Federal Court of Australia

Reurich v Savills (SA) Pty Ltd [2025] FCA 420

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Any application for costs, together with any evidence and submissions (of not more than three pages) be filed and served by 4:00pm on 7 May 2025.

3.    Any affidavit(s) and submissions (of not more than three pages) in response be filed and served by 4:00pm on 23 May 2025.

4.    Any application for costs be determined on the papers.

5.    If no application for costs is made within the time frame fixed by order 2 above, there be no order as to costs.

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

REASONS FOR JUDGMENT

RAPER J:

1    The purpose of the Disability Discrimination Act 1992 (Cth) is to protect persons with disabilities as they navigate life. The DDA recognises the important place assistance animals have, as their name suggests, in assisting persons with disabilities, and provides persons who have assistance animals with protections from discrimination. Those protections are not at large but arise in certain areas of public life or activity. This case concerns access to a shopping centre in rural New South Wales in the town of Taree. The shopping centre is often the epicentre of social life, particularly to those who are socially isolated and vulnerable. It may be that a trip to the shops provides the only source of regular social interaction for certain members of the community. The shopping centre also provides an essential service—the provision of goods and services. In a small town, there may be only one set of shops or limited choice. Therefore, questions about who is able to enter these places and the conditions of entry are not insignificant.

2    The applicant, Mr Peter Reurich, lives in Taree and frequents the Taree Central Shopping Centre and the Manning Mall for his grocery shopping. On 22 April 2022, Mr Reurich was banned from attending Taree Central for three months (the ban was thereafter extended on multiple occasions until it comprised an eight-year ban). Mr Malcolm Dixon was the security guard on site who imposed the ban. Mr Dixon was employed by the second respondent, Statewide Quality Services Pty Ltd—a cleaning and security subcontractor to the property manager (first respondent, Savills (SA) Pty Ltd). It was accepted that Mr Dixon was acting as Savills’ agent when he imposed the ban.

3    The circumstances giving rise to the ban on 22 April 2022 are crucial in this case. Mr Reurich had sought out Mr Dixon in order to serve documents on him. Mr Reurich had previously made a complaint to the Australian Human Rights Commission about Mr Dixon and Statewide with respect to a dispute about another adjacent shopping centre, the Manning Mall (the Manning Mall complaint). Mr Dixon was employed by Statewide to perform the same position at each of the two shopping centres in the period between 19 January 2019, to October 2022. Mr Dixon remained employed in the position at Taree Central until 20 August 2023. Mr Reurich had then commenced proceedings in the Federal Court with respect to the Manning Mall complaint. On 22 April 2022, Mr Reurich was seeking to serve the originating processes with respect to that claim on Mr Dixon. When he did this, Mr Reurich filmed Mr Dixon. Thereafter, Mr Dixon banned Mr Reurich (acting as agent and employee respectively for Savills and Statewide) from attending Taree Central.

4    Mr Reurich contends, by reason of the ban on 22 April 2022 and subsequent bans (and claims of harassment and intimidation) that each of the respondents have, contrary to the DDA, directly or indirectly discriminated against him because of his disability and/or him having an assistance animal and also the respondents have victimised him because he had previously made a complaint and/or commenced proceedings in the Commission.

5    The following issues require resolution: (a) whether Mr Reurich has established his claims of direct or indirect discrimination under the DDA on the basis of his disabilities and/or having an assistance animal as against each or any of the respondents pursuant to ss 23 or 24 of the DDA; and (b) whether Mr Reurich has established his claims of victimisation (under ss 42 or 58A of the DDA) or incitement (s 43 of the DDA).

6    The matter proceeded on the basis that the question of liability be determined first and if necessary to thereafter determine relief.

7    The evidence revealed very significant acrimony between Mr Reurich and Mr Dixon. It was palpable. The footage, in particular, revealed that they would each goad each other. The circumstances are very unfortunate. However, it is for Mr Reurich to prove that the respondents have engaged unlawful discriminatory or victimising conduct. Conduct which is less than ideal, unfair or unreasonable is not unlawful discrimination. It may be that by reason of the conduct so being described that an inference can be made as to the unlawfulness of the reason for the conduct. However, such an inference cannot be made lightly. The Court is required to carefully consider all of the evidence through the prism of the relevant statutory tests.

8    For the following the reasons, Mr Reurich has failed to establish his claims of direct or indirect discrimination and victimisation or incitement under the DDA as against any of the respondents.

Mr Reurich’s case

9    Mr Reurich did not file formal pleadings. Savills took the practical approach of attempting to respond to Mr Reurich’s case, as articulated in his complaints to the Commission. Statewide filed a “Concise Response” claiming the proceedings were incompetent. Accordingly, it was very difficult to decipher Mr Reurich’s case and also the respective positions of the respondents. However, Mr Reurich did file various written submissions on 12 December 2024, 22 January 2025 and after the hearing on 11 April 2025.

10    Mr Reurich obviously has a deep love and affection for his dog “Boofhead” and also after his death, “Mr Bojangles”. He has properly cared for them and they are a source of great comfort and assistance as Mr Reurich navigates life with his disabilities. It was Mr Reurich’s submission that the footage reveals him as an old man walking his dog through the shopping centre minding his own business and not doing anything wrong.

11    However, it was clear that Mr Reurich was contending that he was barred from entry into Taree Central on 22 April 2022, by reason of his disability or the fact of him having, or having previously, had an assistance animal or because he had complained to the Commission about Mr Dixon’s conduct and was in the process, when barred, of trying to serve court papers associated with that complaint on Mr Dixon who was named as an individual respondent.

12    Mr Reurich moved to Taree in May 2020. He commenced frequenting Manning Mall and Taree Central “for the purpose of shopping and getting familiar with his new environment. Perhaps make friends”. Mr Reurich complained that Mr Dixon, as “Chief security guard” at both Manning Mall and Taree Central, acting as agent for Savills and in the employ of Statewide, engaged with others (including the respondents) engaged in discriminatory conduct which took the following form: (1) the imposition of a three month ban from entry to Taree Central on 22 April 2022; (2) the subsequent imposition of further bans when he attended the shopping centre (on 33 occasions between 22 April 2022 and 26 January 2023) which accumulated to consist of a ban of eight years; (3) on no less than six occasions thereafter, subjecting him to harassment and intimidation when he attended Taree Central (this conduct was alleged to have taken the form of Mr Dixon or other security guards following him, frogmarching him out of the premises, telling him to leave the shopping centre, threatening to call the Police or telling him that the Police were coming to his house and would arrest and take him away); (4) a consequence of the alleged discriminatory ban was that in November or December 2022, a NSW Police Constable attended Mr Reurich’s house and left a barring notice and on 26 January 2023, he was escorted by Police from Taree Central; and (5) the respondents incited the local community of Taree against him and his dog. Mr Reurich contended that the actions of the respondents caused him to feel isolated and intimidated and limited his shopping and social interaction. Mr Reurich claims that the conduct was taken by reason of his disability or him having an assistance dog.

13    In addition, Mr Reurich claims that the discriminatory conduct was taken by Mr Dixon (and by the respondents as agent or employer) as “retaliatory action” by reason of the previous complaint he had made to the Commission about Mr Dixon and others at the Manning Mall. In effect, Mr Reurich was separately alleging that he was being subjected to unlawful discrimination in the form of victimisation because he had previously made a complaint to the Commission or was bringing proceedings alleging that he was barred from Manning Mall by reason of his disability or having an assistance dog pursuant to ss 42 or 58A.

14    Mr Reurich relied upon a letter from Ms Tamara Lee, a psychologist, dated 7 February 2025. In that letter, Ms Lee states that Mr Reurich has been a client of hers since January 2012. It is my view, from reading Mr Reurich’s complaints and from the content of his written and oral submissions (including those filed in April 2025), that she provides an acute description of Mr Reurich’s sense of grievance, in the following terms:

Peter has had a Psychiatric Service Dog for many years and this has assisted Peter greatly with his anxiety symptoms. It has, however, been a source of stress at times as Peter has found himself challenged on several occasions over the years over the validity of his service dog and, when able to show his legal right to be present with a service dog, challenged on a personal basis. This leads to a significant sense of injustice for Peter, so much so that he has often taken companies to court over what he believes to be discriminatory practices towards him. Peter’s opinion is that, for the most part, people (business owners or security staff) take a disliking to him because of his way of communicating with people and then ‘go out of their way’ to find ways to be able to prevent him from attending their businesses. This is upsetting for Peter, who feels that he is merely being friendly with people when is out and about and is just wanting to access services whilst being himself.

Mr Reurich established that he had a protected attribute—he has a disability

15    Protection from discrimination is not at large. Mr Reurich is required to establish, in order to avail himself of protection under the DDA, that he has a disability within the meaning of the Act. There was no dispute in this case that he has established this. It was Mr Reurich’s undisputed evidence that he lives with anxiety, autism, depression, panic attacks and post traumatic stress disorder. It may be accepted that Mr Reurich having assistance animals helps alleviate the effects of his disabilities. Mr Reurich gave unchallenged oral evidence as to his disabilities and the benefits his animals provide him.

Mr Reurich established that he had previously had or may have had an assistance animal

16    In addition, Mr Reurich claimed that he has an additional protected attribute, namely, that he requires the assistance of an assistance animal. The DDA applies in relation to having an “assistance animal” in the same way as it applies in relation to having a disability: s 8(1).

17    For the purpose of the DDA, an “assistance animal” includes, as stipulated in s 9(2), the following:

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

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

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

(c)     trained:

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

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

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

18    However, notably, item 2 of the table under s 9(4) of the DDA provides that a person with a disability has an assistance animal or aid if:

(a)     is presently accompanied by, or possesses, the animal or aid; or

(b)     was previously accompanied by, or possessed, the animal or aid; or

(c)     may be accompanied by, or possess, the animal or aid in the future; or

(d)     is imputed to be accompanied by, or to possess, the animal or aid.

19    Accordingly, to the extent the respondents submitted that Mr Reurich had to establish the “identity” of the animal (that was purportedly assisting him at the time of the alleged discriminatory conduct) and that it conformed with s 9(2) illustrates a misunderstanding of how the DDA works. The disability protections, under the DDA, not only include persons having a disability, but those who previously had a disability which no longer exists or may exist in the future or is imputed to a person: s 4. In the same way, s 9(4) makes clear that the protections, for those having an assistance animal, are not limited to the present possession of that animal but may include those who had previously had an assistance animal or those who may in the future or are imputed to have one.

20    In this case, it was the evidence of Ms Wendy June Lamond, for Savills, that she had been told by Mr Dixon, that Mr Reurich’s dog, named “Boofhead” had had “assistance animal registration”. It was not clear what the basis for this was. However, it is clear that at the relevant time, Savills understood that Mr Reurich was “previously accompanied by” an animal that fell within the description of an “assistance animal” within the meaning of s 9(2). Though it was submitted that, despite this evidence, there was no concession at law to the effect that Boofhead was an “assistance animal” within the meaning of s 9(2). Here, it appeared to be Mr Reurich’s claim that Mr Dixon’s animus towards him was, in part, motivated by, his previous interactions with him in relation to Boofhead. Thus, it was Mr Reurich’s claim that the respondents’ conduct arose not only from him presently, but previously, having had an assistance dog. Accordingly, Mr Reurich fell within the scope of the protection under s 8 and there was no need for Mr Reurich to prove that his current dog “Mr Bojangles” had been registered or trained within the meaning of s 9(2).

21    Ultimately, the evidence did establish that Boofhead had been trained to assist him to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place: s 9(2)(c). The same could be inferred from:

(a)    two mindDog Handler cards for Boofhead. The first is marked “trainee” and was valid until 30 November 2015. The second was valid until 30 December 2021;

(b)    a mindDog application for a Psychiatric Service Dog dated 24 November 2014 for Boofhead;

(c)    mindDog Home Assessment for Boofhead signed 3 December 2014;

(d)    several letters from the Chair of mindDog, Ms Cath Phillips, to the Manager of Club Jervis Bay. One of those letters dated 24 January 2015 identified Boofhead as a “mindDog” and that their “Senior Assessor” had met with Mr Reurich and Boofhead and described the dog’s condition;

(e)    a photo of Boofhead with Mr Reurich in hospital taken 7 August 2021, in which Boofhead can be seen donning the authorised mindDog vest; and

(f)    a letter from Ms Tamara Lee, Mr Reurich’s treating psychologist dated 7 February 2025, that identifies that Mr Reurich “has had a Psychiatric Service Dog for many years”.

