FEDERAL COURT OF AUSTRALIA

Macras v Victoria Police [2019] FCA 1848

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the costs of the respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The applicant, Mr Macras, has applied for an extension of time in which to seek leave to appeal and for leave to appeal the decision of the Federal Circuit Court of Australia (“FCC”) in Macras v Victoria Police [2018] FCCA 1908. An extension of time is not required because Mr Macras filed his application for leave within 14 days after the date on which the FCC pronounced the orders. Leave to appeal is required because the orders of the FCC were interlocutory, as they were made on an application for summary dismissal of the proceeding pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.10 of the Federal Circuit Court Rules 2001 (Cth): s 24(1D)(ca) of the Federal Court of Australia Act 1976 (Cth); BVG17 v BVH17 [2019] FCAFC 17 at [29] (Collier and Rangiah JJ).

2    These proceedings have a lengthy procedural history which is summarised at [3]–[15] of the judgment below. The genesis of the claim is an incident that occurred on 5 November 2015 when Mr Macras was intercepted whilst driving his car by officers of Victoria Police (“the interception”). The police officers informed Mr Macras that testing had indicated the presence of illicit drugs and that he was required to take a secondary oral fluid test. Mr Macras did not take the oral fluid test and he received a summons for breach of the Road Safety Rules 2009 (Vic). Mr Macras made a complaint to the Professional Standards of Police Command Victoria (“PSPC”) regarding the interception. Mr Macras subsequently submitted a complaint to the Australian Human Rights Commission (“AHRC”) against Victoria Police for alleged discrimination on the basis of disability during the course of the interception and the investigation of the complaints made to the PSPC.

3    The proceedings dismissed by the primary judge were brought under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”), following the termination of Mr Macras’ complaint to the AHRC. This complaint was later amended to include a complaint against the Magistrates’ Court of Victoria. Following the termination of his complaint, Mr Macras commenced the proceedings in the FCC on 27 April 2017. In the proceeding, Mr Macras joined the Magistrates’ Court of Victoria and the State of Victoria as well as Victoria Police. The Magistrates’ Court of Victoria and the State of Victoria were later removed as respondents. There were various different versions of points of claim filed by Mr Macras in support of his application. The last version contained 326 paragraphs over 106 pages. In addition to orders against Victoria Police and the State of Victoria, Mr Macras also sought orders against several magistrates who were individually named, the Attorney-General of Victoria, the Department of Justice and Regulation, the Roads Corporation, the Independent Broad Based Anti-Corruption Commission, solicitors at the Victorian Government Solicitor’s Office, the Registrar of the Magistrates’ Court of Victoria at Frankston, Monash Health, two nurses at Monash Health, individually named police officers and “the Crown and any agent, employee, authority, officer or person acting on behalf of or under power conferred by the Crown”.

4    The primary judge held that Mr Macras had no reasonable prospects of successfully prosecuting his claims against those respondents who were not included in the original complaint made to the AHRC by reason of s 46PO of the Act. Section 46PO relevantly provides:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

Note:    Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

…

(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.

5    At [30], the primary judge reasoned:

Pursuant to s 46PO(3) of the Act, the claims of the Applicant must be limited to those originally brought before the AHRC. The claims that are made by the Applicant alleging a breach of the DDA that are different in substance to those raised before the AHRC cannot be pursued and must be struck out: Dye v Commonwealth Securities Ltd (No 2) [2010] FCA 817 at [43]. The claims of the Applicant must also be time limited to issues that occurred up until he submitted his amended complaint to the AHRC in March 2017; he is not able to raise claims of discrimination that relate to any conduct by the Respondent after this point: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531[35].

6    The primary judge held that insofar as claims made by Mr Macras raised criminal or tortious allegations, they were not within the jurisdiction of the FCC and could not be dealt with by that court.

