FEDERAL COURT OF AUSTRALIA

Reurich v Acciona Infrastructure Australia Pty Limited [2018] FCA 682

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) the proceeding be summarily dismissed.

2.    There be no order as to costs of the proceeding, including in relation to the first and second respondents’ interlocutory application filed on 5 February 2018.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 30 November 2017 Peter George Reurich commenced this proceeding by filing an originating application under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) naming Acciona Infrastructure Australia Pty Limited (Acciona) as first respondent and David Gittus, human resources manager at Acciona, as second respondent (collectively the Respondents). The proceeding was commenced after Mr Reurich’s complaint against the Respondents under the Disability Discrimination Act 1992 (Cth) (DD Act) was terminated under s 46PH(1B)(b) of the AHRC Act.

2    On 5 February 2018 the Respondents filed an interlocutory application (Interlocutory Application) seeking an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FC Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Rules) that judgment be given for them or, in the alternative, an order that the originating application be struck out pursuant to r 16.21 of the Rules.

3    Having considered that application I am satisfied that an order should be made in favour of the Respondents and that the proceeding should be summarily dismissed pursuant to s 31A(2) of the FC Act and r 26.01 of the Rules. My reasons for reaching this conclusion follow.

Mr Reurich’s claim

4    Mr Reurich alleges that he was the subject of unlawful discrimination under the DD Act. Despite the reference to the Sex Discrimination Act 1984 (Cth) in his originating application, Mr Reurich informed the Court when the matter was first listed for case management hearing on 14 December 2017 that he no longer pressed his claim under that Act.

5    Mr Reurich’s claim set out in the originating application under the heading “Details of claim under the Australian Human Rights Commission Act 1986” is as follows (as written):

Wednesday 8th of February 2017 when I went for a job interview with David Gitlus from Acciona ; it was a Supervisor to supervise and check on another supervisor of a 2nd Tier company working for Acciona ; the interview went extremely well and I nearly had the position when David asked me has he put me off with the enormity of the job; I answered this correctly and the vibe was I had the Job till I mention that I hope it does not put him off as I will be taking my Assistance dog; with that he yelled No dogs on the job' I answered well then I cant do this job with out my dog; I told him I can do this job David was very impressed with my qualifications and attitude till then as I am a Licenced Builder ;99334C ;He asked can I not leave the dog at home; I replied that I need the dog with me as I will be lonely at night in a big city can I not leave him at home, He asked can I not ;eave him where I am staying and I replied I need my dog he keeps me calm and focus on my job ; I explained that I have panic attacks and anxiety but with him near by or accessible I am just fine and in any case he makes a job site happy as most people just plain love him ; He is no trouble as he will sit under my desk in the office and he will walk with me on site till he gets tired and then I have a movable fencing system which he is happy to stay in as long as I provide shade and water; He will stay there and watch and wait for me to come back : I have had him on jobs like this before; David just kept saying no Dogs many many time's; If you could only leave your dog at home you would have this job; David appeared to want me but not the Boofhead ; On my way home d very disappointed and sad I went to some of Acciona's sites and assessed them as dog friendly and spoke to some of the workers there who were having a smoke and they agreed with me that they would have no problems have Boofhead on site; they actually would encourage it ;I rang up Gary Todd the co worker I was going to be working with and unfortunately he could not make the meeting ; but he was keen for me to start and help work with him; he had no issues with me having boofhead on site ; But unfortunately it is not his call ; Tuesday 29th March I went to Acciona office again to see David this time with Boofhead in toe hoping to change his mind ; I arrived on the 3 rd Floor in 83 York st Sydney and met with David and showed him what he was missing out on ; There was about 30 or 40 o more clerical staff in the offices and they all smiled at the sight of Boofhead in he Mind Dog assistance jacket but David was off the air when I asked him for the job and all he could do is yell scream out No Dogs a dozen times; I believe this is a serious breach of the Human Rights Legislation DD Act 1992 amended as I rally believe from his words and body language he was going to offer this opportunity to me ; and it is a breach because as soon as I mentioned the assistance dog he closed the meeting down after he established that I could not would not leave Boofhead at home or away from me; this discriminating against me in a serious way depriving me of I think the job offer was valued @ $150,000 as I wanted this job so much that I would have sacrificed to get paid some what less even ; I did ask to seek David's Boss or a more senior person to speak to ; This was also denied …