22    Had it been necessary, Mr Reurich sought to rely on two identity cards issued by mindDog, for Mr Bojangles, valid until 30 July 2023 and 30 February 2024. Without more, those identity cards would be insufficient to prove Mr Bojangles was an “assistance animal”, if Mr Reurich’s claim was predicated on him “presently [being] accompanied by the animal”. The Full Court’s reasoning in Mulligan v Virgin Australia Airlines [2015] FCAFC 130; 254 FCR 207 at [125]–[127] is instructive as to the kind of evidence necessary to support a finding that an animal is an “assistance animal” within the meaning of s 9(2). Accordingly, it would be necessary for there to be evidence of either accreditation (under s 9(2)(a) or (b)) or of his dog having been “trained” to assist Mr Reurich to alleviate the effect of the disability and meet the standards of hygiene and behaviour appropriate for an animal in a public place (s 9(2)(c)). As the Full Court observed, the “training” need not be undertaken by an accredited or recognised dog training body but needs to conform with the requirements of s 9(2)(c): Mulligan at [127(b)]. However, the training must not be of a generalised behavioural nature, but must involve being trained to assist the person to alleviate the effect of the disability: Queensland v Forest [2008] FCAFC 96; 168 FCR 532 [90]–[93], [106], [115] and [118].

The impugned conduct fell within the ambit of a protected area or activity

23    A finding of disability discrimination requires the Court to find unlawful conduct within the ambit of the protected area or activity.

24    Here, Mr Reurich claims that the protected area or activity was his access to premises and the availability of using the facilities contained within the premises under ss 23 and 24 of the DDA.

25    It was not apparent that either Savills or Statewide actively disputed that the alleged conduct occurred within a protected area, namely the provision of access to premises (though it does appear that Savills disputed that it is a goods and services provider within the meaning of s 24).

26    Section 23 provides:

23  Access to premises

It is unlawful for a person to discriminate against another person on the ground of the other person’s disability:

(a)    by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b)    in the terms or conditions on which the first‑mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c)    in relation to the provision of means of access to such premises; or

(d)    by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e)    in the terms or conditions on which the first‑mentioned person is prepared to allow the other person the use of any such facilities; or

(f)    by requiring the other person to leave such premises or cease to use such facilities.

27    “Premises” are defined in s 4 to mean the following:

premises includes:

(a) a structure, building, aircraft, vehicle or vessel; and

(b) a place (whether enclosed or built on or not); and

(c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)).

28    The protection under s 23 concerns the allowing or refusal of entry, use or ability to leave premises by reason of the other person’s disability (in the broad sense—actual or imputed): Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 987; 123 FCR 561 per Drummond J at [59]. To this end, the provision may “apply to a person, such as a doorman, with temporary authority over who can enter or use or who must leave premises, as much as it can apply to the person who owns or occupies the premises”: at [59].

29    As noted by the authors, C Ronalds AO and B Byrnes, Discrimination Law and Practice (The Federation Press, 6th edn, 2024), for the provision to be enlivened, the premises in question must be “available to the public or sections of the public. A complainant would need to establish that element as well as the other components to maintain a successful action” citing Sluggett; Haraksin v Murrays Australia Ltd (No 2) [2013] FCA 217; 211 FCR 1 at [49] per Nicholas J and Myers v Alfred Hospital [2023] FCA 833 at [61]–[64] per Wheelahan J.

30    It is not necessary that the “terms or conditions” on which entry to the premises is altered be given in any precise form. In Haar v Maldon Nominees Pty Ltd (t/a McDonalds) [2000] FMCA 5; 184 ALR 83 at [68] per McInnis FM:

In my opinion the imposition of terms and conditions for the purpose of s 23 of the DDA does not have to be in writing or in precise language. So long as the words uttered are capable of meaning and were understood to mean that the Applicant would only be allowed access to the premises in a restricted manner and/or use of the facilities in a restricted manner then in my view that is sufficient to constitute a breach of the legislation.

31    Previous decisions have found that requiring as a condition of entry that a person have his or her dog tethered on a leash in order to be under his or her direct control constituted a breach of the former s 23(1)(b) and (e) of the DDA: Sheehan v Tin Can Bay Country Club [2002] FMCA 95 at [24] per Raphael FM. In Reurich v Club Jervis Bay Ltd [2018] FCA 1220; 360 ALR 296, Justice Markovic found that by denying Mr Reurich entry to the Club by reason of his disability fell within ss 23(a) and (b) of the DDA: at [278].

32    I am satisfied that, where on the undisputed facts of this case, there was a refusal of entry to premises that the public are allowed to enter purportedly on the basis of non-compliance with an entry condition (a ban on filming on the premises), the allegations pertain to, conduct within the meaning of ss 23(a) and/or 23(b).

33    It is not, therefore, necessary to consider whether the impugned conduct fell within the meaning of s 24 of the DDA.

34    The ultimate consideration is whether, informed by the operation of ss 5 (defining direct discrimination) or 6 (defining indirect discrimination), whether there can be a finding of unlawful conduct under s 23: Queensland v Forest at [113]–[114] per Spender and Emmett JJ.

What Mr Reurich is required to establish in order to prove that he was directly or indirectly discriminated against because of either his disability or by having an assistance animal

35    The question is then, whether Mr Reurich has been discriminated against within the meaning of the DDA. A person cannot claim that they have been discriminated against merely on the basis of a claimed unfairness or unreasonable conduct by another person. Mr Reurich is required to establish that he has been directly or indirectly discriminated against, within the meaning of ss 5 or 6 of the DDA. These definitional provisions inform the Court as to how it determines whether Mr Reurich has been discriminated against whilst accessing premises under s 23.

36    These two definitions of direct and indirect discrimination are “mutually exclusive”, meaning a person cannot claim at the same time, that they have been directly and indirectly discriminated against on the same facts: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [13]–[16] per Bromberg J.

37    Different statutory tests apply to each species of discrimination.

38    Section 5 prescribes the circumstances in which a person directly discriminates against another on the ground of a disability:

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.

39    Accordingly, in order for a person to satisfy the Court that they have been the subject of direct disability discrimination, they must establish that they were the subject of (or proposed to be the subject of) treatment that is less favourable than the discriminator would treat a person without the disability in circumstances which are not materially different. There are additional matters which may be taken into account where a person claims that the discriminator has not made reasonable adjustments (s 5(2)). No such claim was made in this case.

40    Section 5 is directed to circumstances where the disability explains (or partially explains) the treatment or conduct of the discriminator: Sklavos at [23]. It is for Mr Reurich to establish the causal link between his disability and the treatment or conduct of the discriminator.

41    By contrast s 6 (which defines indirect discrimination), as recognised by the Full Court, “it is sufficient that the disability explains the disadvantage, that is, that the disability explains the effect or impact of the discriminator’s conduct”: Sklavos at [23] per Bromberg J (with whom Griffiths and Bromwich JJ relevantly agreed). Indirect discrimination is directed to what may be a facially neutral requirement or condition but which, by its effect or impact, disadvantages persons with the relevant disability: Australian Medical Council v Wilson (Siddiqui’s case) (1996) 68 FCR 46; 137 ALR 653 at 79–80.

42    Section 6 provides:

6 Indirect disability discrimination

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

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

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

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

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

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

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

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

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

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

43    As can be seen by the requirements of s 6, it is necessary for Mr Reurich to identify, with some precision, the requirement or condition he was subjected to, that the discriminator required or proposed to require, Mr Reurich comply with a requirement or condition and because of Mr Reurich’s disability he does not or would not be able to 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.

Mr Reurich has not made out his claim of indirect discrimination

44    Mr Reurich made no submissions, save for identifying that he had been the subject of indirect discrimination, as to how his claim of indirect discrimination could be made out. Mr Reurich was asked at a case management hearing before the hearing whether he made a claim of direct or indirect discrimination. It was explained to him that he had to identify and make out each of the elements of indirect discrimination.

45    In the absence of any formulation or argument, the Court was not able to decipher Mr Reurich’s claim of indirect discrimination and it must fail.

46    Before turning to consider in detail the evidence and whether Mr Reurich’s claim of direct discrimination is made out, it is worthwhile considering the relevant organising principles which attach to his victimisation claim. This is because the impugned conduct, to the extent that the Court was able to discern, forms the basis (largely) for both claims.

This Court has no jurisdiction with respect to Mr Reurich’s criminal victimisation claim under s 42

47    To the extent that it was possible to decipher, Mr Reurich also claimed that he was victimised, pursuant to ss 42 and 58A of the DDA. In general terms, but where the alleged conduct will be considered in greater detail below, the victimising conduct was described as the fact of the initial ban and then the subsequent refusal of entry and harassing conduct (from Mr Dixon and other security guards) he experienced when he went to the shopping centre.

48    Since first enacted, s 42 of the DDA has rendered acts of victimisation on the ground that a person has complained of disability discrimination or sought to pursue certain related actions unlawful. At the time of the first victimisation claim s 42 provided:

42 Victimisation

(1)     It is an offence for a person to commit an act of victimisation against another person.

Penalty: Imprisonment for 6 months.

(2)     For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)     has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b)     has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c)     has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d)     has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e)     has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f)     has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g)     has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

49    Between 2011–22, the law was unsettled as to whether a person affected by conduct that contravened s 42 could prosecute the contravener in a civil suit: see C Ronalds AO and B Byrnes, Discrimination Law and Practice at 138–9. As a consequence of that uncertainty, s 58A was inserted into the DDA by item 12 of Sch 7 to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth). Section 58A provides:

58A Victimisation

(1)     It is unlawful for a person to commit an act of victimisation against another person.

Note 1:    See also section 42 (offence of victimisation).

Note 2:    See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.

(2)     For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)     has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b)     has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c)     has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d)     has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e)     has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f)     has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g)     has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

or on the ground that the first person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.

50    In an application to strike out a victimisation claim involving the relevantly analogous provision of s 94 of the Sex Discrimination Act 1984 (Cth) on the basis that it could not be maintained as a civil claim by an affected applicant, in Hanson v Burston [2022] FCA 1234, Bromwich J gave lengthy consideration to the question of whether a civil claim of victimisation can be maintained and held that s 94 of the SDA, like s 42 of the DDA, allowed for civil prosecutions by applicants that had brought a claim in this Court subsequent to having their complaint involving victimisation terminated by the Commission. It is useful to extract a part of his Honour’s reasons at [88]–[91]:

88    In the end, the competing arguments come down to a relatively simple proposition: does the relevant part of the exhaustive definition of “unlawful discrimination” in s 3(1)(c) and (f) of the AHRC Act, that means “any acts, omissions or practices that are unlawful under … Part II of the Sex Discrimination Act 1984 … and includes any conduct that is an offence under … section 94 of the Sex Discrimination Act 1984”:

(a)    purport to permit this Court to determine whether or not a criminal offence had been committed, without the necessary corresponding conferral of criminal jurisdiction?

or

(b)    do no more than provide a legislative shorthand for a civil cause of action in relation to conduct that could, if brought by way of criminal proceedings, instead give rise to a finding that a criminal offence had been committed?

89    After lengthy consideration, I am firmly of the view that the latter is correct.  The contrary tentative and obiter reasoning in Walker v Cormack and in Chen v Monash University, has, in my view, read too much into what is no more than legislative shorthand. Such shorthand is not ideal and has now been abandoned, but its objective of consistency as between civil and criminal norms has now been preserved by the 2021 amendments by describing the same conduct in two places for civil and criminal contraventions.