7    The primary judge also held that Mr Macras had no reasonable prospects of successfully prosecuting the claims against the individually named magistrates because of the operation of s 14(1) of the Magistrates’ Court Act 1989 (Vic) which provides that:

A magistrate has, in the performance of his or her duties as a magistrate, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.

8    The primary judge rejected Mr Macras’ submission that the individual magistrates named were not acting in the course of their duties and therefore the immunity under s 14(1) did not apply. His Honour reasoned that no evidence had been filed which would support a finding that the magistrates named were not acting within the proper scope of their judicial and administrative duties in their dealings with Mr Macras and his case. His Honour further reasoned that a judicial officer discharging his or her functions cannot be the subject of an action under the Disability Discrimination Act 1992 (Cth) (“DDA”), citing Luck v University of Southern Queensland [2014] FCAFC 135 where at [41], the Full Court stated:

… At least in the performance of judicial functions, judicial officers are not subject to the DD Act and any claim of discrimination would be precluded by the principle of judicial immunity: Fingleton v The Queen (2005) 227 CLR 166 at [36]-[39] per Gleeson CJ citing Sirros v Moore [1975] QB 118 at [132] per Lord Denning MR; Yeldham v Rajski (1989) 18 NSWLR 48...

9    The primary judge accepted that claims within the scope of the original AHRC complaint were claims within the jurisdiction of the FCC to hear and determine. Paragraphs 32 and 33 of the judgment below set out the relevant claims as follows:

The Applicant’s relevant claims, which the Respondent admits may be within jurisdiction and the subject of the original complaint to the AHRC are extracted from the Applicant’s points of claim and summarised as follows:

a)     On 5 November 2015, Victoria Police:

i)     intercepted the Applicant and the interception amounted to direct discrimination; and

ii)     engaged in indirect discrimination by requesting the Applicant take an oral fluid sample test;

b)     Around 7 November 2015, the Applicant made a complaint to the PSPC about the incident on 5 November 2015. The conduct of the PSPC investigation directly discriminated against the Applicant; and

c)     The Applicant alleged that the issuing of a summons to appear at the Magistrate’s Court and suspension of his licence amounted to:

i)     direct discrimination; and

ii)     indirect discrimination.

The Applicant submits that Victoria Police:

a)    engaged in discrimination against and/or harassed him by refusing him access to Discovery Road, Dandenong South and/or his vehicle as a ‘premises’ under s.23 of the DDA. This is due to the Applicant being intercepted and stopping for police and then the Applicant being requested by police not to drive his car for 12 hours;

b)    engaged in discrimination against him while in the course of providing a service under s.24 of the DDA. The Applicant submitted before the AHRC that the police were providing a ‘service’ to the community when they intercepted him. He further submitted that they ‘refused to provide him with adequate services and altered the terms on which they provided [him] the services’;

c)    harassed him pursuant to s.39 of the DDA by;

i)     intercepting him;

ii)     by suspending his licence; and

d)    victimised him pursuant to s. 42 of the DDA by;

i)     subjecting him to detriment because he asserted his rights under the Act or the DDA; and

ii)     suspending his licence.

10    At [38]–[56], the primary judge dealt with Mr Macras’ claims within the scope of the original complaint as follows:

The Applicant submitted that the interception by police on 5 November 2015 amounted to direct discrimination on the basis of his disability, direct discrimination on the basis of his disability aid and/or indirect discrimination.

It is unclear on what basis that the Applicant alleges that the officers engaged in this conduct due to his disability. In response to correspondence from the AHRC regarding the complaint, Victoria Police stated the reason that the Applicant was intercepted was due to driving with his fog lights on in inappropriate conditions. The Applicant refuted on a number of occasions that he had been pulled over in relation to his fog lights, as he was travelling in the same direction as the police vehicle. He submitted that this meant they could not have seen his lights, but the statements of the intercepting officers indicated that he performed a U-turn in front of them. This would have allowed them to perceive whether he had his fog lights on, and resolves any alleged inconsistencies in the police statements.

