Smith v Bunnings Group Limited

Background 8 On 25 June 2021, the New South Wales Government had promulgated the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021 (NSW) (Mask Direction) pursuant to s 7 of the Public Health Act 2010 (NSW). The Mask Direction came into effect on 26 June 2021. 9 Section 7 of the Public Health Act empowers the Minister to deal with public health risks. The Minister implemented the Mask Direction on the grounds explained in cl 4 noting: (a) public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), (b) COVID-19 is a potentially fatal condition and is highly contagious, (c) there is an ongoing risk of [transmission of infection]… 10 Clause 5(1)(d)(i) of the Mask Direction directed that a person must wear a fitted face covering at all times when the person is in an indoor area in retail premises. Clause 5(6)(b) provided that the requirement to wear a fitted face covering pursuant to cl 5(1) did not apply to a person with a physical or mental health condition or disability that made wearing a fitted face covering unsuitable. 11 It is an offence under s 10 of the Public Health Act not to comply with a ministerial direction, such as the Mask Direction, without reasonable excuse. The Mask Direction was operational for less than three months, being repealed on 11 September 2021. 12 In response to the Mask Direction, Bunnings imposed a policy which required all customers to wear a face mask when entering its stores, unless a medical exemption applied. Bunnings purported to enforce the Mask Direction by requiring any customer who refused to wear a mask to provide evidence of a medical exemption. 13 The background to Ms Smith's complaint is best described in the AHRC's summary of events as they occurred on 26 June 2021 (Aff-Grealy, Annexure RG2 at 14): [U]pon entering [the] Bunnings store located in Nowra (the Store), Miss Smith was told by a staff member at the entrance to wear a mask, to which she replied, "I am medically exempt". While in the Store, another staff member approached her and told her that she would need to wear a mask, to which she replied, "I'm medically exempt". Shortly after, Miss Smith was approached by the Store Manager (Mr Beavis) who asked to see her medical exemption to wearing a mask, to which she replied, "that's private and confidential medical information between me and my doctor, the Privacy Act states that I am not required to give you private medical information". Miss Smith says Mr Beavis advised that she would "have to either wear a mask or a visor or [she] will have to leave the store". After obtaining the items that she wished to purchase and proceeded to the checkout point, Miss Smith says the cashier (Ms Bell-Tobin) asked to see her medical exemption or she would not be able to serve her because Miss Smith was not wearing a mask. Miss Smith advised Ms Bell-Tobin she considers the exemption to be private medical information and that she had already told Mr Beavis about her medical exemption, and he was aware of it. Miss Smith paid for her items and left the Store. 14 In her complaint to the AHRC, Ms Smith alleged that Ms Bell-Tobin said to her, "I'll still wear my mask to protect others either (sic) though I'm medically exempt", to which Ms Smith responded, "please save your guilt trip for someone else": Aff-Grealy, Annexure RG1 at 7. 15 Ms Smith told the AHRC in her complaint that the incident caused her significant stress and she sought to "hold Bunnings and the staff members accountable for the coercion, harassment and discrimination": Aff-Grealy, Annexure RG1 at 7. Ms Smith requested the complaint be resolved by way of monetary compensation, an apology and a change in policy and staff training. 16 In terminating Ms Smith's complaint, the AHRC found that there was insufficient information to support a claim of unlawful discrimination: first, because it was not clear how it could be said that she was treated less favourably because of her disability (in circumstances where they could not have known of her disability), and secondly, because all persons who sought to enter the store whether or not they had a disability were required to wear a mask and if not, to provide proof of medical exemption: Aff-Grealy, Annexure RG2 at 18. Further, in relation to her claim of indirect discrimination, there was nothing before the AHRC to support that Ms Smith was unable to comply with the requirement to provide evidence to support her exemption because of her particular disability: Aff-Grealy, Annexure RG2 at 18-19. 17 In her proposed statement of claim, Ms Smith alleges, inter alia, that: she suffered from severe anxiety on 26 June 2021 and was consequently unable to safely wear a face mask (at [7]); no law in force in New South Wales on that date allowed or required Bunnings to act beyond the scope of the Mask Direction, derogate from the obligations contained in the DD Act, allowed or required Bunnings to force customers to wear a face mask before they entered or remained on the premises, allowed or required the respondent to refuse entry or service to people who were not wearing face masks (at [4]); in contravention of ss 23 and 24 of the DD Act, Bunnings discriminated against her when it requested she wear a face mask or provide proof of a medical exemption (at [8]): (a) by refusing her access to the Nowra store; (b) by refusing her access to goods and services; (c) in the terms or conditions on which it was prepared to offer her access to the Nowra store; and (d) in the terms, conditions or manner on which it was prepared to provide her with goods and services. there was no reasonable justification for Bunnings implementing its mask policy because there were other measures and control mechanisms that could have been used that were equally, if not more effective, than face masks and that the mask policy had no legitimate purpose (at [16]). 18 Despite these allegations, it is undisputed that Ms Smith selected her items in the Nowra store, paid for them, and left the premises thereafter.

