Federal Court of Australia

Klein v Sporting Shooters Association of Australia (Qld) Inc [2025] FCAFC 189

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 on 25 February 2025 and order 1 on 12 March 2025 of the primary judge be set aside and replaced with the following:

(a)    It is declared that the respondent contravened s 27(2) of the Disability Discrimination Act 1992 (Cth) by refusing to allow the applicant accompanied by his assistance dog to participate in:

(i)    the Amiens Project conducted by SSAA Conservation & Wildlife Management Qld in or about December 2022; and

(ii)    any project to be conducted by SSAA Conservation & Wildlife Management Qld for feral management control.

(b)    It is ordered that:

(i)    The respondent pay compensation to the applicant in the sum of $10,000 for loss and damage caused by the respondent’s unlawful discrimination; and

(ii)    The respondent pay the applicant’s costs.

3.    The respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant suffers from depression for which he has a trained assistance animal, a Boxer dog named Annie. The appellant was denied the opportunity to participate in hunting projects organised by the respondent, the Sporting Shooters Association of Australia (Qld) Inc, if accompanied by Annie. He complains that that denial constitutes unlawful discrimination under ss 5 and 27(2) of the Disability Discrimination Act 1992 (Cth) (DDA).

2    The appellant first made a complaint to the Australian Human Rights Commission but the President of the Commission was satisfied that there was no reasonable prospect of the matter being settled by conciliation and therefore terminated the complaint. The appellant then brought his discrimination claim in the Federal Circuit and Family Court of Australia (Division 2) under s 46PO(3A)(c) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The claim was dismissed with costs by that Court: Klein v Sporting Shooters Association of Australia (Qld) Inc [2025] FedCFamC2G 246 (J). He now appeals from that judgment.

The relevant facts

3    There was no material dispute about the facts that are relevant to the appellant’s claim. Indeed, they are mostly admitted on the pleadings or contained within the parties’ statement of agreed facts that was tendered below.

4    At all relevant times, the appellant suffered from a disability within the meaning of s 4(1) of the DDA, namely depression. The appellant’s dog, Annie, was an “assistance animal” within the meaning of s 9(2) of the DDA.

5    The appellant was a member of the respondent. The respondent is an incorporated association. It is responsible for and operated another association, SSAA Conservation & Wildlife Management Qld (CWM), that operated wildlife management projects on public and private land, including projects for the elimination of feral animals including by shooting.

6    Participation in CWM projects was a benefit offered to members of the respondent, subject to the member fulfilling certain conditions including payment of an annual subscription and the completion of prescribed courses. The appellant satisfied the conditions and was eligible to participate in CWM projects.

7    In March 2022, the appellant applied, and was subsequently accepted, for participation in a CWM feral animal elimination project referred to as the Amiens project. After a postponement, the project was planned to be conducted from 11 to 13 November 2022. On 3 November 2022, the appellant informed the chair of CWM by email that he would be accompanied on the project by Annie whom he described as a psychiatric assistance dog.

8    On 5 November 2022, the appellant was advised by email by Sam Mangano, the Amiens project leader, that he could not attend the event accompanied by his assistance dog unless formal approval by CWM had been received prior to the event. Such approval was not received with the result that the appellant was not able to attend the event.

9    On 15 December 2022, the respondent informed the appellant by letter that the State Executive Management Committee of the respondent had decided that “it is not in the best interest for an assistant dog to attend a project for feral animal control, nor is it appropriate for any assistance dog/animal to be left unattended on a private property whilst a [CWM] Project is being conducted”. The minutes of the meeting on 11 and 12 December 2022 record the decision as having been:

That no animals, pets, or assistance dogs are permitted to attend SSAA CWM QLD Projects on private properties with handlers or owners.

10    The appellant’s evidence was that as on a previous CWM hunt which he had been allowed to attend with Annie, it was his intention to conduct any hunting or culling activity involving the discharge of firearms from inside a vehicle or close to the vehicle and that Annie would remain in the vehicle at all such times.