6    In summary, having regard to that description, it appears Mr Reurich alleges that:

(1)    he attended a job interview with Mr Gittus on 8 February 2017;

(2)    he felt that he nearly had the job and “the vibe” was that he had the job until he mentioned that he would be bringing his assistance dog, Boofhead, on site after which Mr Gittus yelled “No dogs on the job”;

(3)    Mr Gittus appeared to want Mr Reurich but not Boofhead; and

(4)    on 29 March 2017 he again attended the offices of Acciona, this time with Boofhead, and asked Mr Gittus for the job but Mr Gittus yelled “No Dogs a dozen times”.

7    Mr Reurich seeks the following remedies:

(1)    an apology;

(2)    compensation “for wages denied from when [he] would have started the job”;

(3)    $300,000 for lost wages;

(4)    compensation for mental distress, anxiety and depression caused by Mr Gittus’ action; and

(5)    fines.

RELEVANT LEGAL FRAMEWORK

Summary dismissal

8    Section 31A(2) of the FC Act empowers the Court to give judgment for one party against another in relation to the whole or any part of a proceeding if the Court is satisfied that, relevantly, the applicant has no reasonable prospect of successfully prosecuting the proceeding. Section 31A(3) of the FC Act provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

9    Rule 26.01 of the Rules provides that a party may apply to the Court for an order that judgment be given against another party because, among other things, the applicant has no reasonable prospect of successfully prosecuting the proceeding or the proceeding is frivolous or vexatious or no reasonable cause of action is disclosed.

10    It has been recognised that the effect of s 31A was to soften the test for a successful application for summary judgment: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 (Kowalski) at [25].

11    In Cavar v Green Gate Pty Ltd [2015] FCA 1179, after referring to the effect of s 31A as set out in Kowalski, Flick J said at [29]:

But “caution” should be exercised in the exercise of those powers: Spencer v Commonwealth [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 per French CJ and Gummow J. It is necessary to ensure that a party suffers no “injustice” in the summary dismissal of a case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [45], (2006) 236 ALR 720 at 731 per Rares J. Subsequently, Jacobson J observed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 has observed:

[30]    … The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31]–[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:

•    In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.

•    There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.

•    Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.

•    Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.

Strike out

12    Rule 16.21 of the Rules permits a party to apply to the Court for an order that all or part of a pleading be struck out because, relevantly, the pleading is evasive or ambiguous; is likely to cause prejudice, embarrassment or delay in the proceeding; or fails to disclose a reasonable cause of action appropriate to the nature of the pleading.

13    To disclose a reasonable cause of action, a pleading must contain all material facts supporting the claims made – that is, it must contain those facts that are necessary for formulating a complete cause of action: see H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246.

14    A pleading will be embarrassing where it:

    “is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense”: see Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18];

    “includes defects resulting in the pleading being unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it”: Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263; [2011] FCA 803 at [18] (FWO v Eastern Colour); or

    includes “allegations … made at such a level of generality that the defendant does not know in advance the case it has to meet”: FWO v Eastern Colour at [40].

The DD Act

15    The objects of the DD Act relevantly include to eliminate, as far as possible, discrimination on the grounds of disability in the areas of work; 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 to promote recognition and acceptance within the community that persons with disabilities have the same fundamental rights as the rest of the community: s 3.

16    The term “disability”, in relation to a person, is defined in s 4 of the DD Act to mean:

(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.

17    The term “discrimination” as used in the DD Act has the meaning given by ss 5 and 6 which respectively set out the circumstances in which direct disability discrimination and indirect disability discrimination arise.

18    In relation to direct disability discrimination, s 5 of the DD Act provides that a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(1)    because of the disability, the discriminator treats, or proposes to treat, the person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different; or

(2)    the discriminator does not make or proposes not to make reasonable adjustments for the person and 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.

