FEDERAL COURT OF AUSTRALIA

Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The amended notice of contention and amended cross-appeal be dismissed.

3.    The orders of the Federal Circuit Court of Australia dated 27 January 2015 be set aside.

4.    The respondent is to pay damages by way of compensation to the appellant for the stress he has suffered as a consequence of the respondent’s unlawful conduct during the period from at least December 2010 to at least September 2012 in the sum of $10,000 plus interest in accordance with s 51A of the Federal Court of Australia Act 1976 (Cth).

5.    The respondent is to pay the appellant’s costs of the proceeding below, the appeal, the amended notice of contention and the amended cross-appeal.

THE COURT DECLARES THAT:

6.    The respondent’s conduct during the period from at least December 2010 to at least September 2012 in refusing to allow the appellant to fly with it accompanied by his assistance animal in the cabin of its aircraft was unlawful discrimination under s 24 of the Disability Discrimination Act 1992 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

Introduction

1    This appeal raises some important issues concerning the proper construction and application of various provisions in the Disability Discrimination Act 1992 (Cth) (DDA) and their interrelationship with various laws and instruments which affect civil aviation. A central issue is whether the respondent airline unlawfully discriminated against the appellant, who claimed to suffer from cerebral palsy which affected his vision and mobility, when the airline refused to allow his dog, Willow, to accompany him in the aircraft cabin.

Summary of background facts

2    The respondent operates a passenger airline under the name Virgin Australia.

3    In around mid-2010, Mr Mulligan tried to book a domestic flight with Virgin Australia. It appears that at this time he was living in Coffs Harbour and he later moved to Lithgow. He told Virgin Australia that he was disabled and wanted his assistance dog to travel with him in the passenger cabin. Mr Mulligan was informed by Virgin Australia that he could not take Willow with him in the cabin.

4    Mr Mulligan disputed Virgin Australia’s position. At one point, which occurred relatively early in the history of the matter, it appeared that the airline had changed its position. In an email dated 14 December 2010, Mr Mulligan was advised by Ms Jodi Bodziony, Guest Relations at Virgin Australia, that, after having made some inquiries, he was “in fact correct” and could travel with his assistance dog. Ms Bodziony told Mr Mulligan that she would contact the airline’s Priority Assistance, and pass on his details so that they could contact him as soon as possible.

5    On 16 December 2010, Mr Mulligan sent an email to Ms Bodziony in which he attached documentation which he said supported “my needs and rights to have an assistance animal with me at all times”. That documentation comprised:

(a)    a letter dated 10 March 2009 written on the letterhead of the Coffs Harbour Dog Training Club Inc, which stated:

To Whom it May Concern

10th March 2009

David Mulligan of Coffs Harbour, and Willow have completed the Companion Dog training Course as an Assistant Dog at our Club in Coffs Harbour.

Willow is under control when wearing her harness and understands all the basic commands, she is a companion dog for David to assist him with his balance problems, hearing and sight difficulties. Willow works on the right hand side of David when walking to support him with his balance problem. Willow has lived with David for three years and they have been training with us for the last 3 months and will continue to train with us in the future.

Willow obeys all commands and is a social dog, she has no fear of other dogs or people and has shown no aggression in any situation, she does not react adversely to noise or confined areas when she is with David. Willow should be able to accompany David shopping, travelling and at other social occasions.

David and Willow work as a team to assist him with his daily living skills, she is toilet trained, clean and cared for correctly.

Donna Maher, Club President

Coffs Harbour Dog Training Club Inc.

PO Box 510 Toormina 2452

(signed)

Robynne McGinley

Trial Secretary

(signed).

A handwritten note at the bottom of the letter stated “Affiliated to Dogs NSW”;

(b)    a copy of a card issued by Rail Corporation New South Wales which certified that Mr Mulligan was permitted to travel with an “Assistance Animal” on public transport services within New South Wales. The card included a photograph of Willow. The card was stated to expire on 25 March 2010;

(c)    a card issued by the Queensland Translink Network, issued in the name of Mr Mulligan, and which described Willow as an “Assistance Animal”. The card was stated to expire in February 2011; and

(d)    a short letter dated 23 March 2009 from Dr Cathryn Platt, which stated that Mr Mulligan “has cerebral palsy and problems with his hearing and eyesight” and that he required the use of “an ‘assistance dog’” when travelling by rail.

6    In the ensuing lengthy exchange of correspondence between the parties in which Virgin Australia reverted to its original position that Willow could not accompany Mr Mulligan in the cabin, the airline did not question Mr Mulligan’s claims that he had a disability and needed Willow to assist him. Rather, the airline’s exclusive stated concern related to Willow’s eligibility to accompany Mr Mulligan in the cabin.

7    Mr Mulligan persisted with his request that he be allowed to fly with Virgin Australia accompanied by Willow in the cabin. In an email dated 20 July 2012 Mr Mulligan advised Virgin Australia that he had just been granted permission to hold a National ID card from Blind Citizens Australia and he added that the ID card had been recommended to him by Guide Dogs Australia. He rhetorically asked why there was not sufficient verification to allow him to be accompanied by his dog.

8    Virgin Australia responded to that email through Mr Matthew Dixon, whose title was Guest Experience Manager and whose letterhead indicated that he had some affiliation with the office of the airline’s chief executive officer. Mr Dixon informed Mr Mulligan in an email dated 18 August 2012 that he was willing to discuss the matter with Mr Mulligan. He provided Mr Mulligan with what appears to be standard information from Virgin Australia on the topic of travelling with an “Assistance Dog”. The information defined an “Assistance Dog” as one who “accompanies a person who suffers from a disability other than a vision or hearing impairment” (emphasis added). The information stated that Virgin Australia would only accept assistance dogs that had been appropriately trained, sufficient to pass a public access test by one of several specified organisations, and that the organisations must meet or exceed the minimum standards set by Assistance Dogs International or the Guide, Hearing and Assistance Dogs Act 2009 (Qld). The information added that all other animals must travel in the hold of the aircraft.

9    In providing that information to Mr Mulligan, Mr Dixon appears to have assumed that Mr Mulligan had a disability other than a vision or hearing impairment. It appears that, at this time, neither Mr Dixon, nor any other representative of Virgin Australia, turned their mind to Mr Mulligan’s legal entitlement to fly with Virgin Australia with Willow accompanying him in the cabin in circumstances where he claimed, at least implicitly, that he had a vision impairment and needed his dog to accompany him.

10    Mr Mulligan responded to Mr Dixon in an email dated 20 August 2012. He said that Willow met the relevant criteria of the DDA which, he added, required Willow “to alleviate a disability therefore requiring her as an assistance dog” (emphasis in original). He said that he had “paperwork” which stated that Willow was an “assistance dog”. Mr Mulligan repeated his claim to have a legal right to have Willow with him in the cabin. He added that he had medical documentation, as well as “a long letter” from an accredited dog trainer whose club, Mr Mulligan said, was affiliated with Dogs NSW, and other documentation to support his “reasons for an assistance dog” (emphasis in original).

11    On 21 August 2012, Mr Mulligan sent another email to Mr Dixon. He said that under the DDA “an assistance dog is to alleviate a person’s disability” and that he had such a dog. He also added that he had “multiple disabilities, possibly six or seven, and under the Disability Discrimination Act it is unlawful to be discriminated against because of this”. He reiterated that he had an ID card from the Queensland and New South Wales governments for his “assistance dog” to travel on all forms of public transport, as well as medical documentation and an accredited dog trainer’s letter. He repeated that he had just been granted permission for an ID card from Blind Citizens Australia. Mr Mulligan paraphrased the definition of “assistance animal” in s 9(2) of the DDA and claimed that his dog “has been trained by an accredited dog trainer affiliated with a state body, Dogs NSW, therefore making her a recognised assistance dog under the Disability Discrimination Act”. He said that Ms Bodziony had told him that he was correct in stating that he was allowed to take Willow on the plane with him. He also added that he needed to have Willow accompany him in the cabin as she was “needed to alleviate a number of disabilities I have, Cerebral Palsy and eyesight loss being the two main ones”. He concluded that, because he had so many disabilities which required him to have an assistance dog, that he “should not be subject to such stress and incompetence”.

12    Mr Mulligan received a further response from Virgin Australia in the form of a letter dated 19 September 2012 from Ms Kate Young, who described herself as a Guest Experience Advisor with Virgin Australia. Ms Young’s letter set out at some length Virgin Australia’s position in respect of Mr Mulligan’s desire to have Willow accompany him in the cabin when flying with the airline. In contrast to Mr Dixon’s earlier evident assumption, Ms Young made express reference to Mr Mulligan’s claims that he was both visually and hearing impaired (which claims were not queried by her) and that Virgin Australia’s “guide dog policy”, which was said to be based on “CASA Regulations”, applied to Mr Mulligan and Willow. The letter also described the airline’s “Assistance Dog Policy”. It is desirable to set out the text full of the letter (without correction):

Dear Mr Mulligan

Your assistance dog enquiry

Thank you for your email dated 20 August 2012 outlining your concerns regarding the ability of your dog to travel with you on-board Virgin Australia operated flights. We understand that this matter is important to you and apologise for the delay in providing Virgin Australia’s response. Thank you for your patience. Virgin Australia welcomes guests with disabilities and strives to provide all guests with a high level of service. However, as you may be aware, Virgin Australia is required to comply with both the Disability Discrimination Act 1992 and the Civil Aviation Regulations 1988 (“CASA Regulations”). While the CASA Regulations have generally accepted the carriage of dogs accompanying a person with a vison or hearing impairment, the carriage of other assistance animals requires specific approval from CASA.

Guide Dog Policy

As you have indicated that you are both visually and hearing impaired, Virgin Australia would ordinarily apply our guide dog policy to you and your dog when travelling on Virgin Australia Operated flights. This policy (based on the CASA regulations) provides that guide dogs are permitted in the cabins of all Virgin Australia aircraft when they are travelling with their owner. However for a dog to qualify as a guide dog they must:

a)    be accompanying a guest who is visually or hearing impaired; and

b)    Must be trained and accredited by an applicable Australian Guide Dog Association under the banner of Guide Dogs Australia.

As you have indicated that your dog has not been accredited as a guide dog by an applicable Australian Guide Dog Association, unfortunately your dog is not permitted to accompany you on Virgin Australia flights as a guide dog.

Assistance Dog Policy

The CASA Regulations at sub-regulation 256A provide that an airline may only permit an assistance dog to travel in the cabin of the aircraft if the assistance dog is carried with the written permission of Civil Aviation Safety Authority (“CASA”). CASA has provided Virgin Australia with permission to carry an assistance dog in the cabin of the aircraft only if the assistance dog;

a)    has passed a public access test showing that the assistance dog is suitable for travel on public transport, and

b)    Has been trained as an assistance dog by an Approved Organisation.

CASA defines an Approved Organisation as an organisation;

i.    accredited by an animal training organisation prescribed by the DDA, s 9; or

ii.    that meets the minimum standards set by Assistance Dogs International full members; or

iii.    That meets the minimum standards set by Queensland Guide Hearing and Assistance Dogs Act 2009.

Based on your email, it appears that you are able to provide evidence to support your reasons for an assistance dog. However, to comply with CASA Regulations you are also required to provide evidence that your dog has been appropriately trained and has passed a public access test. On that basis, we regretfully advise that at this point in time, we are unable to carry your dog in the aircraft cabin. To do so it is likely that Virgin Australia would be in breach of its permission from CASA. Although, if you find that you are able to provide evidence that your dog was trained by an organisation that fits within the above definition and has passed a public access test, please let us know.

Virgin Australia is a member of the Aviation Access Working Group and this difficult issue has in fact been discussed at this forum with other airlines, disability advocates, the government and the Disability Discrimination Commissioner, Graeme Innes. However, unfortunately there has been no resolution as yet.