90    To repeat and wholeheartedly adopt the description given by Judge Driver in 2002, when still a federal magistrate, in O’Connor v Ross (No 1) at [11], commenting upon the equivalent provision to s 94 in the Disability Discrimination Act:

This objection indicates a partial misunderstanding. The DDA provides that it is an offence for a person to commit an act of victimisation. Where victimisation is dealt with as an offence, it will be prosecuted by the Director of Public Prosecutions in a court of competent jurisdiction other than this Court. However, a person may also make a complaint of victimisation to HREOC which the Commission will attempt to resolve by conciliation. Where conciliation is unsuccessful, the matter will then be referred for hearing by this Court or the Federal Court if application is made. Section 3(1) of the HREOC Act defines unlawful discrimination as acts, omissions or practices that are unlawful under Part 2 of the DDA and specifically includes any conduct that is an offence under Division 4 of Part 2 of the DDA. It follows that the applicant was entitled to make a complaint of victimisation to HREOC and that this Court has jurisdiction to consider the claim in respect of victimisation where HREOC has been unable to resolve the complaint by conciliation and the President has issued a notice of termination.

91    Nothing said since has improved upon Judge Driver’s characterisation and explanation, although both Katzmann J in Dye and the Full Court in Dye No 2 in the extracts reproduced at [86](j)(iii) and (iv) above correctly describe the legal effect of the provisions. This Court is not called upon to adjudicate upon criminal conduct, nor exercise criminal jurisdiction which it does not have, nor consider the imposition of criminal sanctions. The creating of a civil cause of action by reference to conduct that is also criminal does no such thing. It follows that Mr Burston’s application for summary dismissal upon the basis of there being no jurisdiction to entertain a civil case of victimisation must fail. This was always a question that had to be determined, and it is best that it was determined first because an alternative conclusion would have brought this proceeding to an end.

51    As a consequence, what an applicant is required to establish an act of victimisation contrary to s 42 of the DDA, as applicable at 22 April 2022, is not relevantly different to that which is required to establish a contravention of s 58A.

52    Mr Reurich’s criminal offence claim of victimisation, under s 42, must fail because the DDA has not bestowed criminal jurisdiction on this Court: Hanson at [59]. In analogous reasoning, Justice Bromwich carefully traced the evolution of like provisions in the SDA: Hanson at [47]–[91]. Mr Reurich made no submission that reveals why I should not adopt, by analogy, the reasoning in Hanson and in particular his Honour’s acceptance, as I do, similar reasoning concerning the scope of the DDA’s jurisdiction as observed by Driver FM in O’Connor v Ross (No 1) [2002] FMCA 210 at [11]. This Court has jurisdiction to entertain a civil cause of action in relation to the alleged conduct (as s 58A allows) but no more.

For similar reasons Mr Reurich’s claim of criminal incitement fails

53    In addition, Mr Reurich claims that the respondents incited others into doing unlawful acts, pursuant to s 43 of the DDA.

54    Section 43 provides:

It is an offence for a person:

(a)     to incite the doing of an act that is unlawful under a provision of Division 1, 2, 2A or 3; or

[(b)     Repealed by No 24 of 2001]

(c)     to assist or promote whether any financial assistance or otherwise the doing of such an act.

Penalty: Imprisonment for 6 months.

55    Mr Reurich never articulated with any particularity this claim nor how this Court has jurisdiction with respect to it. For the reasons already given regarding the absence of jurisdiction to entertain the s 42 criminal victimisation claim, the Court rejects this claim. In any event, even if the Court did have jurisdiction, Mr Reurich has failed to establish that a claim would be made out on the facts in any event, for the reasons set out below.

What Mr Reurich is required to establish to make out his civil victimisation claim

56    However, given the Court has jurisdiction under s 58A, to entertain a civil victimisation claim, the Court will proceed to consider that claim.

57    In order for Mr Reurich to be able to establish that he has been subjected to victimisation within the meaning of s 58A, he must establish three elements: First, that the alleged discriminator “subjected” Mr Reurich, or threatened to subject him, to a detriment: Ioannou v Commonwealth [2012] FCA 1228 at [42] per McKerracher J; Bibawi v Australian Human Rights Commission [2021] FCA 1476 at [50] per Greenwood J. Secondly, that the alleged conduct (actual or threatened) is a “detriment”: Taylor v Angus and Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1 at [398] per Katzmann J. Thirdly, that the detrimental conduct was taken “on the ground” that the Mr Reurich engaged in or proposed to engage in one of the processes protected by s 58A(2)(a)–(g) of the DDA: Penhall-Jones v State of NSW [2007] FCA 925 at [85] per Buchanan J; Walker v Victoria [2011] FCA 258 at [328] per Tracey J, quoting with approval Penhall-Jones at [85] (affirmed on appeal: Walker v Victoria [2012] FCAFC 38 at [159] per Flick J (with whom Reeves J agreed)).

58    The authorities referred to above, beginning with Penhall-Jones, are instructive as to the third element; namely, that the detrimental conduct was taken “on the ground” that Mr Reurich engaged in, or proposed to engage in, one of the processes. It is not necessary that it be the sole factor, but it must be a “substantial and operative factor”. What is meant by “substantial and operative” was helpfully explained by Buchanan J at [85] in Penhall-Jones:

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. The establishment of the suggested ground is as much a matter for proper proof as any other factual circumstance. The Federal Magistrate obviously concluded that no ground in s 42(2) of the Act was shown to be a substantial or operative factor for Mr Duffy's letter of 18 November 2004. I see no error in this conclusion.

(Emphasis added.)

59    The Full Court in Walker v Victoria found no error in the primary judge adopting this approach in Walker at [328] per Tracey J, quoting with approval Penhall-Jones at [85]. Accordingly, the relevant inquiry for this Court is to ascertain whether, on the whole of the evidence, Mr Reurich establishes that at least one of the circumstances articulated in s 58A(2)(a)–(g) was a substantial and operational factor in the sense that it provides a rational explanation at least in part why the conduct was taken.

Why Mr Reurich has not made out his claim of direct discrimination or victimisation

60    As best as the Court could understand it, it appeared that Mr Reurich’s claim was that he was discriminated against directly on the basis of his disability or by reason of his assistance animal or victimised because he had made a complaint to the Commission (s 58A(2)(a)) or brought proceedings (s 58A(2)(b)).

61    For the purpose of the direct disability discrimination claim, Mr Reurich did not identify who the relevant comparator would be. To the extent that the Court is able to discern what his claim was, the comparator would be a person who frequented the Taree Central who does not:

(a)    have, had, may or is imputed to have an assistance animal;

(b)    have a mental health disorder under subpara (g) of the definition of disability in s 4 of the DDA.

The impugned conduct

62    For the purpose of determining whether Savills and Statewide discriminated against, or Savills, Statewide or Mr Dixon victimised, Mr Reurich, for the purposes of ss 23 and 58A, it is necessary to identify the acts and conduct of the alleged discriminators, as well as the reasons for those acts and conduct: State of New South Wales – Sydney Trains v Annovazzi [2024] FCAFC 120 at [104]. As observed by Gleeson CJ, in Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92 at [236], the central question, is why was the aggrieved person treated as he or she was.

63    Mr Reurich claims to have been subjected to discriminatory or victimising conduct from the point at which he was banned from entry to the Taree Central on 22 April 2022 until that ban was lifted with effect from 1 March 2023. Mr Reurich claims that he was subjected to harassment, on many occasions when he attended Taree Central after the ban was imposed.

64    Accordingly, the relevant conduct included actions by Mr Dixon, Ms Lamond and other security guards. The use of the statutory expressions “because of” or “on the ground of”, are not a substitute for motive, purpose or effect, even if they may bear on the question of determining “why” the discriminator so acted in the way that he or she did: Purvis at [148]– [166] (McHugh and Kirby JJ dissenting, though not on this point), [236] (Gummow, Hayne and Heydon JJ); Annovazzi at [107].

The evidence

65    Mr Reurich’s case centres on what occurred on 22 April 2022 and why the decision on that day and on subsequent occasions was made to ban him from Taree Central.

66    Mr Reurich relied upon three affidavits which did no more than attach video footage and a brief description of what occurred together with additional documents. It was difficult to decipher his evidence. Various evidentiary ruling were made not admitting certain material and footage. In addition, Mr Reurich relied upon a signed Statement, dated 26 February 2024 which he affirmed as to its accuracy in the witness box.

67    Ultimately Mr Reurich relied upon the video footage of six occasions when he was at Taree Central. The first in time, was on 22 April 2022, when he had a conversation with Mr Dixon and he was barred from the shopping centre. The next five occasions were where, despite the ban, Mr Reurich went and shopped at the shopping centre and had (on certain of those occasions) interactions with Mr Dixon, namely 3 August, 30 August, 10 November, 12 November, 15 November and 18 November 2022. Neither Mr Reurich nor the parties provided a transcript of the footage. However, certain of the footage was admitted into evidence.

68    The footage was embedded within two affidavits sworn 8 November 2024 and 31 January 2025. Each affidavit contained a list and brief description of the footage Mr Reurich relied upon. Those lists were difficult to decipher and did not clearly state the date, title and relevance of each piece of footage. The task was made more difficult by the footage having been provided to the Court without having been clearly labelled, dated and categorised by reference to his lists. The Court did its best to decipher the corresponding footage, and after dealing with objections, Mr Reurich was permitted to rely on certain of his footage from this period, which is listed below:

(a)    22 April 2022:

(i)    the first piece of footage of this day is identified at [1] (“Parra1.0001 20220422MALRefuse service_1501 AnnexurePGR1”) of Mr Reurich’s affidavit of 8 November 2024, in which Mr Reurich deposed with respect to the footage “Video evidence 22n [sic] April 2022 where Mr Dixon refused to accept Service of Court order”.

(ii)    The second piece of footage is a continuation of the events of this day and is identified at [2] (“Parra2.01004 AABC 20220 AnnexurePGR2Videon evidence”) of Mr Reurich’s affidavit of 8 November 2024 in which Mr Reurich deposed with respect to the footage “evidence Of Mr Dixon issuing Myself with a unlawful banning notice”.

(b)    3 August 2022: this footage is identified at [4] (“Parra4. 20220803malcolm frog march me leg a Annexure PRG4”) of Mr Reurich’s affidavit of 8 November 2024 in which Mr Reurich deposed with respect to the footage “Video where Mr Dixon frog marches myself out of the centre 3rd August,2022 refused 2nd Service Court order to attend court …”.

(c)    30 August 2022: this footage is identified at [3] (“Parr3. 001.mp4 Annexure PGR3 Video evidence”) of Mr Reurich’s affidavit of 8 November 2024 in which Mr Reurich deposed with respect to the footage “Mr Dixon Frog marches myself out of the Shopping Centre; Will Not listen to my request of saving surveillance of the 3rd of August 2022 where it could show MD with his leg against my assistance dog Mr. Bojangles …”.

(d)    10 November 2022: this footage is identified at [9] (“AnnexurePRG15 Video 2022110Malcolm Dixon”) of Mr Reurich’s affidavit of 31 January 2025 in which Mr Reurich deposed with respect to the footage “Malcolm Dixon now ignores me; Because of my last contact where I told him My Barrister told me to ignore him”.

(e)    12 November 2022: this footage is identified at [10] (“AnnexurePGR16 Video 20221112Malcolm”) of Mr Reurich’s affidavit of 31 January 2025 in which Mr Reurich deposed with respect to the footage “Malcolm writing notes in pad : ignores me again”.

(f)    15 November 2022: this footage is identified at [11] (“AnnexurePGR17 Video 2022 1115”) of Mr Reurich’s affidavit of 31 January 2025 in which Mr Reurich deposed with respect to the footage “O’Conner security guard tell me I am Barred I repeated what my barrister said Ignore you”; and

(g)    18 November 2022: this footage is identified at [12] (“AnnexurePGR18 2022118”) of Mr Reurich’s affidavit of 31 January 2025 in which Mr Reurich deposed with respect to the footage “I ask Malcolm to remove the barring notice Last opportunity before going to human rights”.