The pleaded case and defence

11    The appellant’s pleaded case was that the respondent directly discriminated against him within the meaning of ss 5 and 8 of the DDA because of him having an assistance animal by treating, or proposing to treat, him less favourably than it would have treated a member of the respondent who had paid the CWM fee and completed the CWM courses and who was not to be accompanied on the project by an assistance dog. Specifically, the appellant pleaded that he was so discriminated against in respect of, first, the Amiens project and, secondly, any other project conducted by the respondent through CWM for feral animal control. He pleaded that in each circumstance, the respondent contravened s 27(2) of the DDA by denying him access to a benefit and subjecting him to a detriment by reason of his disability.

12    Notably, to which we will return, the appellant did not plead that the conduct of the respondent was discriminatory under s 5(2) of the DDA because it failed to make “reasonable adjustments” for the appellant on account of his disability.

13    The relief sought by the appellant included the following:

(1)    Declarations that the respondent contravened s 27(2) of the DDA in the two respects mentioned above;

(2)    An injunction restraining the respondent from refusing to allow him to participate in any CWM feral management control project because of him being accompanied by an assistance dog;

(3)    Compensation in the sum of $25,000 for loss and damage; and

(4)    Costs.

14    In its second amended defence, the respondent averred that the appellant was not discriminated against “because he was treated in the same manner as any other member”. It also averred that its decision to refuse the appellant’s request to participate in the CWM projects was not “on the ground of” any disability but because of “the fact” that the appellant was to be accompanied by an assistance dog. It said that the decision of the respondent was “because of safety issues”. The respondent’s principal submission at trial was that “the reason the Applicant was refused permission to engage in the hunt was because it was an unacceptable safety risk to allow a domestic dog to attend hunting activities with firearms”.

15    The “safety issues” identified by the respondent were, in essence, that the presence of an assistance dog accompanying the appellant on a hunt would be a distraction for him creating risks of harm to him, to other participants, to livestock and to the dog.

16    Notably, to which we will return, the respondent did not rely on s 29A of the DDA to plead that if its conduct was discriminatory, it was not unlawful because avoiding the discrimination would impose “an unjustifiable hardship” on it.

The statutory context

17    The objects of the DDA are to eliminate, as far as possible, discrimination against persons on the ground of disability in the various areas of human activity including, relevantly, clubs and sport (s 3(a)(i)). “Disability” in relation to a person includes “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour” (s 4(1), para (g) of the definition of “disability”). “Discriminate” has the meaning given in ss 5 and 6 as extended in relation to “assistance animals” by s 8 (s 4(1)).

18    Section 5 is headed “Direct disability discrimination” whereas s 6 is headed “Indirect disability discrimination”. As this case concerns only direct discrimination, it is necessary to focus only on s 5. It provides as follows:

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.

(Emphasis in original.)

19    The relationship between a person’s disability and them having an assistance animal is dealt with in s 8:

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.

20    Section 9(2) sets out the requirements for a dog or other animal to be an “assistance animal” under the DDA. Those include requirements in relation to training and accreditation. As mentioned, it was common ground that Annie was an assistance animal under the DDA.

21    By item 2 of the table in s 9(4), “a person has … an assistance animal … if the person”, relevantly, is, was or may be accompanied by the animal. It was common ground that the appellant “has” an assistance animal within the meaning of that provision for the CWM projects that he wanted or wants to participate in.

22    Under s 10, if an act is done for two or more reasons and one of the reasons is the disability of a person, whether or not it is the dominant or a substantial reason for doing the act, then the act is taken to be done for that reason.

23    Section 11(1) sets out the relevant considerations in determining whether a hardship that would be imposed on a person would be an “unjustifiable hardship”. Section 11(2) provides that the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship. As mentioned above, the respondent did not raise any defence of unjustifiable hardship below or on appeal.

