Linden v Sydney Night Patrol & Inquiry Co Pty Ltd trading as SNP Security
[2025] FCA 172
•7 March 2025
FEDERAL COURT OF AUSTRALIA
Linden v Sydney Night Patrol & Inquiry Co Pty Ltd trading as SNP Security [2025] FCA 172
File number(s): SAD 228 of 2024 Judgment of: MCDONALD J Date of judgment: 7 March 2025 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment pursuant to s 31A of Federal Court of Australia Act 1976 (Cth) and r 26.01 of Federal Court Rules 2011 (Cth) – disability discrimination claim has no reasonable prospect of success – originating application identifies other possible basis to allege unlawfulness of respondent’s conduct – judgment given for respondent in respect of part of proceedings – applicant given opportunity to plead claim or in tort or for declaratory relief regarding lawfulness of respondent’s conduct
HUMAN RIGHTS – disability discrimination – Disability Discrimination Act 1992 (Cth) – requirement to wear face mask at airport – exception for persons with relevant medical condition – where applicant did not wear face mask due to disability – where applicant made to wait for police officer to confirm relevant medical condition – applicant not treated less favourably than “a person without the disability in circumstances that are not materially different” – disability discrimination not established
Legislation: Aviation Transport Security Act 2004 (Cth) ss 44, 94, 94C, 95, 95B, 95C, 96, 96B, 96C
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6
Emergency Management Act 2004 (SA) ss 17, 25
Federal Court of Australia Act 1976 (Cth) s 31A
Aviation Transport Security Regulations 2005 (Cth) Div 4.1
Federal Court Rules 2011 (Cth) r 26.01
Cases cited: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641
Fencott v Muller (1983) 152 CLR 570
New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Zhang v University of Tasmania (2009) 174 FCR 366; [2009] FCAFC 35
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 69 Date of hearing: 28 February 2025 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr J R Reid ORDERS
SAD 228 of 2024 BETWEEN: PAUL ANDREW LINDEN
Applicant
AND: SYDNEY NIGHT PATROL & INQUIRY CO PTY LTD TRADING AS SNP SECURITY
Respondent
ORDER MADE BY:
MCDONALD J
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered for the respondent on the applicant’s originating application under s 46PO of the Australian Human Rights Commission Act 1986 (Cth), filed on 26 October 2024, insofar as it alleges that the respondent engaged in unlawful discrimination contrary to the Disability Discrimination Act 1992 (Cth).
2.The respondent’s interlocutory application filed on 11 November 2024 otherwise be dismissed.
3.There be no order as to the costs of the respondent’s interlocutory application filed on 11 November 2024.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCDONALD J:
Introduction
The applicant, Paul Andrew Linden, suffers from several disabilities as a result of an accident where, in his words, he “was involved as a bicyclist versus a motor vehicle”.
In these proceedings, Mr Linden claims that he was unlawfully discriminated against on the basis of his disabilities on two separate occasions at Adelaide Airport, on 17 April and 24 May 2021. On each occasion, he claims, he was stopped at a security screening point by employees of the respondent, Sydney Night Patrol & Inquiry Co Pty Ltd trading as SNP Security (SNP). The relevant employees of SNP were apparently persons who were authorised to conduct screening under the Aviation Transport Security Regulations 2005 (Cth), and were therefore “screening officers” for the purposes of Division 5 of Part 5 of the Aviation Transport Security Act 2004 (Cth): see s 94.
The evident reason why Mr Linden was stopped on each occasion was because he was not wearing a face mask at a time when that was a requirement due to the COVID-19 pandemic. The requirement to wear a face mask was one that did not apply to Mr Linden, however, because he had a relevant medical condition that resulted in his being exempt from the requirement. On both occasions when he was stopped, Mr Linden was made to wait for a significant period of time before police attended and confirmed that he was not subject to the requirement to wear a face mask. He also contends that he was spoken to rudely and treated in a way that caused him to feel humiliated.
Mr Linden contends that the treatment of him by employees of SNP was direct disability discrimination because he was treated differently from a person who did not have a disability, in that he was prevented from passing through the screening point and was required to wait until a police officer attended.
Mr Linden commenced proceedings on 17 October 2023 by way of an application for an extension of time annexing a draft originating application for judicial review. At a case management hearing on 15 October 2024, SNP indicated that it would not oppose the application for an extension of time, and I made an order granting Mr Linden an extension of time within which to commence an application pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth). On 26 October 2024, he filed the originating application by which he commenced these proceedings. He has represented himself in the proceedings.