69    Mr Reurich also relied upon footage of Mr Reurich taking Boofhead for a walk on 20 May 2021, identified at [3] (“Parr3.AnneurePGR9 2 Video 20210520”) of Mr Reurich’s affidavit of 31 January 2025 in which Mr Reurich deposed with respect to the footage “evidence of Boof walking in Paradise Croki”. The footage is of Mr Reurich walking his dog along a riverbank. At hearing, no objection was taken to the footage, only as to weight. Mr Reurich submitted that the footage was relevant to how he treats his dogs, as against evidence relied upon by the respondents as to his behaviour in Taree Central. Mr Reurich also relied upon footage of him taking Boofhead out to his garden to toilet, identified at [4] of Mr Reurich’s affidavit of 31 January 2025 (“Parra4.Annexture PGR10 Boof at home telling me dunny time”), for the same purpose. It was dealt with the same. Similarly, a photo of Mr Reurich in hospital with Boofhead (of which the metadata reveals it was taken on 7 August 2021) at [5] (“Parra6.Annexture PRG12 Photo 20210807”) (and it would appear, repeated at [6]) and video footage of Mr Reurich taking Boofhead for a swim and a walk on 19 August 2021 at [7] (“Parra7.Annexture PGR13 2 Videos 20210819 Boofy Swim & Walk in Croki”) was admitted subject to weight. Mr Reurich also relied upon footage (of which the metadata reveals it was taken on 17 August 2018) which records a television news broadcast of the outcome of a previous proceeding Mr Reurich was an applicant in: Reurich v Club Jervis Bay; the footage appears at [18] of Mr Reurich’s affidavit of 31 January 2025 (“AnnexurePGR24 10 News CJB Judgement Precedent”).

70    Mr Reurich was not required for cross-examination. As a consequence, the entirety of his evidence (save for brief evidence in chief regarding his disability and his need for assistance animals) was as contained in the footage and the other documents he relied upon.

71    The central factual dispute was not with respect to what occurred (the fact of the ban, its subsequent extensions and subsequent interactions between Mr Reurich and Mr Dixon), but rather the reason for the impugned conduct by the alleged discriminators or victimisers, Mr Dixon, his employer Statewide, and the manager of Taree Central, Savills.

72    Savills relied upon the evidence of Ms Lamond, Centre Manager. Ms Lamond was required for cross-examination. Statewide relied upon the evidence of Mr Michael Whiley and Mr Dixon. Both Mr Whiley and Mr Dixon were required for cross-examination. No serious challenge was undertaken with respect to Ms Lamond’s or Mr Whiley’s evidence.

73    The dispute centred around Mr Dixon’s motivations and conduct and therefore by agency or adoption as his employer, Savills and Statewide.

The undisputed evidence

74    The undisputed evidence reveals the following. Prior to the heated interaction between Mr Reurich and Mr Dixon on 22 April 2022, the pair had had fraught dealings with one another over a long period before this time. Mr Dixon was a security guard at both the Manning Mall and Taree Central.

75    Mr Dixon was employed by Statewide as a security guard at both Manning Mall (between 19 January 2019 and October 2022) and Taree Central (between 19 January 2019 and 20 August 2023).

76    Mr Reurich frequented both shopping centres.

77    It was without dispute that almost a year before, on 9 May 2021, Mr Reurich had filed a complaint in the Commission, naming as respondents, Retpro Management Pty Ltd (the operators of Manning Mall), Ms Jennifer Hanlon, Statewide, and Mr Dixon. Mr Reurich had complained that Statewide, Mr Dixon and others had discriminated against him on the basis of his disability and by having an assistance animal when he had attended Manning Mall. Mr Reurich claimed that he had been barred from entry to Manning Mall. That complaint had been terminated by the Commission on 7 February 2022. Mr Reurich then elected to commence proceedings in the Federal Court with respect to that claim. Mr Reurich filed an originating application in the Federal Court with respect to that claim on or around 8 April 2022 (two weeks before his altercation with Mr Dixon at the Taree Central). Ultimately, Mr Reurich discontinued those proceedings.

78    It was common ground that Mr Reurich’s and Mr Dixon’s relationship was fraught before 22 April 2022 and that they had had many dealings with one another at both shopping centres.

79    It was Ms Lamond’s evidence that from about August 2020, Mr Reurich was a regular visitor at Taree Central with his assistance dog “Boofhead”.

80    It was undisputed that Mr Reurich and Mr Dixon had an altercation on 22 April 2022 in Taree Central. It was undisputed that Mr Reurich attempted to serve documents attached to his then Federal Court proceedings on Mr Dixon at that time. It was undisputed that Mr Dixon, without warning on this occasion, imposed a ban on Mr Reurich, precluding his entry to the shopping centre.

81    It was undisputed that Taree Central has conditions of entry affixed to every point of entry to the premises:

CONDITIONS OF ENTRY

In order to maintain a quality family environment for customers and visitors to this Shopping Centre, the following Conditions of Entry apply

1.     It is a condition of entry to this shopping centre (and any area of this property including car parks and loading zones) that these conditions of entry are agreed and adhered to, and shall bind any such person entering the premises. The premise is defined as all areas of the shopping centre including car parks.

2.     Should any person not agree with any of the conditions of entry then that person should immediately leave by the designated exit.

3.     The shopping centre is private property and Centre Management (or their duly appointed staff) reserves the right to refuse admission of any person and can ask any person to leave at any time for any reason whatsoever.

4.     Any violation of the conditions of entry shall subject the person(s) involved and any vehicle(s) parked by such person(s) to be immediately removed from the premises.

5.     Centre Management reserves the right to ban any person(s) from future access to the premise who breach the conditions of entry for a maximum period of 3 years subject to severity.

6.     No person entering these premises shall behave in a manner which detracts from the quiet enjoyment of this shopping centre by retailers, persons visiting or shopping at this centre, or which in the opinion of Centre Management may lead to a breach of peace.

7.     Appropriate attire shall be worn at all times in or about these premises which Includes clothing on your torso and shoes on your feet.

8.     Skateboards, scooters, bikes, roller skates or roller blades shall not be brought into this shopping centre or used in or about the premises.

9.     Animals other than Assistance Dogs (complying with Guide, Hearing and Assistance Dogs Act 2009 and provide appropriate documentation) shall not be brought into this shopping centre, or be tied up or left unattended near any entrance.

10.    Smoking is not permitted within this shopping centre, or any shops, the car park or within 5 metres of any entrances.

11.    Alcohol consumption is not permitted with this shopping centre other than within licensed tenancies. Any person(s) seen will incur a 3 year ban from the premises.

12.    No drugs or illegal substances shall be tolerated on the premises. Any person(s) seen will be reported to local authorities and incur a 3 year ban from the premises.

13.    Any person who damages or causes any damage to any other person, property or goods at this shopping centre, shall be liable for all direct, indirect, consequential or special loss, or damage sustained by the other person or by the Owner of such property or goods, AND Indemnify this against any claim which may be brought against Centre Management or the Registered Proprietor of this shopping centre in respect thereof.

14.    No leaflets or brochures shall be either affixed to vehicles or otherwise distributed at this shopping centre without prior written approval of Centre Management.

15.    No hawkers are allowed in and around the premises

16.     Loitering in and around this shopping centre and car parks is prohibited.

17.    Customers wishing to bring personal items into the shopping centre do so at their own risk. Centre Management or the Registered Proprietor of this shopping centre will not be held responsible for any damage to, loss or theft of a patron's personal property whilst on the premises.

(Emphasis added.)

82    The only indication of the fact that, according to Taree Central, it was a breach of conditions of entry for a person to film in the premises, was a motif at the top of the terms:

83    It was, without dispute, that between 23 April 2022 and 26 January 2023, Mr Reurich entered Taree Central on 33 separate occasions, where Taree Central, claimed he was in breach of the barring notice. The period of the barring notice was extended by a further three months on each occasion. It was Ms Lamond’s evidence that on each occasion the further extension of the bar was made on the basis that Mr Reurich was in breach of the barring notice. It was Ms Lamond’s evidence that “during this period he continued to film in breach of the conditions of entry despite being told this was not allowed”.

84    As a consequence of these subsequent cumulative bans, as at 26 January 2023, Mr Reurich was banned from entry until 2031 (according to the Taree Central Statewide Security Daily Log (security log) and barring notice)

The disputed evidence

Observations of the witnesses

85    Before turning to the disputed evidence, it worthwhile recording certain observations about the witnesses. As referred to above, Mr Reurich essentially relied upon the footage. The contest largely concerns the respondents’ motivations. Accordingly, it concerns the credit, primarily of Mr Dixon and to a certain extent, Ms Lamond.

86    The cross-examination took an unusual course. At the commencement of hearing, Mr McCaw acting for Statewide and Mr Dixon, suggested that because of an extant AVO, as between Mr Dixon and Mr Reurich, that there may be a need for steps to be taken such that Mr Reurich did not question Mr Dixon directly so as not to offend those orders. However, despite having made that submission, it was subsequently withdrawn, just prior to Mr Dixon giving oral evidence. However, it did, as observed by the Court, leave Mr Reurich, with a sense of apprehension, that by him asking questions, he would be offending court orders. Mr Reurich asked whether he could ask questions through the Court. As a consequence, Mr Reurich informed me of the questions he wanted to ask and then I asked them of Mr Dixon. This was done with the agreement of the parties. At times, it was difficult to unravel from a narrative, what Mr Reurich’s questions were. The Court, at times, asked its own questions. The questioning occurred over an hour at the end of the first day of the hearing and at the beginning of the second day of the hearing.

87    What was obvious, during the cross-examination of Mr Dixon, was that both individuals have a distinct dislike and lack of respect for one another. Their personalities clash. It was evident that Mr Reurich formed a view that Mr Dixon was not able to bar him for entry and so persisted in going to the shopping centre and argued with Mr Dixon when he tried to enforce the entry conditions. Mr Dixon, a former NSW Police officer, believed that it was his job to enforce the entry conditions and persisted with trying to enforce them despite Mr Reurich’s continued breach of those conditions. Mr Dixon gave short, but responsive answers to the questions that were asked of him. It was evident that he was irritated by having to attend Court and by Mr Reurich. For the reasons given below, I accept his testimony that he did not bar Mr Reurich by reason of, or for a reason which included, Mr Reurich having made a complaint or having commenced proceedings against him. Mr Dixon was not directly challenged on the basis that he barred Mr Reurich because of his previous dog or current dog or disability—ultimately it is for Mr Reurich to establish this and I am not convinced it was made out.

88    With respect to Ms Lamond, the Centre Manager, she gave direct, consistent evidence as to the Centre’s procedures, her interactions with Mr Reurich and why she, on behalf of Savills, in effect imposed and continued the bar on entry until it was lifted in March 2023. Ms Lamond also made a number of concessions in answer to questions from the Court. There was no serious challenge to her testimony and ultimately, I accept it. This is of some significance because the evidence was that, whilst Mr Dixon’s acts precipitated the initial ban, it was Ms Lamond who ultimately sanctioned it and approved the subsequent bans.

Prior complaints about Mr Reurich leaving his dog unattended

89    Ms Lamond gave evidence that she had received a number of complaints from tenant retailers about Mr Reurich leaving his dog unattended. This included, based on her review of the security logs, interactions between Mr Reurich and Mr Dixon between 9 and 11 August 2020 regarding Mr Reurich leaving his dog unattended. It was Ms Lamond’s evidence that she met with Mr Reurich on or about 11 August 2020. Mr Reurich told her that his dog Boofhead was old and could not walk very far. Ms Lamond stated that Mr Reurich needed to keep his dog under his control at all times. It was her evidence (not disputed) that Mr Reurich was unhappy with her response and stormed out of the office telling her she was not very bright. Mr Reurich did not challenge her evidence in this regard.

90    It was Ms Lamond’s evidence that for a period Mr Reurich placed Boofhead in a dog stroller but that there were further interactions between Mr Reurich and Mr Dixon regarding Boofhead being off leash in September and October 2020 and July 2021.