I accept the oral submission of counsel for the Respondent that the police officers who intercepted the Applicant could not have done so on the basis of his disability, or an outward manifestation of it. The Applicant’s Autism Spectrum Disorder, as a communication disorder, cannot be apprehended without some interaction with the Applicant. It is not possible that the police officers intercepted the Applicant because of his disability as they could not have been aware of any disability before interacting with him.

The Applicant submits that the interception was directly discriminatory as it was based on the make and model of his car making him appear to be a ‘hoon’. He alleges the car is a disability aid under s 9 of the DDA because he drives it to calm down after having meltdowns, a symptom of his Autism Spectrum Disorder. In oral submissions, the Respondent did not cavil with the submission that the Applicant’s car could be a disability aid, under the DDA, but sought to make a factual distinction on the basis that officers could not have known the car was a disability aid.

The appropriate test, with reference to ss.5 and 8 of the DDA is whether, because of his disability and because of the use of his car as a disability aid, the police treated the Applicant less favourably than the police would treat a person without that car in circumstances that are not materially different. This test requires an evaluation of the treatment in the context of the acts or behaviours that were undertaken by the person subject to the alleged discrimination: Purvis v State of New South Wales (Department of Education) [2003] HCA 62 [222]–[224]. The circumstances are that the Applicant performed a U-turn in front of police in an area that was being monitored for ‘hoon activity’. It cannot be said that the police would have treated another car differently if it had performed a U-turn in an area being monitored. In my view, regardless of the response to the use of the car (whether as a motor vehicle or as a motor vehicle which is a disability aid) that has performed that manoeuvre, the police would have intercepted the vehicle. There is no evidence that the police intercepted the car because it was being used as a disability aid and this claim has no reasonable prospects of success.

The Applicant submits that Victoria Police engaged in indirect discrimination under s.6 of the DDA by requesting that he undertake an oral fluid sample test.

The Applicant has not particularised this claim in a manner that can be readily apprehended. The Applicant has also failed to produce any evidence that the request to undertake an oral fluid test caused a disadvantage to him. As outlined in the response of the Respondent to the AHRC, the testing procedures carried out by the police on 5 November 2015 were routine and are applied to all persons intercepted. The nature of the Applicant’s disability is a communication issue; it is not clear how the requirement to accompany the police for a further test interacts with the Applicant’s disability. In the statements of the two intercepting officers, they describe the Applicant initially agreeing to testing and then refusing, the reason given by the Applicant being ‘human rights’. This was confirmed in the Applicant’s own complaint to the AHRC. There is no conflict on the evidence regarding the issue of what reason the Applicant gave for refusing to be tested. Based on this, it does not appear that the Applicant did not comply with the requirement because of his disability, but because of his belief that it was his ‘human right’ not to comply.

The Applicant has submitted that the police could have made reasonable adjustments for his disability by following his request to take him to a police station instead of the testing vehicle. He fails however to particularise how this would have alleviated disadvantage to him, and further how the police could have decided to make a reasonable adjustment when they did not perceive the Applicant as having a disability. The Applicant had in fact not been diagnosed with Autism Spectrum Disorder until consulting a psychologist on 23 February 2016. The Applicant undertook this consultation [for] the purposes of attaining a psychological report and assessment for his case in the Magistrate’s Court over the charges against him relating to the interception of 5 November 2015. It appears unreasonable to expect that the police officers should have been on notice to make reasonable adjustments when the Applicant himself was unaware at that stage that he had a disability and the officers did not perceive that he had a disability.

For the above reasons, a claim on the basis of discrimination under the DDA regarding the Applicant’s interception by Victoria Police has no reasonable prospect of success and should be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001. Due to the failure of the Applicant to meet the threshold requirement of discrimination having occurred as defined under the DDA, it is unnecessary to deal the remaining elements of his claims under ss.23 and 24 of the DDA. As discrimination cannot be made out, any claims under ss.23 and 24 also have no reasonable prospect of success and are dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.