19    In relation to indirect disability discrimination, s 6 of the DD Act provides that a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(1)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and 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 the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability; or

(2)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and 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 or proposes not to do so; and the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

20    Section 8 provides that the DD Act applies in relation to having, relevantly, an assistant animal in the same way as it applies to having a disability. Section 9(2) defines an assistance animal as 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.

21    Part 2 of the DD Act titled “Prohibition of disability discrimination” contains the operative provisions of the Act. Division 1 concerns discrimination in work and, relevantly, s 15(1) provides that it is unlawful for an employer or a person acting on behalf of an employer to discriminate against a person on the ground of the other person’s disability in determining who should be offered employment.

22    Sections 21A and 21B set out circumstances in which it will not be unlawful for a person to discriminate on the grounds of a disability based on the inherent requirements of particular work or where avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

the evidence

23    The Respondents relied on an affidavit sworn by Mr Gittus who had the relevant interactions with Mr Reurich on 8 February 2017 and 29 March 2017 as well as an affidavit sworn by their solicitor, Dominic Fleeton, on 2 February 2018. Mr Reurich relied on his affidavit affirmed on 21 February 2018. Mr Reurich filed a short written submission in which he also responded to Mr Gittus’ affidavit.

24    The following facts were not in dispute:

(1)    on or about 13 January 2017 Acciona placed an advertisement on seek.com.au for the role of foreman Sydney light rail. That role involved supervision and management of the main contractor at the stabling yard and overseeing works to ensure that Acciona’s policies, procedures and site requirements were met. At that time the works were mainly civil construction works such as earth works, drainage, putting foundations in and building certain structures;

(2)    on 14 January 2017 Mr Reurich applied for the role by submitting his cover letter and resume. Neither Mr Reurich’s letter or his resume made any mention of a disability or medical condition nor the requirement for an assistance animal;

(3)    Mr Reurich and five other applicants were shortlisted for the role;

(4)    on 8 February 2017 Mr Reurich attended an interview for the role with Mr Gittus:

(a)    at the interview Mr Gittus informed Mr Reurich:

(i)    about the project, the role and the skills and qualifications required for the role. In doing so, he contacted Gary Todd, Acciona general superintendent, by telephone to provide further details about the nature and responsibilities of the role; and

(ii)    that if he was successful in the first interview, the process going forward would involve a medical clearance, reference checks and potentially another interview;

(b)    Mr Reurich attended the interview alone – that is, Boofhead was not with him. But, at the end of the interview, Mr Reurich raised the subject of his dog. He told Mr Gittus that if he got the job he would need to bring Boofhead to the site, that Boofhead needed to be with him and that “[h]e also helps to calm my stress and anxiety”. Mr Reurich also said that Boofhead was a “safe dog”, that “everyone will love it” and that “[i]t’ll lift the mood of the place”; and

(c)    Mr Reurich was not offered the job at the interview. Mr Reurich’s evidence is that he “felt … [he] had the job in the bag almost and the vibes were good”. In his written submission Mr Reurich agreed that Mr Gittus had not offered him the job but said that Mr Gittus’ “body language and tone of voice suggested that he was impressed with me my knowledge, keenness and attitude to the position and appeared that he did want me aboard”.

25    There is some divergence between Mr Reurich’s and Mr Gittus’ evidence in relation to Mr Gittus’ reaction to Mr Reurich’s statement that he would need to bring Boofhead on site.

26    Mr Gittus’ evidence is that he told Mr Reurich that dogs were not permitted on site because of the project’s health and safety requirements; the presence of heavy machinery and other hazards that would make it dangerous for any animal to be present; and because Acciona owed duties to the general public who walk in close proximity to the site. He said that Mr Reurich informed him that he needed his dog to come along; that he would bring him to the site; and that he inquired whether Mr Reurich could make other arrangements for Boofhead or leave him at home but that Mr Reurich said he could not.