Thank you for your understanding as to the limitations we face with carrying assistance dogs on board our aircraft.

Kind regards

Kate

13    As will emerge below, this statement of Virgin Australia’s position and policies relating to a person in Mr Mulligan’s circumstances contains several fundamental errors and misconceptions.

14    Mr Mulligan lodged a formal complaint with the Australian Human Rights Commission (AHRC) on 5 October 2012, alleging unlawful discrimination. His statement of complaint made the following claims:

1.    I wish to make a claim of disability discrimination against Virgin Australia airlines.

2.    I have disabilities including cerebral palsy, eyesight loss and hearing problems. I have a national identification (ID) card from Blind Citizens Australia.

3.    I have an assistance dog trained to alleviate the effects of my disabilities. I need my assistance dog to accompany me at all times including when travelling. My dog was trained by an accredited dog trainer affiliated with a state body, Dogs NSW.

4.    I have travel ID cards from the Queensland and New South Wales governments for my assistance dog to travel with me on all forms of public transport. I have medical documentation, an accredited dog trainer’s letter and other evidence to support my dog is an assistance animal (attached).

5.    For over two years I have been trying to get approval from Virgin Australia for my assistance dog to accompany me in the aircraft passenger cabin.

6.    Virgin Australia has refused to do so, therefore I am unable to travel with them. I have family in Queensland and it makes it very difficult to visit them. I have been forced to travel by train which is very time consuming and inconvenient.

7.    Virgin Australia has a regulation for allowing assistance animals access into the passenger cabin. It requires proof of accreditation of assistance dogs to be done by specific organisations. My assistance dog is not accredited by one of these specific organisations so Virgin Australia will not allow her access. However, as outlined above, I have a great deal of evidence to show she is an assistance animal.

8.    Virgin Australia has said that its assistance animal regulations are set by the Civil Aviation Safety Authority (CASA). However, this is incorrect. My understanding is that this requirement is not in CASA’s regulations. CASA’s regulations say that, beyond certain criteria which my dog meets, it’s up to the airline to grant permission to assistance animals.

9.    I have had ongoing communications with Virgin Australia in relation to this issue for the past two years with no resolution reached.

10.    Virgin Australia has often said that it would contact or call me within certain time frames but they never do. This has been very stressful for me. I have found the staff to be rude. I have now told Virgin Australia that all communications must be in writing because of staff never calling when they said they would.

11.    To resolve these issues, I would like recognition from Virgin Australia that my dog is an assistance animal and she can have access in the same way as any other assistance animal, including to the aircraft passenger cabin.

12.    I would also like Virgin Australia to broaden their policy in relation to assistance animals as I believe the policy is discriminatory and not in line with the disability discrimination laws.

13.    I would also like Virgin Australia’s staff to have more training on assistance animals, including better awareness of what they are, their functions and why they are required. I would also like for Virgin Australia to better train their booking agents like Flight Centre in relation to their assistance animal policies. I have had a bad experience with Flight Centre.

14.    I would also like financial compensation for reasons including the way I have been treated by Virgin Australia and the personal stress their decision has caused over such a long period (when it could have been resolved quickly).

15    It might also be noted that the evidence before the Federal Circuit Court of Australia (FCCA) also included an email dated 5 October 2012 which was sent by Mr Mulligan to the AHRC complaints area. He stated that he had had two family deaths in 2011 and had had to travel all the way by trains and buses to the Gold Coast. Mr Mulligan added that: “As you could imagine the stress of travelling is more than enough, let alone have to deal with the loss of a family member”. He added that he had elderly relations in their 80s and 90s who lived on the Gold Coast and Victoria and that one of his elderly relations had had “a return of cancer”. He said that if there was a death in Victoria he would not be able to attend simply because he could not board a flight with Willow.

16    On 22 May 2013, the AHRC terminated Mr Mulligan’s complaint pursuant to s 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the ground that the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation.

The FCCA proceedings

17    On 19 July 2013, Mr Mulligan lodged an originating application in the FCCA in which he alleged that Virgin Australia had discriminated against him, contrary to the DDA. He identified the discrimination as “Assistance animal discrimination, disability discrimination in the provision of goods and services, and unlawful contravention of the Disability Standards”.

18    Mr Mulligan’s allegations in the FCCA were given greater specificity in a further amended statement of claim filed 11 July 2014. Mr Mulligan alleged that he had various disabilities “including cerebral palsy, which affect his vision and mobility”. It might be noted that Mr Mulligan’s mobility difficulties were not raised in his complaint to the AHRC and also that in the FCCA proceeding, Mr Mulligan did not rely on hearing problems even though this formed part of his complaint to the AHRC (see [14] above). He also pleaded that he had an assistance animal which was trained to assist him with his physical disability to alleviate the effect of the disability and trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. He pleaded that he had New South Wales and Queensland “permits” which allowed his assistance animal to travel with him on public transport. After setting out some further background to his complaint, Mr Mulligan alleged that Virgin Australia’s conduct was unlawful under s 24 of the DDA, as being contrary to ss 5, 6 and 8 of that Act. He further alleged that the conduct was in breach of the relevant Disability Standard which, he claimed, was unlawful conduct under s 32 of the DDA.

19    Virgin Australia defended the proceeding. In response to Mr Mulligan’s pleading that he had various disabilities, including cerebral palsy which affected his vision and mobility, Virgin Australia admitted that it had received Dr Platt’s medical report, but otherwise did not admit Mr Mulligan’s pleading on the ground that the lack of particulars to his “alleged disabilities make it impossible to plead further to this allegation”. Virgin Australia pleaded that it had invited Mr Mulligan to provide evidence that his animal was an “assistance animal” as defined in the DDA and had been trained by an accredited organisation in accordance with the “CASA regulations” and Virgin Australia’s “policy”. Virgin Australia denied that it had unlawfully discriminated against Mr Mulligan and pleaded, alternatively, that if it was found to have discriminated against him, it had a defence of unjustifiable hardship. That unjustifiable hardship was said to arise if the airline was required to carry Willow in the cabin of its aircraft without receiving evidence that Willow was an “assistance animal” as defined in the DDA and had been trained by an accredited organisation in accordance with the “CASA regulations” and the airline’s policy. The airline also claimed that the safety of passengers (including Mr Mulligan) and crew would be imperilled if it was required to carry Willow on board without that evidence.

20    The references to the “CASA regulations” are an apparent reference to reg 256A of the Civil Aviation Regulations 1988 (Cth) (the CARs). The reference to the airline’s “policy” is an apparent reference to the guide dog policy and/or assistance dog policy which were described in Ms Young’s letter (see [12] above).

21    In the FCCA proceeding, Mr Mulligan swore an affidavit dated 10 July 2014 to which was annexed inter alia:

(a)    email correspondence between the parties over the almost two year period from late 2010 to September 2012, including that outlined above, as well as some email correspondence in September and October 2012 with the AHRC;

(b)    the letter dated 10 March 2009 from the Coffs Harbour Dog Training Club Inc (see [5(a)] above); and

(c)    the letter dated 23 March 2009 by Dr Cathryn Platt (see [5(d)] above).

22    Virgin Australia objected in the FCCA to the admissibility of Dr Platt’s brief letter, as well as to the letter from the Club. Written submissions were provided in support of those objections. The primary judge rejected the objections and admitted the documents into evidence. The email correspondence was also admitted into evidence.

23    In the FCCA, Mr Mulligan also sought to adduce into evidence a later medical report by Dr Denise Baker. The report was dated 15 January 2015 and took the form of a medical certificate, which stated:

Mr DAVID MULLIGAN has Cerebral Palsy, Spina Bifida occulta, and problems with his Hearing and Eyesight. He has an assistance Dog which he needs by his side at all times. His Father, his Half-brother, his Paternal Grandmother, and Paternal Grand-Aunt all live on the Gold Coast. His Paternal Grand-Aunt is dying at present. David would like to visit her before it is too late. He would like to be able to travel up to see the other members of his Family from time to time.

David is no longer able to cope with travelling long distances by Road or Rail. In order to get up to the Gold Coast by Rail, he is obliged to catch a Train from Lithgow at 3am, and then has to spend the next 22 hours travelling before he reaches his Destination. He finds that travelling and staying awake for this length of time is very stressful, and no longer possible.

He therefore needs to Fly to The Gold Coast, and other distant destinations. He is required to travel with his assistance Dog at all times, and should be allowed to have the Dog with him on flights.

24    Virgin Australia objected to this document being admitted into evidence below. Ms Keys, who appeared for Mr Mulligan in the FCCA, informed the court that the relevance of the documents was that it went to Mr Mulligan’s claim for damages. The primary judge explained to Mr Baartz, who appeared for Virgin Australia below, that it was put by Ms Keys that the document was potentially relevant to the issue of damages. His Honour formally admitted the document subject to relevance. No explicit direction was made that Dr Baker’s report be confined to the issue of damages.

The FCCA’s reasons summarised

25    The primary judge, Judge Street, dismissed Mr Mulligan’s application and ordered him to pay Virgin Australia’s costs. His Honour’s reasons for judgment may be summarised as follows.

26    First, his Honour found that the airline was correct in requiring Mr Mulligan to satisfy the requirements of two instruments made by the Civil Aviation Safety Authority (CASA), namely Instrument 1FHQK3(4) dated 11 June 2011 which was replaced on 20 February 2013 by Instrument 1FHQK3(5) (the Instruments), both of which relevantly provided:

I, [name of person making the Instrument], a delegate of CASA, make this instrument under subregulation 256A(1)(b) of the Civil Aviation Regulations 1988.

…

4    Permission

The Operator may carry an assistance dog in the cabin of its aircraft if:

(a)    it has been trained and accredited by a foreign assistance dog training organisation which meets or exceeds the minimum standard as set out by Assistance Dogs International for full membership of that organisation, or

(b)    it has been trained or is being trained as an assistance dog by an approved organisation, and

i)    it has passed a public access test showing it to be suitable for travel on public transport, or

ii)    for an assistance dog being trained, documented evidence has been provided from an approved organisation showing it to be suitable for travel on public transport.

27    Secondly, his Honour found at [7] that both these Instruments exhaustively identified the permission granted by CASA to Virgin Australia to carry an assistance dog in the cabin.

28    Thirdly, his Honour found at [6] that Willow was not an “assistance dog” who had been trained and identified by an approved organisation as required by those Instruments (and his Honour stated that it was common ground between the parties that this was so). The primary judge did not address the separate issue whether Willow was an “assistance animal” within the meaning in s 9(2) of the DDA.

29    Fourthly, his Honour held at [8] that s 47(2) of the DDA applied, which provided that anything done by a person in direct compliance with “a prescribed law” was not unlawful. His Honour made reference to the definition of prescribed law in s 2B of the Acts Interpretation Act 1901 (Cth) (AIA) and held that it would “clearly apply” to the Instruments.

30    Fifthly, in response to Mr Mulligan’s argument that reg 256A(2) of the CARs created a separate and express permission, his Honour described that provision at [12] as being “in the nature of a defence where the events identified have occurred” and that it was not an independent ground upon which Virgin Australia could disregard the Instruments of the nature here which, his Honour added, created an offence for non-compliance.

31    Sixthly, the primary judge found at [13] that, and in any event, Mr Mulligan was not “a person who is only visually impaired or hearing impaired” (emphasis added) and that, if reg 256A(2) had a broader application, Mr Mulligan had cerebral palsy disabilities which required an assistance dog, but that was “beyond the application of the defence or exemption within r. 265A(2) (sic)”. His Honour stated at [13] that he was satisfied on the evidence before him, including the medical reports of both Dr Platt and Dr Baker, that Mr Mulligan “requires an assistance dog by reason of his cerebral palsy as well as problems with his hearing and eyesight”. He concluded that, in these circumstances the defence or exemption under reg 256A(2) had no application. It is evident that his Honour proceeded on the basis that reg 256A(2) was limited in its operation to a situation where the disabled person was either only visually impaired or only hearing impaired, i.e. with no other disability.