The Applicant claims that the interception was harassment under s.39 of the DDA. In order for this claim to be made out, it must be established that Victoria Police were providing a ‘service’ to the Applicant when the alleged harassment occurred. As noted by the AHRC, it was established in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 that police in pursuit of a suspect will not be considered to be providing a service as it is not helpful or beneficial to the suspect. I find that the interception on 5 November 2015 was similarly not an instance where police were providing services, and for that reason this claim has no reasonable prospect of success, and must be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.

The Applicant claims that the Respondent victimised him for asserting his rights during the interception pursuant to s.42 of the DDA. He submits that his statement that he was refusing the oral fluid test on the basis of ‘human rights’ was sufficient to constitute an assertion of rights. Victimisation under s.42 of the DDA can only occur where the Applicant suffers detriment caused by an assertion of rights under the Act or the DDA. The Applicant submits numerous detriments and damages have been caused by his alleged assertion of rights, including but not limited to:

  a)     the suspension of his licence;

  b)     charging the Applicant;

  c)     the loss of an 8 year relationship;

  d)     his chances of having a family again;

  e)     the loss of his career;

f)     his owing a debt of $120,000, which accrues 30% interest per annum ‘which he was forced to incur by the conduct of the Respondents where he had no income and required credit cards to survive’;

  g)     psychological ill health including:

i)     anxiety disorders;

ii)     depression disorders;

iii)     post-traumatic stress disorder;

iv)     obsessive compulsive disorders;

v)     agoraphobia; and

vi)     other undisclosed illnesses;

  h)     ‘torture’ as defined by the United Nations;

i)     inability to accept or follow directions, expectations, standards, rules or laws directed by the police, government or society;

  j)     two ruined birthdays;

  k)     three ruined Christmases;

  l)     three ruined New Year’s celebrations;

  m)     severed ties with:

i)     family over arguments relating to the proceedings;

ii)     friends and colleagues over arguments relating to the proceedings;

  n)     several unsuccessful suicide attempts;

o)     ‘having to deal with an ex-girlfriend driven hysterical by all this misconduct directed at the Applicant’;

  p)     increasing his cigarette consumption to over 30 per day due to stress; and

q)     fostering in the Applicant a ‘religious belief …that he is an individual and does not have to listen to what any other person says, no matter how large their majority is that is saying it…’ which ‘will likely see the Respondents and Applicant before the Court many times over…’.

I note that in an affidavit filed 9 March 2018, the Applicant seeks damages, including aggravated damages in the sum of $224,692,335.55.

In order to prove detriment has occurred as a result of the Applicant’s assertion of rights, causation must be established. This test was outlined in Penhall-Jones v New South Wales by Buchanan J who stated that:

Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s.42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation.

That the Applicant made an alleged assertion of his rights cannot be said to have been a substantial and operative factor here. The Applicant merely saying ‘human rights’ with no further comment in response to why he refused to take the oral fluid test is not sufficient to constitute having ‘reasonably asserted’ his rights under the Act or the DDA for the purposes of s.42. The Applicant refused to undertake an oral fluid test; this is the reason that the police suspended his licence and issued him with a summons. Any detriment that flowed from the interception of the Applicant by Victoria Police was caused by the Applicant’s own decisions, not from having told the police officers that they were infringing upon his rights under the Act or the DDA.

I find that this claim has no reasonable prospect of success and therefore must be summarily dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.

The Applicant claims that the conduct of the investigation of his complaint over the interception, made around 7 November 2015, was directly discriminatory. In his points of claim, the Applicant makes reference to the provision of services and denial of access to public places in his particulars to this allegation, but does not outline which section of the DDA he alleges has been breached. It is assumed, given the particulars, that the Applicant is alleging direct discrimination under ss.23 and 24 of the DDA.