27    Mr Reurich’s evidence is that when he raised the issue of bringing Boofhead to work Mr Gittus replied “no dogs”. According to Mr Reurich, Mr Gittus then said “if only you can leave your dog at home”; that he was almost begging him; and that he said a number of times, “can’t you leave your dog at home, can’t you leave him at your accommodation, please Peter if only … [you] could have the job”.

28    After interviewing all of the candidates another person was employed for the role who, according to Mr Gittus, had better qualifications and experience than Mr Reurich and thus was better suited to the role.

29    On 29 March 2017 Mr Reurich attended Acciona’s offices with his dog. He did not have an appointment and accessed Mr Gittus’ office without notifying any person or advising of his attendance. Once there Mr Reurich had a conversation with Mr Gittus in which he said that he wanted to show Mr Gittus his dog, that he had some papers to show Mr Gittus and that he wanted the job. Mr Reurich accepts that he took Boofhead to meet Mr Gittus but that it was to no avail as he “ordered [his] dog out of [the] office”.

Mr Reurich’s submissions

30    Mr Reurich made a number of oral submissions. In doing so, he reiterated his evidence as well as submitting that:

(1)    the Respondents’ assertion that there was no disability is not true. Mr Reurich said that he did not go to a job interview telling people he wore glasses and that he did not tell them about his disability but he told them about his ability to do the job which he did in this case;

(2)    he was not sure whether he was going to get the job or not but he was aware that he needed to undergo a medical clearance which he contended he could have passed;

(3)    he would still like to have the job and believes that he could work with the people on the job;

(4)    he had been discriminated against because once he told the Respondents that he takes Boofhead to work, Mr Gittus said “no go, no go” or words to that effect. He lost the opportunity of getting a job in circumstances where he “felt pretty comfortable that [Mr Gittus] was going to give [him] the job” and that if he had kept his mouth shut about Boofhead there would have been every chance that within a week or two he would have been on site, although he conceded that he could not prove that; and

(5)    the only reason he was denied the job was because of Boofhead and not because of his disability. During the interview he left Boofhead downstairs with a shopkeeper and contended that, although he could not prove it, had he taken him up to the meeting, the doors would have been shut as soon as he got there.

consideration

31    The evidence establishes that Mr Reurich:

(1)    did not disclose that he had any disability within the meaning of that term in the DD Act or that he had or required an assistance dog leading up to the interview on 8 February 2017;

(2)    did not attend the interview on 8 February 2017 with Boofhead;

(3)    did not inform Mr Gittus at the interview that he had any disability;

(4)    did not provide any documentation either before or at the interview to establish that he required an assistance animal or that Boofhead was an assistance animal for the purposes of s 9(2) of the DD Act;

(5)    was not offered the role at the interview on 8 February 2017;

(6)    was not the only candidate who was shortlisted for the role;

(7)    accepted that Mr Gittus clearly explained the process going forward in the event that he was successful in the first interview, including the requirement for medical clearance and reference checking; and

(8)    formed the view that he had the job based on his feeling that the interview had gone well and not on anything that Mr Gittus had told him.

32    The identification of a disability said to be the reason for less favourable treatment at the relevant time is critical to a claim of disability discrimination: see QANTAS Airways Ltd v Gama (2008) 167 FCR 537 at [89] (per French and Jacobson JJ). Here Mr Reurich did not identify any disability or any need for an assistance animal either prior to or at the interview on 8 February 2017. That is, even if Mr Reurich has a disability, a matter which I am not required to consider for the purposes of this application, the Respondents were not aware of it at the relevant time.

33    Mr Reurich submitted that he did not tell people about his disability at a job interview and I infer he did not do so at this interview. The evidence supports that submission. That is, the only evidence of communication by Mr Reurich of a need for the presence of Boofhead was when he informed Mr Gittus that Boofhead helped to calm his stress and anxiety. However, that was not sufficient to identify or communicate a disability within the meaning of that term in s 4 of the DD Act, a step that is necessary to form the basis of a claim for discrimination under that Act.