24    Part 2 of the DDA contains provisions that make disability discrimination unlawful in various contexts. Division 1 deals with discrimination in work. Division 2 deals with discrimination in other areas, one of which is clubs and incorporated associations (in s 27). Section 27(2), of which paragraphs (c) and (e) are pertinent to this case, provides as follows:

27     Clubs and incorporated associations

…

(2)     It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member’s disability:

(a)     in the terms or conditions of membership that are afforded to the member; or

(b)     by refusing or failing to accept the member’s application for a particular class or type of membership; or

(c)     by denying the member access, or limiting the member’s access to any benefit provided by the club or association; or

(d)     by depriving the member of membership or varying the terms of membership; or

(e)     by subjecting the member to any other detriment.

25    Section 29A provides that Division 2, ie including s 27, “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”. In other words, s 29A provides a defence to a claim such as that of the appellant that he has suffered unlawful disability discrimination by being denied a benefit by a club or association on grounds of unjustifiable hardship. As mentioned, by s 11(2), the onus of establishing unjustifiable hardship in such a circumstance lies on the discriminator. In order to be relied on, a defence under s 29A would have to be pleaded and proved. That did not occur here.

The primary judgment

26    After extracting from the evidence and dealing with the facts at some length (J [1]-[26]), the primary judge turned to “The Law”. His Honour extracted the material sections from the DDA (J [27]-[29]) and then recorded that counsel for the appellant relied on the judgment of Flick, Reeves and Griffiths JJ at [145]-[151] of Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130; 234 FCR 207 (J [30]). His Honour then recorded that it was submitted on behalf of the appellant that Mulligan is analogous and that the proper comparator in this case, as in that case, is a person without a disability and who therefore does not have an assistance dog (J [31]). The appellant’s submission was that the comparator could not be a CWM member without a disability who wanted to take a dog with them on a Project shoot (J [32]).

27    The primary judge did not accept those submissions made on behalf of the appellant (J [33]). His Honour gave a number of reasons for that.

28    First, his Honour accepted the evidence of Ms Gill, the president of the respondent, on why the impugned decision was made. That evidence included, in essence, the various safety issues that had been pleaded and that the respondent had accepted the advice of Mr Roger Green, a firearms expert, that the respondent should not allow the appellant to be accompanied on a shoot by an assistance dog because of the safety issues that that would pose (J [33]).

29    Secondly, his Honour found that (J [34]):

it was not discriminatory conduct toward the applicant for the association to prevent all its members from taking animals with them on a shoot based upon, and relevantly because of, safety concerns. The fact of the applicant’s disability, even accepting that the existence of an assistance animal merged into the applicant’s disability, played no part in the making of the decision.

30    His Honour relied on Purvis v New South Wales [2003] HCA 62; 217 CLR 92 at [236] per Gummow, Hayne and Heydon JJ and Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [27] and [41] per Bromberg J (Griffiths and Bromwich JJ agreeing on this point) in support of those findings (J [35]-[36]).

31    Thirdly, his Honour held that “it could not be said that action taken to protect other shooters from their possible death at the hands of the applicant was action placing the applicant in a less favourable position than the other participating shooters” and that s 5(1) “only applied if, by being allowed to take the dog on a shoot with him, the applicant could have been considered as being in a favourable position in the first place” and that the term “less favourably” in s 5(1) does not apply in the circumstances (J [37]).

32    Fourthly, his Honour found that “the refusal by the association to allow the applicant to take the dog with him on a shoot was, in all the circumstances, placing the applicant in a less precarious, better, or more favourable position than if he had been allowed to take the dog with him” (J [38]) and that the “Parliament could not have intended that a decision of the association designed to protect human life would be found as unlawful on the ground of disability discrimination” (J [39]).

33    His Honour consequently concluded that “the respondent, in making its decision as set out in its letter to the applicant of 15 December 2022, did not engage in unlawful discrimination against the applicant” (J [42]).