91    Mr Reurich sought to challenge her evidence regarding complaints from tenant retailers. As part of his questioning, he initially challenged her assertion on the basis that he had never left Boofhead unattended. However, later during the questioning of Ms Lamond, Mr Reurich appeared to accept that he had left his dog for a short time at Baker’s Delight and at Noni B (but the latter retailer offered to mind him).

92    I am persuaded by Ms Lamond’s evidence and the security logs that there had been complaints from tenant retailers about Mr Reurich leaving his dog unattended in the shopping centre before 22 April 2022. I also find that Mr Reurich and Mr Dixon had had conversations about this issue at Taree Central.

Mr Reurich canvassed tenant retailers in August and September 2021 for negative character references about Mr Dixon

93    In addition, it was Ms Lamond’s evidence (again unchallenged) that she had received complaints from tenant retailers that Mr Reurich had been canvassing them for negative character references of Mr Dixon between 28 August and 2 September 2021.

94    Thereafter, the security log reveals that on 30 October 2021, Mr Reurich and Mr Dixon had a verbal interaction. In that log, it suggests that Mr Reurich approached Mr Dixon and said “Mal, you think you can lie your way out, you, Cody and Shaun”. I note that Mr Reurich did not put on any evidence regarding this interaction and the file note was not drawn to his attention. I do not need to make a specific finding about whether this interaction occurred. However, I am prepared to accept, regardless of anything being said on this occasion, that by this time in October 2021, Mr Reurich and Mr Dixon had a very strained relationship.

Savills’ procedure for barring

95    It was Ms Lamond’s evidence that it was her understanding that it was routine for shopping centres to prohibit filming other than by permission. It was her evidence, under cross-examination, that the specific procedure at Taree Central was that before barring someone because they had filmed in the shopping centre, the person was to be first warned and then if they persisted despite the warning they would be barred.

22 April 2022

96    What occurred on 22 April 2022 and from that date is critical to this proceeding.

97    The Court has the benefit of footage of this incident and certain subsequent interactions between each of them. The footage establishes that the conversation took place in the following manner:

Mr Reurich:    “Mr Dixon, I’m serving a couple of court notices on you and your company.”

Mr Dixon:    “Well you can serve em on Statewide Peter.”

Mr Reurich:    “No, that’s on you.”

Mr Dixon:    “Nah.”

Mr Reurich:    “This one’s yours.”

Mr Dixon:    “Not mine.”

Mr Reurich:    “Well actually, I’m serving it on you, I’m leaving it here for you, it’s on camera, I’ve served it, the court papers, it’s a legal thing.”

Mr Dixon:    “Well, guess what Peter: You are now barred from the shopping centre, it is illegal and it is a breach of a condition of entry for you to film inside.”

Mr Reurich:     “I’m serving court papers which is a legal document, and that’s yours.”

Mr Dixon:    “Nah, you’re not allowed in here. Get out. Leave please. You are now barred. You are not allowed to film in the shopping centre.”

Mr Reurich:    “That’s not true at all. I’m allowed to film for evidence. It’s for evidence.”

Mr Dixon:    “No cameras inside the shopping centre, see you later. You are now barred.”

Mr Reurich:    “You’ve got your papers.”

Mr Dixon:    “Nah, not my papers.”

Mr Reurich:    “Well it’s got your name on it.”

Mr Dixon:    “That doesn’t matter to me.”

Mr Reurich:    “Read it.”

Mr Dixon:    “I’ll just hand it to Statewide and it’ll all get thrown out again. So, leave now and turn your camera off.”

Mr Reurich:    “I’ll get the police on you.”

Mr Dixon:    “You can go right ahead. You are now barred, for a period of three months, for breaching the conditions of entry, and I hope you’re recording it”.

Mr Reurich:    “Yes, I am, I am recording it.”

Mr Dixon:    “That’s good.”

Mr Reurich:    “Now open up that file.”

Mr Dixon:    “No, I don’t need the file.”

Mr Reurich:    “It’s a court notice for you to attend court.”

Mr Dixon:    “No, you can leave the shopping centre. You are now barred from the shopping centre for three months. See you later.”

Mr Reurich:    “Well then you better give it to me in writing.”

Mr Dixon:    “I will.”

Mr Reurich:    “Give it to me in writing now please.”

Mr Dixon:    “Wait over there and I’ll go and get it.”

Mr Reurich:    “Malcolm, hang on a minute.”

98    The video continues to record as Mr Reurich leaves the centre; he then focuses the camera on the signposted conditions of entry at that entry point. It is not clear how long Mr Reurich waited outside before the subsequent video begins with Mr Dixon leaving the centre holding a copy of the barring notice; and the following exchange takes place:

Mr Reurich:    “I believe you, my friend, are…

Mr Dixon:    “I’ve got a copy of your barring notice, would you like to sign that.”

Mr Reurich:    “I don’t need to sign it. What I need, is you to show me, show me on that, show me where it says, where does it say in words, there are no words?”

Mr Dixon:    “Look, no cameras.”

Mr Reurich:    “Mate, you are out of your wit.”

Mr Dixon:    “Are you going to sign this or not? You going to sign this or not?

Mr Reurich:    “I’m not going to sign it you can send it to me.”

Mr Dixon:    “You can take it, but you need to sign it.”

Mr Reurich:    “I’ll take it. I don’t need to sign it. The same as you”

Mr Dixon:    “You are now barred for three months for breaching a condition of entry to the shopping centre.”

Mr Reurich:    “You’re not very smart. You do not know the law.”

Mr Dixon:    “Listen, you are now barred for breaching a condition of entry. You were advised to stop filming with a camera in the centre, and you refused to do so.”

Mr Reurich:    “By law I am allowed to.”

Mr Dixon:    “No you are not.”

Mr Reurich:    “To film for evidence that I have served you my court notice.”

Mr Dixon:    “Not without my permission you are not.”

Mr Reurich:    “You don’t know the law, that’s why you’re an ex-cop, ex licensee.”

Mr Dixon:    “You’re barred from the shopping centre, see you later.”

Mr Reurich:    “Have you still got your alcohol license?”

Mr Dixon:    “Yes.”

Mr Reurich:    “Well you shouldn’t have, Malcolm, you’re not a fit and proper person.”

Mr Dixon:     “See you.”

Mr Reurich:    “Ha. See you. See you in Court.”

99    At which point Mr Dixon commences walking back into the shopping centre.

100    Mr Dixon’s affidavit evidence, with respect to what occurred was in the following terms:

Events at Taree Central

16.    On or around 22 April 2022, I was working at Taree central. The Applicant called out to me in a loud voice to attract my attention. The Applicant had a dog with him. The applicant then tried to give me some documents and I said words to the effect of “You need to serve any documents on Statewide”.

17.     The Applicant dropped the documents on top of an ATM and yelled something to the effect of "You're Served and I am video recording this for evidence. I noticed that he had a mobile phone in the front pocket of his shirt and the camera lens facing in my direction.

18.     I said to the Applicant words to the effect of “Using video or audio recording devices in the centre is a breach of the conditions of entry. You need to cease recording immediately”. Annexed hereto and marked “MD-6” is a copy of the conditions of entry at Taree Central as in force in April 2022.

19.     The Applicant continued recording and I said words to the effect of “Because you have breached the terms and conditions of entry, I’m going to issue you with a banning notice for 3 months. You need to leave the centre immediately. I will send a copy of the notice to your address.”

20.    The Applicant said words to the effect of “I want the paperwork now.” I asked the Applicant to wait outside the entry doors while I brought the banning notice to him.

21.    The Applicant left Taree Central with his dog and walked to the Manning Street entrance of the shopping centre, where he waited. I walked the Applicant out of the shopping centre and then returned to the security office.

22.    When I was in the security office, I filled out the paperwork for the barring notice of exclusion and walked out of the office, and out of the Manning Street entrance, where the Applicant was waiting. I said to the Applicant words to the effect of “Can you sign the barring notice?”

23.    The Applicant refused to sign the barring notice but did take possession of it.

24.     I have been provided with a copy of the Application at the time of swearing this affidavit. A copy of the barring notice is at page 19 of the Application.

25.    After I handed the barring notice to the applicant, I explained to him that period of the ban could be extended for any breaches of the barring notice and that he could be charged with trespass if he entered the centre within the barring period.

26.     I did not kick or in any way touch the dog that was with the Applicant.

…

(Emphasis in original.)

101    The evidence reveals that, contrary to Mr Dixon’s evidence, Mr Dixon did not warn Mr Reurich to immediately cease filming before barring him, but rather as soon as he was aware he was being filmed he told Mr Reurich that he was barred.

102    The banning notice, dated 22 April 2022, completed and signed by Mr Dixon stated that Mr Reurich was banned for three months and stated that the “inappropriate conduct” was:

Breached conditions of entry by continuing to operate a recording camera after being advised it was a breach of conditions of entry

103    Thereafter, Mr Dixon recorded on the security log what he said happened:

Occurrence time: 1500

Occurrence & comments (if applicable):

Peter REURICH, known to Security, began calling securities name. REURICH attempted to serve paperwork on security regarding a complaint by him.

Paperwork left on display monitor. REURICH was spoken to in relation to a breach of the Conditions of Entry. He was filming the contact between himself and Security. He was advised to cease filming or he would be barred for the continued breach. REURICH refused to cease filming and was told to leave the centre and wait outside.

Barring notice was prepared and served upon REURICH who refused to sign same. Witnessed by Cleaner, Daryl.

REURICH barred for a period of 3 months for Breach of Conditions of Entry.

Documents had been retrieved by Security, scanned and forwarded to Michael DAVIS for his attention.

Continue patrols.

Commence HIR Inspection.

C.M. Re REURICH barring.

Continue patrols.

104    Again, there is a discrepancy between the footage, the evidence of Mr Dixon and what Mr Dixon recorded in the security log: Mr Dixon did not warn Mr Reurich to cease filming before he barred him. I will return to this issue.

105    Ms Lamond deposed that part of her role includes “reviewing the security logs provided by the third party security company Savills has contracted. I do this in order to check if there are any security issues that I need to address and so that I am aware of what is happening on a daily basis at Taree Central.”

106    Ms Lamond gave unchallenged evidence of what she said Mr Dixon informed her, on 22 April 2022, in the following way:

39.     On 22 April 2022, I was informed by Mr Dixon that he had issued a barring notice to Mr Reurich barring him from entering Taree Central for three months. The notice was issued because Mr Reurich was filming at Taree Central. This was also recorded in the security log for that day which states that Mr Reurich “attempted to serve paperwork on security regarding a complaint by him”, “was filming the contact between himself and Security”, “was advised to cease filming or he would be barred for the continued breach” and he “refused to cease filming and was told to leave the centre and wait outside”. Based on my discussion with Mr Dixon about the incident I understood that the “paperwork” was court documents for Statewide. At pages 51 to 53 of Exhibit WJL-1 is an extract of the security log dated 22 April 2022 in relation to Mr Reurich.

107    It was Ms Lamond’s evidence that she then undertook her own review of “whether the barring notice issued to Mr Reurich should remain in place”, her evidence was as follows:

On the same day, I undertook a review of whether the barring notice issued to Mr Reurich should remain in place. I was not sure if Mr Reurich was required to film his service of court documents on Mr Dixon. I researched service of court documents and did not find anything which requires the service of court documents to be filmed. Based on this research, the fact that Mr Dixon had made a reasonable request to Mr Reurich to stop filming, Mr Reurich had been argumentative and threatening towards Mr Dixon and Mr Reurich did not comply with the conditions of entry I decided that the barring notice issued to Mr Reurich should remain in place.

108    Accordingly, the unchallenged evidence was that ultimately it was her decision to determine whether the barring notice issued would remain in place.

109    Ms Lamond gave evidence as to the 33 separate occasions between 23 April 2022 and 26 January 2023 where Mr Reurich attended the premises in breach of the barring notice. In addition, her evidence recorded when, on 3 August 2022, Mr Reurich went to the Taree Central management office to attempt to deliver documents and had a conversation with Ms Jacinta Braz (administrative officer). Ms Braz made a file note of what had occurred and her discomfort as a result of being filmed by Mr Reurich.

