
covered by s 5 of the DDA, is illustrated by the following comments by Dawson and
Toohey JJ in Waters v Public Transport Corporation (1991-92) 173 CLR 349 (at 392):

Broadly speaking, direct discrimination occurs where one person is treated in a different
manner (in a less favourable sense) from the manner in which another is or would be
treated in comparable circumstances on the ground of some unacceptable consideration
(such as sex or race). On the other hand, indirect discrimination occurs where one person
appears to be treated just as another is or would be treated but the impact of such "equal"
treatment is that the former is in fact treated less favourably than the latter. The concept
of indirect discrimination was first developed in the United States in relation to practices
which had a disproportionate impact upon black workers as opposed to white workers:
Griggs v. Duke Power Co. (1971) 401 US 424. Both direct and indirect discrimination
therefore entail one person being treated less favourably than another person. The major
difference is that in the case of direct discrimination the treatment is on its face less
favourable, whereas in the case of indirect discrimination the treatment is on its face
neutral but the impact of the treatment on one person when compared with another is less
favourable.

51. In the present case, the respondent discriminated against the applicant indirectly
within the meaning of s 6 of the DDA because:
(a) The respondent imposed a requirement or condition that the applicant participate in
her university course without all course materials being provided, when required, in an
alternative format.

(b) A substantially higher proportion of persons without the applicant's disability were
able to comply with this requirement or condition.

(c) The applicant was not able to comply with the requirement or condition (that is, she
was unable to equally participate in her course without all course materials provided,
when required, in an alternative format).

(d) The requirement or condition was not reasonable in the circumstances.

Requirement or condition - s. 6:

52. The starting point in determining whether there has been indirect discrimination is the
identification of the relevant "requirement or condition" Having regard to the objects of
the Act, these words should be construed broadly so as to cover any form of qualification
or prerequisite: Australian Iron & Steel Pty Ltd v Banovic (1987) 168 CLR 165 per
Dawson J at 185; Waters v Public Transport Corporation, per Dawson and Toohey J at
393 and McHugh J at 406; Commonwealth Bank of Australia v Human Rights and Equal
Opportunity Commission (1997) 150 ALR 1, per Sackville J at 24.

53. A requirement or condition will have been imposed if a person or body intimates,
expressly or inferentially, that some stipulation or set of circumstances must be obeyed or
endured if the services are to be acquired, used or enjoyed: Waters v Public Transport
Corporation at 407, per McHugh J.

54. In the leading case on indirect discrimination of Waters v Public Transport
Corporation, a complaint had been made by groups representing disabled people about
the removal of conductors and the introduction of "scratch" tickets on Melbourne trams.
It was alleged that many of the complainants could not use scratch tickets, while others
could not travel on trams which did not have conductors to assist them. The High Court
was virtually unanimous in finding that a relevant requirement or condition imposed by
the respondent was that the applicants "use trams without the assistance of
conductors".[109] McHugh J considered that the requirement or condition was that "a
person could use the services provided by the Corporation's trams only if that person was
prepared, inter alia, to endure using the trams without the assistance of conductors".[110]
Brennan J considered that the above characterisation "strained" the language"[111];
however this was subject to express disagreement by other members of the Court.[112]

55. Clarke v Catholic Education Office (2003) 202 ALR 340 is a decision which has
many similarities to the present case. It involved a profoundly deaf student whose
primary means of communication was Australian Sign Language ("Auslan"). When he
sought to enrol in a high school the school showed itself prepared to offer certain
facilities to enable him to communicate, such as the use of a notetaker; however, while
some steps had been taken to provide Auslan interpreters, on the evidence Madgwick J
found that there was "scant prospect" of this occurring.[113]

56. In Clarke, Madgwick J, with particular reference to the characterisation used by
McHugh J in Waters, found that the requirement or condition was that the student:

...could participate and receive classroom instruction provided by the respondents only if
he were prepared to "endure" such instruction without the assistance of an
interpreter.[114]

57. In much the same way as the disabled complainants in Waters and Clarke, the
applicant in this case was free to participate in her university course, but only if she were
prepared to "endure" doing to without all of her course materials being provided in an
alternative format, either at all or at the same time as other students received their course
materials.

Substantially higher proportion - s 6(a):

58. The next step in determining whether there has been an act of indirect discrimination
under s 6 of the DDA is to identify whether a "substantially higher proportion of persons
without the disability comply or are able to comply" with the requirement or condition.

59. In order to determine this question, it is necessary to identify an appropriate base
group, against which it can be said that a substantially higher proportion of persons
without the disability are able to comply with the requirement or condition: Australian
Iron & Steel Pty Ltd v Banovic (1987) 168 CLR 165 per Deane and Gaudron JJ at 178-
9; Dawson J at 187.

60. The selection of a base group will involve a mixed question of fact and law and will
vary, according to the factual context Commonwealth Bank v HREOC (1997) 150 ALR 1
at 42, per Sackville J. The selection of the base group should be calculated to reveal the
significance, if any, of the particular disability to compliance.[115]

61. In the present case, the base group would consist of all students in the applicant's
class, which on the evidence consisted of between 130 and 150 students.[116] The base
group provides a pool against which the significance of the applicant's disability can be
measured. If all (or even most) of the students in the base group except the applicant are
able to comply with the requirement or condition, and the only material difference
between those students and the applicant is the applicant's disability, then the requirement
of a substantially higher proportion in s 6(a) of the DDA will be met.

62. In the present case, there were only two students in the School of Occupational
Therapy who had a vision impairment[117], and the applicant was the only one in her
year.[118] On this basis, it can readily be ascertained that a higher proportion of persons
in the base group did not have the applicant's disability and were therefore able to comply
with the requirement or condition of participation in the university course without all
course materials being provided, when required, in an alternative format.

Applicant not able to comply - s.6(c):

63. The evidence was that the applicant was not able to comply with the requirement or
condition. Some of the materials, such as overheads and Powerpoint presentations,
simply could not be read because of the glare. Others, such as manuals, texts and
readings, could not be read in a way that enabled the applicant to fully participate in her
course.

Not reasonable - s.6(b):

64. The final step in determining whether there has been an act of indirect discrimination
under s 6 will be to consider the reasonableness of the requirement or condition.

65. The reasonableness of a requirement or condition will be determined by weighing all
relevant factors, which will differ from case to case: Commonwealth Bank v HREOC
(1997) 80 FCR 78 at 111, per Sackville J. The test of reasonableness "is less demanding
than one of necessity, but more demanding than a test of convenience": Secretary,
Department of Foreign Affairs and Trade v Styles and Anor (1989) 23 FCR 251 at 263
per Bowen CJ and Gummow J; Waters v Public Transport Corporation at 395 per
Dawson and Toohey JJ.

66. The sort of issues which will be relevant to the question of reasonableness were
canvassed by Dawson and Toohey JJ in Waters v Public Transport Corporation[119]:

Reasonableness for the purposes of both s.17(5)(c) and s.29(2) is a question of fact for
the Board to determine but it can only do so by weighing all the relevant factors. What is
relevant will differ from case to case, but clearly in the present case the ability of the
respondent to meet the cost, both in financial terms and in terms of efficiency, of
accommodating the needs of impaired persons who use trams was relevant in relation to
the reasonableness of the requirements or conditions which it imposed and in relation to
the reasonableness of the special manner in which the appellants required the respondent
to perform its service. Another relevant factor would be the availability of alternative
methods which would achieve the objectives of the Cabinet resolution but in a less
discriminatory way. Other factors which might be relevant are the maintenance of good
industrial relations, the observance of health and safety requirements, the existence of
competitors and the like.

67. In the present case, relevant issues will include (but are not limited to):

a) the applicant's dependence upon the necessary facilities to be able to access course
materials;

b) the respondent's knowledge of the applicant's needs;
c) the practical ability of the respondent to provide the facilities (keeping in mind that no
claim of unjustifiable hardship based on the cost of the facilities was made by the
respondent).

Remedy

68. There is no claim for special damages in this application.

69. In assessing the amount of general damages to be awarded, the question of fact to be
addressed will the effect of the conduct on the complainant: Hall v Sheiban (1989) 85
ALR 503. In the present case, the applicant has suffered significant disruption to her
university course, including the need to make do with receiving course materials either in
a way that could not be accessed, or where accessible materials were provided, they were
provided later than non-disabled students in her course. She also had to spend large
amounts of her time re-formatting material herself, which was something other students
did not have to do.

70. Recent cases in the Federal Court include Clarke, where discrimination causing
hurtful but "transient and not extreme" effects led to general damages of $20,000[120],
and Fetherston, where discrimination which had a "profound effect" on the applicant's
life would have led to general damages of $50,000 had the case been proven.[121] In the
present case, an award of between $20,000 and $50,000 would be appropriate.

Conclusion

71. The Court should find that the respondent unlawfully discriminated against the
applicant under s 22 of the DDA.

91. The applicant's submissions included a table which set out in simple tabular form the
material that the applicant asserts was not provided to her in an acceptable format, in
whole or part. It was not convenient to reproduce that table in these reasons, however, I
have had regard to it in preparing these reasons. A more comprehensive table prepared on
behalf of the respondent is reproduced at the end of this judgment as an annexure.

92. The respondent filed written submissions on 25 May 2004. The respondent submits as
follows:

(1) The Respondent, The University of Sydney (the University) submits the proceedings
should be dismissed. The claim is based on misconceived assumptions about the rights
and obligations imposed by the Disability Discrimination Act 1992 (Cth) (the Act).

(2) The Applicant has proceeded on the basis that the Act imposes an obligation on the
University to respond to her preferences or anticipate and provide facilities to her,
notwithstanding that she has failed to advise the University what facilities she requires
from time to time.
(3) The Applicant has failed to demonstrate that her claim comes within section 22(2) (a)
of the Act or that she was "subjected to a detriment" for the purpose of section 22(2) (c).

(4) Further, she has failed to identify a requirement or condition which the University
imposed upon the students undertaking the Bachelor of Applied Science (Occupational
Therapy). In the absence of a `requirement or condition', the Applicant has not shown an
inability to comply on her part, or that a substantially higher proportion of students
without her disability can comply.

(5) Finally, even if the Court were to find these elements, the Applicant has failed to
prove it was unreasonable for the University to impose a requirement or condition.

Procedural history

(6) On 16 January 2002, Blind Citizens Australia (BCA) lodged a complaint in the
Human Rights and Equal Opportunity Commission (HREOC) on behalf of the Applicant
(the Original Complaint) (Annexure "D" to the Application filed in the Federal Court on
4 March 2003).

(7) The initial complaint alleged `direct' and `indirect' disability discrimination. The
specific allegation concerned the alleged failure of the University to `provide audio
materials' in 2001.

(8) On 6 May 2002, BCA sought leave to amend the complaint lodged with HREOC on
16 January 2002 (the Amended Complaint) (Annexure "E" to the Application filed in the
Federal Court on 4 March 2003).

(9) This amendment noted that `the Complainant's preferred format for receiving course
materials is audio'.

(10) The amended complaint noted that the `Complainant also accepts that some of the
course materials are more appropriately provided to her in large print on light green
paper.' The complaint alleged that the `Complainant has... been forced to accept course
materials on disc which would have been more appropriately provided to her in audio'.
The complaint acknowledges that the Applicant received materials on disc, which was
different and additional to the materials provided to other students.

(11) It is clear from the amended complaint, that the allegation concerned the Applicant's
preferences in relation to the manner in which course material was provided to a student
with a disability.

(12) On 14 May 2002, the University sent a letter to HREOC asking it to confirm that the
matters set out in the Amended Complaint constituted an amendment to the Original
Complaint, and not a new complaint.
(13) On 15 May 2002, HREOC wrote a letter to the University confirming that the
matters set out in the Amended Complaint were to be treated as an amendment to, and
part of the Original Complaint.

(14) On 14 June 2002, the University sent a response to the Amended Complaint to
HREOC (see Annexure "A" of the affidavit of Sarah Heesom filed in the Federal
Magistrates Court on 19 September 2003).

(15) On 21 August 2002, the Applicant and the University attended a conciliation
conference at HREOC.

(16) On 4 February 2003, HREOC terminated the Amended Complaint on the basis that
there was no reasonable prospect of the matter being settled by conciliation (Annexure
"M" to the application filed in the Federal Court on 4 March 2003).

(17) On 4 March 2003, the Applicant filed an application in the Federal Court of
Australia (the Federal Court Application).

(18) On 26 March 2003, Hely J. of the Federal Court made orders, including that:

a) the proceedings be referred for mediation on 16 April 2003; and

b) in the event that the proceedings are not resolved at mediation, the proceedings be
transferred to the Federal Magistrates Court.

(19) On 2 April 2003, the University filed a Defence to the Federal Court Application
and the affidavit of Katherine Mercer in the Federal Court.

(20) On 16 April 2003, the Applicant and the University attended mediation in relation
to the Federal Court Application. The proceedings were not resolved at mediation and
were transferred to the Federal Magistrates Court pursuant to the self-executing order
made by Hely J. on 26 March 2003.

(21) On 9 July 2003, the Applicant filed Particulars of Claim in the Federal Magistrates
Court.

(22) On 4 September 2003, the University filed a Request for Further and Better
Particulars of the Applicant's Particulars of Claim in the Federal Magistrates Court.

(23) On 12 September 2003, the Applicant responded to the University's Request for
Further and Better Particulars.

(24) On 19 September 2003, the University filed an Amended Defence to the Federal
Court Application and the affidavit of Sarah Jane Heesom in the Federal Magistrates
Court.
(25) On 12 January 2004, the Applicant filed the affidavits of the Applicant, Katherine
Hinchliffe, Dr Frank Martin and David Woodbridge in the Federal Magistrates Court.

(26) On 13 February 2004, the University filed the affidavits of Andrea Chan, Suzanne
Hebblewhite and Brett O'Neill in the Federal Magistrates Court.

(27) On 23 February 2004, the Applicant filed a further affidavit of the Applicant in the
Federal Magistrates Court.

(28) On 24 February 2004, the Applicant filed a further affidavit of Dr Martin in the
Federal Magistrates Court.

Factual findings

(29) The Applicant's submissions at paragraph 4 claim there are four major factual issues
to be determined. The University submits that paragraphs 4(a) to (d) do not properly
characterise the relevant facts in issue.

(30) The complaint is brought under section 22(2) of the Act which is concerned with
"benefits". This is not a case where the issue is the provision of "facilities" or the
University's "awareness" of the Applicant's "requirements".

(31) The Act does not impose a requirement to provide facilities to disabled students, in
the way in which the claim has been characterised by the Applicant: see Purvis v State of
New South Wales (2003) 202 ALR 133, Waters v Public Transport Corporation (1991)
173 CLR 349, Forbes v Commonwealth [2004] FCAFC 95, Fetherston v Peninsula
Health [2004] FCA 485, Cosma v Qantas Airways Ltd (2002) 124 FCR 504,
Commonwealth of Australia v Humphries (1998) 86 FCR 324, and A School v Human
Rights & Equal Opportunity Commission (1998) 55 ALD 116.

(32) The obligation imposed by the Act is not to treat the disabled student less favourably
than non-disabled students (direct discrimination) and not to impose conditions or
requirements which the disabled student cannot comply with and which is not reasonable
in all the circumstances (indirect discrimination).

The applicant's disability

(33) The Applicant has Oculocutaneous Albinism, a disability, which is characterised by
nystagmus, severe photophobia and reduced visual acuity. An assessment of the
Applicant prepared by Ms Leonie Phillips, Orthoptist, on 13 September 2002 (Annexure
FM4 to the affidavit of Dr Martin dated 24 February 2004) reported that the level of
vision impairment suffered by the Applicant compared with others who have the same
condition was moderate and stable.

(34) The Applicant criticises the University at paragraph 8 because it did not call "expert
evidence" with regard to the Applicant's disability or her capacity to access information.
(35) The University notes that there is no dispute between the parties as to the fact that
the Applicant has a disability. Accordingly, there was no requirement or need for the
University to call expert evidence to address the question of disability.

(36) As to the `facilities' that the Applicant required, the assertion made in paragraph 5 of
the Applicant's submissions are a statement of the Applicant's preferences not her needs.
The experts called upon by the Applicant did not confirm that these were the Applicant's
"needs" at the relevant times. Further, the evidence of the experts was not uniform or
consistent with respect to the Applicant's needs in relation to reading or her University
studies generally. Likewise, the Applicant did not agree with the expert's
recommendations and did not follow suggestions made by the experts.

(37) Mr Woodbridge's evidence concerned recommendations about the different types of
technologies available. He is not an expert who is able to assess the Applicant's `needs'
from a medical perspective. Mr Woodbridge's recommendation that "the majority of
material be provided in audio format with large print diagrams" was primarily
recommended because it was the method "Christina was comfortable with" (paragraph 20
of the affidavit of Mr Woodbridge).

(38) Mr Woodbridge was of the view that it would also be appropriate for the Applicant
to use information provided on disc or email to access information (paragraph 21 of the
affidavit of Mr Woodbridge). This is contrary to the Applicant's assertions as to her
"need" for information to be provided in large font or audio format.

(39) In cross examination, Mr Woodbridge agreed that he was not given any documents
or material prior to making his assessment, nor was he aware of the requirements of the
degree taken by the Applicant or the recommendations made in the report of Ms Phillips
(transcript P-257 to P-259). Mr Woodbridge acknowledged that this information would
have assisted him in preparing his report (transcript P-259). Mr Woodbridge also stated
that he made his recommendations based on the Applicant's description of her experience
at University (transcript P-258, P-261). It appeared that Mr Woodbridge had not been
provided with any details about the nature and the context in which the University
provided assistance to students generally and to students with disabilities.

(40) As to Dr Martin's evidence, at the time he prepared the "Medical Statement of
Support" in respect of the Applicant's application for admission into the Education
Access Schemes offered by the University, Dr Martin had not seen or examined the
Applicant for a two year period. He agreed that he wrote the letter of support at the
Applicant's request and had not made any independent assessment of her at that time
(transcript P-269 to P-273).

(41) Dr Martin's knowledge of the Applicant's University studies was taken solely from a
history given by the Applicant herself. Dr Martin was not provided with any information
in respect of the course undertaken by the Applicant other than viewing certain copies of
manuals (transcript P-271, P-275).
(42) Dr Martin was not provided with any materials or other information in respect of the
assessment of the Applicant prepared by Ms Phillips, Orthoptist, on 13 September 2002
(transcript P-274).

(43) In relation to the report prepared by Ms Phillips (Annexure FM4 to the affidavit of
Dr Martin dated 24 February 2004), this was not evidence which complied with the
Federal Court Guidelines for Expert's evidence. Ms Phillips did not herself prepare an
affidavit in these proceedings, nor was she available for cross examination. There is no
evidence in respect of the basis of Ms Phillips' report or the information before Ms
Phillips in preparing the report.

(44) However, it is clear that Ms Phillips made a number of recommendations in respect
of the Applicant's University studies. It was apparent during the cross-examination of the
Applicant that the Applicant has chosen not to adopt a number of Ms Phillips'
recommendations seemingly on the basis that the Applicant does not believe that such
recommendations were useful to her situation (transcript P-226, P-227).

Pre enrolment

(45) When the Applicant was at High School she decided that she would be interested in
pursuing tertiary studies in occupational therapy.

(46) She attended an open day at the University's Cumberland Campus in August 1999.
On that occasion she met with Mr Brett O'Neill. The Applicant discussed the
occupational therapy course with Mr O'Neill. She also visited the Student Welfare
Services stand and obtained some written material about the services provided by Student
Welfare Services for students with disabilities.

(47) In September 2000, the Applicant sent a completed pre-enrolment Educational
Access Scheme application form, with supporting documents (including Medical
Statements of Support from the Applicant's ophthalmologist, general practitioner and
psychologist) to the Universities Admission Centre (UAC) (paragraph 6 of the affidavit
of Mr O'Neill).

(48) These documents included a form (the UAC Form) which asked the Applicant to
identify `what services may/will you require at University'. In response to this question,
the Applicant indicated that she would require:

(a) note taking;

(b) enlarged printed material; and

(c) extra time for exams.

(49) She did not indicate that she would require materials in audio and then in audio as
natural voice.
(50) In other material which accompanied the application, in a personal statement she
said she would need all printed material to be enlarged to 24 font on pale green paper and
extra time for exams and assessment. Her general practitioner indicated that she may
require a reader. However, the Applicant did not agree she required a reader.

(51) The Applicant met with Mr O'Neill at an information day in January 2001. The
evidence of the Applicant is that she briefly told Mr O'Neill that she had a vision
impairment (paragraph 35 of the affidavit of the Applicant sworn 24 December 2003).