Though it is arguable that the PSPC investigation is a ‘service’ under s.23 of the DDA, as with the claims regarding harassment, discrimination as defined under the DDA is a threshold issue. The same issue arises for discrimination allegedly arising out of s.24 of the DDA. There is nothing put before me by the Applicant to indicate that the conduct of the investigation could be considered discriminatory in any way.

The Applicant claims that his being summoned to appear at the Magistrate’s Court and the suspension of his licence by Victoria Police constituted direct and indirect discrimination. It is clear that the Respondent treated the Applicant no more unfavourably than any other person in the position of the Applicant. The summons and the licence suspension were the result of the Applicant having refused to provide an oral fluid test. The withdrawal of the charges does not demonstrate they were discriminatory; the withdrawal was the result of a procedural error, not a substantive issue with the charges. As I have found above that the interception was not discriminatory, it follows that the resulting summons and suspension of the Applicant’s licence cannot be discriminatory under ss.5, 6, 23 or 24 of the DDA. Accordingly, this claim should be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 as it has no reasonable prospects of success.

I am of the view that all of the Applicant’s claims have no reasonable prospects of success and that the defects in those claims will not be cured by amendment or repleading.

(Errors in original.)

11    Finally, in his claims, Mr Macras also sought orders that the respondents be found to be in contempt of court. The primary judge formed the view that the claims in relation to contempt also had no reasonable prospects of success, reasoning as follows at [57]:

The application filed on 8 January 2018 for a finding of contempt against those persons and bodies referred in [17] above made by the Applicant was dismissed during the hearing on 10 April 2018. I found that that application had no reasonable prospect of success and should be summarily dismissed. Evidence was filed by the Applicant regarding his arrest on 15 December 2017, which arose from the Applicant being charged with offences, including use of a carriage service in a manner which a reasonable person would regard as menacing. This conduct was engaged in during extensive communications between the Applicant and the VGSO. Affidavits were filed by each of the arresting officers. They denied that the arrest was for the purpose of interfering with court proceedings. The hearing listed before Judge Jones on 15 December 2017 was adjourned at the request of the Respondent, and the Applicant’s capacity to prosecute his claims has not been affected (save for the adjournment of the directions hearing). The Applicant sought to have contempt findings made against each of the proposed joined parties, including the entire police department, a Registrar of the Magistrates’ Court, and a registered nurse at Monash Health. I formed the view that the claims in relation to contempt could not succeed and should not proceed further.

12    Mr Macras filed proposed grounds of appeal in advance of the hearing that ran to 15 pages in length and identified seven grounds, each with multiple claims. Most of the proposed notice of appeal was argumentative and diffuse in its specification of the alleged appealable errors. The notice of appeal also raised several grounds which, on any view, do not relate to the reasons for decision and were not the subject of the primary judge’s decision or engage with the primary judge’s reasons. An order was made under r 4.12 of the Federal Court Rules 2011 (Cth) granting a certificate for referral to pro bono counsel. Mr Macras received pro bono assistance for a short time but counsel subsequently withdrew.

13    At the commencement of the oral hearing, Mr Macras indicated that the only proposed grounds of appeal he wished to proceed with were those challenging the findings of the primary judge with respect to his points of claim against Victoria Police. As best as can be distilled from the written grounds of appeal it is alleged that the primary judge erred in law in relation to the claims against Victoria Police in failing to address several significant issues and by committing various errors in the judgment. Mr Macras’ written submissions did not assist to identify with any greater precision grounds of appeal he would rely upon, if leave was granted.

14    However, Mr Macras’ oral submissions identified with more particularity asserted errors in the judgment below that would form the basis of his grounds of appeal if leave were granted. Somewhat paraphrased, the errors of the primary judge were said to be:

(a)    the primary judge erred by not addressing s 5(2) of the DDA (“Ground One”);

(b)    the primary judge erred by applying an incorrect test when determining whether the interception constituted direct discrimination on the basis of his disability aid pursuant to s 5(1) of the DDA (“Ground Two”);

(c)    the primary judge’s assessment of the claims of indirect discrimination was affected by an incorrect understanding of the causal requirement in s 6 of the DDA (“Ground Three”);

(d)    the primary judge erred by rejecting the claims under s 39 of the DDA on the basis that Victoria Police had not been providing Mr Macras with a service (“Ground Four”); and

(e)    the primary judge erred by rejecting the claims under s 42 of the DDA on the basis that Mr Macras had not made an assertion of rights (“Ground Five”).