The ground of appeal

34    Only one ground of appeal is relied on, namely that the primary judge erred in not finding that the respondent had engaged in unlawful discrimination against the appellant. In particular, it is said that the primary judge erred in finding that the respondent’s perception of the risk that the appellant’s disability posed was a sufficient basis to find that the respondent had not discriminated against the appellant. Also, it is said that the primary judge erred in finding that the term “less favourably” does not always have application and that it did not apply in the circumstances of the case.

35    It is common ground that the questions of reasonable accommodation under s 5(2) and unjustifiable hardship under ss 11 and 29A did not arise for consideration below and they do not arise for consideration on the appeal. The respondent’s case is that it did not discriminate against the appellant “because of the disability” within the meaning of that phrase in s 5(1) but rather because of the safety issues that would arise if an assistance animal was taken on a CWM project shoot. The respondent submits that “everything … comes back to safety” and that “the reason [the decision was] taken [was] because of safety issues that arise as a result of the presence of an assistance dog, or any dog for that matter” (T3:43-45).

Consideration

36    It is not in issue that the committee of management of the respondent denied the appellant, as a member, access to a benefit or subjected him to a detriment within the meaning of s 27(2) of the DDA. The only issues for determination before the primary judge and on appeal arise under s 5(1), namely, first, whether the appellant was treated less favourably than a person without his disability in circumstances that are not materially different and, secondly, if so, whether that was “because of the disability”. Section 5(1) requires those two questions to be addressed: Purvis at [213]. Subsequent to Purvis, s 5(1) was replaced by the effect of Item 17 of Sch 2 of the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (2009 Amendment Act) but the new s 5(1) “contains minor modifications to improve readability” without making any “substantive changes”: Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [34] (2008 Explanatory Memorandum).

37    It is convenient to deal first with the comparison that is to be made. It is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability “in circumstances that are the same or are not materially different”: Purvis at [214] and [222]. That requires “that the circumstances attending the treatment given (or to be given) to the disabled person must be identified” and then it must be examined “what would have been done in those circumstances if the person concerned was not disabled”: Purvis at [223].

38    The consequence of s 8 is that the reference to “disability” in s 5(1) is to be read as though it includes a reference to the aggrieved person having an assistance animal: Mulligan at [142] and [148(a)]. The proper comparator is a person without a disability, and hence without an assistance animal. It is not a person without a disability who wishes to bring a dog with them: Mulligan at [148(b) and [149]. A case concerning disability discrimination because of having an assistance animal cannot be approached by disaggregating the animal from the disability in the same way as the behavioural consequences of having the relevant disability in Purvis were disaggregated from the disability.

39    The treatment of the appellant, the disabled person, was to not allow him to attend CWM projects so long as he has an assistance animal, ie so long as he has his disability. A person without that disability who otherwise qualified to attend would be allowed to do so. Thus, the appellant was treated less favourably than a person without the disability. The primary judge accordingly erred in rejecting the appellant’s submission that the proper comparator was an otherwise qualifying member of the respondent without an assistance animal and in holding that the appellant was not treated less favourably, or that “less favourably” did not apply.

40    Now, was that unfavourable treatment “because of” the disability? Motive, purpose and effect may all bear on the answer to that question, but it is doubtful that distinctions between them will assist: Purvis at [236]. Because having an assistance animal is to be taken as an aspect or part of the disability, as explained in Mulligan, it is hard to get away from a conclusion that Mr Klein was treated unfavourably “because of” his disability. The safety issues that the respondent relies on arise because of the appellant having an assistance animal. It is the presence of the assistance animal itself that gives rise to the safety issues; the safety issues cannot be disaggregated from the presence of the animal – they are inextricably linked. In those circumstances, the unfavourable treatment of the appellant was because of his disability. The primary judge’s conclusion to the contrary was in error.