Offer of a place

(52) The University offered two Educational Access Schemes to Year 12 students for
the 2001 intake (the Broadway Scheme and the Educational Disadvantage Scheme).
Applicants who qualified under the Broadway Scheme received a maximum of five
concessional Universities Admission Index (UAI) points. Applicants who qualified under
the Educational Disadvantage Scheme received a substantially greater concession
(paragraph 5 of the affidavit of Mr O'Neill).

(53) In December 2000, the University advised the Applicant that she would be
considered under the Broadway Scheme for the 2001 intake. Later, the University
determined that the Applicant would be considered under the Educational Disadvantage
Scheme (paragraph 6 of the affidavit of Mr O'Neill).

(54) On 24 January 2001, the Applicant was offered entry into the University's Bachelor
of Applied Science (Occupational Therapy) degree. In the main round intake of 2001,
this course had a Universities Admission Index (UAI) cut-off of 80.45 (paragraph 8 of
the affidavit of Mr O'Neill).

(55) The Applicant had a UAI of 65.95, however she gained concessional admission into
the course as a result of her entry into the University's Educational Disadvantage
Program and a recommendation made by Mr O'Neill and Ms Jane Gamble (Head of
School, School of Occupation and Leisure Studies) (paragraph 7 of the affidavit of Mr
O'Neill; transcript P-297).

Bachelor of Applied Science (Occupational Therapy) degree

(56) In order to graduate with a Bachelor of Applied Science (Occupational Therapy)
degree from University of Sydney, students are generally required to achieve a final
grade of at least 50% within each of the units of study that comprise the degree.
Alternatively, certain units of study are graded on a pass/fail basis. In addition, students
who do not satisfy the attendance requirements within certain units of study may be
refused permission to be considered for the final assessment in that unit of study
(paragraphs 9-13 of the affidavit of Mr O'Neill).

(57) Each unit of study has various assessment requirements which comprise the final
grade. For the most part, the assessment requirements for the units of study within the
Bachelor of Applied Science (Occupational Therapy) degree during 2001 and Semester 1
of 2002 consisted of practical and written examinations, projects, essays, discussions,
attendance, presentations and practical placements (paragraphs 9-13 of the affidavit of Mr
O'Neill).

(58) In or about January 2001 the Applicant enrolled in a four-year full-time course of
Bachelor of Applied Science (Occupational Therapy) within the Health Sciences Faculty
at the University's Lidcombe campus (paragraph 9 of the affidavit of Mr O'Neill).

(59) During 2001, the Applicant achieved 8 Passes (50%-64%), 3 Credits (65%-74%), 4
Distinctions (75%-84%) and 1 High Distinction (85%-100%) (paragraphs 16 and 21 of
the affidavit of Mr O'Neill).

(60) During Semester 1 of 2002, the Applicant achieved 4 Passes and 3 Credits. The
Applicant's raw average mark during 2001 and Semester 1 of 2002 was 65.65% (a Credit
average) (paragraph 27 of the affidavit of Mr O'Neill). She has successfully completed
the requirements of the course thus far.

First semester 2001

(61) In January 2004 Ms Hebblewhite (at the time the University's Disability Services
Officer) received a copy of the UAC Form (paragraph 31 of the affidavit of Ms
Hebblewhite).

(62) On or about 24 January 2001, the Applicant met with Ms Hebblewhite regarding her
preference for material to be placed in alternative formats (paragraph 33 of the affidavit
of Ms Hebblewhite).

(63) Ms Hebblewhite cannot now recall whether, during this meeting, the Applicant gave
Ms Hebblewhite a copy of the "Medical Statement of Support" completed by Dr Martin.
However, Ms Hebblewhite is aware that this document formed part of her file in
February 2001. Ms Hebblewhite did not receive any of the other documents attached to
the Applicant's letter to Ms Gamble (paragraph 31 of the affidavit of Ms Hebblewhite).

(64) On or about 30 January 2001, the Applicant again spoke with Ms Hebblewhite
regarding her preference for course manuals to be put onto disc (paragraph 37 of the
affidavit of Ms Hebblewhite).

(65) Ms Hebblewhite was employed by the University on a part-time basis in the role of
Disability Services Officer during the period in or about February 1999 until 31
December 2001. In this role, Ms Hebblewhite was the principal point of contact and
support for current and prospective students of the Cumberland Campus who had a
disability or other health related condition (paragraphs 5 and 6 of the affidavit of Ms
Hebblewhite).
(66) In 2001, there were approximately 85 students registered with the Disability
Services Office. These students were enrolled in approximately 18 different courses at
the Cumberland Campus and were categorised as having approximately seven different
types of disability. A range of accommodations were provided to these students,
including special exam conditions, special consideration in exams, library privileges,
note-taking assistance and materials transcription (paragraphs 11 to 13 of the affidavit of
Ms Hebblewhite).

(67) Given the number of students registered with the Disability Services Office, the
Disability Services Office relied on registered students to inform them as to the nature of
their disability and the most suitable form of accommodation. The ALO's within each
faculty (in the Applicant's case, Brett O'Neill) acted as the primary contact for students in
relation to disability issues and accommodations specific to their particular degree
(paragraphs 15 to 18 of the affidavit of Ms Hebblewhite).

(68) In the first semester of 2001, the Applicant was enrolled in the following subjects
which involved her completing the following assessment (paragraph 15 of the affidavit of
Mr O'Neill):

Subject                      Material              Assessment
Musculoskeletal Anatomy Textbooks                  Written examination (20%)

                                                   Practical examination (20%)

                                                   Students may improve marks by
                                                   completing Anatomy Review Questions

                                                   Students required to achieve at least
                                                   45% in examination of Unit 3 - Upper
                                                   Limb
Introductory Biomedical                            Written examination (20%)
Sciences
                                                   Written examination (80%)
Human Occupations 1A         Textbook              Practical examination (viva) (40%)
                                                   (must be passed in order to be eligible to
                                                   pass the unit)

                                                   Attendance at and participation in
                                                   tutorials.

                                                   Written examination (60%)
Components of            Textbook list             Practical examination (40%)
Occupational Performance provided
1A                                                 10-15 minutes video presentation and
                                                  analysis (35%)

                                                  Teaching / learning approaches (25%)
Occupational Therapy                              Facilitation of tutorial discussion (20%)
Theory and Process IA
                                                  Group project (80%)

                                                  80% attendance at tutorials (17 x 1 hour
                                                  tutorials)
Occupations and Roles       Core references       Report (100%)
across the Lifespan 1A      provided in
                            lectures
Professional Practice 1                           Verbal presentation (20%)

                                                  85% attendance at lectures and tutorials

                                                  Pass fieldwork placement (involving
                                                  two performance reports and two
                                                  assignments)

                                                  95% attendance at fieldwork placement
Introduction to Health      Selected readings     Class essay (35%)
Sociology
                                                  Written examination (65%)

                                                  Students required to regularly attend and
                                                  participate in lectures and tutorials.
Introductory Psychology     Textbook              Essay (25%)

                                                  Written examination (75%)

(69) During 2001 the Applicant liaised extensively with Ms Hebblewhite regarding her
requests for assistance to undertake the course requirements. In particular, the Applicant
was in contact with Disability Services in relation to:

(a) on 27 February 2001 regarding note-taking, welfare and student services (paragraph
47 of the affidavit of Ms Hebblewhite);

(b) on 6 March regarding materials (paragraph 53 of the affidavit of Ms Hebblewhite);

(c) on 13 March 2001 regarding note-taking (paragraph 55 of the affidavit of Ms
Hebblewhite);
(d) on 3 April 2001 regarding special conditions (paragraph 58 of the affidavit of Ms
Hebblewhite);

(e) on 10 April 2001 regarding scribing (paragraph 61 of the affidavit of Ms
Hebblewhite);

(f) on 8 May 2001 regarding special consideration and special conditions (paragraphs 63
and 64 of the affidavit of Ms Hebblewhite);

(g) on 29 and 30 May 2001 regarding alternative assessment and intervention (paragraphs
67-73 of the affidavit of Ms Hebblewhite); and

(h) on 12 June 2001 regarding scribing (paragraph 74 of the affidavit of Ms
Hebblewhite).

(70) During 2001, the Applicant requested, in writing to Ms Hebblewhite or orally during
meetings with Ms Hebblewhite:

(a) note-taking (pages 36, 37 of Exhibit "SMH" of the affidavit of Ms Hebblewhite);

(b) enlarged printed material on green paper (22 font) (pages 36, 37 of Exhibit "SMH" of
the affidavit of Ms Hebblewhite);

(c) extra time in examinations (page 36, 37 of Exhibit "SMH" of the affidavit of Ms
Hebblewhite);

(d) material on disc (page 38 of Exhibit "SMH" of the affidavit of Ms Hebblewhite); and

(e) library lending privileges (pages 39, 40 of Exhibit "SMH" of the affidavit of Ms
Hebblewhite).

(71) During 2001 the Applicant was provided with a note-taker at the University's cost
(paragraphs 50, 51, 52, 53, 55, 76 of the affidavit of Ms Hebblewhite, pages 41, 45, 60,
61 and 62 of Exhibit "SMH") and received access to the disability services room in the
library (paragraph 48 of the affidavit of Ms Hebblewhite, page 40 of Exhibit "SMH").

(72) During the first semester of 2001, one of the course manuals was provided to the
Applicant on A3 green paper. Other manuals were provided to the Applicant on disc
(paragraphs 46 and 54 of the affidavit of Ms Hebblewhite, page 39 of exhibit "SMH).
The provision of the manual on A3 green paper, as opposed to 22 font, was in accordance
with the Applicant's instructions to Ms Hebblewhite (paragraph 53 of the affidavit of
Ms Hebblewhite, page 39 of Exhibit "SMH"). Similarly, the provision of material on disc
was in accordance with the Applicant's instructions to Ms Hebblewhite (pages 38, 39 of
Exhibit "SMH").
(73) The Applicant never made any complaint to Ms Hebblewhite regarding the provision
of this material (paragraph 46 of the affidavit of Ms Hebblewhite). The Applicant did not
request any additional assistance in collecting, copying or converting texts or materials.

(74) For the Applicant's mid-semester and end of semester examinations in the first
semester of 2001, she was provided with enlarged text printed on green paper, a separate
room, a reader and extra time to complete the examinations (paragraphs 57-65, 74-75 of
the affidavit of Ms Hebblewhite, pages 49, 50, 53 of Exhibit "SMH"; transcript P-148-
149).

(75) The Applicant completed an oral examination in place of a video examination in one
subject (paragraph 67-73 of the affidavit of Ms Hebblewhite, pages 54, 55, 56 of Exhibit
"SMH").

(76) On the basis of Ms Hebblewhite's recollection and her records of this time, at no
time during the first semester of 2001 did the Applicant tell Ms Hebblewhite that:

(a) she required any additional special assistance to meet her needs;

(b) she was having difficulties reformatting any materials;

(c) she was having difficulties obtaining copies of overheads and handouts in advance;

(d) she was having difficulties in relation to locating and reformatting library materials;

(e) she found the costs of photocopying materials into an enlarged format prohibitive. If
she had done so Ms Hebblewhite could have arranged for her to use the photocopier in
the Student Welfare Office;

(f) she had difficulties with reading enlargements on A3 paper, rather than 22 font; or

(g) other than a conversation in early May 2001 in respect of second semester 2001, she
would have preferred to receive certain manuals in enlarged font or audio, rather than on
disc. (Paragraph 79 of the affidavit of Ms Hebblewhite; transcript P-197 to P-199).

(77) In the Applicant's written submissions at paragraph 15, the Applicant claims that she
knew around May/June 2001 that the most appropriate format for voluminous material
would be "with text in natural voice audio and diagrams in enlarged format". However,
the evidence demonstrates that the Applicant did not tell anyone at the University that
she had formed the view that this was the "most appropriate format". The Applicant says,
as she asserts in paragraph 15, that the University "already knew about the option" of
obtaining material in this format from the Royal Blind Society ((RBS) or National
Information Library Service (NILS)). The University submits that it was not aware this
was an option which the Applicant preferred. If the Applicant failed to tell Ms
Hebblewhite, then clearly it was not an option which the University could have been
aware of.
(78) The University further submits that it is unreasonable to suggest in paragraph 15 of
the Applicant's submissions that during the meeting on 24 January 2001, Ms Hebblewhite
should have discussed with the Applicant the option of obtaining material from RBS
given that:

(a) as at 24 January 2001 the Applicant had never made a request for information to be
provided to her in audio format. The first time this appears to have been raised by the
Applicant was in May 2001;

(b) students at the University were responsible for their own learning and Ms
Hebblewhite acted on the basis that by the time students reached University they were in
a good position to know what accommodations would assist with their disability; and

(c) it was unusual for the University to use the services of the RBS (see for example,
paragraph 15 of the affidavit of Ms Chan).

In fact, Ms Hebblewhite could only recall one instance of this occurring during her time
as the Disability Services Officer at the Cumberland Campus (transcript 13.04.04 P-17).
Generally the University would try and format material in house prior to using an
external service such as RBS (paragraph 19 of the affidavit of Ms Hebblewhite;
paragraph 15 of the affidavit of Ms Chan).

Second semester 2001

(79) In the Second Semester of 2001, the Applicant was enrolled in the following
subjects which involved the following assessment tasks (paragraph 19 of the affidavit of
Mr O'Neill):

Subject                         Materials Assessment
Musculoskeletal Anatomy         Textbooks Written examination (30%)

                                            Practical examination (30%)

                                            Students may improve marks by completing
                                            Anatomy Review Questions

                                            Students required to achieve at least 45% in
                                            examination of Unit 3 - Upper Limb
Data Management and                         Spreadsheet portfolio (50%)
Presentation
                                            Group project (50%)
Body Function in Health and                 Written examination (30%)
Disease
                                            Written examination (70%)
Human Occupations 1B                         Assignment (40%)

                                             Seminar presentation (60%)

                                             Attendance required
Components of Occupational       Textbooks Assignment (30%)
Performance 1B
                                             Viva (35%)

                                             Written examination (35%)
Occupational Therapy Theory Textbook Report (including seminar presentation)
and Process IB                       (100%)

                                             10% deducted for any tutorial missed
Occupations and Roles across Readings Group poster (40%)
the Lifespan 1B
                                      Report (50%)

                                             Attendance, participation and summary of
                                             one reading (10%)

                                             Attendance at peer tutorials compulsory
Professional Practice 1                      Verbal presentation (20%)

                                             Written assignment (60%)

                                             85% attendance at lectures and tutorials
Cognitive Functioning            Textbook Assignment (35%)

                                             Written examination (65%)

(80) During the second semester of 2001 the Applicant liaised with Ms Hebblewhite
regarding her specific requests in relation to the preparation of course materials in
alternative formats and other related requests. In particular, the Applicant was in contact
with Disability Services:

(a) on 29 August 2001 regarding note-taking and special conditions (paragraph 90 of the
affidavit of Ms Hebblewhite);

(b) on 16 October 2001 regarding special consideration and special conditions (paragraph
100 of the affidavit of Ms Hebblewhite);

(c) on 20 November 2001 regarding scribing (paragraphs 102 and 103 of the affidavit of
Ms Hebblewhite); and
(d) on 21 November 2001 regarding special conditions (paragraph 105 of the affidavit of
Ms Hebblewhite).

(81) During the second semester of 2001 the University provided the Applicant with a
note taker to assist with lecture notes in respect of each of the Applicant's courses
(transcript P-166).

(82) During the second semester of 2001, one of the Applicant's manuals was sent to
NILS for reformatting. As it could not be enlarged it was reformatted in audio, at the
Applicant's request (paragraph 87, 90 of the affidavit of Ms Hebblewhite, pages 66-70 of
Exhibit "SMH").

(83) Ms Hebblewhite cannot now recall whether other manuals were provided to the
Applicant in the second semester of 2001 in large format or whether they were provided
on disc. However, the Applicant never complained to Ms Hebblewhite regarding the
provision of material to her (paragraph 90 of the affidavit of Ms Hebblewhite).

(84) For the Applicant's mid-semester and end of semester examinations in the second
semester of 2001, she was provided with enlarged text printed on green paper, a separate
room, a reader and extra time to complete the examinations (paragraphs 91, 92, 94, 95,
99-105 of the affidavit of Ms Hebblewhite, pages 85-89 of Exhibit "SMH"; transcript P-
148-149).

(85) On the basis of Ms Hebblewhite's recollection of what occurred in 2001 and her
notes during this time, at no time during Semester 2, 2001 did the Applicant tell Ms
Hebblewhite that:

(a) she was having difficulties reformatting any materials;

(b) she was having difficulties obtaining copies of overheads and handouts in advance;

(c) she was having difficulties in relation to locating and reformatting library materials;

(d) she found the costs of photocopying materials into an enlarged format prohibitive;

(e) she had difficulty reading certain textbooks and would prefer an alternative format; or

(f) she had difficulties with reading enlargements on A3 paper, rather than 22 font.
(Paragraph 109 of the affidavit of Ms Hebblewhite, transcript P-206, 207).

Second year - 2002

(86) When Ms Hebblewhite ceased the role, the Applicant dealt with Ms Andrea Chan.
Ms Chan is currently employed by the University as Head of Student Welfare Services
and has been in this role since in or about October 1998 (paragraph 3 of the affidavit of
Ms Chan).
(87) In her role, Ms Chan is responsible for managing the Student Welfare Services
Division, which includes the Disability Services Office. During the period December
2001 until May 2002, Ms Chan was the Applicant's primary contact within the Disability
Services Office (paragraphs 5 and 6 of the affidavit of Ms Chan).

(88) In 2002, there were approximately 110 students registered with the Disability
Services Office (including the Applicant). These students were enrolled in approximately
19 different courses at the Cumberland Campus and were categorised as having
approximately seven different types of disability. A range of measures were provided to
these students. For example, the Applicant requested and was provided with special exam
conditions, library privileges, note-taking assistance and materials transcription. During
2001 and 2002, the Applicant was the only student at the Cumberland Campus who
requested and received materials reformatted from NILS (paragraphs 8 to 10, 16, 18 of
the affidavit of Ms Chan).

First semester 2002 up to 6 May 2002

(89) The Applicant was enrolled in the following subjects which involved the following
assessment tasks (paragraph 26 of the affidavit of Mr O'Neill):

Subject                       Materials         Assessment
Psychopathology and           Course manual     Examination (25%)
Behavioural Change
                                                Examination (50%)

                                                Attendance at and participation in
                                                seminars and presentation of one seminar
                                                (25%)
Research Methods 1: Design Readings             Written examination (30%)

                              Manual            Written examination (70%)
Neurobiology 1                Manual            Written examination (20%)

                                                Written examination (80%)
Components of                 Lecture notes     Assignment (50%)
Occupational Performance      and handouts
IIA                                             Assignment (50%)
Human Occupations IIA         Manual and        Take home examination (25%)
                              other material
                                                Presentation (in pairs) (25%)

                                                Examination 50%

                                                Attendance required at least 85% of
                                                tutorials
Occupational Therapy,         Tutorial          Clinical Reasoning Portfolio (100%)
Theory and Process IIA        workbook
                                                10 marks deducted per tutorial missed
                                                without appropriate documentation

                                                5 marks deducted per tutorial where
                                                evidence of lack of preparation or
                                                contribution
Occupational Roles across     Textbook          Assignment (50%)
the Lifespan II
                              Lecture notes     Examination (50%)
                              and handouts
Professional Practice II.     3 weeks clinical Tutorial presentation 20%
                              practice
                                               85% attendance at tutorials

                                                Pass fieldwork placement (involving
                                                assignments)

                                                95% attendance at fieldwork placement

                                                (Carried on to Semester 2)

(90) During Semester 1 of 2002, the University reformatted all course materials that the
Applicant requested to be reformatted. In accordance with the Applicant's requests, the
course materials (including unit outlines, manuals, workbooks and textbooks) were either
enlarged onto light green paper or converted onto disc, email or audio and provided to the
Applicant. For the most part, the materials were provided to the Applicant prior to or at
the time that she required them for her lectures and tutorials. Any delays were largely
caused by the Applicant changing her mind as to the format required, or were due to the
delays caused when materials were sent to and received from NILS (paragraphs 38-139
of the affidavit of Ms Chan).

(91) During lectures in Semester 1 of 2002, the Applicant was able to access handouts,
overhead presentations and slides through the assistance of a note-taker. For the
Applicant's mid-semester and end of semester examinations in Semester 1 of 2002, she
was provided with enlarged text printed on green paper, a separate room, a reader and
extra time to complete the examinations (paragraph 139 of the affidavit of Ms Chan).

(92) In respect of Psychopathology and Behavioural Change -

(a) on or about 8 February 2002 (pre-commencement) the unit outline was provided to
the Applicant in electronic format (paragraph 139 of the affidavit of Ms Chan). The
Applicant reformatted and enlarged the text and printed the document on green paper at
Student Welfare Services; and

(b) the course manual was audio transcribed by NILS and tables and diagrams in the
manual were enlarged (paragraph 139 of the affidavit of Ms Chan, pages 53 to 54 and 73
of Exhibit "AJC"). This material was provided to the Applicant on or about 12 March
2002 (week 2).