32    Seventhly, his Honour said at [15] that it was common ground that there was no compliance with s 54A(5) of the DDA in respect of the Instruments because Willow was not trained and identified by an approved organisation and Mr Mulligan had failed to provide Virgin Australia with evidence of the kind specified in s 54A(5).

33    Eighthly, his Honour found at [16] that having regard to the Instruments and Virgin Australia’s obligation to comply with them, it would have imposed an unjustifiable hardship on Virgin Australia to carry Willow because that would be contrary to “the express confinement of permission identified in instruments (sic) and as such a potential offence”.

34    Finally, his Honour considered at [20] that there was no reason not to apply the ordinary rule that costs should follow the event and he ordered Mr Mulligan to pay Virgin Australia’s costs.

35    These reasons for decision, it may be noted, were given in an ex tempore judgment. It must necessarily be recognised that the attributes of different judges vary enormously and that appellate courts stand in a very different position to a trial court having a large volume of cases, such as the FCCA: M D Kirby, ‘Ex tempore Reasons’, (1992) 9 Australian Bar Review 93. In a case such as the present, however, where the factual findings to be made and the legal conclusions to be reached were not easy of resolution, it was perhaps surprising that the primary judge decided to deliver ex tempore reasons rather than to first pause for reflection. Any experienced judge may have hesitated – and, perhaps, avoided error.

The appeal to this Court

36    Mr Mulligan appealed against Judge Street’s judgment and orders. His nine grounds of appeal may be summarised as follows.

37    Ground 1: The primary judge erred in concluding that the Instruments were a prescribed law within the meaning of s 47(2) of the DDA.

38    Ground 2: In concluding that the Instruments were a prescribed law, the primary judge failed to take into account reg 2A and Sch 1 of the Disability Discrimination Regulations 1996 (Cth) (the DDRs).

39    Ground 3: The primary judge misconstrued and misapplied reg 256A(2) of the CARs in concluding that they were intended to be exhaustive of the circumstances in which Virgin Australia carried assistance animals and also in finding that the provision had no application to Mr Mulligan because he required an assistance dog by reason of his cerebral palsy as well as problems with his hearing and eyesight.

40    Ground 4: The primary judge misconstrued and misapplied s 54A(5) of the DDA in finding that there was non-compliance with that provision because Willow “was not trained and identified by an approved organisation”.

41    Ground 5: The primary judge misconstrued and misapplied s 11 of the DDA relating to unjustified hardship.

42    Ground 6: In applying s 11 of the DDA, the primary judge failed to have regard to the circumstances set out in s 11(1), as well as to the fact that Virgin Australia carried the burden of establishing unjustified hardship and yet it adduced no evidence of unjustifiable hardship.

43    Ground 7: The primary judge erred in finding that s 32 of the DDA had no application and that there was no contravention of the relevant disability standard.

44    Ground 8: The primary judge erred in failing to find that Virgin Australia’s failure to make its services available and keep a seat for Mr Mulligan since 2010 constituted unlawful discrimination under ss 24 and 32 of the DDA.

45    Ground 9: The primary judge erred in failing to take account of s 46PO of the AHRC Act in both the substantive proceedings and in ordering Mr Mulligan to pay costs because:

(a)    the primary judge erroneously regarded the application as falling within the FCCA’s jurisdiction conferred by s 49B of that Act; and

(b)    the application was in fact made under s 49PO of that Act and the primary judge erred in identifying s 47(2) of the DDA as relevant to the terminated complaint.

46    The appeal was vigorously defended by Virgin Australia, who also relied upon an amended notice of contention and an amended cross-appeal, both of which were lodged (as opposed to filed) on 23 July 2015.

47    On 30 July 2015, Griffiths J granted leave to file the amended notice of contention and amended cross-appeal.

48    The amended notice of contention raises the following six broad grounds:

(a)    there was no probative evidence establishing Mr Mulligan’s alleged disabilities, namely “various disabilities including cerebral palsy, which affect his vision and mobility”;

(b)    there was no probative evidence that Willow was an assistance animal as defined in s 9 of the DDA in that it had not been established that Willow had been trained to assist Mr Mulligan to alleviate the effect of his identified and established disabilities;

(c)    it was conceded by Mr Mulligan that in respect of his alleged disability, namely cerebral palsy, he could not satisfy the CARs requirements for carriage of Willow in the cabin on an aircraft for persons with a disability other than sight or hearing and hence he had to satisfy the CARs requirement that Willow was permitted to be carried by reason of her being either a guide dog or assistance dog accompanying a person who was visually impaired, which Mr Mulligan did not do;

(d)    on the evidence, it was not established that Mr Mulligan was “a visually impaired or hearing impaired person” under reg 256A(2) of the CARs entitling he and Willow to be carried in the cabin of an aircraft operated by Virgin Australia;

(e)    on the evidence it was not established that Willow is “a guide or an assistant” under reg 256A(2) of the CARs entitling him and Willow to be carried in the cabin of an aircraft operated by Virgin Australia; and

(f)    s 98(6B) of the Civil Aviation Act 1988 (Cth) (CAA) permitted Virgin Australia to discriminate lawfully if acting in accordance with the CARs and/or an instrument made pursuant to reg 256A(1) of the CARs.

49    The amended notice of cross-appeal raises the following six broad grounds:

(a)    the primary judge erred by admitting into evidence Dr Platt’s report;

(b)    the primary judge erred by admitting into evidence the letter from the Coffs Harbour Dog Training Club Inc;

(c)    the primary judge erred by admitting into evidence Dr Baker’s medical report and also admitting it on the subject of damages only but then relying on it in respect of the identification of Mr Mulligan’s relevant disability;

(d)    the primary judge erred by failing to find and identify the precise nature and extent of Mr Mulligan’s alleged disability when this was necessary to determine whether Willow was an “assistance animal” as defined in s 9(2) of the DDA and also by failing to find that Mr Mulligan did not suffer from a “disability” as defined in s 4 of the DDA because there was no probative evidence to support a finding that he suffered from any such disability;

(e)    the primary judge erred by finding that Mr Mulligan requires an “assistance dog” by reason of his cerebral palsy as well as problems with his hearing and eyesight where there was no probative evidence to support that finding and his Honour misconstrued the test under s 9(2) of the DDA; and

(f)    the primary judge erred by failing to find that Willow was not an “assistance animal” as defined in s 9(2) of the DDA in circumstances where there was no probative evidence to support a finding to the contrary.

AHRC’s participation in the appeal

50    The AHRC sought leave to intervene or appear as amicus curiae in the appeal. It did not wish to be heard on any factual dispute and emphasised that it sought leave solely to assist the Court on questions of law and the proper interpretation of relevant provisions of the DDA which, it submitted, raised points of general principle, are of public importance and may affect persons other than the parties in the appeal.

51    Mr Mulligan and Virgin Australia did not oppose the AHRC’s application.

52    Rule 9.12 of the Federal Court Rules 2011 (the FCRs) confers a discretion on the Court to grant a person leave to intervene, subject to such conditions as may be determined by the Court. Rule 9.12(2) provides that, in considering such an application, the Court may have regard to:

(a)    whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceedings;

(b)    whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceedings as the parties wish; and

(c)    any other matter that the Court considers relevant.

53    Note 2 to r 9.12 expressly states that the Court may appoint an amicus curiae.

54    The relevant principles guiding the exercise of these discretions are relatively well settled (see, for example, United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534-5).

55    The Court determined to grant leave to the AHRC to intervene as a party in the proceedings after noting that it proposed to make only short oral submissions in support of its detailed written submissions and its assurance that it would not duplicate submissions made by other parties. The Court considered that the AHRC’s participation would not unduly lengthen the hearing. The Court also accepted that the appeal raised important questions of law regarding the proper interpretation of the DDA, which are of general application and may affect persons other than the immediate parties before the Court. The Court did not consider that the AHRC’s participation should be subject to any formal conditions.

AHRC’s submissions summarised

56    It is convenient at this stage to summarise the AHRC’s written submissions, noting that various submissions advanced by Mr Mulligan and Virgin Australia will be considered below.

57    First, the AHRC made submissions concerning the proper construction of reg 256A of the CARs. In particular, it emphasised the differences between reg 256A(1) and (2). It is convenient to set out these provisions, as well as reg 256A(1A), which relevantly provide:

256A    Carriage of animals

(1)    Subject to subregulation (8), the operator of an aircraft may permit a live animal to be in the aircraft only if:

(a)    the animal is in a container and is carried in accordance with this regulation; or

(b)    the animal is carried with the written permission of CASA and in accordance with any conditions specified in the permission.

Penalty: 25 penalty units

…

(1A) An offence against subregulation (1) is an offence of strict liability.

…

(2)    Subregulation (1) does not apply to a dog accompanying a visually impaired or hearing impaired person as a guide or an assistant if the dog is:

(a)    carried in the passenger cabin of the aircraft; and

(b)    placed on a moisture-absorbent mat as near to the person as practicable; and

(c)    restrained in a way that will prevent the dog from moving from the mat.

…

(8)    An animal must not be carried on an aircraft if carrying the animal would be likely to affect a person on the aircraft in a way that may affect adversely the safety of the aircraft.

(9)    In this regulation, animal means any member of the animal kingdom other than man.

58    The AHRC emphasised that while reg 256A(1) applied to animals generally, reg 256A(2) created an express exception to reg 256A(1) which is specific to dogs and not to all animals. It submitted that any permission given by CASA under the former provision has no work to do with respect to a dog which meets the requirements and conditions of the latter provision.

59    Secondly, the AHRC submitted that the primary judge erred in characterising reg 256A(2) as being in “the nature of a defence”. It further submitted that this regulation did not create a right for a person with a disability to be accompanied by a dog or impose an obligation on an aircraft operator to allow such a dog to enter its aircraft. Rather, it submitted that the regulation has the effect that an operator is not prohibited from doing so unless reg 256A(8) applies. In the AHRC’s submission, if the exception in reg 256A(2) applies, and an operator refuses to carry a dog, that operator may still engage in unlawful discrimination for the purposes of the DDA.

60    Thirdly, the AHRC submitted that the primary judge adopted an unduly narrow approach in finding that reg 256A(2) did not apply to Willow because of the Court’s finding that Mr Mulligan “has cerebral palsy disabilities which required an assistance dog”. The AHRC submitted that this finding implied that Mr Mulligan must have only a visual impairment or hearing impairment, with the consequence that on the primary judge’s approach, if a person is assisted by a dog and has any other disability in addition to a visual or hearing impairment, reg 256A(2) is inapplicable. The AHRC submitted that there was no reason to restrict reg 256A(2) in that way and that the provision applied if a dog accompanied a visually impaired or hearing impaired person as a guide or an assistant irrespective of whether the person has other disabilities or the dog assists with a single disability or multiple disabilities.

61    Fourthly, the AHRC submitted that the primary judge mischaracterised the Instruments in describing them as creating an offence. Rather, it was submitted that the Instruments constituted a general permission which allowed Virgin Australia at the relevant times, and providing certain conditions were met, to carry assistance animals for the purposes of reg 256A(1). The AHRC added that the Instruments did not constitute a comprehensive scheme governing the carriage of assistance animals on aircrafts, contrary to the primary judge’s finding.

62    Fifthly, the AHRC submitted that the primary judge erred in concluding that the Instruments were a “prescribed law” for the purposes of s 47(2) of the DDA. The AHRC drew attention to the fact that the expression “prescribed” is defined in s 2B of the AIA as meaning “prescribed by the Act or by regulations under the Act”. Section 132(1) of the DDA empowers the Governor-General to make regulations in prescribing certain matters and s 132(2) refers to the power to make regulations for the purposes of s 47 of the DDA. A number of laws are prescribed in reg 2A and Sch 1 of the DDRs, but none of those laws include the CARs or the Instruments, thus they are not “prescribed laws”.