Mr Dixon’s knowledge about the complaint and the proceeding

110    Relevant to teasing out the respondents’ reasons for the ban, is what Mr Dixon knew about the Manning Mall complaint and the extent to which it had bearing on his conduct and by operation of s 123 of the DDA, the conduct of Savills and Statewide. As observed by the Full Court in Annovazzi at [109], s 123 provides a statutory mechanism to facilitate proof of the attribution of acts, conduct and states of mind of its directors, employees or agents to a body corporate where they are acting within the scope of their actual or apparent authority.

111    The evidence established that a complaint had been made to the Commission in May 2021 (to which Mr Dixon was the fourth respondent) and had been terminated on 7 February 2022.

112    It was Mr Reurich’s submission that given the procedures that are taken by the Commission, by alerting parties to the fact of the complaint and seeking their response prior to terminating them that Mr Dixon would have been well aware of the fact that a complaint had been made about him personally. This was not in dispute. Mr Dixon accepted that he was aware of the Manning Mall complaint before 22 April 2022. It can be inferred that he was well-aware of the fact of the complaint being made against him from at least mid-2021, given the complaint was made in May 2021. It can also be inferred that Mr Dixon had been made aware of the fact of the complaint having been terminated by the Commission before 22 April 2022. It was without dispute that the complaint was terminated on 7 February 2022.

113    Mr Dixon, under cross-examination, gave evidence that Mr Reurich had told him many times that he was going to bring proceedings against him, including a complaint in the Commission. However, Mr Dixon was adamant that, although he understood that proceedings were to be brought against him personally, he did not understand that those documents also had to be served on him personally. It was his evidence that he did not realise the documents were for him until he inspected them (after receiving them on 22 April 2022).

Events subsequent to 22 April 2022

114    As adverted to above, Mr Reurich, despite the ban, went to Taree Central and shopped on 33 occasions between 22 April 2022 and 26 January 2023. Ms Lamond’s evidence attaches the security log for each of these occasions. Mr Reurich relied upon the footage taken on six occasions after 22 April 2022 where he went shopping. The footage shows that he had encounters with Mr Dixon on certain of these occasions.

115    The footage, undisputed affidavit evidence of Ms Lamond and/or Mr Dixon and the logs establish the following with respect to each of these events.

3 August 2022

116    The security log for 3 August 2022 records Mr Dixon as the security guard on duty for the daytime. It records that at 10:40am, Mr Reurich had attended the centre management office and attempted to deliver documents. While there, Mr Reurich commenced film and sound recording the conversation between himself and the administrative manager, and refused to cease recording when asked. He was then advised that recording in the centre was a breach of the conditions of entry, but persisted recording. Mr Dixon then attended but by that time, Mr Reurich was no longer there.

117    Then, at 10:55am, the security log records Mr Reurich entering the centre. It records that Mr Dixon said to Mr Reurich that he had been barred and was told to leave the centre, which Mr Reurich refused to do. Mr Reurich then said “you have been served and I need to go to the toilet”. Mr Reurich then said “I can go where I want and you can’t stop me”. Mr Reurich was then advised that the breach would result in a further three-month ban. Mr Reurich then proceeded to the toilets in the centre. Mr Reurich then left the centre at around 11:03am.

118    The video footage provided to the Court shows Mr Reurich exiting the bathroom with his dog where Mr Dixon is waiting at the end of the corridor. Mr Reurich tells Mr Dixon to “keep away from me” repeatedly. The two quarrel. Mr Reurich says he “just served this notice” and Mr Dixon continues to instruct him to leave, and that “he is in breach of the notice”. Mr Dixon continues to direct him to the exit, and Mr Reurich explains that he had to go to the bathroom and serve the notice. Mr Reurich tells Mr Dixon that he is “going to the Federal Court” and he has the “Court notices”. Mr Reurich tells Mr Dixon to “keep away from my dog”. They argue about Mr Dixon being within his rights to frogmarch him from the premises and social distancing requirements. Mr Dixon states that he has “already seen the report from the Human Rights Commission, waste of time and paper” and “won’t respond to it”. Mr Dixon says that Mr Reurich “is not entitled to serve him anything” and that Mr Reurich is “harassing me in my workplace”.

119    Mr Dixon gave affidavit evidence that on that day, he was working at Taree Central when he saw Mr Reurich in the Centre. He says that he was told by customers that Mr Reurich was approaching persons entering the centre and asking for signatures on some form of petition. The initial footage shows that there is something in Mr Reurich’s hand that looks like a petition. There was no dispute about this.

120    Ms Lamond gave affidavit evidence that, based on her review of the security log dated 3 August 2022 and a file note of the same date prepared by Ms Braz, administrative manager (and now former employee of Savills), she was aware that Mr Reurich entered the centre management office to attempt to deliver documents. He then commenced recording the conversation between himself and Ms Braz and refused to cease recording when requested by her to desist from filming. Mr Reurich then left the documents on the desk.

30 August 2022

121    This footage is identified at [3] (“Parr3. 001.mp4 Annexure PGR3 Video evidence”) of Mr Reurich’s affidavit of 8 November 2024 in which Mr Reurich deposed with respect to the footage “Mr Dixon Frog marches myself out of the Shopping Centre; Will Not listen to my request of saving surveillance of the 3rd of August 2022 where it could show MD with his leg against my assistance dog Mr. Bojangles …”. In this footage, Mr Reurich encounters Mr Dixon at Taree Central while Mr Reurich is at the shop check out. Mr Dixon reminds him that if he starts recording he is in breach again of the entry conditions. Mr Reurich tells him that it is to be used as evidence of him harassing him. Mr Dixon tells him that the fact of breach means that the ban is extended to 6 months. Mr Reurich demands of Mr Dixon that the footage (one assumes retained from CCTV) of the “3rd of August” be “kept” because he says that it shows that Mr Dixon was harassing him. Mr Dixon tells him to leave before he calls the Police, then they quarrel, Mr Reurich laughs and Mr Dixon says he has already called them. Mr Dixon says that sooner or later the Police will get sick and tired of Mr Reurich and lock him out. Mr Reurich tells him that he is sick and tired of him. Mr Reurich says to him “by the way you are in Court you know, you’ll be in Court … you’re going to go to gaol that’s what’s going to happen”. Mr Reurich tells him that he is not barred lawfully and that Mr Dixon is acting unlawfully. Mr Dixon reminds him that he is breaching the conditions of entry by filming right now and he is acting unlawfully. Mr Reurich tells him that the condition is unreasonable. Mr Dixon tells him every time he comes he will get an additional three month ban. They continue to argue and Mr Reurich continues to laugh. Mr Reurich, amongst other things, accuses Mr Dixon of being barred from the Royal Hotel. They continue to argue and Mr Reurich maintains his position as to the unlawfulness of the conduct. Mr Dixon reminds him that each time he comes back in, in breach of the ban it can be extended by a further three months. Mr Reurich disputes this. Mr Reurich asks him until what time he is banned, and Mr Dixon says “sometime in 2024”. Mr Reurich asks for a hard copy and Mr Dixon replies that he will mail it to him. After having left the Centre, Mr Reurich tells Mr Dixon he is acting unlawfully and “you’re harassing me and my dog”. Mr Dixon replies “I am removing you because you are in breach of the barring notices”.

122    As to what transpired thereafter, Ms Lamond deposed to having reviewed the logs and then NSW Police were contacted. On 3 September 2022, NSW Police spoke with Mr Reurich advising him that he was banned from Taree Central, that filming in the shopping centre is a breach of conditions of entry, and that repeated breaches will result in an increased ban period. In addition, on 12 October 2022, Mr Dixon updated the barring notice to extend to 3 April 2025 and served it on Mr Reurich, who refused to sign that notice.

10 November 2022

123    The video footage reveals Mr Reurich, with his trolley and Mr Bojangles, walking past Mr Dixon, who is apparently in conversation with two store clerks and does not acknowledge or apparently see Mr Reurich.

124    The security log details that Mr Reurich was advised that a further barring would apply for his attendance. Neither of Ms Lamond nor Mr Dixon give affidavit evidence as to what happened with Mr Reurich on this date.

12 November 2022

125    Mr Reurich’s affidavit at [10] states “… Malcom [sic] writing notes in pad : ignores me again”. The video footage is of Mr Reurich walking in the Centre, and he remarks with respect to Mr Dixon (who can neither be seen nor heard) that “I just saw Malcolm, he’s stressing me out a bit. I feel bad. He said nothing but he is writing down the times I am here … he just chose to ignore me. That’s interesting. So, see how long that lasts before he says something to me…. There is no way he didn’t see me.”. Mr Reurich speaks to another shopper, who he apparently knows, and says “Malcolm’s leaving me alone mate…he’s funny about that.”

126    The security log for that day records that Mr Reurich attended the centre, the CCTV was reviewed, and Mr Reurich was banned for a further period.

15 November 2022

127    Mr Reurich’s affidavit at [11] states “O’Conner security guard tell me I am Barred I repeated what my barrister said ignore you”. It would appear the earlier occasion Mr Reurich refers to is the security log for 25 October 2022, which provides that Mr Reurich was at the self-service checkout of a supermarket in the centre, and was advised by Mr Dixon that his ban was extended, to which Mr Reurich replied “my barrister said to ignore it and not worry about it”. Mr Dixon’s affidavit evidence does not address either of 25 October 2022 or 15 November 2022, although Mr Dixon gave oral evidence under cross-examination that he had been told by Mr Reurich that Mr Reurich’s barrister had told him to ignore the barring notice. The video footage at [11] commences as Mr Reurich is walking down a thoroughfare of Taree Central and is intercepted by a security guard (although out of frame, it is apparent based on their conversation and the security guard’s voice it was not Mr Dixon).

128    The security guard (not Mr Dixon) greets Mr Reurich and asks him whether he is aware that he is barred, to which Mr Reurich replies that he is not barred and says that “my barrister told me to ignore it”. The security guard said that whatever his barrister was telling him related to the “Manning Mall side not this side”. Mr Reurich said that his barrister had told him that “Mal” (Mr Dixon) was “out of line and he [Mr Reurich] could do what he likes”. Mr Reurich stated that “he banned me for no reason”. The security guard politely asks him to leave. Mr Reurich then claims the security guard is harassing him. The security guard refutes this allegation. The security guard tells him his is just doing his job and Mr Reurich laughs and says that the security guard is doing what he is told and what he is told is unlawful.

129    Mr Reurich appeared to make the submission at hearing, and put it to Mr Dixon, that as a result of having told Mr Dixon that his barrister advised him to ignore the ban, “it’s from that date that he stopped frog marching me out and he kept away from me, not because of anything Ms Lamond said, it’s because of what I told him my barrister said”. Mr Dixon rejected that was the reason why he stopped ejecting him.

130    Ms Lamond gives affidavit evidence that on this day, she met with Mr Dixon and requested that he inform all security guards at Taree Central not to engage with, or approach, Mr Reurich any further in relation to breaches of the barring notice. Her reason for this request was that the interactions with Mr Reurich were causing stress to several security guards at Taree Central. There was no challenge to her evidence in this regard. Ms Lamond stated she knew of this “stress” from conversations she had had with the guards. She then requested that Mr Dixon inform the security guards to instead log any breaches by Mr Reurich of the barring notice and record the CCTV footage of Mr Reurich inside Taree Central. Mr Dixon does not give affidavit evidence as to what happened with Mr Reurich on this date, but gave oral evidence that he recalled Ms Lamond advised him to refrain from interacting with Mr Reurich.

131    Despite this, the evidence reveals another interaction between Mr Dixon and Mr Reurich three days later on 18 November 2022.