(93) In respect of Research Methods 1 -

(a) on or about 4 or 5 March 2002 (week 1) the unit outline was provided to the Applicant
in electronic format. The Applicant reformatted and enlarged the text and printed the
document on green paper at Student Welfare Services (paragraph 139 of the affidavit of
Ms Chan);

(b) interleaved readings were audio transcribed by NILS. This material was provided to
the Applicant on or about 12 April 2002 (week 5) (paragraph 139 of the affidavit of Ms
Chan, pages 105-107 of the Exhibit "AJC"); and

(c) a manual containing "self directed learning materials" was photocopied and enlarged
by Student Welfare Services. This material was provided to the Applicant on or about
21 May 2002 (week 11).

(94) In respect of Neurobiology 1 -

(a) the unit outline and timetable were requested in enlarged format on green paper on 29
January 2002 (pre-commencement) (paragraph 139 of the affidavit of Ms Chan, page 43
of Exhibit "AJC");

(b) Manual 1- Neuroanatomy was enlarged and the text and diagrams were printed on
green paper by the Campus printers. This material was provided to the Applicant on or
about 8 February 2002 (pre-commencement) (paragraph 139 of the affidavit of Ms Chan,
pages 26 and 43 of the Exhibit "AJC");

(c) the unit manual was enlarged onto A3 paper as NILS advised that the manual was
unsuitable for audio transcription following a request by the Applicant. This material was
provided to the Applicant on or about 28 March 2002 (week 4/5) (paragraph 139 of the
affidavit of Ms Chan, pages 43,58,59,60, 65,66,67,68,73,75,91,92,93 and 94 of Exhibit
"AJC"); and

(d) the Neurophysiology lecture notes were enlarged such that diagrams were enlarged,
text typed and pasted onto enlarged sheets. This material was provided to the Applicant
on or about 8 February 2002 (pre-commencement). The Applicant did not pursue an offer
by the Student Welfare Services Division to retype the manual and interleave enlarged
diagrams (paragraph 139 of the affidavit of Ms Chan).
(95) In respect of Components of Occupational Performance IIA, lecture notes and
handouts were reformatted and enlarged by the lecturer for this subject, Ms Kirsty
Stewart. Ms Stewart provided this material directly to the Applicant at various times
(paragraph 139 of the affidavit of Ms Chan, page 63 of Exhibit "AJC").

(96) In respect of Human Occupations IIA -

(a) the unit outline was provided to the Applicant in electronic format on 13 March 2002
(week 2) (paragraph 139 of the affidavit of Ms Chan);

(b) the manual entitled "Activities, Analysis and Application" was enlarged and audio
transcribed by NILS. This material was provided to the Applicant on or about 27 March
2002 (week 4) (paragraph 139 of the affidavit of Ms Chan, pages 65-68, 82-85,105-106
of Exhibit "AJC");

(c) the manual entitled "Module 2: Activities as Therapy" was provided to the Applicant
in audio format on 12 April 2002 (week 5) (paragraph 139 of the affidavit of Ms Chan,
page 107 of Exhibit "AJC");

(d) the manual entitled "Leisure" was provided to the Applicant in electronic format on
12 April 2002 (week 5) (paragraph 139 of the affidavit of Ms Chan);

(e) chapters of the textbook entitled "Australian Leisure" were reformatted into audio
and provided to the Applicant on 15 April 2002 (week 9/10). This request was only made
by the Applicant in week 5 (paragraph 139 of the affidavit of Ms Chan, pages
105,106,108-110 of Exhibit "AJC");

(f) the document entitled "Leisure Reader-Readings" was audio transcribed by NILS.
This material was provided to the Applicant on or about 30 April 2002 (week 8)
(paragraph 139 of the affidavit of Ms Chan; pages 28,97-98,100-101, 105-106 of Exhibit
"AJC"); and

(g) the units of study were provided to the Applicant in electronic format on 20 or 21
March 2002 (week 3) (paragraph 139 of the affidavit of Ms Chan).

(97) In respect of Occupational Therapy, Theory and Process IIA -

(a) the unit outline and two case studies were provided to the Applicant in electronic
format on or about 28 February 2002 (pre-commencement) (paragraph 139 of the
affidavit of Ms Chan);

(b) the tutorial workbook in respect of tutorials 1-6 was enlarged and provided to the
Applicant in the period between on or about 6 March 2002 (week 1) (prior to the relevant
tutorial) (paragraph 139 of the affidavit of Ms Chan; pages 48-50,65-68 of Exhibit
"AJC");
(c) the tutorial workbook in respect of tutorials 1 and 2 was audio transcribed by NILS.
This material was provided to the Applicant on or about 25 March 2002 (week 4)
(paragraph 139 of the affidavit of Ms Chan, pages 82-85 of Exhibit "AJC") Although the
audio version of this material was received after the relevant tutorial, the Applicant had
access to the enlarged versions from week 1;

(d) the tutorial workbook in respect of tutorial 7 was audio transcribed and tables and
diagrams were enlarged on light green paper by NILS. This material was provided to the
Applicant on or about 12 April 2002 (week 5) (prior to the relevant tutorial) (paragraph
139 of the affidavit of Ms Chan; pages 105, 106 and 111-114 of Exhibit "AJC");

(e) the tutorial workbook in respect of tutorial 8 was enlarged on light green paper by
NILS. This material was provided to the Applicant on or about 22 April 2002 (week 7)
(prior to the relevant tutorial). On 30 April 2002 (week 8) an audio version of the tutorial
was provided to the Applicant (paragraph 139 of the affidavit of Ms Chan; pages
105,106, 150-155 and 192 of Exhibit "AJC");

(f) the tutorial workbook in respect of tutorial 9 was audio transcribed by NILS. This
material was provided to the Applicant on or about 14 May 2002 (week 10). Enlarged
diagrams were provided to the Applicant on or about 17 May 2002 (week 10). This
material was delayed due to changes in the method of reformatting and the need to obtain
an original copy of the tutorial (paragraph 139 of the affidavit of Ms Chan; pages 105,106
and 141-149 of Exhibit "AJC");

(g) the tutorial workbook in respect of tutorial 10 was audio transcribed by NILS and
diagrams were enlarged. This material was provided to the Applicant on or about 8 May
2002 (week 10) and 22 May 2002 (week 11) (paragraph 139 of the affidavit of Ms Chan);

(h) the tutorial workbook in respect of tutorial 11 was audio transcribed by NILS and
diagrams were enlarged. This material was provided to the Applicant on or about 17 May
2002 (week 10) and 22 May 2002 (week 11) (prior to the tutorial) (paragraph 139 of the
affidavit of Ms Chan);

(i) the tutorial workbook in respect of tutorial 12 was audio transcribed by NILS and
diagrams were enlarged. This material was provided to the Applicant on or about 17 May
2002 (week 10) and 22 May 2002 (week 11) (prior to the tutorial) (paragraph 139 of the
affidavit of Ms Chan); and

(j) lectures were provided throughout the semester in electronic format (paragraph 139 of
the affidavit of Ms Chan; pages 71.96, 99 and 116-117 of Exhibit "AJC").

The above demonstrates that, contrary to paragraph 37 of the Applicant's written
submissions, material was provided to the Applicant before or during the week the
relevant tutorial was held in all but two instances. It was unavoidable for this material to
be provided to the Applicant in a piecemeal fashion because NILS was not able to
process the reformatting immediately (13.04.04 P102-103).
(98) In respect of Occupational Roles across the Lifespan II -

(a) the unit outline was provided to the Applicant in electronic format for reformatting
and enlargement on light green paper. This material was provided to the Applicant on or
about 6 March 2002 (week 1) (paragraph 139 of the affidavit of Ms Chan, page 63 of
Exhibit "AJC");

(b) lecture and overhead sheets were provided to the Applicant in electronic format. This
material was provided to the Applicant at various times throughout the semester
(paragraph 139 of the affidavit of Ms Chan, pages 63 and 99 of Exhibit "AJC"); and

(c) the handouts in respect of Leisure and Productivity were provided to the Applicant in
electronic format. This material was provided to the Applicant on or about 26 April 2002
(week 7) (paragraph 139 of the affidavit of Ms Chan, page 27 of Exhibit "AJC").

(99) In respect of Professional Practice II the unit outline was provided to the Applicant
in electronic format on 28 February 2002 (pre-commencement). The Applicant
reformatted this material and enlarged the text for printing on light green paper
(paragraph 139 of the affidavit of Ms Chan).

(100) During the first semester of 2002, the Applicant liaised with Dr Andrea Chan
(Head, Student Welfare Services) and Ms Margaret Arena (Disability Services Officer)
regarding her specific requests in relation to the preparation of course materials in
alternative formats.

(101) In particular, the Applicant was in contact with Disability Services:

(a) on 2 January 2002 regarding library services and information exchange (paragraph 27
of the affidavit of Ms Chan);

(b) on 9 January 2002 regarding materials (paragraph 30 of the affidavit of Ms Chan);

(c) on 7 February 2002 regarding library services (paragraph 41 of the affidavit of Ms
Chan);

(d) on 8 February 2002 regarding library services, special consideration and special
conditions (paragraph 43 of the affidavit of Ms Chan);

(e) on 1 March 2002 regarding library services and information exchange (paragraph 59
of the affidavit of Ms Chan);

(f) on 4 March 2002 regarding library services (paragraph 61 of the affidavit of Ms
Chan);

(g) on 13 March 2002 regarding materials (paragraph 82 of the affidavit of Ms Chan);
(h) on 15 March 2002 regarding materials (paragraph 87 of the affidavit of Ms Chan);

(i) on 20 March 2002 regarding special study room and access to rest bay (paragraph 89
of the affidavit of Ms Chan);

(j) on 21 March 2002 regarding swipe card (paragraph 90 of the affidavit of Ms Chan);

(k) on 9 April 2002 regarding materials (paragraph 102 of the affidavit of Ms Chan);

(l) on 26 April 2002 regarding materials (paragraph 116 of the affidavit of Ms Chan); and

(m) on 30 April 2002 regarding materials (paragraph 124 of the affidavit of Ms Chan).

(102) In the first semester of 2002 the University continued to provide the Applicant
with a note taker to assist with lecture notes in respect of each of the Applicant's courses
(transcript P-148-149).

Ongoing assistance proposed by the university

(103) On 1 May 2003 a meeting was held between the Applicant, Mr Robert Hinchliffe,
Katy Mercer (then Acting Director, Staff and Student Equal Opportunity Unit of the
University), Brett O'Neill (Course Manager and Academic Liaison Officer, School of
Occupation and Leisure Sciences) and Andrea Chan.

(104) On 15 May 2003, the University also informed the Applicant that it would
implement the process as set out in Exhibit 1.

(105) The Applicant did not accept this offer. It appears that the Applicant did not accept
this proposal because she did not like the `tone' or the manner in which the proposal was
presented (transcript P-241 and P-263).

(106) However, the University sought to implement this program without the Applicant's
co-operation.

Jurisdictional issues

(107) The Court must be satisfied that it has jurisdiction where the Disability
Discrimination Act 1992 (Cth) (the Act) is expressed to be an act of limited operation:
Soulitopoulos v LaTrobe University Liberal Club [2002] FCA 1316, Court v Hamlyn-
Harris [2000] FCA 1870 and Purvis v State of New South Wales [2003] HCA 62 at [195]
- [197].

(108) While the Applicant has not identified the basis upon which the claim comes within
the scope of section 12 of the Act, the University has proceeded on the basis that she
relies on section 12(8)(c) of the Act which provides:
(8) The limited application provisions have effect in relation to discrimination against a
person with a disability to the extent that the provisions:

(a)...; or

(b)...; or

(c) give effect to the International Covenant on Economic, Social and Cultural Rights or

(d) ...; or

(e) ......"

(109) The relevant right in the International Covenant on Economic, Social and Cultural
Rights (`ICESCR') is article 13 which in turn provides:

1. The States Parties to the present Covenant recognize the right of everyone to
education. They agree that education shall be directed to the full development of the
human personality and the sense of its dignity, and shall strengthen the respect for
human rights and fundamental freedoms. They further agree that education shall enable
all persons to participate effectively in a free society, promote understanding, tolerance
and friendship among all nations and all racial, ethnic or religious groups, and further
the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the
full realization of this right:

(a) ...;

(b) ....;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by
every appropriate means, and in particular by the progressive introduction of free
education;

(d) ...;

(e) ....

Article 13 must be read with Article 2 of ICESCR which provides:

1. Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
(110) In Purvis v State of New South Wales (2003) 202 ALR 133, HCA 62 at [195] to
[207], Gummow, Hayne and Heydon JJ addressed the need to have regard to these
international instruments when construing the Act.

(111) It is clear from these international instruments that the rights are not cast in
absolute terms. Article 2(1) of ICESCR provides that the rights are to be achieved
progressively.

(112) The second jurisdictional issue is the timeframe for the complaint. In Charles v
Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 Katz J explained that alleged
contraventions that occurred after the complaint was lodged cannot form part of the
complaint which is before the Court. The time frame for the present complaint is January
2001 to 6 May 2002.

Relevant provisions of the Disability Discrimination Act

(113) Following the High Court's decision in Purvis v State of New South Wales (2003)
202 ALR 133 at 218, and recently by the Full Court of the Federal Court in Forbes v
Commonwealth of Australia [2004] FCAFC 95 (4 May 2004), it is clear that the Act does
not impose an obligation to provide different or additional services for a person with a
disability: see also the authorities referred to in paragraph 31 above.

(114) The objects of the Act are consistent with this observation in that section 3 of the
Act provides:

(a) to eliminate, as far as possible, discrimination against persons on the ground of
disability in the areas of:

(i) ...education,

and .....

(b) to ensure, as far as practicable, that persons with disabilities have the same rights to
equality before the law as the rest of the community; and (c) to promote recognition and
acceptance within the community of the principle that persons with disabilities have the
same fundamental rights as the rest of the community.

Section 22 - Education

(115) Part 2 of the Act includes section 22 of the Act which makes it unlawful for an
educational authority to discriminate against a student on the ground of that student's
disability in certain areas.

(116) Section 22(2) relevantly states:
(2) It is unlawful for an educational authority to discriminate against a student on the
ground of the student's disability or a disability of any of the student's associates:

(a) by denying the student access, or limiting the student's access, to any benefit provided
by the educational authority; or

(b) ...; or

(c) by subjecting the student to any other detriment.

(117) While the Applicant's pleadings do not specifically explain the ground upon which
the complaint is brought, it appears that she alleges a contravention of section 22(2) (a) of
the Act.

(118) For the purpose of section 22(2), there is no dispute that:

(a) the Applicant has a disability, namely Oculocutaneous Albinism, within the meaning
of `disability' in section 4(1) of the Act;

(b) the University is an educational authority; and

(c) the Applicant was a student of the University from January 2001.

(119) The term disability discrimination is also defined in section 4(1) as `the meaning
given by sections 5 to 9 (inclusive)' and discriminate is defined as `the meaning given by
sections 5 to 9 (inclusive).

(120) In her reply to the particulars dated 12 September 2003, the Applicant states that
she relies only on section 6. There is no claim concerning `direct discrimination' within
the meaning of section 5 of the Act.

(121) Section 6 defines `indirect discrimination' as follows:

For the purposes of this Act, a person (discriminator) discriminates against another
person (aggrieved person) on the ground of a disability of the aggrieved person if the
discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply
or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

Indirect disability discrimination
(122) Contrary to paragraph 51 of the Applicant's submission, the claim of indirect
discrimination requires the Applicant to establish the following elements:

(a) she was denied access to a benefit provided by the University; or

(b) her access to a benefit provided by the University was limited; or

(c) she was subjected to a detriment; and in doing so -

(1) the University imposed a requirement or condition upon the Applicant;

(2) the Applicant did not or could not comply with the requirement or condition;

(3) a substantially higher proportion of students without a visual disability could comply
with the University's requirement or condition; and

(4) the requirement or condition is not reasonable having regard to the circumstances of
the case.

(123) With respect to each of these elements, the University submits that the Applicant
has either failed to adduce any evidence to address these matters or that the evidence does
not support the necessary factual findings in relation to each element.

Benefit and detriment

(124) The starting point is to identify with some specificity the relevant `benefit' for the
purpose of section 22(2) (a) or `detriment' for the purpose of section 22(2) (c) of the Act.
The University notes that the Applicant has failed to address the starting point which
requires an identification of the relevant `benefit'. Unless the elements of section 22(2) (a)
or (c) apply, then one does not reach section 6.

(125) At paragraph 10 of the Applicant's Particulars of Claim she refers to a failure
provide to the Applicant with the facilities as limiting or denying her access to
educational benefits. It should be noted that section 22(2) does not refer to `facilities' and
a claim that the University has `failed to provide facilities' is not a claim which can be
made within the terms of the Act.

(126) The University sought particulars of this claim and asked the Applicant to specify
any provisions of the Act she alleges the University breached. At that stage, the
Applicant was relying on sections 5 and 6 of the Act.

(127) In her response to this request on 12 September 2003, she objected to the request
and advised she had `provided adequate particulars.' The position remains uncertain.
(128) At no stage in her pleadings, or her response to the request for particulars, has the
Applicant claimed she was subjected to a detriment. This was raised for the first time
during the hearing.

Meaning of "benefit" and "detriment"

(129) The expressions `benefit' and `detriment' are not defined in the Act.

(130) In Ellis v Mount Scopus Memorial College [1996] VADT 16 (29 March 1996), the
Tribunal said when considering section 37 of the Equal Opportunity Act 1995 (Vic):

The notion of benefit and detriment is an objective one. It does not depend on the
subjective perceptions of either the Complainant or the Respondent (R v Equal
Opportunity Board ex parte Burns [1985] VR 317; O'Callaghan v Loder (1984) EOC
92-023; Leonard v Youth Hostels Associations and anor. It is broad enough to cover any
advantage or disadvantage, as long as it is real and not illusory.

(131) The University submits that `benefit' must be defined by reference to identified
`benefits' which the University provides.

(132) The University submits that `detriment' must have a meaning different from the
`denial of a benefit' and that a claim of being subjected to a detriment requires the
Applicant to identify the particular detriment. In comparable State legislation these
expressions have been considered. The notion of detriment has been considered in Shaikh
v Commissioner, NSW Fire Brigades (1996) EOC ¶92-808 and Sivananthan v
Commissioner of Police [2001] NSWADT 44. It has been held that detriment should be
given its common meaning of "loss, damage or injury". It has also been held in those
cases that "the detriment suffered by the complainant must be real and not trivial" and
"whether something constitutes a detriment must be determined objectively and not
subjectively" (see Sivananthan at paragraph 41).

(133) The Applicant's pleadings and refusal to provide particulars make it difficult to
reconcile how she frames her claim for the purpose of section 22(2)(a) and (c) with the
observations of Emmett J in State of New South Wales (Dept of Education) v Human
Rights & Equal Opportunity Commission and Purvis [2001] FCA 1199, where he
addressed the meaning of `benefit' and `detriment' in the context of section 22(2)(a) and
(c) of the Act. He said:

[55] Failing to give special treatment to a student is not necessarily subjecting that
student to a detriment - see paragraph [59] below. On the other hand, if special services
or facilities are available, albeit facilities or services to which a student is not entitled,
denying a student access to those services or facilities may well be denying a benefit
provided by the educational authority. The failure to provide a particular facility or
service is not denying a benefit. However, once the benefit is in fact able to be provided
and is, from time to time provided, denying the student access to the benefit is capable
of falling within s 22 of the Act.
[56] The Commission found that, having recognised that the Complainant had
disabilities that required special services and facilities to function at school, the State
agreed to provide those services and facilities. There is no basis for concluding that that
finding was erroneous. In so far as special services and facilities were provided at the
School, those services and facilities may well constitute a benefit within the meaning of
s 22(2)(a) of the Act.

[57] Of course, the question is whether or not the denial of those benefits constitutes
discrimination. If those services and facilities are provided only to a person with a
disability, the denial of them does not involve treating the person with a disability less
favourably than the educational authority treats or would treat a person without the
disability. The denial of a benefit that is not afforded to a person without a disability is
not, of itself, discrimination within the meaning of s 5(1). Whether it is discrimination
within any other section, such as s 6 is another question altogether.

Detriment

[59] The structure of s 22(2) sheds light on what Parliament intended s 22(2)(c) to cover.
The inclusion of the words "any other" in s 22(2)(c) suggests that s 22(2)(a) and (b) are
examples of detriments. Given this, I do not consider that it was open to the Commission
to find that failing to adjust a policy of general application for a particular student is, of
itself, subjecting that student to a "detriment". It may be discrimination within s 6. ...