63    Sixthly, the AHRC submitted that his Honour also erred in concluding that the Instruments were a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) (LIA) because:

(a)    neither the CARs nor the Instruments altered the content of the law, but rather applied the law in a particular case;

(b)    the Instruments were not of general application and applied only to Virgin Australia; and

(c)    it is also to be noted that the Instruments do not appear on the Federal Register of Legislative Instruments.

64    Seventhly, as to s 54A(5) and (6) of the DDA, the AHRC submitted that while the former provision authorised a potential discriminator to request evidence about certain matters, it did not allow them to stipulate what they would accept as evidence of such matters. Furthermore, it was submitted that s 54A(6) rendered it lawful to discriminate if a person failed to provide evidence of certain matters but it did not permit discrimination on the basis that the person failed to provide particular kinds of evidence that had been specified by the potential discriminator, nor did it permit discrimination because the evidence supplied did not meet a particular threshold specified by the potential discriminator.

65    The AHRC acknowledged that what constituted “evidence” for the purposes of these provisions may depend on the training a particular animal has received but it emphasised that s 9(2)(c) of the DDA provided that an animal may be an assistance animal for the purposes of the DDA having received relevant training from a non-accredited person, such as the dog’s owner. The AHRC submitted that, in such a case, a statement from the owner that the dog was trained could constitute evidence of training in satisfaction of s 54A(5). It was submitted that this construction would not open the floodgates to claims of unlawful discrimination because such a claim could only be established if the complainant established on the balance of probabilities that he or she had a specified disability, wished to be accompanied by an assistance animal, and that the animal was an “assistance animal” for the purpose of s 9(2).

66    Eighthly, the AHRC submitted that the primary judge erred in identifying the following two matters as constituting unjustifiable hardship on Virgin Australia:

(a)    carrying the dog would have exposed the airline to a risk of non-compliance with the CASA permission, and a subsequent risk of prosecution; and

(b)    carrying the dog would have exposed other passengers to risk.

67    The AHRC submitted that the first of those findings revealed an erroneous construction of the Instruments for reasons given above. Furthermore, it submitted that a risk of prosecution for non-compliance with an obligation should not be considered to be a hardship for the purposes of s 11.

68    Finally, on the issue of the proper construction of s 9(2)(c) of the DDA, the AHRC submitted that, in the absence of any statutory definition of the term “train”, the term “trained” should be given its ordinary meaning which included “to discipline and instruct (an animal) to perform specified actions”. The AHRC submitted that s 9(2)(c) did not impose any requirements about the type or amount of training to be undertaken by an assistance animal, nor was any such requirement imposed under the DDA or relevant regulations. It submitted that there was no requirement for an animal to be professionally trained and that it could be trained by its non-professional owner. It submitted that this was supported by the Explanatory Memorandum to the Bill which gave rise to the 2009 amendments, which stated in respect of cl 9(2)(c):

The purpose of this amendment is to provide greater certainty to both service providers and people with assistance animals. The third limb of the definition (paragraph 9(2)(c)) is designed to ensure that people with disability who may not live in a State or Territory that has a relevant accreditation scheme, or who may not have access to a recognised assistance animal trainer continue to be protected under the Disability Discrimination Act (if they are able to demonstrate the requirements of the relevant sections).

Relevant legislative provisions

69    It is desirable to set out the following relevant provisions in the DDA, the AHRC Act, the CAA, the CARs and some miscellaneous instruments.

The DDA

70    The objects of the DDA are set out in s 3:

Objects

The objects of this Act are:

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

(i)    work, accommodation, education, access to premises, clubs and sport; and

(ii)    the provision of goods, facilities, services and land; and

(iii)    existing laws; and

(iv)    the administration of Commonwealth laws and programs; 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.

71    Section 4 contains the following definition of “disability”:

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 (including because of a genetic predisposition to that disability); or

(k)    is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

72    It is important to note the definition of “discriminate” in s 4:

discriminate has the meaning given by sections 5 and 6.

Note:    Section 7 (associates) and section 8 (carers, assistants, assistance animals and disability aids) extend the concept of discrimination.

73    The terms of ss 5 and 6 are set out below at [77]. They respectively define what is direct and indirect discrimination. In the circumstances of this case, it is particularly important to have regard to the Note to the definition of “discrimination” in s 4 and the fact that it emphasises that, relevantly, s 8 (which deals inter alia with assistance animals) extends the concept of discrimination.

74    The term “assistance animal”, which is an important concept in the appeal, is defined in s 9(2) and s 9(4) (emphasis all in original):

9    Carer, assistant, assistance animal and disability aid definitions

Meanings of carer or assistant, assistance animal and disability aid

…

(2)    For the purposes of this Act, an assistance animal is a dog or other animal:

(a)    accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or

(b)    accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or

(c)    trained:

(i)    to assist a person with a disability to alleviate the effect of the disability; and

(ii)    to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Note:    For exemptions from Part 2 for discrimination in relation to assistance animals, see section 54A.

…

(4)    The following table has effect:

75    Section 24 deals with discrimination in relation to goods, services and facilities. It provides:

24    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.

76    “Services” is defined in s 4(1) to include services relating to transport or travel.

77    In the circumstances of the appeal, the following provisions of the DDA are critical to the concepts of “discriminate” and “disability discrimination” (emphasis in original):

5    Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

6    Indirect disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

…

8    Discrimination in relation to carers, assistants, assistance animals and disability aids

(1)    This Act applies in relation to having a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability.

Example:    For the purposes of section 5 (direct discrimination), circumstances are not materially different because of the fact that a person with a disability requires adjustments for the person's carer, assistant, assistance animal or disability aid (see subsection 5(3)).

(2)    For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person with a disability who has a carer, assistant, assistance animal or disability aid as if:

(a)    each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has the carer, assistant, animal or aid; and

(b)    each other reference to a disability were a reference to the carer, assistant, animal or aid.

(3)    This section does not apply to section 48 (infectious diseases) or section 54A (exemptions in relation to assistance animals).

Note:    The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.

78    Section 32 provides that it is unlawful for a person to contravene a disability standard. Under s 31, the Minister is empowered, by a legislative instrument, to formulate standards which are known as “disability standards” in relation to any area in which it is unlawful under Pt 2 of the DDA for a person to discriminate against another person on the ground of disability. The Disability Standards for Accessible Public Transport 2002 (the Disability Standards) are the relevant standards relied upon by Mr Mulligan.

79    Division 5 of Pt 2 deals with exemptions. Section 47 deals with actions which are done under statutory authority. Relevantly, it provides:

47    Acts done under statutory authority

…

(2)    This Part does not render unlawful anything done by a person in direct compliance with a prescribed law.

…

(5)    In subsection (2):

law means:

(a)    a law of the Commonwealth or of a State or Territory; or

(b)    regulations or any other instrument made under such a law.

Note:    See also subsection 98(6B) of the Civil Aviation Act 1988 , which allows regulations made under that Act to contain provisions that are inconsistent with this Act if the inconsistency is necessary for the safety of air navigation.

80    As indicated in the Note to s 9(2), s 54A is also relevant to the subject of assistance animals (emphasis in original):

54A    Assistance animals

(1)    This section applies in relation to a person with a disability who has an assistance animal.

Note:    For when a person with a disability has an assistance animal, see subsections 9(2) and (4).

(2)    This Part does not render it unlawful for a person to request or to require that the assistance animal remain under the control of:

(a)    the person with the disability; or

(b)    another person on behalf of the person with the disability.

(3)    For the purposes of subsection (2), an assistance animal may be under the control of a person even if it is not under the person's direct physical control.

(4)    This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground of the disability, if:

(a)    the discriminator reasonably suspects that the assistance animal has an infectious disease; and

(b)    the discrimination is reasonably necessary to protect public health or the health of other animals.

(5)    This Part does not render it unlawful for a person to request the person with the disability to produce evidence that:

(a)    the animal is an assistance animal; or

(b)    the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

(6)    This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground that the person with the disability has the assistance animal, if:

(a)    the discriminator requests or requires the person with the disability to produce evidence referred to in subsection (5); and

(b)    the person with the disability neither:

(i)    produces evidence that the animal is an assistance animal; nor

(ii)    produces evidence that the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

(7)    This Part does not affect the liability of a person for damage to property caused by an assistance animal.

81    The DDA creates an exception to conduct which otherwise would be unlawful discrimination where there is “unjustifiable hardship”. Section 11 provides (emphasis in original):

11    Unjustifiable hardship

(1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a)    the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b)    the effect of the disability of any person concerned;

(c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d)    the availability of financial and other assistance to the first person;

(e)    any relevant action plans given to the Commission under section 64.

Example:    One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(2)    For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

82    Also relevant to the exception for unjustifiable hardship is s 29A (which provision is to be found in Div 2 of Pt 2 of the DDA):

29A    Unjustifiable hardship

This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

83    Finally, s 58 deals with the effect of exemptions from conduct which would otherwise constitute unlawful discrimination:

58    Effect of exemptions

This Part does not render it unlawful for a person who has been granted an exemption from a provision of Division 1 or 2, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the provisions of the instrument by which the exemption was granted.

AHRC Act

84    Section 46PO(1) provides for an application to be made to the Federal Court or the FCCA alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Section 46PO(3) confines such an application by reference to the subject of the terminated complaint:

46PO    Application to court if complaint is terminated

…

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

…

85    It might be noted at this point that, while s 46PO(3) operates to restrict an applicant’s allegation of unlawful discrimination in the Court by reference to matters relating to the terminated complaint, there is no comparable constraint imposed by the AHRC Act on the respondent. In particular, it is notable that the AHRC Act is silent on such matters as whether a respondent is obliged to act in good faith in participating in the AHRC’s inquiry into a complaint. Nor does it contain any provision which precludes a respondent from raising in its defence in subsequent Court proceedings which involve an allegation of unlawful discrimination matters which were not raised by it in the AHRC’s inquiry.

86    The powers of the Court in respect of an application made under s 46PO are set out in s 46PO(4):

(4)    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:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)    an order requiring a respondent to employ or re-employ an applicant;

(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;

(e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

87    Section 46PR provides:

46PR    Court not bound by technicalities

In proceedings under this Division, the Federal Court and the Federal Circuit Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

CAA

88    The CAA contemplates the possibility that regulations made under that Act may be inconsistent with the DDA and the intention is that the regulations will prevail if the inconsistency is necessary for the safety of air navigation. Sections 98(6B) and (6C) provide:

98    Regulations etc.

…

(6B)    The regulations may contain provisions that are inconsistent with the Disability Discrimination Act 1992 if the inconsistency is necessary for the safety of air navigation.

Note:    See also Part 2 of Schedule 1 to the Civil Aviation Amendment Act 2005.

(6C)    CASA must consult the Australian Human Rights Commission about any proposal that regulations be made containing provisions that are inconsistent as mentioned in subsection (6A) or (6B). However, a failure to consult the Commission does not affect the validity of any regulations so made.

89    It is also to be noted that s 98 of the CAA is cross-referred to in the Note to s 47 of the DDA (see [79] above). We accept Virgin Australia’s submission that this indicates that s 47 is not intended to be the only basis on which compliance with the law might excuse what otherwise would constitute unlawful discrimination under the DDA.

CARs

90    Regulation 256A is relevantly set out in [57] above.

Miscellaneous instruments

91    The relevant terms of the Instruments are set out in [26] above.

92    As noted above, Mr Mulligan claimed that Virgin Australia also breached Standard 28.4 of the Disability Standards. Clauses 28.1, 28.3 and 28.4 of the Disability Standards relevantly state:

28.1    Notice of requirement for accessible travel

Operators of booked services may request advance notice of a requirement for accessible travel.