18 November 2022

132    Mr Reurich’s affidavit at [12] states “I ask Malcolm to remove the barring notice Last opportunity before going to human rights”. The footage of this date commences with Mr Reurich in Taree Central. Mr Dixon can be heard yelling from a distance “Peter are you there” and “do you want me”, to which Mr Reurich replies “yeah” and that he wanted Mr Dixon to “take the ban off me because one of your blokes harassed me the other day unlawfully”. Mr Dixon replies, now in much greater proximity to Mr Reurich, “no” and informs him that he is still banned. An exchange takes place between them in which Mr Dixon advises Mr Reurich that he is barred, that the bar will remain in place until April 2027, that once everything happens in December, the Police will likely charge Mr Reurich with trespass. Mr Reurich then accuses Mr Dixon of “acting illegally” and “childish”. Mr Dixon says “let me explain to you Peter”, Mr Reurich then proceeds to enter Woolworths. Mr Reurich calls out that Mr Dixon “is a bully”.

133    Mr Dixon deposed that on 18 November 2022, after the interaction between them, he informed the Police of Mr Reurich’s conduct.

134    Thereafter, on 26 January 2023, in the presence of Police, Mr Dixon served on Mr Reurich another barring notice, barring him from entering Taree Central until 8 January 2031. Ms Lamond says that Mr Reurich became argumentative with Police who escorted him from Taree Central.

135    In late January 2023, Ms Lamond received phone calls from employees of Savills who relayed that Mr Reurich had been emailing and calling head office since 27 January 2023 demanding the barring notice be lifted. On 31 January 2023, Ms Lamond says that Mr Reurich entered the centre management office and took out his phone to begin recording without her consent. She deposed that Mr Reurich asked to have the barring notices removed, and, after she asked him why he was banned, he replied that it was for filming and recording in the centre. Ms Lamond says she explained to Mr Reurich that filming was not permitted, but Mr Reurich replied that he is allowed to film anywhere he wants. Ms Lamond produced a file note consistent with her account. There was no challenge to her evidence.

136    On or about 9 February 2023, Ms Lamond was contacted by the managing director of the company that owns the shopping centre, Mr Lachlan Perks, to discuss Mr Reurich’s barring notice. Mr Perks recommended the barring notice be lifted after one further month, subject to the conditions that Mr Reurich not breach any further conditions of entry at Taree Central (otherwise the barring notice may be reinstated for a period of three months) and no filming or recording devices are to be used while he is in Taree Central without prior approval from centre management. On the same day, following the phone call and as a result of that conversation, Ms Lamond says she drafted and sent a letter on behalf of Taree Central to Mr Reurich informing him that the barring notice would be lifted effective 1 March 2023.

Mr Reurich’s thesis

137    It is worthwhile considering Mr Reurich’s thesis for why he contends that the Court should be find that the ban on 22 April and the subsequent conduct and bans were discriminatory or victimisation. Mr Reurich submitted that the Court ought be satisfied that the ban (and subsequent conduct) were discriminatory or victimising conduct because: (1) there was no logical reason for the ban to be imposed – Mr Reurich was not engaging in any anti-social activity, he is an old man walking with his dog and doing his shopping, it was not illegal to film in the shopping centre; (2) the terms and conditions did not in fact say that filming was prohibited; (3) in this case, he was attempting to serve court papers and to protect himself because he felt threatened and to preserve evidence of threats made by Mr Dixon towards himself and his dog; (4) the severity of the cumulative ban of eight years; (5) such a long ban had not been imposed on anyone else; (6) the harassing and intimidatory conduct (Mr Dixon telling him he had no rights and frogmarching him out of the shopping centre “about 6 times” and getting the Police involved who came to his house), such that it should be inferred it was for an unlawful reason; (7) it was only after Mr Reurich told Mr Dixon that his barrister had told him to ignore him that Mr Dixon stopped “directly discriminating against him” but took notes every time he saw him from a distance; (8) he asked Mr Dixon to reverse the eight year ban in writing and if he had done so there would have been no need to bring this action; (9) Savills only lifted the ban in 1 March 2023 after he had made a complaint to the Commission and (10) Mr Dixon had often threatened to ban him and paid unwanted attention to him making false claims about him leaving his dog unattended for long periods or that retail tenants had complained about his dog.

Reliance on inferences

138    An inference of discrimination cannot be drawn from a bare assertion of discriminatory conduct: Annovazzi at [194]–[197]. The circumstances must be such as to fairly raise in an unsuspicious mind that the inference of unlawful discrimination is the “probable explanation for the different treatment”: KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 527 per Anderson J cited with approval in Annovazzi at [195]. As observed by the Full Court in Sharma v Legal Aid (Qld) [2002] FCAFC 196; 115 IR 91 at [40], albeit with respect to racial discrimination, but analogous in cases of disability discrimination, as inferred from the reasoning in Annovazzi at [196]:

40    It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953 at 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425 at 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.

The relevant actors and how their actions intertwined

139    The absence of particularity in Mr Reurich’s claims does create difficulty. Neither of the corporate respondents assisted the Court as to the extent to which Mr Dixon’s conduct was attributed to them or not and how navigate the questions of liability separately as against each of the respondents. The central thesis of the respondents was that they were involved but that Mr Reurich was unable to prove that the reason for the ban and subsequent conduct included a discriminatory or victimising one. For the reasons that follow, I accept this submission and therefore the extent to which an alleged discriminator may be been personally or accessorily liable does not need to be determined.

140    However, I would note three matters. First, Mr Dixon cannot be found to be directly liable for a breach of s 23, unless it is claimed that he caused, instructed, induced, aided or permitted Savills and/or Statewide to do an act which is unlawful: s 122. No such claim was made. Otherwise, by operation of s 123, assuming the preconditions of the section are satisfied, Savills and Statewide, are taken to have engaged in the conduct. Secondly, however, Mr Dixon may be personally liable under s 58A. Thirdly, the evidence established that Ms Lamond, herself, attended to the task of determining whether the ban ought to have been made on 22 April 2022 (and decided the same). In addition, the ban on 22 April 2022 was not only made for three months but included the condition, that if Mr Reurich re-entered the premises during the barred period, an additional three-month ban may be imposed.

There was a logical reason for the ban – filming was banned on the premises

141    Whilst Taree Central’s entry conditions were not explicit, I find that it was a condition of entry, and had been for while, that filming at the shopping centre was prohibited. There is a logical reason for such a ban – filming can be very intrusive and anti-social.

142    Further, it was Ms Lamond’s unchallenged evidence that, it was standard practice that shoppers were told to desist from filming and if they did not they would be banned. As to the further bans, it was Ms Lamond’s evidence, which I accept, consistent with the shopping centre’s practice (and the terms of the initial barring notice), further bans were imposed, because despite the warning in the form of a ban and being told he could not film in the shopping centre, he continued to do so.

143    However, a related issue arises. Contrary to Mr Dixon’s security log report, what was understood by Ms Lamond and what Ms Lamond had said was the procedure (as adverted to at paragraph [95] above) Mr Reurich was not warned by Mr Dixon to stop filming and told if he did not desist, he would be barred. Despite this deviation, I am ultimately not satisfied that a negative inference should be drawn as against Mr Dixon for the following reasons. First, as stated above, I am of the view that the tension between Mr Reurich and Mr Dixon had been building for some time. Secondly, Mr Dixon did effectively act on the fact of the breach immediately in an opportunistic way for the reasons I have already given, which did not include an unlawful reason. Thirdly, Mr Dixon did record in  the security log that he had warned him and he also told Ms Lamond that he had warned him. It is my view that he mistakenly believed he had warned him on this occasion. I do not think he intentionally deviated from the usual process. He knew he was being filmed (and therefore could be caught out if the security log was inaccurate). Under cross-examination, Mr Dixon conceded that he may not have warned him on that occasion but stated that he had been spoken to Mr Reurich previously about filming at Taree Central as well as the Manning Mall. Ultimately, I do not need decide whether Mr Reurich had been previously warned or not about filming. Regardless, I accept that he mistakenly deviated from the usual procedure.

Ms Lamond did not accept that there was a necessity for Mr Reurich to film when serving papers

144    I find that Ms Lamond did not just accept the actions taken by Mr Dixon and adopt them. The evidence revealed that she, herself, determined independently on 22 April 2022 whether the ban was an appropriate sanction. Part of that consideration included Mr Reurich’s claim that he had to film when serving Court papers. It was Ms Lamond’s evidence that she conducted internet searches to determine whether Mr Reurich was required to do so and it was her understanding, based on her research, that there were multiple options available for service and that Mr Reurich did not need to serve him personally (and critically whilst filming him).

The severity and cumulative basis for the bans were explained

145    Part of Mr Reurich’s claim as to why a negative inference should be drawn was by reason of the fact that no other person had been banned from the shopping centre for eight years, its severity in the first instance (the imposition of the three month ban) and the cumulative extension of that ban period.

146    I accept Ms Lamond’s evidence, as to her state of mind, that the imposition of the bans were in accordance with the Centre’s ordinary processes. When she was taken to the fact that the terms and conditions of entry refer to the fact of a “ban” of a maximum period of three years subject to severity, it was her evidence that she was not “100 per cent sure about that – whether that’s just one event. We’ve never actually had anybody that has collected that many breaches”. I accept her evidence. Further, it does seem logical that the three year maximum would be directed to a single breach rather than continued breaches. Furthermore, as to the severity of the breach, going for eight years, it was her evidence that the bans continued to accumulate because of Mr Reurich’s behaviour – his hostility and aggression towards the security guards and failing to comply with the conditions of entry despite been barred and warned continually. I accept these were her reasons. Whilst, Mr Reurich may not have perceived himself as the aggressor, I accept that this was Ms Lamond’s belief. Her evidence supports this.

147    As referred to above, Ms Lamond had concerns about the effect of Mr Reurich’s behaviour on personnel in the shopping centre. Despite Mr Reurich’s continued non-compliance with the ban, Ms Lamond directed Mr Dixon to tell his guards not to interact with Mr Reurich directly because of concerns she had for them. In addition, Ms Lamond attached to her evidence a file note, Ms Braz had prepared about her interaction with Mr Reurich on 3 August 2022 (when Mr Reurich said that he was attempting to serve Mr Dixon). In the file note the employee referred to the fact that she noticed she was being recorded and it made her feel uncomfortable, that she pointed to the conditions of entry poster on the desk and that Mr Reurich told her he could do what he wanted to do. The employee stated that she felt uncomfortable being recorded and photographed and that it was an invasion of her privacy which she did not consent to.

148    Whilst it may be accepted that the ban was much longer than any other that had been imposed, Ms Lamond provides logical, consistent, evidentiary foundation for it. This does not mean that the Court has to find that the severity of the ban (initially or over time) was reasonable or fair. It is for Mr Reurich to establish, on the basis of all of the evidence that, an inference of unlawfulness can be drawn.

Mr Dixon’s evidence was accepted

149    When cross-examined, Mr Dixon rejected the allegation that he banned Mr Reurich because he was bringing proceedings against him. His reasoning was logical (and supported by the contemporaneous documentary evidence). Mr Dixon already knew that Mr Reurich had made allegations and complaints about his conduct before the Commission. Mr Dixon also stated that he knew Mr Reurich was going to bring proceedings against him. Mr Dixon says Mr Reurich told him numerous times he was going to make a complaint against him in the Commission. He says in relation to the documents served on 22 April 2022, that he did not realise that he had actually made the complaint against him personally until he looked at the documents (but in effect he knew that he would).

150    I ultimately accept his evidence. The evidence establishes that Mr Dixon had been on notice for some time about the Commission complaint. It is apparent from their interactions, as indicated on the footage, that Mr Dixon was not perturbed by the fact of the Commission complaint, he treated it with contempt. First, he perceived it as really relating to Statewide not him personally. Secondly, he perceived the fact of the termination of the complaint, being that the Commission considers it a “waste of time” as he himself did.

151    In addition, during the interaction on 22 April 2022, ultimately Mr Dixon says that he hopes Mr Reurich is filming. There is no indication that he is attempting to conceal what he is doing or why he is doing it. Mr Dixon perceives the entry conditions as being black and white – if you break the rules you will be barred and those bars will be extended if you continue to breach. He repeatedly told Mr Reurich and reinforced the same on each and every occasion relied upon by Mr Reurich after 22 April 2022 and in his notations in the security log.