41    The respondent’s safety concerns would most naturally fall to be considered and dealt with under s 29A in relation to “unjustifiable hardship”. That is to say, if those concerns rose to the requisite level, it might be concluded that avoiding the discrimination, ie allowing the appellant to participate in CWM projects with Annie, would impose an “unjustifiable hardship” on the respondent. In that regard, “the nature of the … detriment likely to … be suffered by” and “the effect of the disability” on any other person are relevant considerations (s 11(1)(a) and (b)). However, the respondent did not rely on “unjustifiable hardship”.

42    Something should also be said about s 5(2) and “reasonable adjustments”. In Purvis, the High Court held that a failure to provide different accommodation or services did not constitute less favourable treatment of a disabled person for the purposes of s 5 (as it then stood): at [104] per McHugh and Kirby JJ (dissenting in the result), [218] per Gummow, Hayne and Heydon JJ; see also Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [85] per Black CJ, Tamberlin and Sackville JJ. However, the 2009 Amendment Act amended s 5(2) to respond to Purvis and “[make] explicit the duty to make reasonable adjustments, which are defined to exclude adjustments that would impose unjustifiable hardship”: 2008 Explanatory Memorandum at [39]; see also Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 at [16] per Mortimer J.

43    Nonetheless, as mentioned, in this proceeding the appellant did not rely on any failure by the respondent to make reasonable adjustments for his disability. The appellant’s past practice and future intention of keeping Annie in a vehicle during culling activities, and to not himself stray far from the vehicle, were not, and need not have been, raised as reasonable adjustments that the respondent was under a duty to accommodate. That is because they were the appellant’s own adjustments, rather than the respondent’s, and the respondent’s decision to not allow the appellant to participate in any CWM project accompanied by Annie was a blanket decision regardless of any adjustments. The appellant was entitled to rely on that and plead and prove, as he did, that that amounted to unlawful discrimination under s 5(1).

44    In the result, the discrimination by the respondent against the appellant because of his disability under s 5(1) was unlawful under s 27. The appeal must be allowed.

Compensation?

45    Having found that no unlawful discrimination occurred, the primary judge did not address the question of compensation or damages.

46    It is common ground between the parties that if this Court were to allow the appeal on the question of liability, it would be appropriate for this Court to determine the question of relief. The material facts below were agreed, and the appeal to this Court was on a purely legal ground regarding misapplication of provisions of the DDA. Further, the evidence as to hurt, humiliation and distress was unchallenged before the primary judge. As such, this Court is in as good a position as the primary judge to determine the question of compensation: Warren v Coombes (1979) 142 CLR 531 at 551; cf. Kruger v Thompson [2025] FCAFC 143 at [55]-[63] per Colvin and Abraham JJ. It would be productive of unnecessary delay and expense for the matter to be remitted for the determination of compensation.

47    Section 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) provides that this Court, in the exercise of its appellate jurisdiction, may “give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order”. Section 46PO(4) of the AHRC Act provides that upon the Court being satisfied that a respondent has engaged in unlawful discrimination, the Court may 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”. Needless to say, the compensation is for loss or damage suffered because of the unlawful discrimination, ie there must be a relationship of cause and effect: Watts at [282].

48    Damages under s 46PO(1) are entirely compensatory and the discretionary character of the remedy allows an award of an amount which does not fully compensate for the loss suffered: Qantas Airways Limited v Gama [2008] FCAFC 69; 167 FCR 537 at [94] per French and Jacobsen JJ, Branson J agreeing. In making an assessment of compensation upon identification of the loss or damage suffered because of the unlawful discrimination, the Court may have regard to the principles governing the assessment of damages in tort, but those principles are not the governing criteria, bearing in mind that the Court is exercising a statutory power and it is a matter of statutory construction (including by reference to any evident statutory objects and purposes) that ultimately set the criterion for any award: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334 at [27]-[30] per Kenny J and [124]-[130] per Besanko and Perram JJ. The statutory purpose being referred to there is the anti-discrimination statute applicable in the circumstances, here being the DDA: Wotton v Queensland (No 5) [2016] FCA 1457; 157 ALD 14 at [1604] per Mortimer J.