[60] .... The failure to provide additional benefits to a student, when such benefits are not
usually provided by the School, is not prohibited by the Act. (emphasis added)

(134) Having regard to Justice Emmett's observations, the University submits that
`benefits' and `detriment' do not extend to accommodating the Applicant's preferences.

(135) In paragraph 41 of the Applicant's submission, she claims that the detriment
suffered by her was that she had been placed under "constant and undue stress". The
Applicant also appears to suggest that she suffered detriment in having to "chase up"
materials (paragraph 42 of the Applicant's submissions) and that the Applicant may have
performed better had she been provided with material in a "timely manner" (paragraph 43
of the Applicant's submissions).

(136) In W v Flinders University of South Australia [1998] HREOCA 19 (24 June 1998)
such an approach to determining `detriment' was not accepted by Inquiry Commissioner
Kathleen McEvoy. As Commissioner McEvoy observed in relation to section 22(2) (c) of
the Act:

The complainant's primary evidence relating to this provision appears to be her assertion
that she was subjected to detrimental negotiations in order to obtain accommodations for
her disability, to which other students were not subjected.

...
I accept that because of her disability, which made it necessary for her to seek
accommodations so that she was not disadvantaged as a consequence of her disability,
the complainant had to undertake negotiations and discussions which did not have to be
undertaken by other students without such a disability. Those negotiations may have well
have been stressful and I am conscious of the complainant's evidence that she was
reluctant and anxious about discussing her disability. However, there no evidence that
establishes that the University subjected the complainant to any such detriment: the
evidence is that the University made available accommodations for persons with
disabilities so that their disabilities did not preclude them from engaging appropriately in
their studies. That the complainant chose to avail herself of such accommodations as
might be negotiated does not mean that the process of negotiation was a detrimental
process imposed on her by the University. I am conscious of the fact that the
complainant's disability to a large degree may negate the notion of "choosing" to access
accommodations for her disability: but I also note that the complainant has on occasion
"chosen" not to seek accommodation for her disability and has successfully undertaken
various courses without such accommodations.

...

Under these circumstances I am satisfied that there is no discrimination pursuant to
s.22(2)(c) of the Act and that the University did not subject the complainant to any
detriment in respect of the negotiations for the accommodation in Language/Arts II in
1995.

(137) Again, having regard to Inquiry Commissioner McEvoy's observations, the
University submits that `detriment' does not extend to "chasing up or reformatting course
materials" as asserted in paragraphs 41 and 42 of the Applicant's written submissions.

(138) The University submits that the Applicant must specify how the claim comes
within the scope of either section 22(2) (a) or (c) of the Act. She has failed to do this.

(139) The University submits that the Court cannot be satisfied that the Applicant has
identified a relevant "benefit" or "detriment". If the claim does not come within section
22(2), then that is the end of the matter.

Requirement or condition imposed by the university on the applicant

(140) If the Court finds that the claim comes within section 22(a) or (c), then the
elements of indirect discrimination become relevant. The Applicant has addressed the
"requirement or condition" at paragraphs 52 to 57 of her submissions.

(141) In his opening address, the Applicant's counsel submitted that the requirement or
condition imposed on the Applicant was similar to that in Waters where McHugh J. held
that a requirement or condition was imposed where a person could only use the services
if "that person was prepared... to endure using the trams without the assistance of
conductors." (see transcript P-6).
(142) At paragraph 55 of the Applicant's submissions, she says that the Federal Court
decision in Clarke v Catholic Education Office is a decision which has "many similarities
to the present case". This, with respect, is not so. First, the decision was the subject of an
appeal to the Full Bench of the Federal Court heard on 6 May 2004 with judgment
reserved [the appeal was rejected: Catholic Education Office v Clarke [2004] FCAFC
197]. Secondly, the claim was concerned with section 22(1)(b) of the Act in relation to
the "terms and conditions" of a proposed enrolment, not section 22(2)(a) or (c). Thirdly,
it concerned a hearing impaired child whose primary means of communication was
Auslan. Further, it concerned Year 7 of High School not University.

(143) One of the grounds of appeal in Clarke was the failure of the primary judge to
identify with specificity the "requirement or condition" which had been imposed by the
school. The quote in paragraph 56 does not cover the various ways in which Madgwick J
described the requirement or condition. With respect, it misstates what McHugh J said in
Waters about "endure". [The Full Federal Court in Catholic Education Office v Clarke
found no error by the primary judge.]

(144) The University submits that the identification of the requirement or condition
imposed is a question of fact. It is also important to identify precisely when it is said that
the requirement or condition was imposed.

(145) In Australian Iron and Steel v Banovic (1989) 168 CLR 165 (`Banovic') at 185,
Dawson J held that it is necessary in each particular instance to formulate the actual
requirement or condition with some precision. The relevant requirement or condition is
therefore the qualification, stipulation or prerequisite which the University imposes upon
the Applicant before she may enjoy one of the existing benefits offered by the
University.

(146) A `condition' or `requirement' is a stipulation which must be satisfied if there is to
be a practical (and not merely theoretical) ability to meet the condition: Styles v The
Secretary of the Department of Foreign Affairs and Trade (1989) 23 FCR 251 at 258. In
Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 987, (2002) 123
FCR 561 Drummond J said at [56]:

... the concept of a "requirement or condition" with which the aggrieved person is
required to comply involves the notion of compulsion or obligation. See the definitions
of "require" and "requirement" in the Macquarie Dictionary, 3rd ed, and the definition of
"condition", which includes the following:

"a circumstance indispensable to some result; a prerequisite; that on which something
else is contingent ... something demanded as an essential part of an agreement ..."

And whether a "requirement or condition" within section 6 has been imposed in the
context of the Disability Discrimination Act will take its colour from the particular
setting in which it is said a prohibition against discrimination created by the Act has been
infringed by indirect discrimination. [122]
(147) In the present matter, the University submits that the only requirement (i.e.
stipulation, demand, prerequisite) imposed on the Applicant was that she achieve a pass
grade in the subjects in which she was enrolled in order to meet the requirements to
graduate with a Bachelor of Applied Science (Occupational Therapy).

(148) This was a requirement imposed upon all students participating in the Bachelor of
Applied Science (Occupational Therapy) in Year 1 in 2001 and Year 2 in 2002.

(149) For the purpose of the Act, the requirement or condition must be imposed upon all
the students in the relevant base group (see below). In this sense, as a `facially neutral'
requirement it must have general application: see Brennan J in Banovic at 170.

(150) With respect to the requirement that students achieve a pass grade in the subjects,
the University imposed no further requirements on students as to how they would
achieve the pass grade. It was and remains for the Applicant to decide how she seeks to
acquire information, to organise her study time, the amount of reading she decided to do,
whether she takes notes, whether she purchases texts books, whether she borrows books
from the Library, whether she forms study groups, whether she seeks assistance from
third persons and the lectures and tutorials she decides to attend.

The Applicant's characterisation of the requirement or condition

(151) At paragraph 57 of her submissions, the Applicant says the requirement or
condition was:

"she [was] prepared to "endure" doing (sic) without all of her course materials being
provided in an alternative format, either at all or at the same time as the other students
received their course materials".

Alternatively at paragraph 51(a) of her submissions, the Applicant says that the
requirement or condition was:

"that the Applicant participate in her university course without all course materials
being provided, when required, in an alternative format."

(152) However, this is not how the claim was pleaded. It is not the "requirement or
condition" which the Applicant raised in her complaint or particulars. The Applicant
should not be permitted to change her claim so significantly at this stage of the
proceedings. If the Applicant has abandoned her claim, then this should have been made
clear. If the Applicant now seeks to amend the claim, then there should be an Application
for leave to amend.

(153) Contrary to the way in which the Applicant puts the matter in her submissions, at
paragraph 10(a) of the Applicant's Particulars of Claim she states the requirement or
condition to be:
"The University required the Applicant to access information without the assistance of
the facilities."

(154) The Applicant does not identify what she means by `information', which on its face
is extremely general and not necessarily related to the particular occupational therapy
course or the types of `information' which she or any person may be required to access
from time to time. The University sought particulars and this request has not been
answered in any way which would assist the University understand this aspect of the
claim. The University has proceeded on the basis that the claim is concerned with a
requirement or condition imposed upon the Applicant and those in her year of study or
the course generally, rather that the whole of the University.

(155) The Applicant pleaded that "facilities" referred to:

(a) in the case of material to be read prior to lectures and tutorials, to be provided with
natural voice audio tapes of all text, together with enlarged diagrams;

(b) in the case of material used in lectures and tutorials, including overhead projection
slides, to be provided with text in 24 Arial font on light green paper together with
enlarged diagrams;

(c) to be provided with all materials in the above format no later than the time they are
provided to other students; and

(d) to be provided with copies of written material which is available to other students
from the Library on 24 point Arial on light green paper.

(156) In answer to the request for further and better particulars, the Applicant said that
`facilities' refers to the `items that make possible the easier performance of teaching'. It is
not clear how this is relevant to the claim as there is no evidence that the relevant
lecturers had any difficulties in providing `facilities' to the Applicant.

(157) The particulars failed to elaborate on the facilities which the Applicant says were
provided. In relation to the University's request, the Applicant said that she objected to
the request apparently on the basis that the request was `unintelligible, unnecessarily
wide and therefore oppressive'.

(158) The University submits that the claim should be determined by reference to the
requirement or condition pleaded in the Particulars of Claim and not as framed in the
written submissions.

Was the applicant required to comply with the requirement or condition?

(159) The University submits that there is no evidence that the University required
the Applicant to access information without the assistance of `the facilities'. This was
never a requirement or condition imposed upon her as part of the Bachelor of Applied
Science (Occupational Therapy) at anytime in 2001 and 2002 either expressly or
inferentially.

(160) Further, there is no evidence that the University required any other student to
access information without the assistance of `the facilities'.

(161) Further, there is no evidence to suggest that the University imposed a condition on
the Applicant that she (or any other student) participate in the University course without
all course materials being provided, when required, in an alterative format.

(162) The University submits that if the Applicant's claim is that she and she alone was
required to access information without the assistance she preferred, then this is not a
requirement or condition within the meaning of the Act. Such a requirement or condition
is not one which was imposed upon all students: see Zygorodimos v Department of
Education and Training [2004] VCAT 128 (3 February 2004).

(163) In any event, the evidence shows that in 2001 the Applicant did not make any
request for facilities or services beyond that provided by the University. It cannot be said
that in these circumstances the University "required" the Applicant to complete her
studies without the facilities. In the first semester of 2002 the University went to
significant lengths to meet the Applicant's requests for material in alternative formats.
While the Applicant may have some minor complaints about the timeliness of some
reformatted material, it cannot be said that the University imposed a general requirement
that the Applicant "endure" without the facilities.

(164) The evidence shows that assistance was available to the Applicant (and other
students including those with and without disabilities) to access information related to a
student's studies at the University. The Applicant agreed that the Library staff were
available to assist students. Ms Hebblewhite explained in some detail the range of
measures she was personally involved in to assist students.

(165) In summary, the University submits that the Applicant has not established that the
condition or the requirement as a matter of fact that she now seeks to impugn, is a
requirement or condition within the meaning of the Act.

(166) Further, even if it could be characterised as a requirement or condition it was not
was imposed by the University upon her or upon any student.

Inability to comply

(167) The Applicant's submissions address this issue at paragraphs 63. However this
paragraph simply makes the assertion that she does not comply. It does not refer to the
"requirement or condition". It does not refer to any evidence to support her contention.

(168) Even if a requirement or condition had been established, there is no evidence that
the Applicant was unable to comply with the requirement or condition.
(169) The inability to comply must be some incapacity to comply.[123] A claim that the
requirement gives rise to an inconvenience or a person would prefer alternatives does not
satisfy the test.

(170) In Australian Medical Council v Wilson (1996) 68 FCR 46 Sackville J said -

A particular individual within a group subjected to discriminatory practices often will
have some chance of complying with the offending condition or requirement. The chances
of compliance may depend on how the condition is administered, or on whether the
individual is able to overcome the practical obstacles placed in his or her path by the
invidious condition or requirement. ... [The] purpose [of the indirect discrimination
provision] is satisfied if the relevant individual in fact does not comply with the condition
or requirement, regardless of whether the non-compliance flows from some immutable
characteristic or from a different cause.

Can a substantially higher proportion of persons without a visual disability comply with
the requirement or condition?

(171) The Applicant addressed this element at paragraphs 58 to 62 of her submissions.

(172) The requirement or condition in question must be imposed upon students with the
relevant disability and students without the disability so a comparison may be made
between the proportions of students with the disability who can comply with the
proportion of students without the disability who can comply.

(173) This aspect requires the Applicant to adduce evidence of the relevant base groups
or pools of students who comply with the requirement or condition: see generally
Banovic.

(174) The identification of the proper base group is critical to the Applicant's claim. It is
not a matter which can be determined by the Court without evidence.

(175) At paragraph 10(b) of the Applicant's Points of Claim she claims that `a higher
proportion of students enrolled in the course without the Applicant's disability are able to
adequately access information'. It is presumed that the reference to the `course' is the
Bachelor of Applied Science (Occupational Therapy). However, the pleadings are silent
on the specific composition of the base group.

(176) It should be noted that the Applicant's pleadings do not contend (as they should)
that students without a visual impairment "access information without the assistance of
the facilities" which is the requirement or condition pleaded in paragraph 10(a). The
University has assumed that the question is whether a substantially higher proportion of
students without a visual impairment can access information without the assistance of
`the facilities'. The question is not whether a substantially higher proportion of students
are "able to adequately access information".
(177) It appears from the Particulars that the Applicant is claiming that the relevant pool
or base group is all students enrolled in all years of the Bachelor of Applied Science
(Occupational Therapy). However at paragraph 61 of the Applicant's written submission,
she departs from her Particulars and submits that the base group "would consist of all
students in the applicant's class" which she says consisted of between 130 and 150
students (transcript P-241 to P-242).

(178) Importantly, the Applicant has adduced no evidence which enable the Court or
University to know the composition of the base group (see paragraph 10 of the Particulars
of Claim): compare Banovic.

(179) The Applicant must have evidence of:

(a) the numbers of students with a visual disability;

(b) the number of students without a visual disability;

(c) the number of students with a visual disability who can comply with the requirement
to "access information without the assistance of the facilities"; and

(d) the number of students without a visual disability who can "access information
without the assistance of the facilities".

(180) Without this evidence, the Court cannot make the necessary findings in relation to
the proportions. These matters must be the subject of evidence and cannot be assumed or
inferred where clear evidence would have been available.

(181) This is a case where the Applicant could have obtained the relevant evidence but
she has not.

(182) In Banovic, the High Court considered the way in which indirect discrimination
claims operate in the context of the Anti-Discrimination Act 1977 (NSW). The relevant
provisions considered by the High Court are expressed in similar terms to section 6 of the
Act. One of the issues on the appeal in Banovic was the composition of relevant base
groups having regard to the way in which the `requirement or condition' was expressed.

(183) In Banovic at page 178, Deane and Gaudron JJ addressed the competing views
about determining the composition of the pool. They said:

The more difficult question concerns the identification of the groups of men and women
which will enable the proportions of complying men and women to be calculated. On that
issue section 24(3)(a) is wholly silent. In the Court of Appeal, Street C.J. held that the
identification of a base group was "a matter of fact to be determined having regard to the
context in which the requirement or condition is imposed", adding that "(i)t will be the
group to which it is directed and which will be divided or segregated by it". On the other
hand, Priestley J.A. (with whom Mahoney J.A. agreed), after a consideration of decisions
based on the similar provision in the Sex Discrimination Act 1975 (U.K.), inclined to the
view that the relevant groups were the male and female populations of New South Wales.

As previously indicated, s.24 (3) (a) requires an exercise which will ascertain whether
sex is significant to compliance with the requirement or condition in question. It may be
expected, as was indicated by Street C.J. in the Court of Appeal, that the base groups
which are appropriate to that exercise will vary according to the context in which the
requirement or condition is imposed. That being so, there is no warrant for reading s.24
(3) (a) as invariably requiring the calculation of proportions by reference to the general
male and female populations. Equally, there is no warrant for reading s.24 (3)(a) as
excluding that calculation if it will reveal the significance, if any, of sex to compliance.
The silence of s.24(3)(a) as to the method of identifying appropriate base groups should,
we think, be taken as requiring the Tribunal to determine for itself the base groups
which will reveal whether sex is a significant factor in compliance. That is not to say
that a determination of the appropriate base groups is merely a finding of fact which is
beyond appellate review by reason of the limitation on appeals in s.118 of the Act.

The determination of the appropriate base groups will ordinarily involve the making of
findings of fact. But it also involves a reasoning process which is not dissimilar from that
involved in the process of determining whether or not evidence is relevant to an issue in a
trial. A decision to select particular base groups involves a question of law, at least in so
far as it is a question of law whether the base groups selected produce the exercise
required by s.24(3)(a), namely, the ascertainment whether sex is significant to
compliance. In this respect, it is necessary to enquire, as was pointed out in the recent
decision of the United States Supreme Court in Wards Cove Packing Company (at pp
4586-4587), whether the groups are "too broad" or "too narrow". That exercise is, in
essence, the same as an enquiry whether irrelevant considerations were taken into
account or relevant considerations were not taken into account. (emphasis added)

(184) Only when a base group is identified, can the Court make a comparison between
the proportions (not the numbers) of the relevant persons without the disability who can
comply with the condition and the proportion of the relevant persons with the disability
who can comply: Banovic 169, 170, 185-6 and 202-3, Commonwealth Bank of Australia
v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 122, Bogle v
Metropolitan Health Service Board (2000) EOC ¶93-069 at paras 185-188 and The State
of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16 at 32. See also
Hunter R Indirect Discrimination in the Workplace at page 206. In this respect, paragraph
61 of the Applicant's submissions incorrectly states the test. It is not a comparison of
numbers but a comparison of proportions.

(185) Then the assessment must be made whether a substantially higher proportion of
students without the visual disability can comply. The expression `substantial' is not
defined in the Act. Further, none of the decisions considering section 24(1) (b) of the Act
or comparable State and Commonwealth enactments have defined substantial.[124] As
such, `substantial' should be given its ordinary meaning. The Macquarie Dictionary, 3rd
Edition 1990 defines `substantial' at page 2111 as follows: "Of a corporeal or material
nature; real or actual...Of ample or considerable amount, quantity size...Of solid character
or quality; firm, stout or strong...Of real worth or value...".

(186) As mentioned above, the Applicant's failure to address this issue even on the most
rudimentary basis makes it impossible for the Court to be satisfied that these important
elements of indirect disability discrimination can be established.

The requirement or condition is not reasonable having regard to the circumstances of
the case

(187) The Applicant's submission addresses this element at paragraphs 64 to 67.

(188) The onus rests with the Applicant to prove the requirement or condition was not
reasonable.

(189) It is not clear the basis upon which the Applicant submits that the requirement or
condition was unreasonable in this case. The Points of Claim provide no particulars.

(190) The Applicant has not addressed any evidence or facts to support her contention
that any requirement imposed by the University was unreasonable.

(191) At paragraph 67 she identifies only three "relevant issues" but fails to address any
of the three issues by reference to specific evidence. In this respect, it is difficult for the
University to respond.

(192) With respect to paragraph 67(c), the University 's "practical ability" to provide the
facilities has not been the subject of any evidence adduced by the Applicant. Further, the
ability to provide facilities is not the test of whether the particular requirement or
condition was not reasonable.

(193) The reference to "unjustifiable hardship" is also misleading. The operation of a
defence of "unjustifiable hardship" (see section 11) does not arise in the present matter.
There is no claim under section 24 of the Act. Section 22(2)(a) or (c) does not provide
any defence of unjustifiable hardship.

(194) Further, it is incorrect for the Applicant to contend (as she appears to do) that
"reasonableness" and "unjustifiable hardship" have the same meaning. They plainly do
not and there is no evidentiary onus on the University to prove reasonableness.

(195) The University submits that if the Court finds that there was a requirement or
condition to access information without the assistance of the facilities imposed, it is a
reasonable requirement and condition in the circumstances of this case.

Judicial consideration of `reasonableness' in indirect discrimination
(196) In Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408
at 429A, Wilcox J considered the approach to determining reasonableness in the context
of the then section 5(2) of the Sex Discrimination Act 1984 (Cth) which was in almost the
same terms as section 6 of the Act. Justice Wilcox said that first, it is necessary to
`ascertain the reasons underlying a Respondent's insistence upon the relevant requirement
or condition' and then ask `whether, having regard to such discriminatory effects as it is
shown to have and considering the question in a practical and not merely theoretical way,
it is, under all the circumstances, objectively justified.'