152    What created the vexation, from Mr Dixon’s perspective, was the continued, adverse interactions between the two of them. No doubt Mr Dixon perceived Mr Reurich was goading him: The footage showed Mr Reurich telling Mr Dixon he is harassing him, acting unlawfully, suggests that Mr Dixon has been barred from Royal Hotel, not being fit and proper, tells him he is going to Court and to gaol and Mr Reurich does not have comply with the requests for him not come into the centre during the ban period or to film.

No link was established between the alleged conduct and Mr Reurich’s disabilities or him having an assistance animal

153    Further, I do not accept that Mr Dixon or the other respondents barred him or engaged, through the actions of Mr Dixon or others, by reason of his disabilities or by reason of him having an assistance dog.

154    The height of the evidence established that Mr Reurich had been bringing Boofhead to Taree Shopping Centre since 2020 (two years earlier). It appeared to be common ground, from the evidence of both Mr Dixon, the security log and the evidence of Ms Lamond, that there had been previous complaints about Mr Reurich leaving his dog unattended. However, despite this he was not banned. It was the evidence of Ms Lamond that she had received a number of complaints from tenant retailers about Mr Reurich leaving his dog unattended. This included, based on her review of the security logs, interactions between Mr Reurich and Mr Dixon between 9 and 11 August 2020 regarding Mr Reurich leaving his dog unattended. It was Ms Lamond’s evidence that she met with Mr Reurich on or about 11 August 2020 and Mr Reurich explained that he would leave Boofhead unattended because Boofhead was old and could not walk very far. Ms Lamond stated that Mr Reurich needed to keep his dog under his control at all times. It was her evidence (not disputed) that Mr Reurich was unhappy with her response and stormed out of the office telling her she was not very bright. Mr Reurich did not challenge her evidence in this regard. Despite this, Mr Reurich was not banned.

155    Mr Reurich contended that Mr Dixon had often threatened to ban him and paid unwanted attention to him making false claims about him leaving his dog unattended for long periods or that retail tenants had complained about his dog. However, the evidence did not establish this to be the case. As referred to above, by his own admission, Mr Reurich had accepted he had left his dog with retailers but says he did so with their consent.

156    Mr Dixon did accept that he had previously threatened to bar Mr Reurich from Taree Central on two occasions because of his dog being unattended. However, this evidence again goes against Mr Reurich’s claim. Mr Dixon was motivated to ensure compliance with entry conditions. It appears that it was open to Mr Dixon to have barred Mr Reurich’s entry on the basis of Mr Reurich leaving his dog unattended. It was Mr Dixon’s evidence, which I accept, that a person is required to be control their assistance animal. The exemption under s 54A of the DDA has the same effect. However, Mr Dixon did not do this. It appears that if Mr Dixon, Savills or Statewide, had been so motivated to bar Mr Reurich’s entry on the basis of Mr Reurich having an assistance animal, they had had perfect opportunities to bar him based on complaints about him leaving his animal unattended but did not do so.

157    Further, it appeared from Ms Lamond’s evidence that for a period Mr Reurich placed Boofhead in a dog stroller but that there were further interactions between Mr Reurich and Mr Dixon regarding Boofhead being off leash in September and October 2020 and July 2021. The ban did not occur until nine months later.

158    As a consequence, I do not accept that a motivating factor (taken to be one of the reasons) in the actions taken by Savills or Statewide, concerned the fact of Mr Reurich having had or may have an assistance animal.

159    At no point did Mr Reurich articulate how, on the basis of the evidence, the alleged discriminatory or victimising conduct could be linked to any of his disabilities. Accordingly, this claim under s 23 must fail.

The alleged harassment and intimidatory conduct were not unlawful discrimination or victimisation

160    In addition, to the bans, Mr Reurich claimed that the alleged subsequent harassment or intimidation, after 22 April 2022, was unlawful discrimination or victimisation. Mr Reurich claimed that:

(a)    on no less than six occasions thereafter subjecting him to harassment and intimidation when he attended the shopping centre (this conduct was alleged to have taken the form of Mr Dixon or other security guards following him, frogmarching him out of premises, telling him to leave the shopping centre, threatening to call the Police or telling him that the police were coming to his house and would arrest and take him away);

(b)    a consequence of the alleged discriminatory ban was that in November or December 2022 a NSW Police Constable attended Mr Reurich’s house and left a barring notice and on 26 January 2023, he was escorted by Police from the premises; and

(c)    the respondents having incited the local community of Taree against him and his dog.

161    Mr Reurich contended that the actions of the respondents caused him to feel isolated and intimidated, to limit his shopping and also social interaction. Mr Reurich claimed that the conduct was taken by reason of his disability or him having an assistance dog.

162    As to the alleged harassing and intimidatory conduct, as can be seen from the above, the footage establishes that on four occasions (of the 33 occasions that Mr Reurich attended the shopping centre after the imposition of the ban) that there were interactions between Mr Reurich and Mr Dixon or another security guard. It may be accepted on each occasion Mr Reurich was reminded of the ban and asked to leave and on one occasion threatened with Police attendance: On 3 August 2022, both Mr Reurich and Mr Dixon quarrelled. Mr Dixon did instruct Mr Reurich to leave and directed him out of the premises. On 30 August 2022, again they both quarrel about the lawfulness of the ban and Mr Dixon directs him out of the shopping centre. Also, on 15 November 2022, another security guard reminded Mr Reurich of the ban and asked him to leave. There was a further interaction between Mr Dixon and Mr Reurich on 18 November 2022 which included Mr Dixon’s refusal of Mr Reurich’s request for the ban to be lifted and that he would have to get the Police if he did not leave. Therefore, the evidence reveals, from the footage, four occasions, where there are altercations between Mr Reurich and a security guard.

163    Further the security logs reveal other occasions where Mr Reurich was asked to leave (2 August 2022, 30 August 2022, 10 October 2022, 12 October 2022, 25 October 2022 and 27 November 2022.

164    I am prepared to accept and find that there were at least six occasions where Mr Reurich was reminded of the ban and asked to leave and there were at least two occasions where he and Mr Dixon argued. I do not consider much turns on whether the conduct is described as being harassing or intimidatory, however, I do not accept that on the basis of the evidence above, the conduct of the security guards can be found to be harassing or intimidatory. I also accept that the evidence establishes that the Police did attend Mr Reurich’s house and serve a barring notice. I do not, however, accept that the evidence establishes that by any conduct of the respondents, individually or in concert, led to the incitement of the local community against Mr Reurich.

165    It may be accepted that the fact of Mr Reurich being banned, being reminded that he was banned when he attended the premises, being asked to leave, escorted to the exit and threatened with a Police referral, could all comprise “detriments” within the meaning of the section. The same conclusion is reached with respect to the Police attendance. For something to comprise a “detriment”, it should be given its ordinary meaning as being some form of disadvantage which must be real rather than trivial: Taylor at [398]. It has been recognised to constitute a harm or an act leading to harm: Georgiou v Spencer Holdings Pty Ltd (No 2) [2011] FCA 22 at [4] per Besanko J.

166    However, for all the above reasons, I am not satisfied that Mr Reurich has established that third crucial element, the causal nexus between the detriment and the protected actions (Mr Reurich having made a complaint to the Commission or bringing proceedings in the Federal Court asserting his rights under the DDA). The initial ban allowed for an extension of the ban for a further three months in the event of breach. Mr Reurich was reminded of this by Mr Dixon on 30 August 2022. On each occasion, either Mr Dixon or another security guard reminded Mr Reurich of the fact of the ban, the reasons for it and that filming was unlawful. Mr Reurich persisted in returning to the shopping centre despite the bans and later Police involvement. The same finding is made to the extent that the alleged conduct was said to be discriminatory. The claim is not made out.

Savills did not only lift the ban after Mr Reurich made the complaint

167    Lastly, Mr Reurich contended that Savills only lifted the ban in March 2023 after he had made a complaint to the Commission. Mr Reurich contended that by this sequence, a negative inference ought be drawn as their motivations for the bans and the other alleged discriminatory and intimidatory conduct. I do not accept that such an inference can be drawn, if anything, as relating the alleged victimisation claim, the action, if taken in this sequence, proves the contrary.

168    However, in any event the sequence of events, as indicated from the documentary trail, does not conform with Mr Reurich’s thesis. As recorded in the Commission’s Notice of Termination, Mr Reurich made a complaint to the Commission on 6 February 2023, Savills was provided with a copy of the complaint on 2 March 2023 and to Mr Dixon on 16 October 2023. It was the evidence of Ms Lamond that Mr Reurich had contacted the head office of Savills in South Australia in late January 2023 both by phone and email demanding that the bar be lifted. Mr Reurich came to the shopping centre on 31 January 2023 and recorded the conversation with Ms Lamond. On or about 9 February 2023, the Managing Director of the owner of Taree Central, recommended to her that the bar be lifted after a further month subject to conditions.

Additional matter

169    The Court heard all evidence and submissions from the parties at the hearing. At the end of the hearing, the parties were told that the Court would consider all the evidence and then deliver its judgment at a later day. No application was made for any further written submissions to be provided after the hearing. However, Mr Reurich contacted the Court after the hearing and asked to be given a further opportunity to make submissions. The Court availed him of that opportunity. In submissions, Mr Reurich sent to the Court after hearing, on 11 April 2025, Mr Reurich made a number of submissions which repeated the narrative and claims he had already given before and during the hearing. In addition, in his submissions, Mr Reurich referred to a NSW Local Court proceeding. There was no evidence before this Court regarding what transpired during that hearing and accordingly the Court cannot accept any submission with respect to it.

Mr Reurich was banned from entry because he breached the entry conditions

170    I make each of the following findings based on the factual findings I have made above.

171    I find that the reason why Mr Dixon barred Mr Reurich from the shopping centre – in an opportunistic way, was because he was tired of and irritated by Mr Reurich and also because Mr Reurich had breached the entry conditions by filming in the shopping centre. The decision was opportunistic, in the sense, that he had a dislike for Mr Reurich and wanted to limit the interactions with him. The fact of Mr Reurich being caught out, breaching the entry conditions, provided the perfect opportunity to get Mr Reurich out of his hair. That did not happen of course, Mr Reurich was not deterred by the bans and continued to shop at Taree Central. To the extent that further bans were imposed, they were because of his breach of the restriction on entry and his continued filming.

172    I find that the reason why Savills barred Mr Reurich on 22 April 2022 was by reason of the motivations of Ms Lamond articulated in her affidavit, extracted above, namely Mr Reurich did not need to film Mr Dixon when he served court documents, Mr Dixon had made a reasonable request to Mr Reurich to stop filming, Mr Reurich had been argumentative and threatening towards Mr Dixon and Mr Reurich did not comply with the conditions of entry.

173    I find that Mr Reurich has not established the imposition of the subsequent bans and the interactions between the security guards were because of or on the ground of a discriminatory reason or constituted victimisation respectively.

174    I am ultimately not satisfied that either Savills or Statewide breached s 23 and barred him for an unlawful reason (by reason of or for a reason that included Mr Reurich having a disability, having had or imputed as having an assistance animal). I am also not satisfied that Savills or Statewide or Mr Dixon breached s 58A by barring him by reason of Mr Reurich having complained to the Commission or commenced Federal Court proceedings.

Costs

175    It is ordinary that the losing party in a proceeding of this kind pays the other parties’ costs. However, it is not clear in this case as to whether the respondents will be pursuing their costs. There may be good reason why they do not. This is particularly so with respect to Statewide and Mr Dixon who brought and primarily relied upon a misconceived summary dismissal application and abandoned it at hearing. Accordingly, the Court will make timetabling orders that provide the procedure for the making of a costs order (if it is sought) and for it to be determined on the papers.

Conclusion

176    For all the above reasons, Mr Reurich’s application must be dismissed.

Associate:

Dated:    30 April 2025