15    It is well established that in determining whether to grant leave, it is relevant to consider the merits of the proposed appeal and whether substantial injustice would result if leave to appeal was refused, supposing the judgment below to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 (Sheppard, Burchett and Heerey JJ). In considering the merits, the Court does not fully investigate the merits of the substantive case as if it was the hearing of the appeal. The Court’s task is to consider the proposed appeal at a “reasonably impressionistic level” and assess whether the proposed appeal is “sufficiently arguable” or has “reasonable prospects of success” to warrant the grant of leave: Bellamy’s Australia Ltd v Basil [2019] FCAFC 147 at [17] (Murphy, Gleeson and Lee JJ), citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]–[63] (Mortimer J). For the reasons that follow I am not satisfied that the proposed appeal is sufficiently arguable or has sufficient prospects of success to warrant a grant of leave.

Ground One

16    This ground lacks any merit because s 5(2) of the DDA was not raised expressly or in substance in the points of claim against Victoria Police nor does it appear that the subsection was relied on by Mr Macras before the primary judge. There can be no error in the primary judge not considering a claim that was not made.

Ground Two

17    The basis of this ground is that the primary judge erred by applying the test in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 (“Purvis”) when determining Mr Macras’ claim of direct discrimination based on ss 5(1) and 8. Mr Macras submitted that Purvis is no longer good law as the DDA has been amended subsequently and that the application of the test in Purvis infected the whole of the primary judge’s reasoning on the s 5(1) claim.

18    Subsequent to Purvis, amendments were made to s 5 of the DDA in 2009 but not to s 5(1). The key amendments were summarised in Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207; [2015] FCAFC 130 at [139] 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 New South Wales (Department of Education and Training) (2003) 217 CLR 92 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…; 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).

19    Critically, none of these amendments effected a substantive change to the criteria for direct discrimination based on s 5(1) and Purvis remains good law on the inquiry directed by s 5(1), namely: (1) a comparison must be made between the way in which the discriminator treated (or proposes to treat) a person with a disability and the way in which a person “without the disability” but with the same behavioural characteristics would be treated in circumstances that are not materially different; and (2) the words “because of” in s 5(1) require a causal connection between the disability and the “less favourable treatment”. Section 5(1) provides:

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.

20    The primary judge at [42] correctly identified the test to be applied under s 5(1) and no appealable error is discernible in the reasons of the primary judge for concluding that the s 5(1) claim had no reasonable prospects of success. As the primary judge stated at [42], Mr Macras performed a U-turn in front of police in an area being monitored for “‘hoon activity’” and there was nothing which indicated that the police would have treated another person without Mr Macras’ disability performing a U-turn in a car that was not used as a disability aid any differently. The response to the use of a motor car (whether or not a disability aid) that performed that manoeuvre would have been the same. Accordingly this ground does not have arguable prospects of success.

Ground Three

21    As best as can be discerned, Mr Macras submitted that the request to undertake an oral fluid test constituted indirect discrimination under s 6 of the DDA in that his communication disorder meant that there was an inaccurate perception by the police officers that he had refused to comply with the request to provide an oral fluid sample, and the requirement to take an oral fluid test caused a disadvantage to him, in that charges were brought against him (which were ultimately withdrawn) that triggered a negative spiral of events in his personal life and mental health. Mr Macras submitted that the primary judge’s assessment of his claims of indirect discrimination by Victoria Police was affected by an incorrect understanding of the causal requirement in s 6. Section 6 provides:

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.

