consideration
31 The evidence establishes that Mr Reurich:
(1) did not disclose that he had any disability within the meaning of that term in the DD Act or that he had or required an assistance dog leading up to the interview on 8 February 2017;
(2) did not attend the interview on 8 February 2017 with Boofhead;
(3) did not inform Mr Gittus at the interview that he had any disability;
(4) did not provide any documentation either before or at the interview to establish that he required an assistance animal or that Boofhead was an assistance animal for the purposes of s 9(2) of the DD Act;
(5) was not offered the role at the interview on 8 February 2017;
(6) was not the only candidate who was shortlisted for the role;
(7) accepted that Mr Gittus clearly explained the process going forward in the event that he was successful in the first interview, including the requirement for medical clearance and reference checking; and
(8) formed the view that he had the job based on his feeling that the interview had gone well and not on anything that Mr Gittus had told him.
32 The identification of a disability said to be the reason for less favourable treatment at the relevant time is critical to a claim of disability discrimination: see QANTAS Airways Ltd v Gama (2008) 167 FCR 537 at [89] (per French and Jacobson JJ). Here Mr Reurich did not identify any disability or any need for an assistance animal either prior to or at the interview on 8 February 2017. That is, even if Mr Reurich has a disability, a matter which I am not required to consider for the purposes of this application, the Respondents were not aware of it at the relevant time.
33 Mr Reurich submitted that he did not tell people about his disability at a job interview and I infer he did not do so at this interview. The evidence supports that submission. That is, the only evidence of communication by Mr Reurich of a need for the presence of Boofhead was when he informed Mr Gittus that Boofhead helped to calm his stress and anxiety. However, that was not sufficient to identify or communicate a disability within the meaning of that term in s 4 of the DD Act, a step that is necessary to form the basis of a claim for discrimination under that Act.
34 Further, the role was not offered to Mr Reurich on 8 February 2017 and no indication was given to him by Mr Gittus that he would get the role. Mr Reurich's feeling that he had done well and his expectation based on that impression was, in turn, based on Mr Gittus' body language during the interview. It is an impression that Mr Reurich formed himself and was not based on anything he was told by Mr Gittus. The evidence is that ultimately the role was offered to a better qualified candidate.
35 To the extent that Mr Reurich also relies on the events which took place on 29 March 2017, Mr Reurich did not communicate any disability or provide any information about Boofhead and whether he was an assistance animal for the purposes of s 9(2) of the DD Act to the Respondents in the period from 8 March 2017 to 29 March 2017 or on 29 March 2017. In any event, by that latter date the role had been filled.
36 It follows that a claim for breach of s 15 of the DD Act, assuming that to be the section on which Mr Reurich relies, could not be made out. It could not be said that the Respondents discriminated against Mr Reurich on the grounds of his disability in determining who should be offered the role when they were unaware that Mr Reurich had a disability, that he required an assistance dog and that Boofhead was an assistance dog. The evidence is not ambivalent. It does not permit any other conclusion.
37 While the discretion conferred by s 31A of the FC Act must be exercised with caution, I am satisfied, having regard to the available material and the evidence before me, that Mr Reurich has no reasonable prospect of successfully prosecuting the proceeding and that accordingly, the proceeding should be dismissed pursuant to s 31A(2) of the FC Act and r 26.01 of the Rules.
38 The Respondents also submitted that, even if Mr Reurich was able to overcome the hurdles they had identified, they would have strong grounds to rely on the exceptions in ss 21A and 21B of the DD Act in support of their contention that Mr Reurich does not have a reasonable prospect of successfully prosecuting the proceeding. They submitted that relevant contextual considerations include that the workplace is an active construction site at which civil works are undertaken; there are various employees and contractors undertaking construction works across a widespread area; and Acciona has strict safety related obligations under the Work Health and Safety Act 2011 (NSW), including the need to have in place safety work method statements and other systems and processes to eliminate or minimise risks to the health and safety of workers.
39 Given my conclusion set out above, it is not necessary for me to determine the application based on that submission. However, in my opinion, while there is some evidence given by Mr Gittus of the general nature of the role and the work environment, that evidence is insufficient for me to come to a view about whether the Respondents could rely on those sections of the DD Act in the context of this application.
40 In the alternative, the Respondents sought orders striking out the originating application. Once again, given my decision in relation to the application under s 31A of the FC Act, I do not need to determine that aspect of the application. However, as submissions were made in relation to it, I will address this alternate ground briefly.
41 In my opinion, there are a number of reasons why the originating application would be struck out.
42 Firstly, the originating application fails to identify the material facts on which Mr Reurich relies, including how it is that Mr Reurich satisfies the definition of "disability" in s 4 of the DD Act; how it is that Boofhead meets the definition of an assistance animal in s 9(2) of the DD Act; identification of the provisions of the DD Act which the Respondents are said to have contravened; whether that contravention is alleged to have been by way of direct discrimination or indirect discrimination; and the relevant facts that give rise to the alleged breach.
43 Secondly, in its current form, the originating application is defective. While Mr Reurich has no legal representation and is doing the best he can, the originating application is, in parts, unintelligible, ambiguous and too general. Because of its lack of precision in pleading, it is likely to cause embarrassment to the Respondents as it is difficult for them to know what is alleged against them.
44 Finally, for the reasons set out at [32]-[36] above, the originating application fails to disclose a reasonable cause of action appropriate to the nature of the pleading.