SNP applies for summary judgment against Mr Linden, pursuant to r 26.01 of the Federal Court Rules 2011 (Cth). By way of its interlocutory application filed on 11 November 2024, SNP seeks an order that judgment be given against Mr Linden on the basis that he has no reasonable prospect of successfully prosecuting the proceedings or, in the alternative, because no reasonable cause of action is disclosed. SNP further seeks an order that each party bear their own costs.
For the reasons that follow, I have concluded that Mr Linden’s cause of action based on disability discrimination does not enjoy any reasonable prospect of success. Therefore, judgment should be entered against Mr Linden in relation to his claim based on disability discrimination.
Mr Linden’s originating application and evidence have identified further bases, other than disability discrimination, on which he may potentially be able to establish a cause of action or a ground for declaratory relief against SNP, arising out of the events of 17 April and 21 May 2021. SNP has not demonstrated that Mr Linden does not have any reasonable prospect of successfully prosecuting those claims. Mr Linden should be given the opportunity to plead a claim for declaratory relief as to the lawfulness of the conduct of SNP’s employees, and/or a case in tort, should he wish to attempt to do so.
Background
On 29 March 2021, the Acting Commissioner of Police and State Co-ordinator for the State of South Australia made the Emergency Management (Cross Border Travel—General) (COVID‑19) Direction 2021 (SA) (Emergency Direction) pursuant to s 25 of the Emergency Management Act 2004 (SA). The Emergency Direction was in force at all times relevant to Mr Linden’s complaints.
Clause 8(1) of the Emergency Direction provided as follows:
(1) A person (including crew of commercial transport and freight services) may not—
(a) enter South Australia by airplane unless the person wore a face mask (covering mouth and nose) at all times while the person was on the airplane or present at any airport during the journey; or
(b) be present inside the terminal at Adelaide Airport unless the person is wearing a face mask (covering mouth and nose).
Note—
The terminal at Adelaide Airport is taken to include the arrivals and departures areas and any other publicly accessible areas in the terminal.
The requirements of this clause must be read in conjunction with the Emergency Management (Supervised Quarantine No 5) (COVID-19) Direction 2021 or any successor direction.
Clause 8(2) of the Emergency Direction set out that the requirement to wear a face mask in cl 8(1) did not apply, relevantly, to a person who had “a relevant medical condition, including problems with their breathing, a serious condition of the face, a disability or a mental health condition”. In full, cl 8(2)(a) stated:
(2) A requirement that a person wear a face mask (whether under subclause (1) or because of the application of any other requirement under this direction or an associated direction) does not apply to a person—
(a) if they have a relevant medical condition, including problems with their breathing, a serious condition of the face, a disability or a mental health condition; or
Note—
Evidence of a relevant medical condition must be produced on request.
…
By his originating application, Mr Linden alleges that, on 24 May 2021, he was unlawfully discriminated against because of his “disability/medical, ‘laboured’ breathing condition” for failing to wear a face mask at the departures area at Adelaide Airport. He alleges that when he and his wife proceeded to the screening point, a person wearing an SNP uniform “spoke in a loud voice and from a distance, with words to the effect [of] ‘you’re not going anywhere’”. Mr Linden says that neither his medical certificate nor his “border pass with the medical exemption noted” was examined. He alleges that SNP unlawfully delayed him and restricted him from carrying on his business of boarding a flight. On this occasion he alleges he was required to wait for one hour for a police officer to attend. He also states that he was spoken to rudely by SNP staff. He contends that SNP’s conduct, through its employees, amounted to disability discrimination.
Mr Linden further alleges that SNP similarly discriminated against him on an earlier occasion, on 17 April 2021. On that occasion, he claims, he was made to wait for one and a half hours for police to attend.
In support of its application for summary judgment, SNP relies on the affidavit of Jake Robert Reid dated 11 November 2024 as well as its written submissions filed on 23 January 2025.
Mr Linden relies on the allegations contained in his originating application and on affidavits sworn by him on 2 November 2024, 3 December 2024, 24 January 2025 and 25 February 2025. Two of those documents, although in the form of affidavits, are essentially in the nature of written submissions in response to SNP’s application for summary judgment.