Conveyances

•    Aircraft

…

...

28.3    Location of carers, assistants and service animals

(1)    On booked services, operators must locate carers, assistants or service animals with the passenger with whom they are travelling.

(2)    In the case of carers or assistants, this would normally be in an adjoining seat.

(3)    If a passenger is travelling with a service animal, the animal must be able to accompany the passenger at all times and to travel without encroaching onto an access path.

Conveyances

•    Aircraft

…

28.4    Accessible seats to be available for passengers with disabilities

(1)    Accessible seats must be kept for passengers with disabilities.

(2)    Operators must allocate unbooked accessible seats to other passengers only after all other standard seats are filled.

Conveyances

•    Aircraft

…

Consideration

93    The primary judge’s reasons for judgment reveal numerous appellable errors.

94    First, his Honour erred in proceeding on the basis that the Instruments were relevant to Mr Mulligan’s individual circumstances. It is explicitly stated in both Instruments that they were made under reg 256A(1)(b) of the CARs (i.e. not s 256A(2)). Accordingly, those Instruments applied only in respect of a person with a disability other than sight or hearing impairment who required a dog to assist the person to alleviate the effect of the disability. The limited scope of these Instruments is reinforced by the definition therein of “handler”, which is defined to mean “the person with a disability other than sight or hearing impairment who relies on the dog” (emphasis added). As the AHRC contended, any permission given by CASA under reg 256A(1)(b) has no work to do with respect to a dog as described in reg 256A(2). The primary judge’s erroneous belief that the Instruments were relevant and, indeed, determinative of the case was a fundamental error. That error permeated the entirety of the primary judge’s reasoning.

95    Virgin Australia acknowledged that the primary judge erred in his interpretation of reg 256A(1) and (2) but it sought to defend the dismissal of Mr Mulligan’s application on other grounds which will be considered below.

96    Secondly, the primary judge’s misconstruction of the Instruments and failure to appreciate the distinction between reg 256A(1)(b) and (2) led to the following further related error. Contrary to the primary judge’s findings in [11] and [12] of his reasons for judgment, reg 256A(2) is not properly characterised as being in “the nature of a defence”. We accept the AHRC’s submission that the effect of reg 256A(2) is that an operator is not prohibited from permitting a dog to travel in the cabin with a disabled person if the dog is a guide or an assistant to the disabled person (assuming that reg 256A(8) has no application). If, however, an operator refuses to carry such a dog and the circumstances specified in reg 256A(2) are otherwise satisfied, this may constitute unlawful discrimination under the DDA.

97    Thirdly, the primary judge misconstrued reg 256A(2) in [13] of his reasons for judgment when he adopted an unduly narrow view in implying that, for that provision to apply, the person assisted by an assistance dog must have only a visual impairment or hearing impairment, with the consequence that the provision has no application if the person also has an additional disability (such as, in Mr Mulligan’s case, cerebral palsy).

98    Regulation 256A deals with the carriage of animals in an aircraft. Only reg 256A(2) deals specifically with the carriage in the passenger cabin of an aircraft of a dog that accompanies a person with particular disabilities, namely a person who is visually impaired or hearing impaired, and the dog is a “guide” or an “assistant” to that person. We see no warrant in the language of reg 256A or in the object or purpose of that provision to confine its operation to circumstances where the person being accompanied by the dog must only be visually impaired or hearing impaired and not also have some additional disability, such as cerebral palsy. Plain words would be required to support the narrow construction adopted by the primary judge.

99    It is convenient to note at this point that Virgin Australia contended that the phrase “a dog accompanying a visually impaired or hearing impaired person as a guide or an assistant” in reg 256A(2) should be construed to read a “guide dog” and an “assistant dog”. For reasons which are developed below, we do not accept that contention.

100    Fourthly, the primary judge’s misconstruction of reg 256A(2) was accompanied by the following further errors. His Honour’s finding at [4] and [7] that the Instruments were “exhaustive” in relation to the circumstance in which Virgin Australia was permitted to carry a dog in the cabin was wrong. This finding fails to take into account the nature and effect of reg 256A(2) which, independently of reg 256A(1)(b), does not prevent an aircraft operator such as Virgin Australia from permitting a dog which accompanies a visually impaired or hearing impaired person as a guide or an assistant to be carried in the passenger cabin as long as the prescribed conditions are met. Furthermore, and equally significantly, it is evident that the primary judge’s view that the Instruments were exhaustive as to when Virgin Australia was permitted to carry a dog in the cabin resulted in the primary judge not turning his mind at all to the potential relevance of the issue whether Willow was an “assistance animal” within the meaning of s 9(2) of the DDA and, if so, how that affected the operation and application of reg 256A. It is difficult to understand why the primary judge did not address these important issues, not the least because it was expressly pleaded in [2] of the further amended statement of claim that, at all material times, Mr Mulligan had “an assistance animal” and reference was made to s 9(2)(a) and (c) of the DDA.

101    Fifthly, as Virgin Australia also acknowledged, the primary judge erred in finding at [8] that the Instruments were a “prescribed law” for the purposes of s 47(2) of the DDA. His Honour stated in [9] that “prescribed law” is defined in s 2B of the AIA and that this “would clearly apply to the instrument, in this case issued by CASA”. That reasoning involves the following overlapping errors:

(a)    s 2B of the AIA does not define what is a “prescribed law” as such, rather it defines “prescribed” to mean “prescribed by the Act or by regulations under the Act”. Relevantly, this is a reference to a law prescribed by the DDA or by regulations made under the DDA, such as the DDRs. Section 132(2) of the DDA expressly refers to the power to make regulations for the purposes of s 47 of the DDA; and

(b)    more significantly, several laws are prescribed for the purposes of that provision in reg 2A and Sch 1 of the DDRs. Significantly, however, neither the Instruments nor the CARs are prescribed under either the DDA or the DDRs. Accordingly, they are not a “prescribed law” for the purposes of s 47(2) of the DDA.

102    Sixthly, the primary judge proceeded on the basis it was common ground that each Instrument was a legislative instrument for the purposes of the LIA and he viewed that factor as relevant to his characterisation of the Instruments as “a prescribed law”. For reasons given above, the finding that the Instruments were a prescribed law was incorrect.

103    The AHRC made detailed submissions which challenged the primary judge’s finding in [3] of his reasons for judgment that the Instruments were also a legislative instrument within the meaning of the LIA. Virgin Australia conceded in the appeal that the primary judge was wrong to proceed on the premise that the Instruments were legislative instruments and had force and effect in accordance with the LIA. Virgin Australia also accepted that this led the primary judge to conclude that, having regard to s 47(2) of the DDA, Pt 2 of the DDA could have no application in the present case.

104    Having regard to s 5(2) of the LIA and guiding principles established in decisions such as RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185, neither Instrument was a legislative instrument for the purposes of the LIA because:

(a)    neither Instrument altered the content of the law and, instead, they applied the law to a particular operator, namely Virgin Australia; and

(b)    neither Instrument was of general application and, instead, they applied only to Virgin Australia and conferred no rights or obligations on persons wishing to travel with assistance animals.

105    Seventhly, the primary judge erred in interpreting and applying s 54A(5) of the DDA in finding in [15] that there was non-compliance with that provision by reference to the Instruments in that Willow was not trained and identified by an approved organisation. This error was consequential upon the primary judge’s erroneous findings that reg 256A(2) had no application and that the case fell to be determined solely by reference to the Instruments (which required inter alia that Willow be trained and accredited by an approved organisation).

106    Eighthly, the primary judge’s finding at [16] that, having regard to the Instruments, unjustifiable hardship would arise if Virgin Australia were required to carry Willow in the cabin because this would “be contrary to the express confinement of permission identified in instruments (sic) and as such a potential offence”. This finding involved appellable error because the primary judge focused exclusively on what he regarded to be the effects and operation of the Instruments. He failed to direct his mind to the proper construction and application to the circumstances here of reg 256A(2) or s 9 of the DDA.

107    We will deal below with Virgin Australia’s submission that a defence of “unjustifiable hardship” is available to it on other grounds (see [151]).

108    Turning now to consider Mr Mulligan’s contentions that the primary judge erred in not finding that Virgin Australia breached cl 28.4 of the Disability Standards by not keeping an accessible seat for Mr Mulligan, and thereby contravened s 32 of the DDA, it is important to pay close attention to the pleadings. It was expressly stated in the further amended statement of claim that only cl 28.4 was relied upon by Mr Mulligan in relation to his claim that Virgin Australia failed to comply with the Disability Standards. Significantly, Mr Mulligan did not contend that Virgin Australia also breached cl 28.3 of the Disability Standards, which deals with the location of “service animals”. We accept Virgin Australia’s submission that the obligation under cl 28.4 to keep accessible seats for passengers with disabilities is quite different from the separate but related obligation imposed under cl 28.3 regarding the location of a “service animal” with the passenger with whom they are travelling. There was no evidence that Virgin Australia did not provide accessible seats to passengers with disabilities. The primary judge did not err in not finding that cl 28.4 was breached.

109    Finally, Mr Mulligan challenged the primary judge’s reasoning in support of the Court’s order below that Mr Mulligan pay Virgin Australia’s costs. In particular, he challenged the primary judge’s reliance in [21] of his reasons for judgment to s 47(2) of the DDA as relevant to the exercise of his discretion concerning costs. His Honour stated that he did not regard the absence of any reference to s 47(2) in Virgin Australia’s defence as standing in the way of an order that costs should follow the event. For reasons given above, the primary judge’s conclusion that s 47(2) applied in the circumstances here because the Instruments were a “prescribed law” was in error. Accordingly, s 47(2) was an irrelevant consideration to the exercise of the discretion.

110    In is unnecessary to take this matter any further in circumstances where numerous other appellable errors have been found in his Honour’s reasoning. Subject to consideration of Virgin Australia’s amended cross-appeal and amended notice of contention, the order below as to costs should be set aside and Virgin Australia should bear the costs of that proceeding, as well as of the appeal.

Virgin Australia’s amended notice of contention and amended cross-appeal

111    It is convenient to now consider and determine the amended notice of contention by reference to the six grounds it raises, as well as the related grounds raised in the amended cross-appeal.

112    The Court raised with Mr Dixon SC, who appeared with Mr Baartz for Virgin Australia, whether it was appropriate for Virgin Australia to rely on a notice of cross-appeal in circumstances where it was defending the primary judge’s orders and not seeking a different outcome. Mr Dixon SC submitted that, having given consideration to the matter, he believed that it was appropriate to challenge by way of a cross-appeal the primary judge’s relevant rulings on evidence and certain findings of fact. He pointed to no authority to support that approach. In circumstances where Virgin Australia was seeking to have the judgment below upheld and it did not seek any new or additional relevant order in its favour, we consider that the appropriate course would have been to include the grounds of cross-appeal in the amended notice of contention under r 33.21 of the FCRs, rather than filing the cross-appeal under r 33.20. However, we will deal with them in any event.

Evidence of Mr Mulligan’s disabilities

113    Virgin Australia contended that there was no probative evidence establishing Mr Mulligan’s alleged disabilities, which were alleged in the further amended statement of claim as comprising “various disabilities including cerebral palsy, which affect his vision and mobility”. This contention is closely related to the grounds raised in the amended cross-appeal that the primary judge erred by:

(a)    admitting into evidence the medical reports of Dr Platt and Dr Baker;

(b)    failing to find and identify the precise nature and extent of Mr Mulligan’s disability when this was necessary to determine whether Willow was an “assistance animal” as defined in s 9(2) of the DDA; and

(c)    finding that Mr Mulligan requires an assistance dog by reason of his cerebral palsy as well as problems with his hearing and eyesight when there was no probative evidence to support this finding and the finding involved a misconstruction of the test under s 9(2) of the DDA.