22    Indirect discrimination as defined by s 6(1) arises where a discriminator requires the aggrieved person to comply with a “requirement or condition” which the aggrieved person cannot comply with because of that person’s disability and the aggrieved person is consequently disadvantageously affected: Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247; [2017] FCAFC 128 at [23]. The primary judge held that the claim based on indirect discrimination had no reasonable prospects of success because:

(a)    there was no evidence that the request to undertake an oral fluid test had, or was likely to have, the effect of causing a disadvantage to him: at [44];

(b)    on the evidence, it was not because of his disability that Mr Macras did not comply with the request. Rather the reason given by Mr Macras for not complying with the request was his belief that it was his “human right” not to comply: at [44]; and

(c)    to the extent that Mr Macras also relied on s 6(2), even if the police had made “reasonable adjustments” to enable him to comply with the request, it was not explained how this would have alleviated disadvantage to him and how reasonable adjustments could have been made when the police were unaware of his disability at the time: at [45].

23    No error is apparent in the reasoning of the FCC. For the reasons given by the primary judge, there is not an arguable case that the requirements of s 6(1)(b) and (c) were met and the failure to found an arguable case showing that the requirements of s 6(1)(b) and (c) were met is fatal to Mr Macras’ claim of indirect discrimination under s 6(1). Further no error is apparent in the reasoning of the primary judge in respect to the claim of indirect discrimination under s 6(2). Irrespective of the requirement in s 6(2)(b), there is not an arguable case of showing that the requirement in s 6(2)(c) would be met in the circumstance that the police at the time did not have knowledge of Mr Macras’ disability: Tropoulos v Journey Lawyers Pty Ltd (2019) 287 IR 363; [2019] FCA 436 (Collier J) at [158]. Nor is there an arguable case that s 6(3) does not have operation, given the circumstances in which Mr Macras was pulled over by Victoria Police and required to take an oral fluid test. Accordingly I find that this ground also has no reasonable prospects of success.

Ground Four

24    Section 39 provides:

Harassment in relation to the provision of goods and services

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to harass another person who:

(a)    wants to acquire the goods or services to make use of the facilities; and

(b)    has a disability;

in relation to the disability.

25    The primary judge concluded that the interception did not constitute harassment in relation to the provision of goods and services under s 39 because police in pursuit of a suspect will not be considered to be providing a service as it is not helpful or beneficial to the suspect: Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64. On the application for leave to appeal, Mr Macras submitted that the harassment occurred during the course of his complaint process to the PSPC. That claim was not articulated in the points of claim document before the primary judge, nor is it apparent that it was raised in either written or oral submissions. No appealable error arises.

Ground Five

26    Section 42 of the DDA creates a specific offence for committing an act of victimisation by subjecting or threatening to subject another person to any detriment on the ground that the other person has, relevantly, reasonably asserted or proposes to reasonably assert any rights under the DDA or the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”). Mr Macras submitted that his identification of “human rights” as a reason why he would refuse to comply with the oral fluid test constituted an assertion of rights that caused a relevant detriment. The primary judge reasoned at [51] that Mr Macras’ statement of “human rights” with no further comment was not sufficient to constitute having “reasonably asserted” his rights for the purposes of s 42, and that in any event the causation requirement was not satisfied, reasoning at [51] that any detriment to Mr Macras that flowed from his interception by Victoria Police was caused by his own decisions, not from having told the police officers that they were infringing on his rights under the DDA or the HREOC Act. His Honour did not misunderstand the statutory provision and correctly considered for the reasons given that the claim based on s 42 had no reasonable prospects of success. No error is evident in his Honour’s reasons and I do not accept that Mr Macras has any reasonable prospects of success on this ground.

Conclusion

27    As Mr Macras has not demonstrated that any of the proposed grounds of appeal are arguable, leave to appeal is refused. Subject to argument by the parties, I propose to order that the applicant pay the costs of the respondent, such costs to be taxed in default of agreement.

Associate:    

Dated:    13 November 2019