(197) In the Full Court, Bowen CJ and Gummow J in Secretary, Department of Foreign
Affairs and Trade v Styles (1989) 23 FCR 251 at 263 agreed with the Wilcox J approach
and said:

As Wilcox J held ... the test of reasonableness is less demanding than one of necessity, but
more demanding than a test of convenience. We agree. The criterion is an objective one,
which requires the court to weigh the nature and extent of the discriminatory effect on the
one hand, against the reasons advanced in favour of the requirement or condition on the
other. All of the circumstances of the case must be taken into account.

(198) If the Wilcox J test is the proper test to apply then the Court should first determine
the reasons the University insisted on the requirement or condition. Then, having
determined the reasons for the insistence of the requirement, then the Court must then
consider whether the requirement can be objectively justified in all the circumstances.

(199) In Waters v Public Transport Corporation (1991) 173 CLR 349 the High Court
considered the meaning of reasonableness in the context of section 17(5) of the Equal
Opportunity Act 1984 (Vic). Section 17(5) is not in the same terms as section 6 of the Act
but performed as similar function to section 6.

(200) Mason CJ and Gaudron J were in the minority on the assessment of reasonableness.
They said at 364-5:

Having regard to the purpose of the Act, the general context of s.17(5)(c), the way in
which 'indirect discrimination' has been dealt with in the United States following Griggs
[Griggs v. Duke Power Co. (1971) 401 US 424], and the notion of discrimination as
revealed in the context of ss.92 and 117 of the Constitution, 'reasonable' in that
paragraph is, in our view, to be read as directing an inquiry whether the requirement or
condition reflects a distinction other than one based on status or personal life and, if so,
whether the requirement or condition is appropriate or adapted to that distinction.

(201) The majority judgments of Brennan, Deane, Dawson, Toohey and McHugh JJ
applied the test differently to Wilcox J.

(202) Brennan J at 378 said the reasonableness of the requirement or condition:
. . must be determined by reference to the activity ... in which the putative discriminator is
engaged. Provided the purpose of the activity ... is not to discriminate on impermissible
grounds, the reasonableness of a requirement or condition depends on whether it is
reasonable to impose the requirement or condition in order to perform the activity....

There are two aspects to this criterion of reasonableness: first, whether the imposition of
the condition is appropriate and adapted to the performance of the activity ...; secondly,
whether the activity could be performed.... without imposing a requirement or condition
that is discriminatory ... or that is as discriminatory as the requirement or condition
imposed. These are questions of fact and degree. Effectiveness, efficiency and
convenience in performing the activity ... and the cost of not imposing the discriminatory
requirement or condition or of substituting another requirement or condition are relevant
factors in considering what is reasonable.

(203) Applying this approach to the current matter, Brennan J's focus was not so much on
the University 's insistence for compliance with the requirement but to consider the issue
of reasonableness by reference to the University 's `activities'.

(204) Brennan J noted that `effectiveness, efficiency and convenience in performing the
activity', as well as `the cost of not imposing the discriminatory requirement' or
`substituting another requirement' as relevant factors in considering what is reasonable.

(205) Justice Brennan also noted that the imposition of the requirement or condition was
not of itself discrimination. He explained that `it becomes an instance of discrimination
only by reason of its consequences on others.'(see page 379)

(206) The test is an objective one. This means that the assessment is based on whether the
requirement or condition is reasonable and not based on the Applicant's subjective
preferences.[125]

(207) The test is concerned with reasonableness, not correctness.[126] In Commonwealth
Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112-113
where Sackville J. said:

`[T]he question is not simply whether the alleged discriminator could have made a
"better" or more informed decision. The issue is that posed by the legislation, namely,
whether the requirement is not reasonable having regard to the circumstances of the
case.

(208) Further, as the Court of Appeal in Victoria has recently stated in State of Victoria v
Schou [2004] VSCA 71 (30 April 2004), the question is not whether other alternatives
were reasonable. The assessment must be made of the particular requirement or condition
identified in the complaint.

Application to the present matter
(209) The University submits that the three matters identified by the Applicant do not
address the scope and types of issues which the courts have identified in Styles and
Waters. Rather they appear to assume that the assessment of reasonableness is one of
correctness because she contends that the University could have made a `better decision'
or have done more.

(210) The University submits that the Applicant appears to assume that the Act imposes
an obligation on the University to accommodate the Applicant and further that her
particular preferences should be accommodated. This is an incorrect assumption as the
High Court has recently explained in Purvis v State of New South Wales see paras [81] -
[89], [94], [203] and [217].

(211) The Applicant has not adduced any evidence or addressed the question of
reasonableness by weighing or balancing her interests and the operational requirements
of the University. She appears to be asking the Court to disregard any factors relevant to
the University and make the assessment solely by reference to her. The University
submits this is not the correct test.

(212) The University submits that any assessment of whether the requirement or
condition was reasonable must take into account all of the relevant circumstances of the
case. This includes:

(a) the responsibility of students to be independent in their learning and studies;

(b) the nature of the coursework and assessment tasks to be completed;

(c) the manner in which the various subjects were taught at the University;

(d) the practical effects upon the Applicant and how it impacted upon her learning and
performance, which must be measured objectively;

(e) the level of assistance available to the Applicant at the University;

(f) the way in which the Applicant chose to organise her time and studies;

(g) the level of co-operation and exchange of information between the Applicant and the
University;

(h) the interests of other students and staff;

(i) time constraints and the way in which the University lecturers prepared and delivered
material having regard to the particular conditions of employment for University
lecturers and staff;

(j) the constraints on the University with respect to resources and the numbers of students
who required assistance from time to time;
(k) the information available to the University with respect to the Applicant; and

(l) most importantly, the need to ensure academic integrity in the processes adopted by
the University.

(213) Care must also be taken to avoid involving the Court in management issues. In
State of Victoria v Schou (2001) 3 VR 655 at 660 [30-31, Harper J said:

"When considering in any particular case whether the burden has been discharged courts
and tribunals must act with an appropriate degree of diffidence. The expertise of judges
and tribunal members does not generally extend to the management of a business
enterprise... and just as the courts, in proper recognition of the lack of relevant expertise,
will not in general issue to company directors instructions about how they should
manage the business under their control, so courts and tribunals concerned with equal
opportunity legislation should resist the temptation unnecessarily to dictate to persons
who manage, and work on, the shop floor. At the same time, any discrimination
legislation should be liberally construed. Getting the balance right will often be difficult."

(214) These observations are equally applicable to the management of a University and
the assessment of appropriate academic standards and teaching methods.

(215) The assessment may also take into account the relevant international instruments
which underpin the operation of the Act and that the rights in relation to education must
be progressively realised. The right to education, like most human rights, is not cast in
absolute terms.

The University 's knowledge of the applicant's needs and wishes from time to time

(216) The Applicant's case is that because the University was aware of her needs or
should have been aware of her needs, it was unreasonable for the University to fail to
accommodate her preferences to receive material in the manner she wished to access that
material. The University submits that this contention is based upon a number of
contentions which are not supported by the evidence. It is not the case that the University
knew in any detail what the Applicant's needs were or that it could have known how her
needs could be best addressed.

(217) In the Ap University plicant's written submissions at paragraph 18, the Applicant
claims that the University was "well aware" of the Applicant's needs by early 2001. This
assertion is also reflected in paragraph 20 of the Applicant's submissions. The University
submits that none of the matters referred to in paragraph 18 (and summarised in
paragraph 20) could reasonably constitute notification of the Applicant's needs for the
purpose of assessing any modifications required by the Applicant during her degree.

(218) First, in relation to paragraph 18(a) the University submits that the conversation
between Mr O'Neill and the Applicant in January 2001 cannot reasonably constitute
notification of the Applicant's needs for the purpose of assessing any modifications
required by the Applicant during her degree given:

(a) the nature of the information day and the number of potential students seen by Mr
O'Neill that day (transcript P-300);

(b) the general nature of the discussion between the Applicant and Mr O'Neill (transcript
P-300); and

(c) the fact that the Applicant was not enrolled with the University at that time.

(219) Secondly, in relation to paragraph 18(b) the University submits that the letter to Ms
Gamble on 11 January 2001 cannot reasonably constitute notification of the Applicant's
needs for the purpose of assessing any modifications required by the Applicant during her
degree given:

(a) the letter was addressed to Ms Gamble for the purpose of assessing whether the
Applicant should gain admission into the University (transcript P-181). There is no
evidence to suggest that the Applicant referred to this letter in any conversations with Ms
Hebblewhite or suggested that this material was relevant in assessing the Applicant's
requests during her degree;

(b) the general nature of the statements contained in the letter and attachments. For
example, no information was provided in relation to the Applicant's preference for green
paper or audio materials nor was there any reference to a need for special conditions in
examinations; and

(c) the fact that the Applicant was not enrolled with the University at that time.

(220) Thirdly, in respect of paragraph 18(c) the University submits that the UAC Form
completed by the Applicant cannot reasonably constitute notification of the Applicant's
needs for the purpose of assessing any modifications required by the Applicant during her
degree given:

(a) the general nature of the information requested by the form. As stated by the
Applicant herself in cross-examination the form only asked the Applicant to identify
services she "may/will require" not "what do you need now" (transcript P-171);

(b) the general and incomplete nature of the information provided by the Applicant. For
example, no information was provided in relation to the font preferred by the Applicant
in respect of "enlargements", nor was there any reference to the Applicant's preference
for green paper or audio materials. Similarly no reference was made to the Applicant's
requests for special conditions in examinations (transcript P 170-171, 13.04.04 P-44-45,
P-50);
(c) the fact that the Applicant was not enrolled with the University at the time she
completed the form; and

(d) the Applicant changed her requests to include a preference for material on disc only a
week after a discussion with Ms Hebblewhite in relation to the items set out on the form.

(221) Finally, in relation to paragraph 18(d) the University submits that the meeting
between the Applicant and Ms Hebblewhite on 24 January 2001 cannot reasonably
constitute notification of the Applicant's needs for the purpose of assessing any
modifications required by the Applicant during her degree given:

(a) the purpose and brief duration of the meeting; and

(b) Ms Hebblewhite made it clear during the meeting that the Applicant should come and
see her again once the semester commenced (transcript 13.04.04 P-32, P-52).

(222) In the Applicant's written submissions at paragraphs 21 and 22, the Applicant
claims that there were "good reasons" why the Applicant should not have been expected
to complain if material was not provided in her preferred format. The Applicant also
suggests that she was required to be "strong and firm" or "pushy" in her requests.

(223) The University submits that it was not unreasonable to expect the Applicant to
make some form of complaint or raise the issue with Ms Hebblewhite if she felt that the
accommodations provided during 2001 were inadequate given that:

(a) it is the responsibility of students at a University to take responsibility for their own
learning. This is a generic attribute expected of all students at the University (transcript
P-133 to P-134);

(b) in 2001 there were approximately 85 students registered with the Disability Services
Office at the Cumberland campus. It was not possible or practicable for Ms Hebblewhite
to contact each student individually to ascertain their progress and to specifically ask
each student if additional services or accommodations were desired by the student
(paragraph 23 of the affidavit of Ms Hebblewhite);

(c) Ms Hebblewhite regularly sent out newsletters which reminded students to contact Ms
Hebblewhite in relation to any requests for special accommodations (paragraph 56 of the
affidavit of Ms Hebblewhite);

(d) it was Ms Hebblewhite's experience that some students registered with the Disability
Services Office did not need or want assistance from Disability Services (transcript
13.04.04 P-13). Further, Ms Hebblewhite's review of the Applicant's results in Semester
1, 2001 did not indicate that the Applicant required further assistance (paragraph 78 of
the affidavit of Ms Hebblewhite);
(e) as Ms Hebblewhite was not, and could not be expected to be, familiar with the
requirements and materials of each of the Applicant's subjects (as well as the other 84
students registered with the Disability Services Office), the Applicant was in the best
position to inform Ms Hebblewhite if her preferences were not met and the appropriate
way to rectify any problems. Ms Hebblewhite acted as a conduit for information and
materials and required the Applicant to tell her if some material was omitted or not
provided in the Applicant's preferred format (transcript 13.04.04 P-36, P-44, P-47, P-
49,P-56);

(f) in some cases it was not possible for certain material (for example journal articles) to
be either provided on disc (the Applicant's stated preference at that time) or enlarged to
22 or 24 font Arial on green paper (see for example transcript P-128, P-154). It is clear
from the events of Semester 1, 2002 that a great deal of negotiation and consultation was
required before a decision could be made as to the appropriate format for each type of
material to be used by the Applicant (see paragraphs 38-139 of the affidavit of Ms Chan;
P154-159). Given the complexities in reformatting material in accordance with the
Applicant's wishes it is not reasonable for the Applicant to assume that this could occur
without detailed input from the Applicant;

(g) contrary to the submission of the Applicant, the Applicant was not required to be
"pushy" or "strong and firm" in her requests for assistance in Semester 1, 2001. These
words were taken from Ms Hebblewhite's recollection of a conversation between the
Applicant and Ms Hebblewhite in relation to what might happen following Ms
Hebblewhite's departure (transcript 13.04.04 P-73). There is nothing to suggest that the
Applicant was required to be "pushy" in 2001, rather the Applicant gave evidence that
she found Ms Hebblewhite approachable and that she was in no way intimidated by Ms
Hebblewhite (transcript P-189). Similarly, Ms Hebblewhite's evidence is that she chatted
with the Applicant on a regular basis and felt that she had a good relationship with the
Applicant (paragraph 66 of the affidavit of Ms Hebblewhite);

(h) the evidence shows that Ms Hebblewhite followed up on specific requests made to her
by the Applicant. This is evident by the steps Ms Hebblewhite took to arrange for
materials to be placed on disc (the Applicant's stated preferred format) (paragraphs 38-43
of Ms Hebblewhite's affidavit). Similarly, when an issue arose in relation to a mid-
semester examination in the subject Components of Occupational Performance 1A, Ms
Hebblewhite took steps to see that this issue was resolved (transcript P-153); and

(i) the only reason proffered by the Applicant in relation to why she did not make any
complaint to Ms Hebblewhite was on the basis of an "assumption" or a "vibe" that the
University would not assist her. The Applicant admitted that at no time did the University
tell the Applicant that it would not consider her requests for assistance (transcript P-194.
P-203, P-209-211, P-284).

(224) In the Applicant's written submissions at paragraph 23, the Applicant claims that it
can be inferred that the University was either unwilling or unable to provide material in
an "accessible format". The Applicant further claims in this paragraph that the evidence
of Ms Hebblewhite was "revealing on this point" and that Ms Hebblewhite was reluctant
to take responsibility for the provision of material to the Applicant. The University
submits that:

(a) this inference cannot be drawn from the fact that Ms Hebblewhite could not recall
viewing certain materials. As mentioned above, Ms Hebblewhite was not, and could not
be expected to be, familiar with the requirements and materials of each of the Applicant's
subjects (as well as the other 84 students registered with the Disability Services Office).
Ms Hebblewhite merely acted as a conduit for information and materials (transcript
13.04.04 P-36, P-44, P-47, P-49,P-56) and in these circumstances it is hardly
"extraordinary" that she could not recall viewing certain materials; and

(b) similarly, this inference cannot be drawn from the fact that Ms Hebblewhite referred
to the roles of Mr O'Neill and the Applicant's lecturers. Ms Hebblewhite was pointing out
that contributions from a number of individuals (including the Applicant) were required
in order to meet the Applicant's requests (13.04.04, 39,49,44,62).

(225) In the Applicant's written submissions at paragraph 28, the Applicant claims that
there was similarly a "palpable reluctance" on the part of Ms Chan to take responsibility
for the reformatting of the Applicant's materials. The University submits that the matters
referred to in paragraphs (90) to (101) demonstrate that this is manifestly incorrect.
Rather, a greatly disproportionate amount of Ms Chan's time was spent on the Applicant
as opposed to other students registered with the Disability Services Office (paragraph 143
of the affidavit of Ms Chan).

(226) In the Applicant's written submissions at paragraph 29 the Applicant claims that the
University sought to put an onus on the Applicant to "chase up" lecturers to determine
what material needed to be reformatted and in what form. The University submits that
this was not the evidence of Ms Chan. Rather, Ms Chan's evidence was that she had no
indication from the Applicant that the Applicant would have difficulties in determining
the appropriate format for materials and, if in fact this information was required by the
Applicant, she expected the Applicant to contact her lecturers to obtain this information
(transcript 13.04.04, P95-96). Further, the University submits that it is hardly "incredible"
that Ms Chan would be concerned to obtain permission from the Applicant before talking
to lecturers about the Applicant's requests.

(227) In relation to paragraphs 41 to 43 of the Applicant's written submissions the
University submits that:

(a) there is no evidence that the Applicant was placed under "constant and undue stress".
Even if there was evidence to support this assertion there is no evidence as to any causal
relationship between the actions of the University and any stress suffered by the
Applicant;

(b) there is no evidence to support the inference that students other than the Applicant did
not have to "spend their time chasing or reformatting materials, but would instead spent it
on study, research and completing assignments". Similarly there is no evidence to support
the assertion that the Applicant did not have time to complete these tasks, rather the
academic results of the Applicant demonstrate that she did complete the requirements of
her degree during the relevant time period. Further, there appears to be an incorrect
assumption that other students "received" course materials before the Applicant. Rather
the evidence is that the vast majority of materials were not provided to students but rather
were available for purchase (transcript 13.04.04 P-101); and

(c) there is no objective evidence to support the Applicant's assertion that her "academic
potential was compromised."

(228) Further, Ms Hebblewhite produced a newsletter which advised students of the
available services and the need for students to contact her to make arrangements for the
provision of such services.

Level of assistance provided

(229) Annexure A provides a detailed breakdown of each of the subjects that the
Applicant completed and the material required for each part of the course. In each case,
the evidence shows that the particular information which was required was provided to
the Applicant. Where she requested material in a particular format, then those requests
were accommodated where possible.

(230) To the extent that the claim is that the Applicant's preferences should have been
accommodated and that the University should have anticipated the Applicant's
preferences without being informed, then these are not the `requirements' which are
allegedly imposed upon her.

Co-operation between the parties

(231) As the University has submitted, the Act does not impose an obligation to
`reasonably accommodate' a student with a disability. Even though there is no legal
obligation to provide `reasonable accommodation', the University has a policy of
providing assistance to students with disabilities. The fact that the University has such a
policy in place, does not mean that the extent and level of `accommodation' is unlimited.
The measures that the University has put in place are relevant to the assessment of
reasonableness.

(232) Even in those jurisdictions that impose an obligation on a service provider to
reasonably accommodate the person with the disability, the conduct of the respondent
and the Applicant are relevant considerations in determining the nature and extent of
reasonable accommodation.[127]

(233) There is an interactive process that both parties are required to participate.
(234) In Beck v University of Wisconsin Board of Regents 75 F.3d 1130 (7th Cir. 1996)
the employer and employee had engaged in an interactive process to determine the
appropriate reasonable accommodation, however this process had ultimately broken
down. In these circumstances, the Court held that:

"...courts should look for signs of failure to participate in good faith or failure by one of
the parties to make reasonable efforts to help the other party determine what specific
accommodations are necessary. A party that obstructs or delays the interactive process is
not acting in good faith. A party that fails to communicate, by way of initiation or
response, may also be acting in bad faith. In essence, courts should attempt to isolate the
cause of the breakdown and then assign responsibility. For example, the cause of the
breakdown might be missing information."

(235) In that case, the Court found that responsibility for failure to isolate the necessary
specific accommodations fell on the employee. The employer never knew exactly what
action it needed to take and was found to have fulfilled its obligations under the ADA.

(236) These principles have been cited and/or applied in a number of subsequent US
decisions including Bultemeyer v Fort Wayne Community Schools (7th Circuit Court of
Appeals, 18 November 1996), Willis v Conopco Inc (11th Circuit Court, 25 March 1997),
Bombard v Fort Wayne Newspapers Incorporated (7th Circuit Court, 12 August 1996),
Dvorak v Mostardi Platt Associates Inc (7th Circuit Court, 10 May 2002), Barnett v US
Air (9th Circuit Court of Appeals, 1998) and Mole v Buckhorn Rubber Products Inc (8th
Circuit Court, 1999).

(237) In Mole, the Court cited the decision of Ferry v Roosevelt Bank 883, F. Supp. 435,
441 (E.D. Mo. 1995) in which the Court stated than an employee:

"cannot expect the employer to read [his/her] mind and know [he/she] secretly wanted a
particular accommodation and [then] sue the employer for not providing it."

(238) A similar approach is also taken in the Canadian jurisdiction. In Central Okanagan
School District No 23 v Renaud [1992] 2 SCR 970, the Supreme Court of Canada held
that the complainant must do his or her part to facilitate the search for accommodations,
and that in determining whether the duty of accommodation has been fulfilled, the
conduct of the complainant must be considered. The Court also stated:

"When an employer has initiated a proposal that is reasonable and would, if
implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the
implementation of the proposal. If failure to take reasonable steps on the part of the
complainant causes the proposal to flounder, the complaint will be dismissed. The other
aspect of this duty is the obligation to accept reasonable accommodation...The
complainant cannot expect a perfect solution. If a proposal that would be reasonable in
all the circumstances is turned down, the employer's duty is discharged."
(239) This principle has been cited and/or applied by the Canadian Federal Court of
Appeal in a number of decisions, including Toronto Dominion Bank v Canada (Human
Rights Commission) [1998] 4 FC 205, Guibord v The Queen [1997] 2 FC 17, CHRC v
CHC (1996-10-04) FCT T-2503-94 and Tremblay v Canada (Attorney General) [2003]
FCT 465.