Legal principles relating to summary judgment
Section 31A of the Federal Court of Australia Act 1976 (Cth) relevantly provides as follows:
…
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 26.01(1) of the Federal Court Rules provides as follows:
(1) A party may apply to the Court for an order that judgment be given against another party because:
(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or
(b) the proceeding is frivolous or vexatious; or
(c) no reasonable cause of action is disclosed; or
(d) the proceeding is an abuse of the process of the Court; or
(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.
On an application for summary judgment, the respondent, as the moving party, bears the onus of persuading the Court that the application has no reasonable prospect of success: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at 271 [45]; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7]. In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J said of s 31A of the Federal Court of Australia Act (at 130-1 [22]):
The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
Circumstances where summary judgment may be appropriate include those where the success of the proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court: Spencer at 132 [25] (French CJ and Gummow J).
Relevant provisions of the Disability Discrimination Act
Mr Linden’s originating application does not itself identify the particular provision or provisions of the Disability Discrimination Act 1992 (Cth) which he contends SNP contravened. That itself is not necessarily fatal to his application. However, it is necessary to give some consideration to the structure of the Disability Discrimination Act and to what is required to establish unlawful discrimination under the Act.
Divisions 1 and 2 of Part 2 of the Disability Discrimination Act contain provisions which make it unlawful for persons, in certain circumstances, to “discriminate against a person on the ground of the person’s disability”. The provision which is perhaps most likely to be relevant to the conduct of SNP to which Mr Linden’s claim relates is s 23, which concerns “access to premises”. It is not necessary, for present purposes, to determine whether s 23, or any of the other provisions in Part 2, would apply to the circumstances that give rise to Mr Linden’s claim.
What is important for present purposes is that each of the substantive prohibitions in Part 2 of the Disability Discrimination Act turns on the concept of “discriminat[ing]” against a person “on the ground of [that] person’s disability”. Section 4(1) defines “disability”, relevantly, to include “total or partial loss of the person’s bodily or mental functions”. SNP does not dispute that Mr Linden has a disability.
Section 4(1) of the Disability Discrimination Act defines “discriminate” by providing that “discriminate has the meaning given by sections 5 and 6”.
Section 5 of the Disability Discrimination Act defines “direct disability discrimination” as follows:
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.
The concept of “indirect discrimination” is defined in s 6, as follows:
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.
As the definition of “discriminate” in s 4(1) makes clear, both direct and indirect discrimination, as defined, are regarded as discrimination for the purpose of the Disability Discrimination Act. Sections 7 and 8 also extend the concept of disability discrimination, but not in a way that is relevant to Mr Linden’s situation.
Relevant provisions of the Aviation Transport Security Act
SNP informed the Court that the relevant employees were appointed as screening officers for the purposes of Division 5 of Part 5 of the Aviation Transport Security Act.
The provisions of Division 5 of Part 5 contemplate the establishment of “screening points”, and authorise screening officers to perform certain “screening functions”. Sections 95, 95B and 95C confer powers on screening officers, including powers to request that a person remove clothing or undergo a frisk search. In some situations, if it is not possible to screen a person properly due to their refusal to remove clothing or undergo a frisk search, screening officers “must refuse to allow the person to pass through the screening point”. Section 94C(2) provides that, in exercising a power under Division 5 of Part 5 or performing a screening function, “a screening officer must not use more force, or subject a person to greater indignity, than is necessary and reasonable”.
Section 96 of the Aviation Transport Security Act confers limited powers on screening officers to physically restrain persons where “the screening officer reasonably suspects that the person is committing, or has committed, an offence against [the Aviation Transport Security Act]” or where “the screening officer reasonably believes it is necessary to do so” in order to “ensure that a person who is not cleared is not in a cleared area or a cleared zone”, or to “maintain the integrity of a cleared area or a cleared zone”.
The screening process is provided for in Division 2 of Part 4 of the Aviation Transport Security Act. A person is “screened” when they undergo screening in accordance with regulations made under s 44 of that Act, in preparation for boarding an aircraft or, relevantly for present purposes, “in order to enter or remain in an area or zone within a security controlled airport”. The regulations made under s 44, which set out the requirements for screening and clearing persons, are the Aviation Transport Security Regulations and, in particular, Division 4.1 of those Regulations. It is not necessary to consider them in detail, except to note that SNP did not submit, on its summary judgment application, that screening for compliance with the Emergency Direction was a kind of screening that was authorised by the Aviation Transport Security Regulations.