The requirement to obtain leave 19 It is uncontroversial that Ms Smith requires leave to commence proceedings. 20 It has been accepted by this Court that s 46PO(3A) of the AHRC Act operates to filter out meritless cases: James v WorkPower Inc [2018] FCA 2083; Jones v Westpac Banking Corporation [2020] FCA 238; Matthews v Markos [2019] FCA 1827. 21 Section 46PO(3A) was not intended to create a high bar: Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460. In determining whether to grant leave, the Court should be satisfied the claims made by an applicant are reasonably arguable and not fanciful: WorkPower at [37] and Matthews at [37], cited with approval by Jackson J in Maksacheff at [24]. Granting leave to commence a claim with no prospects of success would be contrary to s 46PO(3A) and not in the interests of the administration of justice: Budini v Sunnyfield [2019] FCA 2164. 22 In WorkPower at [38], Mortimer J outlined considerations that the Court may take into account when determining the prospects of success of an application which is subject to a grant of leave pursuant to s 46PO(3A) of the AHRC Act: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party. 23 As Ms Smith submitted, it is not for the Court at this stage of the proceeding to undertake a close examination of the evidence: WorkPower at [39]. Nevertheless, the Court must be satisfied that there is a genuine factual substratum to the claim that is sought to be brought and that the factual substratum could, if made out, support a claim of either direct or indirect discrimination.

Unlawful disability discrimination 24 Disability is defined under the DD Act to include a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment: s 4(1). Discrimination as established by the DD Act can either be direct or indirect. Ms Smith alleges both. 25 Section 5 of the DD Act defines direct discrimination to occur when a person discriminates against another on the ground of their disability if, because of the disability, the person treats, or proposes to treat, them less favourably than a person without the disability in circumstances that are not materially different. 26 Section 6 of the DD Act defines indirect discrimination to occur where a person discriminates against another on the ground of a disability if the discrimination requires, or proposes to require, the person with a disability to comply with the requirement and, because of their disability the person could not comply with that requirement or condition and, the requirement or condition has disadvantaged the person with a disability. Importantly, ss 6(3)-(4) of the DD Act stipulate that indirect discrimination does not apply in circumstances where the requirement or condition is reasonable having regard to the circumstances of the case, with the burden of proof falling on the respondent. Similarly, s 47(2) of the DD Act provides that an act or conduct is not unlawful if it is done in direct compliance with a law of the Commonwealth or of a state or territory, or regulations, or any other instrument made under such a law. 27 Bunnings submitted that its conduct was reasonable, and indeed necessary, because of the Mask Direction and because of its consequence for Bunnings' obligations under the strict liability duties pursuant to Divs 2 and 3 of Part 2 of the Work, Health and Safety Act 2011 (NSW), and its cognates throughout Australia. Bunnings submitted further that its conduct would, in any event, fall within the exemption created by s 47(2) of the DD Act on the basis that seeking evidence of a medical exemption was the only practical means of ensuring compliance with the Mask Direction. 28 Not all conduct which falls within the definition of direct or indirect discrimination will be unlawful. The DD Act outlines when conduct is deemed unlawful in two relevant provisions: (1) Section 23 of the DD Act which provides: Access to premises It is unlawful for a person to discriminate against another person on the ground of the other person's disability: (a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or (b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or (c) in relation to the provision of means of access to such premises; or (d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or (e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or (f) by requiring the other person to leave such premises or cease to use such facilities. (Emphasis added.) (2) Section 24 of the DD Act further provides: Goods, services and facilities It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person. (Emphasis added.) 29 A critical element in these provisions is that there must be a refusal for access or refusal to provide services or facilities, or only to do so on other terms on conditions.