(240) In Tremblay, the Court held that whilst the Applicant had provided his employer
with facts relating to his disability and a general idea of what accommodations would be
necessary, he did not make suggestions about what type of accommodations would
satisfy his needs when given this opportunity by his employer. The Court found that the
Applicant could have been more explicit in making known to his employer why he felt its
proposal was deficient and suggest possible remedies for any shortcomings. The Court
found that the Applicant had felt that it was his employer's sole responsibility to approach
him in order to get the required information, and could have facilitated the co-operative
process by openly sharing information.

(241) The requirement of an "interactive process" in Australia was briefly considered in
Finney v The Hills Grammar School (2000) EOC ¶93-087. The School in that case
argued that section 22(4) of the Disability Discrimination Act 1992 (Cth) requires the
burden of establishing the services and facilities to be shared between the complainant
and the respondent through an interactive process. In that matter, the issue was concerned
with section 22(1) of the Act and a complaint of direct discrimination.

(242) Commissioner Innes agreed that the most appropriate way to approach the process
of establishing which services and facilities are required is though a "combined effort" or
"shared burden" and that the process must be interactive.

(243) On the basis of these US and Canadian cases and the decision in Finney, the
University submits that the facilities and accommodations required by the Applicant
should have been determined through an interactive process. The University submits that
the burden of establishing the appropriate facilities and accommodations was shared
between the parties. It is not the case, as the Applicant suggests in this case, that the
University should have known what she needed based on the University Admission
documents.

(244) The University discharged its obligation to participate in this interactive process as
a consequence of the numerous meetings and conversations that Sue Hebblewhite and
Andrea Chan were involved in seeking to establish how best to accommodate the
Applicant's needs.

(245) In contrast, the Applicant failed to discharge her obligation in this regard by failing
to inform the University as to the specific accommodations that she required. The
Applicant expected the University to "read her mind" in relation to her needs.

(246) The Applicant also failed to advise the University as she perceived her needs as
they changed.
(247) The Applicant failed to assist her own circumstances. It is clear that she did not
follow the recommendations of the Orthoptist, in relation to seating positions etc
(transcript P-226, P-227). She did not seek the assistance of the librarians because she
assumed she had a higher skill level than them (transcript P-237). She did not use green
paper for note taking and she did not make any request to Ms Hebblewhite or any other
person to obtain green paper (transcript P-190).

(248) The Applicant herself concedes that no one format will be sufficient for all the
different types of assessment and work she seeks to undertake while attending the
University (transcript P154-165).

(249) In summary, having regard to all the circumstances of this case, the steps taken by
the University, the lack of co-operation on the part of the Applicant and circumstances of
the case demonstrate that any requirement and condition was reasonable.

(250) Accordingly, the University submits that the proceedings should be dismissed.

Relief and remedies

(251) The Applicant's written submissions address this issue at paragraphs 68 - 70.

(252) If the Court finds the claim substantiated, the University submits that the
appropriate remedy is a declaration and then no further action be taken as per section
46PO(4)(f) of the HREOC Act which provides that the Court may make an order
declaring that it would be inappropriate for any further action to be taken in the matter.

(253) The Applicant amended her claim in relation to the relief sought. She now seeks:

(a) a declaration that the University has unlawfully discriminated against the Applicant
by limiting or denying her access to educational benefits provided by the University; and

(b) general damages.

(254) In the Applicant's Points of Claim she alleges that she has suffered hurt and
disruption to her education (paragraph 12). The University requested further particulars
of this claim. The Applicant failed to answer this request for particulars.

(255) It is submitted that there is no evidence that there has been any "disruption" to the
Applicant's education. She has not failed a subject. She has not repeated subjects. She has
progressed through the course with her peers. She has not sought or required a leave of
absence or time out of her course.

(256) In the Applicant's counsel's opening address, he said the Applicant's claim is that
she was `upset, inconvenienced and denied enjoyment of her educational experience'
(transcript P-55).
(257) The University submits that `upset, inconvenience and denied enjoyment of her
educational experience' are not matters where general damages could be ordered even if
the Applicant is successful.

(258) The Applicant has adduced no evidence of damage or loss which is compensable.
There is no claim made for a psychological injury or damage. The University can find no
authority where damages have been awarded for `upset, inconvenience and denial of
enjoyment of her educational experience'.

(259) In Clarke v Catholic Education Office supra (although under appeal on the question
of quantum), Madgwick J awarded damages because of a 12 year boy's distress,
confusion and removal from friends. This was a very different case to the present one.
His Honour made the following observations:

83 It was faintly suggested, on the strength of remarks made in a case decided by the
Human Rights & Equal Opportunity Commission, that there were policy reasons why
damages for a breach of the DDA should be substantial. It was also faintly suggested that
an award should not be so low that it might be eaten up by non-recoverable costs. Both
propositions must be rejected. Damages are compensatory and no more.

84 Fortunately, as matters transpired, the injury to Jacob has probably not been great:
the injury to his parents' sensibilities may have been acute but the damages are not to
compensate them. They are to compensate the "aggrieved person", namely Jacob.

85 Jacob would have been distressed and confused by the events in question. As a result
of the respondents' proscribed conduct, he was effectively removed from the company of
his primary school peers and friends on his transition to high school. Further and very
significantly, these were friends who had learned Auslan. That would be very distressing.
His transition was from a religious to a secular milieu, an added degree of change to
cope with. As a child, it is very likely that he would and did register the respondents'
attitude as one of rejection of him on account of his deafness, even though the
disinterested adult can see that the position was much more complex than that. That
would have been hurtful.

86 In the scheme of things, the harm to Jacob is likely to prove to have been transient and
not extreme. There is no warrant to inflate damages. In my view $20,000 together with
some allowance for interest on three quarters of that sum would be ample compensation.
I assess such interest at $6,000.

(260) The general approach to assessing damages is to follow the torts based principle of
placing the Applicant in the situation she would have been had the discrimination not
occurred: see Hall v Sheiban (1989) 20 FCR 217.

(261) If the tort model is adopted, then compensation is not awarded where the claim
relates to emotional injury but does not result in a recognised psychiatric illness.
(262) It is not open to compensate the Applicant where the `upset' is an annoyance or
inconvenience.

(263) In Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191
ALR 449, Gleeson CJ noted that:

It was common ground in argument that, save in exceptional circumstances, a person is
not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance,
or despondency, without any resulting recognised psychiatric illness. (at 453)

(264) Gleeson CJ referred to Frost v Chief Constable of South Yorkshire [1999] 2 AC
455 where Lord Goff of Chieveley at 469 said that the plaintiff must have suffered
psychiatric injury in the form of a recognised psychiatric injury.

(265) The function of this principle is to exclude claims in respect of normal emotions
such as grief or distress. Lord Keith of Kinkel in Page v Smith [1996] 1 AC 155 at 167
said of the same expression. `there must be some serious mental disturbance outside the
range of normal human experience, not merely the ordinary emotions of anxiety, grief or
fear.' This is not the present case.

(266) In this case:

(a) the Applicant passed all of her subjects in 2001 and the first semester of 2002;

(b) while the Applicant was aware that it was possible to take "time out" from her degree
or complete her degree over a longer period than usual, the Applicant did not need to
avail herself of this option (transcript P-120);

(c) the Applicant maintained part-time employment during 2001 and the first semester of
2002. During the summer break the Applicant worked the equivalent of full time hours
(transcript P-121-122);

(d) the Applicant gave evidence that she was "happy" with her results in 2001 (transcript
P-128, P-129). The Applicant gave evidence that she was not happy with her results in
2002. However, this disappointment arose chiefly from her failure to achieve an
unconditional pass in a subject in the second semester of 2002 (outside the complaint
period) (transcript P-131);

(e) the Applicant's slight disappointment in respect of the first semester of 2002 also
appears to be in comparison with her results in 2001, rather than on an objective basis
(transcript P-130). Indeed, in 2002, the Applicant was provided with additional assistance
beyond that she had sought in 2001; and

(f) there is no causal link between any act (or inaction) on the part of the University and
the Applicant's results at the end of first semester 2002 which post-date the complaint.
(267) It was open to the Applicant to adduce evidence that her loss and damage was of
such a nature that it should be compensated. However, there is no such evidence.

(268) The observations of the Applicant's mother are not in the University 's submission
sufficient evidence for the Court to make an order that the University compensate the
Applicant.

(269) At paragraph 70 of the Applicant's written submissions, she refers to Clarke and
Fetherson. First, Clarke is under appeal which includes an appeal in question. Secondly,
Fetherson in obiter has the complaint dismissed. The Applicant cites no relevant
authority to support her claim for general damages. The University submits that any
claim for damages should be dismissed.

Costs

(270) On the question of costs, the University seeks to make submissions on the issue of
costs when the Court determines the question of liability. In particular, the University
will seek to make submissions on the question of costs thrown away by the late
amendment of the claim to seek only damages, as well as other matters which concern the
question of costs for certain interlocutory matters.

93. The following submissions in reply by the applicant were received in my chambers
on 17 June 2004 and filed on 21 June 2004:

1. The respondent's case on the evidence appears to be:

a) The applicant's "requirements" and "needs" to be able to access her course materials
were really no more than "preferences": see, for example, respondents' submission at [11]
and [[36].

b) The respondent was not made aware of the applicant's needs.

c) In any event, the respondent complied with the requirement that it provide materials to
the applicant in an accessible form.

2. As to (a), "needs" versus "preferences", the respondent has not suggested any format
which would have enabled the applicant to be able to access her course materials other
than those which, on her evidence, were necessary. Indeed, by taking (inadequate) steps
to provide materials in the format requested by the applicant, the respondent appears to
have accepted that these were necessary. The applicant's expressed "preference" for
materials in particular formats were her "needs".

3. As to (b), the awareness of the applicant's needs is a matter which will have to be
weighed up on the evidence. The applicant says that the evidence is conclusive that the
respondent knew what the applicant required; it was in the delivery of those requirements
that the respondent failed.
4. As to (c), an assessment of what was actually provided by the respondent will again
require a comparison of the evidence by each party. The applicant says that it is clear
from Tables 1 and 2 annexed to the applicant's submission that the provision of materials
by the respondent - particularly in 2001 - was woefully inadequate.

5. The respondent, at [103]-[106], has sought to make something of a meeting and
correspondence between the parties in May 2003. The respondent had introduced this
evidence in response to the applicant's claim, in par. 13(b) of her amended particulars of
claim dated 9 July 2003, that the respondent forthwith provide the applicant with
facilities. This claim was withdrawn during the hearing[128], as a result of which the
respondent's counsel indicated that the applicant would not be required to provide any
further evidence on the issue.[129] The evidence and submissions on this point should
therefore be ignored, not only because it is now irrelevant, but also because the applicant
was not provided with an opportunity to fully deal with the issue in her evidence.

Jurisdictional issue

6. The respondent, at [107]-[112] has, somewhat half-heartedly, raised a jurisdictional
issue, although it is not entirely clear what the respondent is getting at here. The
respondent, at [108]-109] in fact appears to accept that s. 12(8)(c) of the DDA provides
jurisdiction in this matter, thereby answering its own apparent question as to jurisdiction
in this case.

7. The respondent has had over a year to challenge the jurisdiction of the Court in these
proceedings, and it should not at this stage be entitled to raise the issue in such an
unspecific manner.

8. As to the temporal limitation referred to by the respondent at [112], the applicant has
made it clear that it accepts that the relevant dates in which acts of discrimination are to
be considered is between January 2001 and 6 May 2002. This is not to say that evidence
which took place outside these parameters cannot be considered. Indeed, evidence of
what took place before January 2001 is crucial for an understanding of the acts of
discrimination that subsequently occurred.

Relevant provisions of the DDA

Different or additional services?

9. The respondent's assertion, at [113], that Purvis and Forbes are authority for the
proposition that "the Act does not impose an obligation to provide different or additional
services for a person with a disability" is incomplete and inaccurate.

10. Purvis and Forbes were both cases involving direct discrimination under s. 5 of the
DDA, and in each case the Court was careful to limit the "no different or additional
services" principle to s. 5: see Purvis at [218] and Forbes at [85]. In the majority
judgement in Purvis, Gummow Hayne and Heydon JJ were careful to preserve the
indirect disability discrimination principle in s. 6:

None of the considerations just mentioned denies the importance of giving full effect to
the indirect disability discrimination provisions of the Act. Well before the Parliament's
enactment of the Act, the Sex Discrimination Act or the Racial Discrimination Act, it had
been recognised in the United States that, in some cases, nominally equal treatment can
disguise discrimination. As Gaudron and McHugh JJ were later to point out in
Castlemaine Tooheys Ltd v South Australia, to proceed as if there is no difference, even
though there is a relevant difference, may be discriminatory. But as later developments in
connection with affirmative action and reverse discrimination legislation in the United
States reveal, there is considerable room for debate about when apparently "equal"
treatment is to be understood as being discriminatory and apparently unequal treatment is
not.[130]

11. To remove the possibility that different or additional services may be required to
address indirect disability discrimination under s. 6 would rob the provision of any
effectiveness. It is clear that, for the provision to work, a person suffering from a
disability will naturally require different or additional services, whether it be means of
physical access[131] or the use of an interpreter.[132]

Benefit and detriment

12. The respondent's submission in relation to "benefit" and "detriment" at [124]-[139] is
essentially an attempt to use legalese in order to mount a technical defence to the
applicant's claim.

13. The limitation or denial of access to benefits provided by the respondent referred to in
par. 10 of the applicant's particulars of claim are clearly a reference to the provision of
course materials in a way that the applicant could access them in order to fully participate
in her studies. "The facilities" referred to in par. 10 were fully particularised in par. 7 of
the particulars of claim.

14. The respondent was in the business of providing the benefits claimed by the applicant
to have been limited or denied. Broadly, it provided educational benefits by way of a
degree course. More narrowly, it provided assistance to students with disabilities in
accessing course materials, as indicated in various documents provided in evidence.[133]

15. Had the respondent been in any doubt as to the benefits to which the applicant
claimed to have been limited or denied access, it could have sought particulars of this
aspect of the claim in its voluminous request for further and better particulars filed with
the Court on 4 September 2003. Nowhere were such particulars sought in this document.

16. A comment should be made on the respondent's criticism of the applicant, at [133],
for "refusing" to provide particulars in response to the request for further and better
particulars.
17. A copy of the request and the applicant's response is annexed. As can be seen, the
applicant did not "refuse" to provide particulars. The applicant did in fact provide some
of the particulars requested. However she objected to a number of the requests on the
grounds that they were unintelligible, unnecessarily wide and therefore oppressive. The
respondent did not seek to initiate interlocutory proceedings to enforce the request for
further and better particulars.

18. The applicant did provide the specific particulars that she was criticised as not having
provided in [126]-[127] of the respondent's submission; namely, the provisions of the Act
and in particular whether the applicant alleged that the respondent was in breach of either
s. 5 or 6 of the DDA: see request for further and better particulars at [9]. This was
answered in the applicant's response to the request, at [8], which specified that the
respondent was in breach of ss. 6, 22 and 24 of the DDA.

19. The applicant maintains that she was entitled to object to the way in which the request
for further and better particulars had been framed, on the grounds that they were
unintelligible, unnecessarily wide and therefore oppressive. To take just one example,
par. 9(a) of the request in conjunction with the definition section at pp. 1-2 of the request
would have required the respondent to prepare and provide the following information:

* each act, fact, matter, circumstance, thing, error, neglect or fault relied upon or
consisting the allegation that the respondent had failed to provide the applicant with
natural voice audio of "material" (to be further specified in accordance with the definition
section of the request by providing the document title or description of the material or
information and the name of the university course or subject the material relates to) to be
read prior to "lectures" (to be further specified in accordance with the definition section
of the request by providing the name of the university course or subject for which the
lectures relate and the frequency and duration of the lectures) and "tutorials" (to be
further specified in accordance with the definition section of the request by providing the
name of the university course or subject for which the tutorials relate and the frequency
and duration of the tutorials).

* The number of times the action or failure to act occurred; and

* when each action or failure to act occurred.

20. Had the respondent wished it could have exercised its option to take interlocutory
proceedings to enforce the request for further and better particulars. This was not done,
no doubt keeping in mind the principle set out in s. 42 of the Federal Magistrates Act
1999 (Cth) ("the Federal Magistrates Act") and Rule 1.03(2) of the Federal Magistrates
Court Rules 2001 that the Court is to avoid undue formality and ensure that proceedings
are not protracted, and Rule 1.03(4) that the parties are to avoid undue delay, expense and
technicality. In a similar vein, s. 46PR of the HREOC Act provides that the Court is not
to be bound by technicalities or legal forms.
21. As to the identification of "detriment" suffered by the applicant, the constant and
undue stress imposed by the discriminatory conduct is clearly capable of coming within
the meaning of the term "detriment" in s. 22(2)(c). If, by citing the reference to "loss,
damage or injury" in Sivananthan v Commissioner of Police [2001] NSWADT 44 the
respondent is suggesting that "detriment" is only made out by establishing some form of
liquidated damages, this would be misconceived. Anti-discrimination law has long
recognised that the hurt suffered by discriminatory conduct amounts to "detriment"
within the meaning of the relevant statute: see, e.g., Elliott v Nanda (2001) 111 FCR 240,
per Moore J at [130]. There is a vast difference between the stress of having to negotiate
accommodations which were ultimately provided by an educational institution, as was the
case in W v Flinders University [1998] HREOCA 19, relied on by the respondent at
[136], and the stress induced by a failure of the educational institution to provide the
accommodation, either wholly or in part. Having to "chase up" and reformat materials
that had not been provided in an accessible format in the present case was not part of the
process of negotiating materials; it was something that had to be undertaken by the
applicant in an (unsuccessful) attempt to overcome the respondent's discriminatory
failure to provide such materials.

Requirement or condition

22. The applicant agrees that the identification of a "requirement or condition' is a
question of fact in any given case. This is clear from the authorities.

23. Clarke v Catholic Education Office (2003) 202 ALR 340 is directly on point. It
considered the operation of the principle of indirect discrimination under s. 6 in an
educational context. The fact that the decision has been the subject of an appeal to the
Full Court does not detract from the currently binding nature of the decision on this
Court. That the claim was based on s. 22(1)(b) and not 22(2)(a) had no bearing on the
consideration of s. 6 in that case. The factual differences relating to the identification of
the particular disability in that case and the age group of the student are of no
consequence to the common principle involved in Clarke and the present case.

24. The respondent's reference to Sluggett v Human Rights and Equal Opportunity
Commission (2002) FCR 561 has been taken out of context. That case involved a claim of
indirect disability discrimination by a university student with a mobility disability caused
by post polio syndrome. The passage in the judgement of Drummond J cited in the
respondent's submission at [146] related to an alleged imposition of a requirement or
condition on the applicant where she had volunteered to attend classes in non-accessible
premises off-campus which were not controlled by the university. The element of choice
in particular detracted from the notion of compulsion or obligation referred to by his
Honour at [56]. However, contrary to the respondent's submission, his Honour was not
suggesting that s. 6 imposes some narrow concept of compulsion. Earlier in the
judgement his Honour considered the Hearing Commissioner's findings in relation to the
applicant's attendance at classes on the university campus. The requirement or condition
formulated by the Hearing Commissioner and cited by his Honour at [36] was as follows:
Once the applicant elected to attend classes she can be regarded as faced with a
requirement within s 6 that involved the need to deal with the means that existed for her
to move from where she entered the campus to her classrooms and the library: cf Waters
v Public Transport Corporation (1991) 173 CLR 349 at 361 - 362.

25. This formulation, which cited the passage in Waters relied upon by the applicant[134]
was accepted by his Honour at [52].

26. In the same way, in the present case the applicant was faced with a requirement that
involved the need to deal with means that existed for her to access her course materials.
That amounted to a "requirement or condition" within the meaning of s.6.

27. The respondent's technical argument at [151]-[153] is without merit. The applicant's
characterisation of the relevant requirement or condition in par. 10 of the particulars of
claim dated 9 July 2003 is entirely consistent with [51] and [57] of the applicant's closing
submission. The latter is simply an elucidation of the former in the context of the
evidence that had been presented at the hearing.

28. With reference to the respondent's submission at [154], it is abundantly clear from the
evidence that the "information" referred to in the applicant's formulation of the
requirement or condition was printed material provided in course materials and in classes.