114    The definition of “disability” in s 4 of the DDA is set out in [71] above. Having regard to that definition, we consider that in his pleading Mr Mulligan claimed to have at least the following disabilities:

(a)    cerebral palsy;

(b)    vision impairment; and

(c)    mobility impairment.

He claimed that his cerebral palsy affected his vision and mobility. His vision impairment is covered by those parts of the definition of “disability” in s 4 which refer to a “partial loss of the person’s bodily… functions” and/or a “malfunction… of part of the person’s body”.

115    As the Full Court observed in Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 247 ALR 273 at [89], it is “critical” to any claim of disability discrimination to identify the disability which is said to be the reason for less favourable treatment at the relevant time. We consider that Mr Mulligan’s pleading in [1] of the further amended statement of claim sufficiently identified his disabilities and, in particular, that he suffered inter alia from a vision impairment, which was caused by his cerebral palsy. Mr Mulligan did not merely complain that he had a disability in the form of cerebral palsy; he also claimed that this affected his vision (as well as his mobility). Properly read, his pleading identified three separate but related disabilities, namely cerebral palsy, vision impairment and mobility impairment.

116    It is evident from the terms of Virgin Australia’s defence to Mr Mulligan’s pleading concerning his disabilities that it viewed his further amended statement of claim as alleging various “disabilities” and not just a single disability at [1]. This is reflected in the wording of its amended defence, which explicitly refers to Mr Mulligan’s “alleged disabilities” at [1].

117    Against that background, in considering Virgin Australia’s complaints that there was no probative evidence in the trial to establish Mr Mulligan’s alleged disabilities, we consider that it is sufficient to focus on Mr Mulligan’s claim that he had cerebral palsy and a related vision impairment. As long as there was sufficient probative evidence to support the finding that Mr Mulligan had these disabilities, it would not matter whether there was insufficient probative evidence to support the findings that he also suffered from a disability concerning his mobility.

118    We consider that it was reasonably open to the primary judge on the basis of evidence, other than the medical report of Dr Baker (which appears to have been admitted into evidence below on the basis that it only went to damages), to find that Mr Mulligan had cerebral palsy and a vision impairment disability.

119    The evidence which, when viewed cumulatively, supported the primary judge’s finding that Mr Mulligan had these two disabilities which required him to have a dog assist or guide him may be summarised as follows:

(a)    as noted above, Ms Bodziony advised Mr Mulligan by her email dated 14 December 2010 that, having carried out some investigations on his behalf, she believed that he was correct in his claim that he could travel with his assistance dog. Although there is no reference in that email to Mr Mulligan having a vision impairment, it is necessarily implied that Ms Bodziony accepted that he had some form of disability which entitled him to travel on the airline with his assistance dog;

(b)    the letter dated 10 March 2009 from the Coffs Harbour Dog Training Club Inc made reference to Willow being a companion dog to assist Mr Mulligan with his “balance problems, hearing and sight difficulties” (emphasis added). The full text of the Club’s letter is set out in [5(a)] above. That statement is hearsay because it is evidence of a previous representation made by the authors of the letter about an asserted fact, namely Mr Mulligan’s sight difficulties: s 59 of the Evidence Act 1995 (Cth) (Evidence Act). As such, it is prima facie admissible under the exceptions to the hearsay rule specified in s 69 as a business record. That section applies because the authors might reasonably be supposed to have had personal knowledge of the asserted facts based on what the authors saw, heard or otherwise perceived: s 69(2) and (5). However, the statement is also an expression of an opinion by the authors because it is “an inference from observed and communicable data” (Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 (Lithgow City Council) at [10], citing Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75, and Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of New South Wales & ACT [1998] FCA 480; (1998) 154 ALR 527 at 532). In other words, the authors inferred that Mr Mulligan had sight difficulties based on their observations of him. Lithgow City Council establishes at [19] that the opinion rule in s 76 of the Evidence Act applies to hearsay notwithstanding that it may fall within the exception stated in s 69. Accordingly, in circumstances where it is not suggested that ss 77, 78A or 79 applies in the circumstances of this case, the only basis upon which the statement was admissible was s 78. For the following reasons, we consider that the statement was properly admissible under that provision:

(i)    it relates to a matter or event, namely Mr Mulligan’s sight difficulties, that the authors actually witnessed in the sense that they saw, heard or perceived it (Lithgow City Council at [41]). The contrasting ways in which a person can witness an event are examined in Lithgow City Council at [42]. The factual circumstances of this case are aligned with those in the second authority referred to therein, namely Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) Aust Torts Reports 81-955. The ambit of the word “perceived” is also discussed in Lithgow City Council at [43];

(ii)    the statement therefore complies with s 78(a) because it falls within the category of evidence described in Lithgow City Council at [45]-[46], namely where “the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separated and distinctly narrated”. It is similar in character to the examples given in Lithgow City Council at [48] about a person being drunk, middle-aged or angry; and

(iii)    it also complies with s 78(b) because it is improbable that, five years after the letter was written , the authors would be able to recall the primary facts upon which their opinion was based and it is therefore necessary to admit it into evidence to obtain an adequate understanding of their perceptions of Mr Mulligan’s sight difficulties (see Lithgow City Council at [53]-[54] and [57]);

(c)    because the statement in the letter concerning Mr Mulligan’s difficulties was admissible under s 78 of the Evidence Act, we consider that the balance of the letter was also properly admissible because it adds to the understanding of the authors’ opinion;

(d)    in his email dated 20 July 2012 to Ms Bodziony, Mr Mulligan stated that he had just been granted permission to hold a National ID card from Blind Citizens Australia, which card had been recommended to him by Guide Dogs Australia. A strong inference could be drawn from that statement that Mr Mulligan had a vision impairment which entitled him to carry such a card;

(e)    in his email dated 21 August 2012 to Mr Dixon, Mr Mulligan expressly stated that he had “ … a number of disabilities… Cerebral Palsy and eyesight loss being the two main ones” and that he needed his assistance dog to accompany him in the cabin to alleviate those disabilities. This representation as to the state of his own health was admissible under s 66A of the Evidence Act (see further [119(g)] below);

(f)    similarly, as noted in [12] above, in her letter dated 19 September 2012, Ms Young made express reference to the fact that Mr Mulligan had indicated that he was “both visually and hearing impaired” and that Virgin Australia’s guide dog policy applied to him. Mr Mulligan’s representation concerning the state of his own health was admissible under s 66A of the Evidence Act (see further [119(g)] below); and

(g)    Dr Platt’s letter dated 23 March 2009 expressly stated that Mr Mulligan had cerebral palsy and problems with his eyesight, which required him to use an “assistance dog” when travelling by rail. We consider that this document was properly admitted into evidence for substantially similar reasons to those given above in respect of the Coffs Harbour Dog Training Club Inc letter. To the extent that Dr Platt was expressing an opinion as to Mr Mulligan’s state of health, we consider that such evidence was admissible under s 79 (as opposed to s 78) of the Evidence Act. The fact that Dr Platt was not called to give evidence did not render her opinion inadmissible but could be relevant to its weight. In addition, the form and brevity of Dr Platt’s letter suggest that, in part, she was confirming what she had been told by Mr Mulligan concerning his disabilities. In those circumstances, the implicit representation by Mr Mulligan which underpinned Dr Platt’s stated opinion would fall within the exception in s 66A of the Evidence Act to the hearsay rule, which exception applies to first-hand contemporaneous representations (see s 62(3) of the Evidence Act) by a person about their “health, feelings, sensations, intention, knowledge or state of mind” (see SMA Solar Technology AG v Beyond Building Systems Pty Ltd (No 5) [2012] FCA 1483 at [33] per Perram J and Telstra Corporation Ltd v Phone Directories Co Ltd [2014] FCA 568; (2015) 316 ALR 590 at [206]-[207] per Murphy J).

120    It is notable that at no time during the two year period in which Mr Mulligan asserted his right to have Willow accompany him in the cabin when flying with Virgin Australia did the airline question his claim to have cerebral palsy, which affected his vision and mobility and which required Willow to travel with him, nor did it ask him to provide evidence of any of his claimed disabilities, including his vision impairment, notwithstanding that it had a legal entitlement to do so under s 54A(5) of the DDA.

121    On the basis of the materials before the Court, it appears that the issue of whether Mr Mulligan had a relevant disability was raised for the first time by Virgin Australia in the defence it filed in the FCCA proceeding (see [19] above and also our comments in [85] above). Having regard to the correspondence which was in evidence in the trial and which is referred to above, we consider that it was reasonably open to the primary judge to make the finding that he did in respect of Mr Mulligan’s vision impairment, independently of what was stated in the medical report by Dr Baker.

122    Accordingly, on this issue it is unnecessary to determine whether the primary judge erred in admitting into evidence Dr Baker’s medical report (we consider, however that that report was properly admitted on the basis that its relevance was limited to damages).

123    Virgin Australia also claimed that the primary judge erred by failing to find that Willow was not an “assistance animal” within the definition in s 9(2) of the DDA because there was no probative evidence to support a finding that Willow met that definition. In particular, Virgin Australia submitted that there was no probative evidence which established that Willow was:

(a)    trained to assist a person with a disability to alleviate the effect of that disability; and

(b)    trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

124    That submission should be rejected. The primary judge made no finding as to whether or not Willow was an “assistance animal” within s 9(2)(c) of the DDA. That was because the primary judge erroneously found that the Instruments were exhaustive in relation to the question of the circumstances in which Virgin Australia could or should permit the carriage of assistance dogs. That approach necessarily excluded any consideration by the primary judge of the operation and application of s 9 of the DDA.

125    We accept Mr Mulligan’s submission that, in circumstances where no oral evidence was led below and the evidence is all documentary, the Court is in as good a position to consider and determine whether there is sufficient probative evidence to support a finding that Willow was an “assistance animal” within s 9(2) (indeed, the interests of the finality of litigation point in the same direction: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [44] per Gleeson CJ, Gummow and Kirby JJ). We consider that the following evidence, when viewed cumulatively, supports such a finding:

(a)    the contents of the letter from the Coffs Harbour Training Club Inc (see [5(a)] above), which describe Willow’s training and the assistance she provided to Mr Mulligan in respect of inter alia his sight difficulties, which in our view, were correctly admitted into evidence by the primary judge for similar reasons to these set out in [119(b)] above; and

(b)    the card issued to Mr Mulligan by Rail Corporation New South Wales which, in its terms, granted permission to Willow, as an “Assistance Animal”, to travel with Mr Mulligan on public transport services within New South Wales, as well as the similar card issued by the Queensland Translink Network, certifying that Willow was an “Assistance Animal”. These cards were admitted into evidence below without objection from Virgin Australia. It is necessarily implicit in the terms of those cards that both had been issued to Mr Mulligan on the basis that the two States’ issuing authorities accepted that he had a disability which required him to be accompanied by Willow, who was certified to be an “Assistance Animal”, albeit for the purpose of public transport services and rail respectively. It is significant that the term “Assistance Animal” appears on the face of both cards in reference to Willow. Taking into account the context in which the cards were issued, namely to permit Willow to accompany Mr Mulligan when using public transport services to which the cards related, we consider that it is more probable than not that the reference to “Assistance Animal” on both those cards is a reference to that term as defined in s 9(2) of the DDA. Although, as noted above, both cards had expiry dates which do not coincide with the entire period of unlawful discrimination alleged by Mr Mulligan, Virgin Australia made no submission to the effect that this was significant to the probative evidence of those cards.