Is the claim reasonably arguable? 30 Ms Smith's disability is pleaded in the proposed statement of claim to arise from her "severe anxiety". Anxiety is a recognised form of disability under the DD Act: s 4(1). I note that Ms Smith's condition was not characterised as "severe" in her complaint to the AHRC (Aff-Grealy, Annexure RG1 at 6). Bunnings contended that no evidence was put before the Court to identify or support claims of Ms Smith's alleged disability. What evidence was before the Court was a paragraph in the letter from the AHRC to Mr Grealy dated 20 October 2022, advising of its termination of Ms Smith's complaint: Aff-Grealy, Annexure RG2 at 14. That paragraph reads: Other information On 19 February 2022, Miss Smith provided a medical certificate dated 29 June 2021. It states that Miss Smith "suffers from anxiety triggered by wearing a facial mask". It also asks that Miss Smith be considered "to be medically exempt from wearing a mask". 31 Self-evidently, that is not evidence of the truth of the existence of Ms Smith's alleged disability. Still less is it evidence that, as at the date of the incident on 26 June 2021, she had the relevant disability and the requisite medical exemption. 32 Ms Smith submitted that it is unfair to require expert evidence at this stage of proceedings. This submission, with respect, is misplaced. Ms Smith has pleaded her alleged disability in her proposed statement of claim, presumably on the basis of an existing diagnosis. It would be assumed evidence of such would already be within her power or control. It would not have been onerous for Ms Smith to put that evidence before the Court for the purposes of this application, or at the very least, to depose to the truth of the allegation. 33 Further, Ms Smith has not deposed to the truth of the matters alleged in her complaint to the AHRC and pleaded at [7] of her proposed statement of claim, including that she was asked to wear a mask or asked for evidence of a medical exemption. 34 Similarly, no evidence has been adduced as to the basis for making the allegations pleaded at [13]-[18] of the proposed statement of claim as to the inutility of the mask policy as implemented by Bunnings in response to the Mask Direction. 35 By his affidavit, Mr Grealy certifies that, based on the factual material available to him, there is a proper basis for each allegation in the pleading. Despite that certification, no evidence was proffered to establish, at least at a prima facie level, the existence of any fact pleaded. 36 In circumstances where it is for Ms Smith to persuade the Court to exercise its discretion for the claim to proceed and where an applicant must demonstrate a prima facie case on the evidence, failure to provide even the slimmest evidential base for the proposed claim is fatal: Workpower at [51]; Chircop v Technical and Further Education Commission [2022] FCA 1015 at [143] - [145]; Lu v University of New South Wales (No 2) [2022] FCA 1010 at [104], [106], [122], [125] and [127]. On this basis alone, the application must fail.

The alleged direct and indirect discrimination 37 Even if the facts alleged by Ms Smith were established to the requisite degree, the claims of direct and indirect discrimination must fail. 38 In order to meet the elements of either ss 5 or 6 of the DD Act, Ms Smith must demonstrate that she was somehow treated less favourably than a person with no disability. In relation s 5(1), this invites attention to how Bunnings "treats or would treat a person without the disability": Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92 per Gleeson CJ at [213] - [214]. 39 It is apparent from the material before the AHRC that, at the time of the incident, Bunnings required all persons entering its store to comply with the Mask Direction. A person without anxiety who was seeking to enter the Bunnings Nowra store on 26 June 2021 would have been asked to wear a face mask unless they had a medical exemption. 40 Ms Smith has no arguable case of direct discrimination within the meaning of s 5(1) of the DD Act. 41 Similarly, Ms Smith has no arguable case for indirect discrimination on the facts alleged within the meaning of s 6(1). The condition imposed, to wear a mask unless medically exempt, could be met by a person with anxiety.

Unlawful discrimination 42 For a claim to be successful, Ms Smith must demonstrate that Bunnings engaged in discrimination which was unlawful pursuant to ss 23 and 24 of the DD Act. 43 On Ms Smith's own case, she was not refused goods or services by Bunnings, nor was she refused access to the premises. She selected her items, paid for them, and left the store. On each occasion when she was asked to wear a mask or produce a medical exemption, she was nevertheless permitted to continue shopping. 44 Given these conclusions, it is unnecessary to consider Bunnings' submissions, referred to above, that its conduct was in any event reasonable (or necessary) within the meaning of s 6(3) of the DD Act or would otherwise fall within the exemption in s 47(2) of the DD Act.

Disposition 45 Ms Smith has ventilated her complaint before the AHRC. Comprehensive reasons were given by the AHRC for the termination of her complaint. The underlying facts have not changed. There is no suggestion of any allegations of continuing discrimination. 46 Relying on these matters together, Ms Smith's case is futile. She has failed to adduce any evidence which approaches the basis that might support the application. Leave to commence pursuant to s 46PO(3A) of the AHRC Act must be refused. 47 It follows that Ms Smith must pay Bunnings' costs of the application. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.