29. With reference to the respondent's submission at [155]-[156], it is also abundantly
clear from the pleadings and the evidence that the "facilities" encompassed those items
specified in definition in par. 7 of the applicant's particulars of claim.

30. As in all cases, pleadings cannot be considered in isolation from the evidence
presented at the hearing and the written submissions made at the conclusion of the
hearing. In the case there has been no departure from the pleadings. The evidence and
written submissions are consistent with and developmental of the pleadings.

31. With reference to the respondent's submission at [159]-[162], the requirement or
condition that the applicant undertake her studies without access to the facilities was one
which applied to all students, just as the requirement or condition that passengers use
trams without access to conductors applied to all public transport users. In each case, it
was the differential impact of a facially neutral requirement or condition that formed the
basis of the discriminatory conduct.

Inability to comply

32. With reference to the respondent's submission at [167]-[170], the inability of the
applicant to comply with the requirement or condition was established by the evidence of
the applicant and the expert witnesses.

Proportion able to comply
33. The respondent's submission at [171]-[186] shows a further reliance on technical
defence, again based on an alleged failure to plead matters. As already suggested, this is
not in accordance with the objects of the Federal Magistrates Act 1999 and Federal
Magistrates Court Rules 2001 ("the Federal Magistrates Court Rules"), s. 46PR of the
HREOC Act. In any event the applicant strongly disputes the suggestion that she has not
properly pleaded her case.

34. The applicant's formulation of the base group in par. 10 of the particulars of claim
dated 9 July 2003 are "students enrolled in the course". This is wide enough to cover all
students in the applicant's class, as identified in the applicant's closing submission at [61].

35. The respondent, at [178], appears to suggest that the applicant was herself required to
adduce evidence of the composition of the base group in her evidence-in-chief. However
in this case, all the required evidence was contained in the respondent's statements and
adduced in cross-examination. There is nothing to suggest that this evidence is any less
admissible because it came from the respondent's witnesses; indeed for this reason such
evidence can readily be accepted by the Court.

36. The respondent's assertion at [179] of certain evidence that "must" be obtained would
place an impossible burden on applicants and is not based on any authority. Care must be
taken to recall the beneficial construction that must be given to the legislation and not to
permit a respondent to impose a characterisation on the evidence that allows it to evade
the implications of the Act: see, e.g., Waters v Public Transport Corporation (1991-1992)
173 CLR 349, per Dawson and Toohey JJ at 393-394.

Not reasonable

37. The respondent, at [187]-[215], misrepresents the applicant's submission on the "not
reasonable" requirement. A finding of whether or not a requirement or condition was "not
reasonable" is pre-eminently a finding of fact which will involve a weighing up of
various factors: Waters, per Dawson and Toohey JJ at 395. The factors to be taken into
account in the present case include those specified in the respondent's written submission,
at [67]. However, as was made clear at [67], the Court is not limited to these matters, and
it would be entitled also to consider the factors specified by the respondent at [212]. What
weight is to be given to these varying factors is for the Court to determine.

38. With reference to the respondent's submission at [216], the question of whether or not
the university knew of the applicant's needs is for the Court to determine, based on the
evidence. The applicant's submission is that the respondent, through its various members
of staff (including Ms Gamble) well knew of the applicant's needs by the commencement
of the 2001 academic year. The various factual matters referred to by the respondent at
[217]-[226] do not assist in absolving the respondent from the knowledge that it had of
these needs and the responsibility that it had to deal with the applicant in a non-
discriminatory manner.
39. With reference to the respondent's submission at [227], the evidence of the effect that
the discriminatory conduct had on the applicant can be seen throughout her statement,
and in particular at [310]-[315]. This evidence was not challenged by the respondent.

40. With regard to the respondent's submission at [229], the applicant's evidence,
summarised in Tables 1 and 2 annexed to the applicant's written submission, conclusively
establishes that her needs were not met by the respondent in either 2001 or 2002.

41. With regard to the respondent's submission at [231]-[250], the applicant accepts that,
as a matter of fact, there must be some form of interaction between a student and the
education provider so as to establish the student's needs and the most effective way of
providing for those needs. The applicant carried out her part of this process by making
her disability well-known to the respondent and by telling the respondent how best to
meet her needs. The respondent signally failed to discharge its part of the process.

Relief and remedies

42. The relevant power of the Court to award damages in this case is to be found in s.
46PO(4)(d) of the HREOC Act:

If the Court concerned is satisfied that there has been unlawful discrimination by any
respondent, the court may make such orders (including a declaration of right) as it thinks
fit, including any of the following orders or any order to a similar effect:

...

(d) an order requiring a respondent to pay to an applicant damages by way of
compensation for any loss or damage suffered because of the conduct of the respondent...

43. There is no authority for the apparent proposition by the respondent, at [256]-[258],
that the upset, inconvenience and denied enjoyment of the applicant's educational
experience cannot be compensated under s. 46PO(4). The respondent's reliance, at [260]-
[265], on cases such as Tame v State of New South Wales; Annetts v Australian Stations
Pty Ltd (2002) 191 ALR 449, is entirely misguided. Those authorities stand for the
proposition that liability in a claim for personal injury will not be established where
"mere" upset and anxiety has been proven. However, in anti-discrimination cases,
liability is established by the act of discrimination. Beyond, that, damages may be
awarded as a result of any upset and anxiety caused by the discriminatory conduct.
Contrary to the respondent's suggestion, damages are commonly awarded where the
discriminatory conduct has caused distress falling short of psychological injury or
damage. The respondent itself has cited Clarke, and it is noted that during the hearing of
the Full Court in that case no argument was directed towards the issue of the award of
damages. The relevant passage in Fetherston v Peninsula Health [2004] FCA 485 is at
[98]-[99], where Heerey J indicated that he would have awarded $50,000 in general
damages to a vision-impaired doctor:
Common law damages for breach of contract do not take into account mental anguish and
similar effects: Addis v Gramophone Company [1909] AC 488. However there is no
warrant for so restricting the award of damages for "loss and damage" under s
46PO(4)(d): Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256, Stephenson v
Human Rights and Equal Opportunity Commission (1995) 61 FCR 134 at 142-143.

The impact on Dr Fetherston of his termination has been very severe. His wife described
that his having to give up surgery in 1996 was a "terrible blow to him". He became
irritable and short tempered and the relationship with his wife and their children
deteriorated. However he improved once he commenced to work in the Frankston ICU.
His self esteem and temper improved. It was, his wife said, a "lifebuoy for him".
However from the events of early 2001 leading up to his termination he became
considerably worse tempered. She said that since those events "he has, as it were, pushed
me away". His "whole spirit has been crushed" by the events at Frankston Hospital. Work
was always the most important thing in his life and it has now effectively been taken
away from him.

Costs

44. The applicant accepts that in a case such as the present, costs would normally follow
the event. There is no warrant in this case for any further submissions on costs.

Reasoning

94. As Mr Poynder notes in his submissions in reply, Ms Eastman revisits somewhat half-
heartedly some of the jurisdictional issues that I dealt with at the outset of the trial of this
matter[135]. It is unnecessary for me to revisit the rulings that I made. Ms Eastman also
takes issue with the state of the applicant's pleadings, an issue that arose several times
during the conduct of this litigation. As Mr Poynder notes in his submissions in
reply[136], the Federal Magistrates Act and the Federal Magistrates Court Rules require
that the Court avoid undue formality and seek to avoid protracted proceedings. Rule
1.03(4) requires that the parties avoid undue delay, expense and technicality. In human
rights proceedings, provided that the originating application is properly particularised so
as to identify specifically the provisions of the legislation being relied upon, and provided
that the application is properly linked to the complaint to HREOC and termination of that
complaint, pleadings in any formal sense should not be required. The matter can proceed
on the basis of affidavit evidence. The position will often be different where an applicant
also seeks to invoke the Court's accrued or associated jurisdiction, but this is not such a
case.

95. In these proceedings, there was an attempt by the applicant to go beyond the scope of
her complaint to HREOC and the applicant took rather a long time to settle upon the
provisions of the DDA that she ultimately relied upon. Those are matters that can be
addressed when the time comes to consider the issue of costs. The Court is obliged to
ensure that its proceedings are procedurally fair. When the trial of this matter commenced
the parameters of the applicant's claim quickly became clear and the respondent was not
prejudiced in presenting its evidence and testing the evidence of the applicant. The
respondent's current concern, reflected in Ms Eastman's written submissions[137] appears
to be that the applicant's first written submissions leave obscure how the applicant claims
she satisfies the test of unlawful discrimination for the purposes of s.22(2)(a) and (c) of
the DDA. On the evidence, there were several bases upon which the claim could have
been put and I think that Mr Poynder's submissions on this issue are clear enough.
Conversely, at paragraph 152 of her written submissions, Ms Eastman seems to be
complaining that Mr Poynder appears to be arguing the applicant's claim pursuant to s.6
of the DDA differently than it appeared he might from the material filed in court up to the
trial. Ms Eastman raises this as an issue of pleadings but I do not so regard it. The
obligation on the applicant is to identify what sections of the DDA she relies upon. She
has done that. The legal argument based upon the evidence heard and tested at the trial
has been presented by written submissions. Mr Poynder's initial written submissions may
put the argument on s.6 of the DDA rather more effectively than appeared possible at the
time of the trial but the respondent has had an adequate opportunity to respond to those
submissions in writing and has exercised that opportunity extremely comprehensively.
The respondent has not suffered any prejudice.

What must the applicant prove?

96. There is no doubt that the applicant suffers from a disability for the purposes of the
DDA. The issues are whether the applicant has been indirectly discriminated against for
the purposes of s.6 of the DDA and whether the particular acts of discrimination asserted
by the applicant for the purposes of s.22 of the DDA have been proven to be unlawful.
The parties have argued the issues in the reverse order but I prefer the progression set out
above for the purposes of dealing with this claim of indirect disability discrimination.

97. In sex discrimination cases there is a clear distinction between direct and indirect
discrimination. When direct discrimination is alleged the test is whether, by reason of one
of the prescribed characteristics the alleged discriminator has treated the aggrieved
person less favourably than, in circumstances that are the same or not materially different
the discriminator treats or would treat a person without that characteristic. This requires
the Court to identify a comparator and then to determine whether the aggrieved person
has been treated less favourably. In the case of indirect discrimination the test is quite
different. Indirect discrimination occurs where the discriminator imposes an unreasonable
condition, requirement or practice that has or is likely to have the effect of
disadvantaging persons who have the prescribed characteristic. There is no need to
enquire if the aggrieved person is being less favourably treated than a comparator.

98. In relation to disability discrimination the position is not quite so clear cut. As is
pointed out by Mr Poynder in his first written submissions[138] the issue is addressed
generally by Dawson and Toohey JJ in Waters v Public Transport Corporation at [392].
However, an important distinction between the SDA and DDA was identified by the High
Court in Purvis v New South Wales at [198] - [199]. There, their Honours Gummow,
Hayne and Heydon JJ relevantly said:
...it is necessary to notice an important respect in which the subject of disability
discrimination differs from some other forms of discrimination. Central to the operation
of the Sex Discrimination Act and the Racial Discrimination Act 1975... is the
requirement for the equality of treatment. A central purpose of each of these Acts is to
require that people not be treated differently on the ground of sex or race. Difference in
sex or race is identified as a generally irrelevant consideration.

By contrast, disability discrimination legislation necessarily focuses upon a criterion of
admitted difference. The abilities of a disabled person differ in one or more respects from
that range of abilities which is identified as falling within the band described as
"normal". It follows that disability legislation must be understood from the premise that
the criterion for its operation is difference. That has important consequences, not only for
the lessons that may be learnt from the way in which other legislatures or deliberative
bodies have identified the problems that should be considered, but also for the proper
understanding of the solutions that have been devised by those other bodies to answer the
problems identified.

99. At paragraph [201] their Honours stated that concepts of "difference", "disability" and
"disadvantage" all depend upon comparisons. They assume that there is a person, or a
group of persons, with whom it is useful and relevant to draw the comparison which is
implicit in describing one person as "different", or "disabled", or "disadvantaged". The
High Court was there principally concerned with the operation of ss.5 and 22 of the
DDA. The issue is also relevant to a consideration of the operation of ss.6 and 22.
However, the task of statutory construction should not be approached from a pre-
determined position that rules out a particular result regardless of the language used by
Parliament: Catholic Education Office v Clarke at [93]. Ms Eastman's submission at
paragraph (113) does not necessarily translate from a case of direct to a case of indirect
discrimination, as Mr Poynder notes at paragraph 10 of his submissions in reply.

100. Section 6 relevantly requires that the applicant establish that the university
discriminated against her on the ground of her disability because the university required
the applicant to comply with a requirement or condition:

a) with which a substantially higher proportion of persons without the disability comply
or are able to comply; and

b) which is not reasonable having regard to the circumstances of the case; and

c) with which the applicant did not or was not able to comply.

101. This necessarily requires a comparison between the position of the applicant and the
position of other persons without her disability. However, as the Full Federal Court noted
in Catholic Education Office v Clarke at [111], the comparison required by s.6(a) is not
with the applicant personally, but with a class of persons with the applicant's disability. If
there is no such actual class, it could be a hypothetical class.
102. Secondly, and in addition, the applicant must prove the relevant act or acts of
discrimination are unlawful for the purposes of s.22 of the DDA. The applicant must
relevantly prove that the university discriminated against her on the ground of her
disability either by denying her access, or limiting her access, to any benefit provided by
the university or by subjecting her to some detriment.

103. It will be seen at the outset that the combined burden on the applicant presents
something of a difficulty for her. Not only must she establish that she was subject to
some discriminatory requirement or condition but also that she was denied or given only
limited access to a benefit (or alternatively that she was subjected to a detriment) by the
university because of her disability. It is hard to imagine how a condition or requirement
imposed could also constitute a benefit. It may of course be a detriment. On the other
hand, it is possible that the imposition of a condition or requirement may, by its
operation, deny or limit access to a benefit provided by the university.

104. If the applicant is unable to establish that indirect discrimination occurred pursuant
to s.6 of the DDA and that the discrimination was unlawful pursuant to s.22 of the DDA
her application must fail. I will consider first whether indirect discrimination occurred.

Did the university impose upon Ms Hinchliffe an obligation that she comply with a
requirement or condition?

105. On behalf of the applicant, Mr Poynder characterises the asserted requirement or
condition as that she undertake her university studies without all of her course materials
being provided in an alternative format, either at all or at the same time as other students
received their course materials[139]. On behalf of the respondent[140], Ms Eastman
submits that the only requirement imposed on Ms Hinchliffe was that she achieve a pass
grade in the subjects in which she was enrolled in order to meet the requirements to
graduate with a Bachelor of Applied Science (Occupational Therapy).

106. I agree with Ms Eastman that, for the purposes of s.6, the relevant requirement or
condition must be one imposed upon not only the applicant but also on the class of other
persons to whom the applicant is to be compared. It is a mistake to confuse the impact of
a requirement or condition upon a disabled person with the terms of the requirement or
condition itself. However, it is also a mistake to restrict consideration to formal or
absolute requirements such as the requirement that students enrolled in the occupational
therapy course complete course requirements by achieving a pass grade. I adopt the
description by Drummond J in Sluggett v Human Rights and Equal Opportunity
Commission [2002] FCA 987, (2002) 123 FCR 561at [56]:

... the concept of a "requirement or condition" with which the aggrieved person is
required to comply involves the notion of compulsion or obligation. [original emphasis
retained] See the definitions of "require" and "requirement" in the Macquarie Dictionary,
3rd ed, and the definition of "condition", which includes the following:
"a circumstance indispensable to some result; a prerequisite; that on which something
else is contingent ... something demanded as an essential part of an agreement ..."

And whether a "requirement or condition" within section 6 has been imposed in the
context of the Disability Discrimination Act will take its colour from the particular
setting in which it is said a prohibition against discrimination created by the Act has been
infringed by indirect discrimination. [141]

107. The expression "requirement or condition" in s.6 of the DDA should be construed
broadly to include any form of qualification or pre-requisite, although the actual
requirement or condition needs to be formulated with precision: Catholic Education
Office v Clarke at [103]. In this case, it is artificial and inconsistent with the language of
s.6 to describe the requirement or condition as the denial of facilities sought by or on
behalf of the applicant in order to meet her special requirements because of her disability.
That is relevant to a consideration of whether s.22(2)(a) or (c) has been breached but it is
not a condition that was imposed upon a general class of persons including those without
the applicant's disability. Conversely, it is artificial to limit consideration to the passing
grade requirement. That is obviously something imposed upon all students but for the
purposes of the conduct of the course of study, a range of requirements were imposed by
the university upon students undertaking the course. Students were required to sit
examinations. Students were expected to attend lectures and submit course work.
Students were also expected to read course materials provided for the various units of the
degree course. The element of compulsion arises because if a student did not sit
examinations, attend lectures, submit course work or read course material, it would be
difficult (if not impossible) for the student to achieve a passing grade.

108. It is not part of the applicant's claims that she was discriminated against in relation
to her obligation to submit course work. It was part of the applicant's claims that she was
discriminated against in the conduct of examinations and attendance at lectures.
However, the applicant does not assert that these were material obligations for the
purposes of her application. That is understandable when one considers the evidence of
the special arrangements made by the university for the applicant for examinations and
for attendance at lectures. The applicant's real complaint is with the course material that
she was expected to read. The applicant has characterised the obligation as an obligation
to receive course material in only one format. However, that characterisation requires
some refinement in order to be meaningful, and to focus attention on the whole class of
students of which the applicant was a member, rather than the applicant in isolation. The
relevant requirement or condition for the purposes of this case as presented by the
applicant is, in my view, the requirement or condition imposed by the university that
students deal with course materials provided by the university in a single or standard
format that the university chose to provide to all students. In other words, students were
generally expected to either read course materials in the format that they were given to
them or seek themselves to convert those materials into a different format which was
preferred by them.
109. As in the case of Waters v Public Transport Corporation this was a requirement
which was facially neutral and which was imposed upon a class of persons who are not
disabled as well as the applicant. Also, as in the case of Waters it was a requirement
which potentially might impact adversely upon the applicant by reason of her disability.

Did this requirement impact differentially because of the applicant's disability?

110. As Mr Poynder notes in his first written submissions[142] the next step is to identify
whether a "substantially higher proportion of persons without disability comply or are
able to comply" with the requirement or condition. Mr Poynder proposes a comparative
base group of all students in the applicant's class[143]. Ms Eastman submits that there is
a lack of evidence about the base group[144] and again refers to inadequate pleadings. I
reject that submission. The appropriate comparative base group is obviously the group of
students undertaking the same degree course as the applicant at the time she was
undertaking it. The evidence was, which I accept, that there were approximately 130
students falling within that class. Dr Chan gave evidence that in 2002 there were only two
students, including the applicant, who were vision impaired undertaking the occupational
therapy course. It obviously follows that there were many more students undertaking the
course who are not vision impaired. While the evidence of both parties concentrated on
the formats in which course materials were provided to the applicant, rather than to
students generally, and on the applicant's ability to access material rather than the ability
of students generally, it is clear enough to me from the evidence that course materials
provided by the university were ordinarily provided on white paper and in a format that
was not enlarged from the original source. In the light of, and in the knowledge of, Ms
Hinchliffe's disability, the university elected to provide some course materials to her in
different formats. Some material (in particular, examination material) was provided in
large print on green paper. Other material was provided in electronic format on computer
disk. At a later stage, material was increasingly provided in audio format in response to
requests from Ms Hinchliffe. However, for present purposes, the focus of attention
should not be on the particular items of material which were provided to Ms Hinchliffe in
a special format but on the generality of material which was provided to students in what
might be described as a "standard" format. That is, on white paper in "normal" font. I am
prepared to accept, on the basis of ordinary human understanding, that persons with
normal vision are capable of reading material in standard font on white paper without
particular difficulty. There is ample evidence before me that the applicant does, because
of her disability, have a difficulty in reading such material. A hypothetical comparative
class of persons with the same disability as the applicant would have the same difficulty.

111. I find, that, to the extent that if the university chose to provide course materials to
students undertaking the occupational therapy degree course in a format of unenlarged
text or diagrammatical material on white paper, a substantially higher proportion of
persons undertaking that course without the applicant's disability could comply with the
condition imposed on them by the university. Persons with normal eyesight would not be
able to read material if it was photocopied and improperly collated so that essential
material was missing. It appears that this sometimes occurred but the whole class was
adversely affected by those errors, not just the applicant. Likewise, if material was so
poorly photocopied that it was illegible, the whole class would have been adversely
affected. However, in the ordinary case where material was provided in standard font on
white paper and was legible it would have been possible for most students to read the
material without difficulty. In the case of a member of a hypothetical class of persons in
the position of Ms Hinchliffe, they could not read such material without difficulty. They
would have to convert it, if possible, into another format that was useful to them.