126    In making these findings, we have also taken into account extracts from expert evidence given below by Mr Alberto Alvarez-Campos, who was called by Virgin Australia. He prepared an expert report in which he opined on such matters as:

(a)    the difference between a companion animal and an assistance dog trained to assist a person with a disability; and

(b)    is the process for training an assistance dog to assist a person with a disability, including the time, cost and other resources usually involved in such training.

127    Only excerpts from Mr Alvarez-Campos’ expert report were included in the appeal papers. Little or no weight should be given to his evidence because:

(a)    the evidence was not directed to the relevant definition of an “assistance animal” within s 9(2) of the DDA;

(b)    the evidence concerning training took no account of the proper construction of the word “trained” in s 9(2)(c) and, in particular, that the training for the purpose of that provision need not be training by an accredited or recognised dog training body. On this matter, we accept the AHRC’s submission (see [68] above) that the word “trained” in s 9(2)(c) should be given its ordinary meaning and does not require training by an accredited or recognised dog training body, an approach which is supported by Collier J’s decision in Forest v Queensland Health [2007] FCA 936 at [92] and noting that this aspect of her Honour’s judgment was not taken on appeal to the Full Court; and

(c)    in any event, the Court did not have the benefit of reviewing a full copy of the expert report.

128    Relying on some observations of Spender and Emmett JJ in the Full Court’s decision in State of Queensland v Forest [2008] FCAFC 96; (2008) 168 FCR 532 (Forest) at [105] and [106], Virgin Australia also submitted that the primary judge erred by failing to find and identify the precise nature and extent of Mr Mulligan’s alleged disability when this was necessary to determine whether Willow was an “assistance animal” for the purposes of s 9(2) of the DDA. This submission overlaps with Virgin Australia’s unsuccessful contentions that there was no probative evidence to support a finding that:

(a)    Mr Mulligan had problems with his hearing and eyesight; or

(b)    Willow was trained in a way which met the requirements of s 9(2)(c) of the DDA.

It is evident that the reason why the primary judge did not address the issue of the nature and extent of Mr Mulligan’s disabilities was because he proceeded on the basis that the Instruments exhaustively governed the issue of Mr Mulligan’s entitlement to have Willow accompany him in the aircraft cabin. Having regard, however, to the cumulative effect of the evidence which is referred to in [119] and [125] above, we consider that there is sufficient evidence of Mr Mulligan’s vision impairment to determine whether Willow was an “assistance animal” within s 9(2) (see also the comments in [140] below concerning Forest).

129    Ground 3 of Virgin Australia’s amended notice of contention claims that Mr Mulligan conceded in the FCCA that in respect of his alleged disability, “namely, cerebral palsy”, he could not satisfy the CARs requirements for carriage of Willow in the cabin for persons with a disability other than sight or hearing and hence he had to satisfy the CARs requirement that Willow was permitted to accompany him in the cabin by reason of the dog being either “a guide dog or assistance dog accompanying a person visually impaired”, which Mr Mulligan did not do. Mr Dixon SC confirmed in oral address that this contention was predicated on construing the references in the chapeau to reg 256A(2) to “as a guide or an assistant” as meaning “as a guide dog or an assistance dog”. He sought to justify this approach because “the regulations are all directed at safety” and that safety would be at risk if a person with a vision impairment could insist that their dog accompany them in the aircraft simply by saying that the dog was an “assistant”.

130    We see no reason why the terms “guide” and “assistant” should not be given their ordinary meanings. There is no warrant to read into the chapeau to reg 256A(2) the limiting words proposed by Virgin Australia. The safety considerations to which Mr Dixon SC referred are adequately addressed by the conditions specified in reg 256A(2)(a) to (c), as well as in other provisions, including:

(a)    reg 256A(8) of the CARs, which provides that an animal must not be carried on an aircraft if its carriage would be likely to affect a person on the aircraft in a way that may affect adversely the safety of the aircraft;

(b)    s 54A(2) of the DDA, which makes clear that it is not unlawful for a person to request or to require that an assistance animal remain under the control of the person with the disability; and

(c)    s 54A(5), which, as noted above, empowers a person to request that the person with the disability produce evidence that their animal is an assistance animal or is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Accordingly, we reject ground 3.

131    It might also be noted that the contention which we have rejected immediately above appears to underpin Virgin Australia’s “guide dog policy” as set out in Ms Young’s letter dated 19 September 2012 (see [12] above). Contrary to the information which is set out in that document, the CARs do not restrict the circumstances in which a dog is permitted to accompany a vision impaired person in the cabin to circumstances where:

(a)    the dog is a “guide dog”; and

(b)    to qualify as a “guide dog”, the dog must be trained and accredited by an applicable Australian Guide Dog Association under the banner of Guide Dogs Australia.

132    Virgin Australia’s “Assistance Dog Policy”, as described in Ms Young’s letter, also contains several significant errors or misstatements, including:

(a)    it is incorrect to state that reg 256A provides that an airline may only permit an assistance dog to travel in the cabin of the aircraft if the dog is carried with the written permission of CASA; and

(b)    the balance of the information set out in that letter relating to Virgin Australia’s “Assistance Dog Policy” appears to relate to the terms of the Instruments (as opposed to reg 256A) but, as found above, the Instruments had no relevance to Mr Mulligan’s circumstances. Moreover, it was wrong to claim that, to comply with the CARs, Mr Mulligan was required to provide evidence that Willow had been appropriately trained and has passed a public access test. The requirement that Willow be trained is sourced not in the CARs but in s 9(2)(c) of the DDA. That provision contains no requirement that Willow pass a “public access test” (it is true that the Instruments contained such a requirement but, for reasons given above, the Instruments had no application to Mr Mulligan or Willow). The relevant requirements are clearly set out in s 9(2)(c); and

(c)    the policy fails to acknowledge and give effect to the express exception stated in reg 256A(2).

133    Virgin Australia sought to support the primary judge’s dismissal of Mr Mulligan’s claim of unlawful discrimination on the basis that s 98(6B) of the CAA permitted Virgin Australia to discriminate lawfully if it acted in accordance with the CARs and/or Instruments. Section 98(6B) is set out in [88] above. It empowers the making of regulations under the CAA which are inconsistent with the DDA if the inconsistency is necessary for the safety of air navigation. One difficulty with Virgin Australia’s contention is that, for reasons given above, on their proper construction, neither the CARs nor the Instruments authorised it to decline to permit Willow to accompany Mr Mulligan in the cabin. A further and perhaps related difficulty is the implicit assumption in the airline’s contention that s 9 of the DDA had no relevance. That is wrong because:

(a)    for reasons given above, Willow was an “assistance animal” within s 9(2)(c); and

(b)    there is no inconsistency between reg 256A of the CARs and s 9 of the DDA so as to attract s 98(6B) of the CAA. The two provisions are not inconsistent with each other. Rather, they co-exist.

134    For these reasons, the amended notice of contention and amended cross-appeal should both be dismissed.

Did Virgin Australia’s conduct constitute unlawful discrimination?

135    Having found that there is sufficient probative evidence to find that Willow was an “assistance animal” within s 9(2)(c), the next question is whether Virgin Australia’s conduct in refusing to allow Willow to accompany Mr Mulligan in the cabin of its aircraft during the period from at least December 2010 to at least September 2012 constitutes unlawful discrimination contrary to s 24 of the DDA. As we have already indicated, Mr Mulligan submitted that the Court was in as good a position as the primary judge to determine whether the airline’s conduct constituted unlawful discrimination. Virgin Australia did not contest that submission. We will proceed to determine the issue on the basis of the evidence which was admitted below and in the light of our findings above concerning the admissibility of that evidence.

136    As noted above, Mr Mulligan contended that the airline’s conduct was unlawfully discriminatory within the meaning of ss 5, 6 and 8. For reasons which we will develop shortly, we do not consider that the airline’s conduct constituted unlawful indirect discrimination under ss 6 and 24. The position is different, however, when attention is focused on ss 5 and 8, and the relevance to those provisions of s 9.

Direct discrimination in relation to an assistance animal (ss 5 and 8)

137    Before proceeding to consider ss 5 and 8 and whether they apply here, it is appropriate to say something about the difficulties which are presented in construing and applying those provisions. In Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (Watts), Mortimer J made the following pertinent observations at [12]-[14] regarding the 2009 amendments to s 5 of the DDA, which we respectfully consider also apply to other relevant provisions of the DAA:

12.    The DDA, like other anti-discrimination legislation (whether state or federal), represents a compromise by the Parliament between the protection and advancement of the right to equality of treatment and opportunity enjoyed by people with disabilities, and the interests of other groups in the community who interact with people with disabilities and whose conduct, though it might be discriminatory, Parliament makes a legislative choice to exempt from compliance with prohibitions on discrimination.

13.    The fact of this compromise was recognised in Waters v Public Transport Corporation (1991) 173 CLR 349 at 362-363 per Mason CJ and Gaudron J, at 409-410 per McHugh J. Legislative compromises of this nature may be reflected in statutory language which is deliberately opaque. Writing extra-judicially, then Chief Justice Spigelman observed:

The concept of attributing an intention to a legislature poses a number of problems. Indeed, there may not have been any actual intention at all. The words of a statute may represent a compromise between contending positions, where the actual working out of the application of the statute is, in practice, left to courts precisely because those responsible for the legislation are not able to agree on what the position should be. In a sense, each group is prepared to take its chances in court.

(Spigelman JJ, “The Poet's Rich Resource: Issues in Statutory Interpretation” (2001) 21 Aust Bar Rev 224 at 225-226).

14.    The statutory language of the DDA is an example. The facts of this case, and the parties' respective arguments, call for the resolution by interpretation of several aspects of that opaqueness. In doing so, the Court should remain faithful to the text, context and purpose of the legislative scheme, although application of this guidance in a scheme which is inherently a compromise requires reconciliations on which reasonable minds might differ. There are constructional choices to be made. The Court must make them trying as best it can to remain close to the language Parliament chose to use, in the context it chose to use it, and applying the legislative purpose, objectively ascertained.

138    The current form of ss 5, 8 and 9 (see [74] and [77]above) reflect amendments made to the DDA which were enacted by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (the 2009 Amendment Act). It is evident that the 2009 amendments were, in part, the result of Australia’s ratification on 17 July 2008 of the Convention on the Rights of Persons with Disabilities (the CRPD) ((Adopted by General Assembly Resolution A/Res/61/611 in 2006) [2008] ATS 12 (entered into force generally 3 May 2008 and in Australia on 16 August 2008)). Schedule 2, item 20 of the 2009 Amendment Act amended the DDA to include the CRPD in the list of conventions (see s 12(8)(ba) of the DDA).

139    The key relevant amendments to s 5 may be summarised as follows:

(a)    the insertion in s 5(2) of an explicit duty to make “reasonable adjustments” (which reverses the previous position as stated by a majority of the High Court in Purvis v NSW and the Human Rights and Equal Opportunity Commission [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [217] per Gummow, Hayne and Heydon JJ). As a consequence, direct discrimination under s 5(2) may thus be established where there is a failure to make “reasonable adjustments” where this has the effect of treating someone with a disability less favourably than someone who does not need the adjustments in circumstances that are not materially different. Circumstances are not materially different for the purpose of this provision because of the fact that, because of the disability, the aggrieved person requires adjustments (s 5(3));

(b)    the concept of “direct discrimination” in s 5 (as well as the concept of “indirect discrimination” in s 6) was extended by the new s 8, as is made plain in the Note to the definition of “discriminate” in s 4, which is set out in [71] above; and

(c)    a “reasonable adjustment” is defined in s 4 as meaning “an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person” (emphasis in original).