49    The appellant seeks an order for damages in the amount of $25,000, while the respondent contends that should the appeal be allowed and the Court determine the question of compensation, only an amount of around $5,000 is warranted on the evidence.

50    The respondent refers to Mulligan where $10,000 in compensatory damages was awarded (at [168]), and Reurich v Club Jervis Bay [2018] FCA 1220; 360 ALR 296, where the figure was $16,000 (at [370]), as examples of far more serious circumstances where the compensation awarded was far less than that claimed in this case. The appellant, for his part, argues that comparison with previous authorities is not the correct approach and that the focus should simply be on the evidence before the Court.

51    The appellant’s submission should be accepted. The statutory remedy of damages is discretionary in character, and “[u]ltimately it is the words of the statute that set the criterion for any award”: Gama at [94]. This may be informed by the statutory objects and purposes: Richardson at [130].

52    In Sklavos, Bromberg J (Griffiths and Bromwich JJ agreeing on this point) outlined the purpose of the DDA at [21]:

As the objects (s 3) of the DDA emphasise, what is sought to be achieved is the elimination (as far as possible) of discrimination against persons “on the ground of disability”. The DDA is concerned with addressing disadvantage, or less favourable treatment, brought about or caused by a person’s disability. That fundamental concern applies irrespective of whether the discrimination is direct or indirect.

53    The appellant claims damages only for non-economic loss. Before the primary judge, the appellant’s evidence was that he was distressed by the decision of the respondent to exclude him from all future CWM projects, and that he had felt humiliated. The appellant also stated that participation in CWM activities helped him with his mental and physical health, and that he did not have many leisure activities in which he could otherwise participate.

54    The appellant also relied on expert evidence at trial, being that of a psychiatrist, Dr Yeung. Dr Yeung’s report was read without objection before the primary judge, and she was not required for cross-examination.

55    In her report, Dr Yeung found that the decision of the respondent to not allow the appellant to participate in the Amiens project with Annie caused the appellant to feel “excluded”, “singled out” and “left out by the organisation”, that the actions of the respondent “impacted on [the appellant’s] employment and career opportunity”, and that the appellant felt “disappointed that he can no longer participate in the community and activities that he used to enjoy”.

56    However, Dr Yeung also found that the appellant’s inability to participate in the Amiens project with Annie “did not affect his other aspects of his life”, that he “continues to participate in activities such as doing property care, minding rural properties on his own and sometimes with his wife”, and that the appellant denied “any active depressive and anxiety symptoms” or “any other current life stresses”. Dr Yeung concluded by noting that “I do not consider the alleged discrimination had impact on [the appellant’s] personal life or social life”.

57    Thus, while there is evidence that the appellant suffered some emotional harm in the form of humiliation and distress caused by the respondent’s conduct in not allowing him to participate in the Amiens project with Annie, this did not impact his broader personal and social circumstances. The appellant has suffered loss of enjoyment in terms of not being able to partake in an activity which gives him pleasure and is beneficial to his mental and physical health (notwithstanding that Dr Yeung found that the appellant has since continued to participate in other activities).

58    The object and purposes of the DDA clearly support an award of damages to compensate for loss of enjoyment and humiliation as a result of unlawful discrimination. However, the evidence before the Court of such non-economic harm is limited and at times contradictory. While there is evidence of the appellant feeling humiliated and suffering a loss of enjoyment caused by the respondent’s unlawful discrimination, the evidence does not suggest that these feelings were particularly severe. Further, on the evidence before the Court, the broader impact of the discrimination on the appellant has been modest. In the circumstances, an award of $10,000 is appropriate.

Costs

59    There is no reason why the costs should not follow the result, both at first instance and on appeal.

Associate:

Dated:    18 December 2025