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Student claims legal admission board discriminated against disability
A former law student demanded the Legal Profession Admission Board (LPAB) publicly apologise and hand over more than $45,000 after it refused to allow him to study legal subjects out of order.
Naomi Neilson
The Federal Court of Australia refused former law student Daniel Makowski’s request to bring proceedings against the LPAB on the grounds that it discriminated against this mental health disability.
The Federal Court heard it was Mr Makowski’s fourth attempt to bring similar action against the LPAB after he failed to do so in the Supreme Court of NSW, the Court of Appeal and the High Court.
The court was told the LPAB received an application to relax progression rules in 2018 and allowed Mr Makowski to retake the failed subject “04 Contracts” alongside “05 Real Property” and “06 Australian Constitutional Law” during the following term.
Mr Makowski did not attend the exams for Contracts or Australian Constitutional Law, later telling the LPAB that he had “absolutely no confidence” sitting in the latter subject again “for fear of being at the arbitrary whims of a lecturer teaching a highly subjective subject”.
In May 2019, Mr Makowski applied to relax the progression rules again so he could take two subjects without completing Contracts or Australian Constitutional Law — which were prerequisites — but was told he could not “depart from the usual course”.
Mr Makowski attempted to appeal this, but it was refused.
LPAB explained both subjects provided a “good basis”, and the information is “fundamental to undertaking the rest of his subjects”.
“Other than dissatisfaction with the way his assignments have been marked, the student has advanced no substantive reason as to why he should be granted permission to study subjects out of order,” LPAB explained to the Federal Court in its submissions.
The following month, Mr Makowski made a third application, but this time cited his mental illness as a reason for relaxing the rules.
When this was again rejected, Mr Makowski made an application for the board to review their past two decisions, but this was maintained.
The board found that while Mr Makowski’s disability provided a “proper basis” for special arrangements in his exam periods, the board was not satisfied his disability “provides a justification for the relaxation of rules to enable him to take subjects in the order he seeks”.
Prior to the conduct that was the subject of these proceedings, the LPAB allowed Mr Makowski to take two of his exams at different times from other students and in a separate room from the exam space.
After seeking another review in September 2019, the LPAB advised Mr Makowski he was excluded from the diploma of law course for “failing to sit at least two exams in two successive sessions”.
In seeking to establish the LPAB was discriminatory, Mr Makowski told the Federal Court he wanted the board to publicly apologise and to compensate him with a total of $46,989.
The monetary demand included $10,042 for legal costs in attempting to return to the law course, $33,445 in legal costs for “successfully defending various legal proceedings”, and $3,502 for funds he claimed he would need to apply for a practising certificate.
In ruling against Mr Makowski, Justice Tom Thawley found the LPAB did not directly discriminate against him in its decisions.
“There was no information before the board to support how Mr Makowski’s mental health prevented him from studying subjects in the usual order,” Justice Thawley said in concluding remarks.
“Mr Makowski contends that his inability to comply with the progression rules was due to the stress he suffered as a person living with a disability within the legal profession and that he dreaded having to use his disability as a justification for seeking to relax the progression rules.
“Even accepting this to be so, it does not establish why his disability required a relaxation of the progression rules. The board’s reasoning to this effect in the appeal decision does not support any realistic argument that there has been direct discrimination.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