140    It is convenient to now say something more about the amendments to ss 8 and 9. The Explanatory Memorandum to the relevant Bill states that the amended ss 8 and 9 (as well as the amended s 7) were intended to address a “discrepancy” in the former provisions of the DDA following the Full Court’s decision in Forest. It was held there, by majority, that Pt 2 of the DDA (which declares certain discrimination to be unlawful and includes s 24), refers only to discrimination of the grounds of the disability of a person or a person’s associate and not the type of discrimination defined in former ss 7 to 9. The stated purpose of those amendments to those provisions was described in [46] of the Explanatory Memorandum as to provide that “the types of discrimination in these sections also constitute discrimination on the ground of disability”.

141    Section 8(1) relevantly provides that the DDA applies in relation to having an “assistance animal” in the same way as it applies in relation to having a disability. The concept of a person with a disability having an “assistance animal” is the subject of s 9(4) and the Table which is set out therein (see [74] above). Applying those provisions to the circumstances here, Mr Mulligan, a person with a disability in inter alia the form of a vision impairment, “has” an “assistance animal” (i.e. Willow) because he was previously accompanied by, or possessed, Willow (see item 2(b) of the Table in s 9(4)).

142    And in the circumstances here, the effect of s 8 is that the reference in the chapeau in s 24 to “disability” is also to be read as a reference to Willow, Mr Mulligan’s “assistance animal”.

143    Section 5(1) requires a comparison to be made between the way in which the discriminator treats (or proposes to treat) a person with a disability and the way in which a person “without the disability” would be treated in circumstances that are not materially different. Choosing an appropriate “comparator” for the purposes of applying s 5 can be difficult. Some guidance is provided by the High Court’s decision in Purvis (noting, however, that the current form of s 5 differs from that which was considered in that litigation). In Purvis a student, who suffered from behavioural problems which were an aspect of his disability, was suspended and eventually expelled. The primary decision maker found that the comparator for the purposes of s 5 of the DDA was another student at the school in the same year but without the disability, including the behaviour which formed a part of that disability. A different view was taken on appeal to the Full Court of the Federal Court (see Purvis v State of New South Wales [2002] FCAFC 106; (2002) 117 FCR 237), an approach which was then upheld on appeal to the High Court. The High Court held, by a majority, that while the definition of disability includes its behavioural manifestations, it was necessary to compare the treatment of the pupil with the disability with a student who exhibited violent behaviour, but did not have the disability (see at [11] per Gleeson CJ and at [223]-[225] per Gummow, Hayne and Heydon JJ).

144    The majority approach in Purvis was applied by a majority of the Full Court in Zhang v University of Tasmania [2009] FCAFC 35; (2009) 174 FCR 366, which involved an allegation that the University had constructively terminated the appellant’s candidature as a graduate student on the basis of her imputed psychological disability. The majority held at [66]:

The relevant comparator is another PhD candidate manifesting disruptive behaviour to the extent that there was a worsening of relations between her and other university members generally and eventually a breakdown of relations with her supervisor.

145    In applying s 5, it is also necessary to take account of s 5(3). The effect of that provision is that, for the purposes of s 5(1), circumstances are not “materially different” because of the fact that, because of the disability, the aggrieved person requires “adjustments”.

146    The term “adjustment” is not directly defined in the DDA. As Mortimer J concluded in Watts at [22], the term is therefore to be given its ordinary meaning, which is “an alteration or modification”. The concept of “reasonable adjustment” is defined in s 4(1) (see [139(c)] above).

147    Viewed in isolation from s 8, Ms Eastman in oral submissions maintained that it would be difficult to see how s 5(1) – and, to a lesser extent, s 5(2) could be engaged. But, Ms Eastman submitted that s 8 “in effect, gives you an add-on or an extra ground that you can use to then work in with the less favourable treatment in section 5”. We accept that submission and see no point in considering the possible application of s 5 in isolation from s 8 in the circumstances of this particular case.

148    Having regard to both our finding that Willow was an “assistance animal” within s 9(2)(c) and also the meaning and effect of ss 5, 8 and 9, together with s 24, we consider that the following analysis applies:

(a)    the references in s 5(1) and (2) and s 24 to “disability” are to be read as though they also included a reference to Willow as Mr Mulligan’s assistance animal such that, in effect, Willow is to be regarded as part of Mr Mulligan’s disability;

(b)    in determining whether there was direct discrimination under s 5(2), a comparison is to be drawn between Virgin Australia’s treatment of Mr Mulligan with his disability (i.e. his vision impairment) and which disability includes Willow as his assistance animal, and how the airline would treat the comparator which, in this case, is a person who is without a disability and therefore without a dog and wants to travel with the airline; and

(c)    for the purposes of s 5(2), the circumstances are not materially different merely because Mr Mulligan requires adjustments for Willow to accompany him in the cabin, including the requirements specified in reg 256A(2).

149    We reject the submission that the proper comparator in the circumstances here is a person without a disability who wishes to bring a dog with them in the cabin, with the consequence that there was no direct discrimination towards Mr Mulligan because the comparator would be subjected to the same policies as the airline applied to Mr Mulligan. This submission fails to take into account the fact that, under the 2009 amendments, Willow is to be regarded as part of Mr Mulligan’s disability. It also fails to give effect to s 5(3), which provides that, for the purposes of s 5, circumstances are not materially different because of the fact that, because of Mr Mulligan’s disability (which includes his need for Willow to accompany him), Mr Mulligan requires adjustments so that Willow can accompany him in the cabin.

150    Accordingly, and in the absence of any relevant exception, exemption, or other defence applying to Virgin Australia’s conduct (see further below), we find that the airline’s conduct during the period from at least December 2010 to at least September 2012 in refusing permission for Willow to travel in the cabin with Mr Mulligan constituted direct discrimination within the meaning of s 5 because Virgin Australia treated Mr Mulligan less favourably than it would treat the comparator. Such discrimination is unlawful under s 24 of the DDA.

151    In its amended defence below, Virgin Australia argued that it would amount to “unjustifiable hardship” if it were required to carry Willow in the cabin without receiving evidence that she had been “trained by an accredited organisation in accordance with the CASA regulations and the Respondent’s policy”. It also claimed “unjustifiable hardship” would arise if it had to carry Willow in the cabin because the safety of passengers (including Mr Mulligan) and crew would be imperilled. We do not consider that that defence is established on the evidence before us. First, as we have emphasised above, although the airline is entitled to request evidence that Willow is an assistance animal and that she is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place, that training need not be by an accredited organisation. If Virgin Australia was not satisfied that Willow was trained in the sense referred to in s 9(2)(c) it could use its powers to request evidence under s 54A(5) of the DDA. Secondly, Virgin Australia adduced no evidence to support its contention that the safety of passengers (including Mr Mulligan) and crew would be imperilled if Willow accompanied him in the cabin.

Indirect discrimination (s 6)

152    The same set of facts might give rise to claims of both direct or indirect discrimination, as is the case here as pleaded by Mr Mulligan. We do not consider, however, that Mr Mulligan has established that Virgin Australia’s conduct constituted indirect discrimination under s 6. (Ms Keys advanced no substantive submission in support of this aspect of Mr Mulligan’s appeal in either her written or oral submissions).

153    First, an important element of indirect disability discrimination is the requirement that the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition. In Australian Iron & Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 Dawson J said (at 185) that the words “requirement or condition” in the Anti-Discrimination Act 1977 (NSW), should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees. We consider that the words should also be construed broadly in the DDA. Equally, however, any such requirement or condition needs to be identified with some precision. No such requirement or condition was identified by Mr Mulligan.

154    Secondly, another element of indirect disability discrimination under s 6 is that it must be established that, because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition. In circumstances where the alleged requirement or condition has not been appropriately identified, it is not possible to determine whether Mr Mulligan’s non-compliance or inability to meet a hypothetical requirement or condition is also established.

155    Thirdly, the failure to identify the relevant requirement or condition also means that the Court is unable to be satisfied that the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability, as required by s 6(1)(c).

156    For these reasons, we reject the claim of indirect disability discrimination

What relief is appropriate?

157    The orders sought by Mr Mulligan in the appeal include a declaratory order that Virgin Australia has committed unlawful discrimination contrary to ss 24 and 32 of the DDA and an order directing the airline not to repeat or continue such unlawful conduct.

158    Mr Mulligan also seeks damages by way of compensation, including aggravated damages and exemplary damages. Mr Mulligan sought compensatory damages in the amount of $50,000 for non-economic loss, which he described in his pleadings as “stress and physical and emotional suffering caused by the Respondent’s unlawful interactions with the Applicant from December 2010 until September 2012, and ongoing”. He also sought aggravated damages in the same amount for “insult and humiliation caused to the Applicant since December 2010”. His claim for exemplary damages, in the amount of $100,000, was expressed to be “to punish the Respondent for their unlawful conduct and to deter like or further unlawful conduct against the Applicant or other disabled customers”.

Declaratory orders

159    For the reasons given above Virgin Australia’s conduct in the period from at least December 2010 to at least September 2012, in not permitting Willow to accompany Mr Mulligan in the cabin of its aircraft, constituted unlawful direct discrimination contrary to s 24 of the DDA. An appropriate declaratory order should be made.

160    We do not consider that this is an appropriate case in which to issue a direction to Virgin Australia as sought by Mr Mulligan, that the airline is not to repeat or continue its unlawful conduct. There is no reason to believe that the airline will not adhere to its relevant legal obligations having regard to the reasons in the judgment in this appeal.

161    Having regard to our finding above that there was no breach of the Disability Standards as claimed by Mr Mulligan (see [108]), it is inappropriate to grant any relief in respect of that claim.

Damages

162    Finally, there is the question of damages. Section 46PO(4) of the AHRC Act empowers the Court to make 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 (see [86] above]). The chapeau to that provision also empowers the Court to make such orders “as it thinks fit”.

163    In response to a direct question from the Court, Ms Keys stated unequivocally that Mr Mulligan did not wish to have the question of damages remitted. She said that Mr Mulligan was content for the Court to assess damages based on the existing evidence. Ultimately, Virgin Australia did not oppose that course of action.

164    As the Court pointed out, the evidence relating to Mr Mulligan’s damages was very limited. It effectively comprised:

(a)    Mr Mulligan’s claims that he suffered stress as a result of the airline’s conduct; and

(b)    Dr Baker’s evidence, which was relevantly to the effect that Mr Mulligan found that travelling and staying awake if he is unable to travel by aeroplane and has to visit his family members on the Gold Coast by rail and bus, which takes 22 hours, was very stressful and no longer possible for Mr Mulligan.

165    Mr Mulligan made no claim for damages for economic loss. His claim was essentially one for general damages for pain and suffering relating to the stress he suffered as a result of Virgin Australia’s conduct. As noted above, he also sought aggravated damages and exemplary damages.

166    As to the latter claim, there is an unresolved debate as to whether exemplary damages can be obtained under s 46PO(4) of the AHRC Act (see the discussion by Barker J in Clarke v Nationwide News Pty Limited [2012] FCA 307; (2012) 201 FCR 389 at [340] and the cases referred to there). There is no necessity to enter that debate because we are not satisfied that Mr Mulligan has established a proper foundation on which exemplary damages would be awarded even if they were available.

167    As to his claim for aggravated damages, we accept that such damages are available under s 46PO(4) in an appropriate case to compensate a person where the harm they have suffered has been aggravated by the manner in which the conduct occurred, as well as in other circumstances, such as those discussed in Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240 at 297-298 by Moore J. Again, however, the matter needs to be taken no further because we are not satisfied that Mr Mulligan has identified any conduct on the part of Virgin Australia which would warrant an award of aggravated damages.

168    In these circumstances, the Court considers that Mr Mulligan is entitled to compensatory damages in the amount of $10,000.

Costs

169    Having regard to Mr Mulligan’s success in the appeal, the order as to costs made against him below should be set aside and costs orders should be made in his favour in respect of the proceedings below, the appeal, the amended notice of contention and the amended cross-appeal.

170    Appropriate orders will be made accordingly.

Associate:

Dated:    7 September 2015