112. The above finding of course only has meaning to the extent that course material can
be identified from the evidence as falling in what I have described as "standard" format. I
am satisfied from the applicant's evidence, summarised in tabular form in annexure A,
that some of her course material was provided to the applicant in 10 or 12 point font
(which I regard as normal) on white paper. It was left to Ms Hinchliffe to reformat that
material should she so wish to.

113. To the extent that material was provided to Ms Hinchliffe in a different format from
that which was provided to other students without the disability, no issue of indirect
discrimination arises. I have no evidence about whether students without a disability
sought and received course material in a special format. I have no evidence about the
capacity of students without an eyesight disability to deal with course materials in some
special format chosen by the university in an attempt to meet their needs.

Could the applicant comply with the university 's requirement?

114. I have already found that the applicant had difficulty reading printed words or
diagrams that were not enlarged and which were printed on white paper. Ms Hinchliffe
admitted that it was possible for her to read this material but that she could only do so for
a short time. For all practical purposes, if she was to read such material, it was necessary
for her to convert it to an alternative format, which required either enlarging the material
and reproducing it on green paper or having it read to her, or having it converted to an
audio format that she could listen to later.

115. Generally, it was possible for the applicant to comply with the university 's
requirement. She could make use of course material provided to her in a standard format
by converting it to a different format. However, this was not universally the case.
Annexure A identifies some course material that Ms Hinchliffe was unable to reformat,
principally because of the poor quality of the original. To that extent I find that she was
unable to comply with the university's requirement. Some of the material may have been
so poor that no one (even with good eyesight) could read it but I am prepared to accept
that there was poor quality material that was legible enough to be read by people with
normal eyesight, but not legible enough to be reliably reformatted. Beyond that, I see no
inability on the part of the applicant to comply with the university 's requirement. The
university did not require or expect that any student should not reformat course materials
if they wished to. The university simply made standard format course materials available
to students for them to use. The need for Ms Hinchliffe to reformat materials probably
inconvenienced her, relative to students who did not suffer from her disability. That is a
relevant issue for the purposes of s.22(2)(c) of the DDA. However, for the purposes of
s.6(c) of the DDA the inconvenience suffered by the applicant did not approach the
standard necessary to establish an inability to comply with the university 's requirement
or condition. That standard requires that the applicant prove a "serious disadvantage"
with the result that the applicant could not "meaningfully participate" in the course of
study for which she had been accepted: Catholic Education Office v Clarke at [66] and
[126]. Ms Hinchliffe and her mother gave detailed evidence about the steps that they took
to reformat material that needed to be reformatted. I accept that evidence. It follows from
that evidence that, to the extent that Ms Hinchliffe and those assisting her, were able to
reformat the course materials, she was able to comply with the university 's condition that
she use the course materials provided to her.

116. I find that the inability of the applicant to comply with the university 's requirement
is restricted to the material identified in annexure A by the applicant as not capable of
being reformatted into an acceptable format.

Was the university 's requirement reasonable, having regard to the circumstances of the
case?

117. I accept paragraph 65 of Mr Poynder's first written submissions. Further guidance
has been provided by the Full Federal Court in Catholic Education Office v Clarke at
[115]. Ms Eastman deals with this issue in paragraphs 187-249 of her written
submissions. The length of those submissions reflects the perceived importance of this
issue in this case. Mr Poynder responds in paragraphs 37-41 of his submissions in reply.

118. Plainly, the university knew of Ms Hinchliffe's disability when her enrolment was
accepted. By the time she commenced her course of study, Ms Hinchliffe had made the
university aware of her preference for receiving written material in an enlarged format
on light green paper. I have already found that in large measure Ms Hinchliffe was able
to comply with the university 's requirement that she use course materials unenlarged on
white paper and, to that extent, she is unable to satisfy a necessary element in establishing
indirect discrimination pursuant to s.6. Should I be wrong in that finding, I accept the
university 's submissions that the steps taken by it were reasonable. The material that was
provided to the applicant in enlarged format on light green paper were provided in a
reasonable attempt by the university to provide material to Ms Hinchliffe in a format that
the university understood that she needed. To the extent that material was provided to her
in electronic format on disk, the material was provided in a form that Ms Hinchliffe could
reasonably access and enlarge to the extent that she considered necessary and, if
necessary, to print on light green paper. In the 2002 course year, a substantial amount of
course material was provided to Ms Hinchliffe in audio format, which was the format that
Ms Hinchliffe then requested. Other material unsuitable for audio format was enlarged on
paper or provided on disk. Ms Hinchliffe complains about the length of time taken to
reformat material into audio format but that is an unfortunate consequence of the format
which she prefers. That much is clear from the evidence of Mr Woodbridge. In addition,
the university did not know of the applicant's preference for audio format until that was
pointed out to the university. The applicant herself commenced her course studies in the
belief that she would be best served by enlarged print material on light green paper. That
appears to continue to be the opinion of her treating doctor[145].

119. In her first year of study, Ms Hinchliffe learned from trial and error. She came to the
view as she gained experience from her course of study that she would be best served by
receiving material in audio format that was reasonably capable of being put into that
format and that she would be best served by receiving the balance of material enlarged on
light green paper. Obviously, the university could not deal with that conclusion until they
were made aware of it. That did not occur until the second semester in 2001. This
required a collaborative interaction between the university and Ms Hinchliffe. The
process might have been better handled by the university prior to the involvement of Dr
Chan but Ms Hinchliffe did not assist matters by taking a rather dismissive view of the
capacity of the university to assist her. Dr Chan impressed me as a person of formidable
character and intellect. She was a most impressive witness. I accept her evidence. Once
Dr Chan did become involved I am satisfied that the university did all that it reasonably
could to accommodate Ms Hinchliffe's special needs.

120. For my purposes, having regard to my earlier finding on the ability of Ms Hinchliffe
to comply with the university 's condition, the real issue is whether the imposition of that
condition (that she deal with material presented in standard format) was reasonable. As I
have already found, the issue only arises in relation to standard format material that was
not reasonably capable of being reformatted into a format acceptable to Ms Hinchliffe.
The university provided Ms Hinchliffe with access to a disability services room
containing computers, a photocopier, a scanner, a printer and a stock of green paper.
Provided that material was capable of being enlarged and printed on light green paper,
this facility was adequate to enable Ms Hinchliffe to access her course materials.
Conversely, if the material provided was so poor that it could not be reformatted by
enlargement (by photocopying or possibly, scanning and printing) then the facility
provided by the university was of no use to Ms Hinchliffe.

121. However, the assistance provided by the university to Ms Hinchliffe did not stop
there. She was provided with access to a disability services officer. For the greater part of
the relevant period this was Suzanne Hebblewhite. Ms Hinchliffe's evidence was that she
lacked confidence in Ms Hebblewhite's capacity but she admitted under cross-
examination that whenever she sought assistance it had been provided. The position of
disability services officer exists at the university campus to assist students with
disabilities deal with particular problems encountered during their course of study. I
accept the university 's evidence that Ms Hebblewhite and others performing that role
from time to time made a sincere (if at times imperfect) attempt to perform the function
assigned to them. Ms Hinchliffe chose to keep her dissatisfaction about the quality of
material provided to her to herself in relation to problems arising in semester one of 2001.
Neither was any complaint made to the university in relation to poor quality course
material provided in semester two, 2001. I accept the respondent's evidence in that
regard. I find it impossible to believe that, if Ms Hebblewhite or her successors had been
informed that Ms Hinchliffe had been provided with course material which could not be
reformatted into an acceptable format, they would not have taken steps to ensure that
better quality material was provided. In my view, the provision of the disability services
officer who was available to deal with occasional problems in reformatting course
materials was sufficient and adequate. The existence of that position rendered the
university 's requirement reasonable.

122. I have no evidence of materials being provided in 2002 that were not capable of
being reformatted. Indeed, it appears from the evidence that most of the material
provided to Ms Hinchliffe in 2002 was reformatted in some form or other.

Conclusion

123. I conclude from the foregoing that the applicant has failed to establish a case of
indirect disability discrimination under s.6 of the DDA. In the circumstances, it is
unnecessary to consider whether the respondent breached s.22(2)(a) or (c) of the DDA.
There was no indirect discrimination and accordingly, there could be no unlawful
discrimination.

124. I will hear the parties as to costs.

Final comments

125. This is a very long judgment. That is a matter of regret to me, particularly having
regard to the applicant's vision impairment. I have therefore prepared a judgment
summary, principally for her benefit. A copy will be made available to her in 24 point
Arial font on light green A4 paper. Nevertheless, I am concerned that this judgment is
much longer than it needed to be, principally because of the inclusion of counsel's written
submissions. This is a classic case of the Court having sufficient time to prepare a long
judgment but insufficient time to prepare a short one. It is a relatively simple matter to
include written submissions that are provided electronically, as here. It is a far more time
consuming exercise to summarise very lengthy and complex written submissions.
Unfortunately, due to current work pressures, that has not been possible in this case.
Counsel have taken the trouble to prepare written submissions in accordance with the
Court's directions, and it would be discourteous to counsel not to refer to them
adequately. However, in my view, the written submissions presented, particularly by the
respondent, were considerably longer than they needed to be. The Court has power, under
s.56(2) of the Federal Magistrates Act, to limit the length of written submissions. The
time has probably now come to begin using it.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a
true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 August 2004
[1] Rapid uncontrolled eye movement which tends to cause her to miss or misread words:
C. Hinchliffe, 24.12.03, [7].

[2] Which makes it difficult to access information on an overhead projection screen or
Powerpoint presentation: C. Hinchliffe, 24.12.03, [8].

[3] See, e.g., Tx 24.2.04, 135(20)-(23).

[4] C. Hinchliffe, 24.12.03, [17].

[5] See, e.g., Tx 25.2.04, 292.5.

[6] Tx 25.2.04, 257-260.

[7] Tx 25.2.04, 270-276.

[8] C. Hinchliffe, 24.12.03, [6]; see also Tx 24.2.04, 154(25)-(28).

[9] Tx 25.2.04, 244.8.

[10] From Tx 24.2.04, 136(25).

[11] Tx 24.2.04, 137(21)-(24).

[12] Tx 24.2.04, 138(23)-139(19).

[13] Tx 24.2.04, 139(20)-140(13).

[14] Tx 24.2.04, 157(20-(23). The document referred to is at p. 48 of Annexure "C" to Dr
Martin's affidavit - see Tx 24.2.04, 156(18).

[15] Tx 24.2.04, 141(11)ff.

[16] Tx 24.2.04, 141(14)-(16).

[17] Tx 24.2.04, 142(6)-(7).

[18] Tx 24.2.04, 142(17)-(18).

[19] Tx 24.2.04, 143(5).

[20] See, e.g., C. Hinchliffe, 24.12.03, [111]..

[21] Tx 24.2.04, 162(22)-(21); Tx 25.2.04, 251. Mr Woodbridge also gave evidence
about the limitations of ZoomText: D. Woodbridge, 12.1.04, [9]-[13].
[22] Tx 13.4.04, 17.9-18.3.

[23] See, e.g., Tx 24.2.04, 157(28)-158(2).

[24] Tx 24.2.04, 162(21).

[25] Tx 13.4.04, 18.9-19.1.

[26] C. Hinchliffe, 24.12.03, [139]-[140].

[27] Tx 24.2.04, 170(21)-171(13); 185(13)-(18).

[28] C. Hinchliffe, 24.12.03, [141]; S. Hebblewhite, 12.2.04, [19].

[29] Tx 13.4.04, 61.3.

[30] C. Hinchliffe, 24.12.03, [34]-[35].

[31] B. O'Neill, 13.2.04, "BPO" 2-27.

[32] Tx 25.2.04, 296.5.

[33] B. O'Neill, 13.2.04, "BPO" 3.

[34] B. O'Neill, 13.2.04, "BPO" 5-6.

[35] B. O'Neill, 13.2.04, "BPO" 7.

[36] C. Hinchliffe, 24.12.03, [29]-[30].

[37] B. O'Neill, 13.2.04, [8].

[38] B. O'Neill, 13.2.04, "BPO" 8. Dr Martin gave evidence on the contents of the report
at Tx 25.2.04, 268.8-270.5.

[39] Meaning that the applicant could see at a distance of 6 metres what somebody with
normal vision would see at 24 metres: Tx 25.2.04, 268.9.

[40] Meaning that the applicant could see at a distance of 6 metres what somebody with
normal vision would see at 36 metres: Tx 25.2.04, 268.9.

[41] Meaning that the applicant could read 18 point font at "near", or 25-30 cm from the
eyes: Tx 25.2.04, 269.1.

[42] B. O'Neill, 13.2.04, "BPO" 9.
[43] B. O'Neill, 13.2.04, "BPO" 10.

[44] C. Hinchliffe, 24.12 03, [31] and Exhibit "CH" 63.

[45] C. Hinchliffe, 24.12.03, [40].

[46] S. Hebblewhite, 12.2.04, Exhibit "SH" 38.1

[47] S. Hebblewhite, Tx 13.4.04, 38.9.

[48] Tx 24.2.04, 166(2)-(12).

[49] B, O'Neill, 13.2.04, [8].

[50] See, e.g., Tx 24.2.04, 186(28)-187(4); 206(3)-207(2).

[51] Tx 13.4.04, 46.5.

[52] Tx 13.4.04, 73.

[53] Tx 13.4.04, 9.5-12.5.

[54] Tx 13.4.04, 74.2.

[55] K. Hinchliffe, Tx 25.2.04, 286.8.

[56] Tx 24.2.04, 189(25)-190(2).

[57] See, e.g., Tx 24.2.04, 197(22)-(26); 209(11)-(27)..

[58] Tx 13.4.04, 54.

[59] S. Hebblewhite, 12.2.04, Exhibit "SH" 10.

[60] Tx 24.2.04, 193(20)-(26). Ms Hebblewhite recalled that a conversation about the
State Library took place - Tx 13.4.04, 64.4.

[61] Tx 24.2.04, 198(22)-(24), Tx 13.4.04, 63.9-70.1.

[62] C. Hinchliffe, 24.12.03, [64]; Tx 24.2.04 194(12)-(26); Tx 25.2.04, 252.5.

[63] C. Hinchliffe, 24.12.03, [107]

[64] C. Hinchliffe, 24.12.03, [119]

[65] Tx 13.4.04, 43.3.
[66] Tx 24.2.04, 203(3)-(19).

[67] Tx 13.4.04, 39.1-40.5.

[68] Tx 13.4.04 44.5; 46.9-47.1; 49.3, 51.2,

[69] Tx 13.4.04, 49.5-50.5.

[70] Tx 13.4.04, 42.3, 44.2; 72.3.

[71] See, e.g., Tx 13.4.04, 39.5, 49.1.

[72] Tx 13.4.04, 44.5, 62.2.

[73] Tx 13.4.04, 49.3.

[74] Tx 13.4.04, 59.5-60.2.

[75] Tx 13.4.04, 84-85.

[76] Tx 13.4.04, 51.3.

[77] Tx 25.2.04, 301.5.

[78] Tx 25.2.04, 301.3. Emphasis added.

[79] Tx 13.4.04, 17.3.

[80] Semester One commenced on 26 February 2001 and ended on 23 June 2001 - C.
Hinchliffe, 24.12.03, [46].

[81] Semester Two commenced on 6 August 2001 - C. Hinchliffe, 24.12.03, [147].

[82] The email is at S. Hebblewhite, 12.2.04, Exhibit SMH 64. Mr O'Neill's evidence on
this point is at Tx 25.2.04, 301-302.

[83] The qualification was added in examination-in-chief: Tx 13.4.04, 4.9-5.1.

[84] Tx 13.4.04, 87.3.

[85] Tx 13.4.04, 88.

[86] Tx, 89.6-90.1.

[87] A. Chan, 12 February 2004, Exhibit "AC" 37.
[88] Tx 13.4.04, 93.

[89] See, e.g., Tx 24.2.04, 211(23)-212(4), Tx 13.4.04, 95.1.

[90] Tx 13.4.04, 95.9-96.3.

[91] Tx 24.2.04, 123-127.

[92] Tx 24.2.04, 146(18)-154(2).

[93] See, e.g., Tx 24.2.04, 170(21)-(22); 179(20)-(23); 183(7)-(8). See also Tx 24.2.04,
199(20)-(28).

[94] See, e.g., Tx 24.2.04, 189(3)-(10).

[95] Evidenced by the fact that by July 2001 at the latest the University had received the
manual for Occupational Therapy Theory and Practice 1B from the Royal Blind Society
in audio form - see Tx 24.2.04, 202(5).

[96] Tx 13.4.04, 97, 100-101.

[97] See also C. Hinchliffe, 24.12.03, at [269]-[270].

[98] C. Hinchliffe, 24.12.03, at [269].

[99] C. Hinchliffe, 24.12.03, at [270].

[100] Tx 24.2.04, 219(14)-220(12).

[101] Tx 24.2.04, 135(4)-(14)

[102] C. Hinchliffe, 24.12.03, [10]-[14].

[103] Tx 24.2.04, 134 (23-24).

[104] Tx 13.4.04, 7.5.

[105] C. Hinchliffe, 24.12.03, [310]-[313].

[106] Tx 25.2.04, 243.3.

[107] C. Hinchliffe, 24.12.03, [315].

[108] C. Hinchliffe, 24.12.03, [314].
[109] Waters v Public Transport Corporation (1991-92) 173 CLR 349, per Mason CJ and
Gaudron J at 361-362 (Deane J agreeing at 382); Dawson and Toohey JJ at 393

[110] Ibid at 407

[111] Ibid at 375-376

[112] Ibid, per Dawson and Toohey JJ at 393 and McHugh at 407

[113] Clarke v Catholic Education Office (2003) 202 ALR 340 at 357 [67].

[114] (2003) 202 ALR 350-352 [42]-[43].

[115] Commonwealth Bank v HREOC (1997) 150 ALR 1 at 42, per Sackville J

[116] Tx 25.2.04, 241.9-242.1.

[117] Evidence of A. Chan, Tx 13.4.04, 82.5.

[118] Evidence of A. Chan, Tx 13.4.04, 83.8.

[119] Waters v Public Transport Corporation (1991-92) 173 CLR 349, per Dawson and
Toohey JJ at 395

[120] Clarke and Catholic Education Office (2003) 202 ALR 340 at 360-361 [86].

[121] Fetherston v Peninsula Health [2004] FCA 485 at [102], per Heerey J.

[122] On appeal - Sluggett v Flinders University of South Australia [2003] FCAFC 27,
Drummond J's decision was upheld.

[123] Mandla v Dowell Lee [1983] 2 AC 548 at 565 - 566, Travers v New South Wales
[2000] FCA 1565, [17], Sluggett v Human Rights and Equal Opportunity Commission
(2002) 123 FCR 561, 575-6 (Drummond J).

[124] See Financial Sector Union v Commonwealth Bank (1997) EOC¶92-889 at 77, 235
ff for the only discussion about this element.

[125] Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63
FCR 74, 83 (Lockhart J); cited with approval in Commonwealth Bank v Human Rights
and Equal Opportunity Commission (1997) 80 FCR 78, 111 (Sackville J).

[126] Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63
FCR 74, 87 (Sheppard J); Australian Medical Council v Wilson (1996) 68 FCR 46, 61
(Heerey J); Commonwealth Bank v Human Rights and Equal Opportunity Commission
(1997) 80 FCR 78, 112 (Sackville J).
[127] Under the United States Americans with Disabilities Act (the ADA), discrimination
is defined to include an employer,

"not making reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an Applicant or employee...".

Further, Federal Regulations require the employer to,

"make a reasonable effort to determine the appropriate accommodation. The appropriate
reasonable accommodation is best determined through a flexible, interactive process that
involves both the employer and the [employee] with a disability."

[128] Tx 25.2.04, 278.3.

[129] Tx 25.2.04, 278.6.

[130] (2003) 202 ALR 133 at 181-182, [207] (footnotes omitted).

[131] Hills Grammar School v Human Rights & Equal Opportunity Commission (2000)
100 FCR 306.

[132] Clarke v Catholic Education Office (2003) 202 ALR 340.

[133] For example, "Equal Opportunity in Education", annexed to the affidavit of A.
Chan, pp. 13-14.

[134] See applicant's submissions at [54], footnote 109.

[135] See paragraph 5 of these reasons

[136] see paragraph 20

[137] see paragraphs 133 of the respondent's written submissions

[138] see paragraph 50

[139] paragraph 57, applicant's first written submissions

[140] paragraph 147, respondent's written submissions

[141] On appeal - Sluggett v Flinders University of South Australia [2003] FCAFC 27,
Drummond J's decision was upheld.

[142] See paragraph 58

[143] see paragraph 61, applicant's first written submissions
[144] see paragraph 178 of the respondent's written submissions

[145] see paragraph 55 of these reasons

				
DOCUMENT INFO