34    Further, the role was not offered to Mr Reurich on 8 February 2017 and no indication was given to him by Mr Gittus that he would get the role. Mr Reurich’s feeling that he had done well and his expectation based on that impression was, in turn, based on Mr Gittus’ body language during the interview. It is an impression that Mr Reurich formed himself and was not based on anything he was told by Mr Gittus. The evidence is that ultimately the role was offered to a better qualified candidate.

35    To the extent that Mr Reurich also relies on the events which took place on 29 March 2017, Mr Reurich did not communicate any disability or provide any information about Boofhead and whether he was an assistance animal for the purposes of s 9(2) of the DD Act to the Respondents in the period from 8 March 2017 to 29 March 2017 or on 29 March 2017. In any event, by that latter date the role had been filled.

36    It follows that a claim for breach of s 15 of the DD Act, assuming that to be the section on which Mr Reurich relies, could not be made out. It could not be said that the Respondents discriminated against Mr Reurich on the grounds of his disability in determining who should be offered the role when they were unaware that Mr Reurich had a disability, that he required an assistance dog and that Boofhead was an assistance dog. The evidence is not ambivalent. It does not permit any other conclusion.

37    While the discretion conferred by s 31A of the FC Act must be exercised with caution, I am satisfied, having regard to the available material and the evidence before me, that Mr Reurich has no reasonable prospect of successfully prosecuting the proceeding and that accordingly, the proceeding should be dismissed pursuant to s 31A(2) of the FC Act and r 26.01 of the Rules.

38    The Respondents also submitted that, even if Mr Reurich was able to overcome the hurdles they had identified, they would have strong grounds to rely on the exceptions in ss 21A and 21B of the DD Act in support of their contention that Mr Reurich does not have a reasonable prospect of successfully prosecuting the proceeding. They submitted that relevant contextual considerations include that the workplace is an active construction site at which civil works are undertaken; there are various employees and contractors undertaking construction works across a widespread area; and Acciona has strict safety related obligations under the Work Health and Safety Act 2011 (NSW), including the need to have in place safety work method statements and other systems and processes to eliminate or minimise risks to the health and safety of workers.

39    Given my conclusion set out above, it is not necessary for me to determine the application based on that submission. However, in my opinion, while there is some evidence given by Mr Gittus of the general nature of the role and the work environment, that evidence is insufficient for me to come to a view about whether the Respondents could rely on those sections of the DD Act in the context of this application.

40    In the alternative, the Respondents sought orders striking out the originating application. Once again, given my decision in relation to the application under s 31A of the FC Act, I do not need to determine that aspect of the application. However, as submissions were made in relation to it, I will address this alternate ground briefly.

41    In my opinion, there are a number of reasons why the originating application would be struck out.

42    Firstly, the originating application fails to identify the material facts on which Mr Reurich relies, including how it is that Mr Reurich satisfies the definition of “disability” in s 4 of the DD Act; how it is that Boofhead meets the definition of an assistance animal in s 9(2) of the DD Act; identification of the provisions of the DD Act which the Respondents are said to have contravened; whether that contravention is alleged to have been by way of direct discrimination or indirect discrimination; and the relevant facts that give rise to the alleged breach.

43    Secondly, in its current form, the originating application is defective. While Mr Reurich has no legal representation and is doing the best he can, the originating application is, in parts, unintelligible, ambiguous and too general. Because of its lack of precision in pleading, it is likely to cause embarrassment to the Respondents as it is difficult for them to know what is alleged against them.

44    Finally, for the reasons set out at [32]-[36] above, the originating application fails to disclose a reasonable cause of action appropriate to the nature of the pleading.

conclusion

45    I will make an order pursuant to s 31A(2) of the FC Act and r 26.01 of the Rules that the proceeding be summarily dismissed.

46    At the hearing, counsel for the Respondents informed the Court that, despite an order for costs being sought in the Interlocutory Application, the Respondents would not seek their costs if they were successful. In light of that, I will make an order that there be no order as to costs of the proceeding, including in relation to the Interlocutory Application.

Associate:

Dated:    17 May 2018