The submissions of the parties
SNP denies that it unlawfully discriminated against Mr Linden.
It is submitted for SNP that, in order for Mr Linden to make out a claim of direct discrimination on the basis of disability, he would need to demonstrate that SNP treated him less favourably than SNP would have treated a person without Mr Linden’s disability in circumstances that are not materially different.
The Emergency Direction provided that an Authorised Officer meant a police officer or a person appointed as an Authorised Officer under s 17 of the Emergency Management Act, being an individual or class of individuals appointed by the State Co-ordinator (as defined in the Emergency Management Act). SNP submits that employees of SNP were not, at any time, Authorised Officers under the Emergency Management Act. SNP contends that employees of SNP were not, therefore, authorised to request that a person who failed to wear a face mask provide evidence in support of them having a relevant medical condition for the purpose of cl 8(2) of the Emergency Direction.
Mr Reid deposes to the following steps that SNP took in respect of persons seeking to enter security screening points at Adelaide Airport:
(a) identify any persons who were not wearing a fac[e] mask by way of viewing all persons in the Terminal;
(b) for the safety of all persons, direct such persons to remain in situ (ie to not enter or pass through a security screening point) until an Authorised Officer could attend and, request such persons produce Medical Evidence and if applicable, sight and assess such Medical Evidence and determine whether [cl 8(2) of the Emergency Direction] applied to such persons; and
(c) for the safety of all persons, prevent such persons from entering and passing through a security screening point until an Authorised Officer could attend and request such persons to produce Medical Evidence and if applicable, sight and assess such Medical Evidence and determine whether [cl 8(2) of the Emergency Direction] applied to such persons.
SNP submits that, after visually surveying all persons, the identification of Mr Linden by its employees as a person in Adelaide Airport who was not complying with the requirement to wear a face mask was not done on the basis of his disability, but because he was not wearing a face mask. SNP says that its employees directed Mr Linden to remain in situ and prevented him from entering or passing through a security screening point until such time as an Authorised Officer could attend, request that Mr Linden produce evidence of his medical condition, and assess whether any evidence produced by him satisfied cl 8(2) of the Emergency Direction.
SNP submits that it did not treat Mr Linden less favourably than it would have treated a person without his disability in circumstances that were not materially different and, as a result, Mr Linden cannot make out a claim of direct discrimination against SNP. SNP’s position is that it acted consistently towards all persons who were not wearing face masks, based on its interpretation of the Emergency Direction as providing that only Authorised Officers could sight evidence of a relevant medical condition. SNP facilitated consideration by Authorised Officers of claims of medical exemptions by requiring persons who were not wearing face masks to wait at, and not pass through, the screening point until an Authorised Officer attended.
SNP also submits that Mr Linden cannot establish that it indirectly discriminated against him on the basis of his disability, having regard to the definition of indirect discrimination in s 6 of the Disability Discrimination Act. In the course of submissions on the summary judgment application, Mr Linden confirmed that his position is that this was a case of direct discrimination, and he did not attempt to advance a distinct case based on indirect discrimination.
Mr Linden submits that he had complied with the Emergency Direction in that he had obtained, and had with him, a medical exemption that, had it been checked, would have demonstrated that the Emergency Direction’s requirement to wear a face mask did not apply to him.
Mr Linden points out that the terms of the Emergency Direction do not state that only a police officer or other Authorised Officer could view evidence of a relevant medical condition for the purpose of determining whether a person was exempt from compliance with the requirement to wear a face mask in cl 8(1).
Mr Linden further contends that SNP discriminated against him in the sense relevant to s 5(2) of the Disability Discrimination Act because SNP did not make reasonable adjustments for him, and the effect of the failure to make the reasonable adjustments was that Mr Linden was, because of his disability, treated less favourably than a person without the disability would have been treated. Mr Linden submits that the reasonable adjustment that ought to have been made was for SNP’s employees to check his medical exemption themselves. He submits that it is obvious that he has a disability, as he is in a wheelchair and has scarring to his forehead, and these are “likely to be a lay indicator of a medical condition and not a hidden disability”. He contends that the employees of SNP ought, therefore, to have been alert to the probability that he had a medical exemption and to have allowed him to present evidence of his relevant medical condition to them, and to have assessed it for themselves.
Does Mr Linden’s disability discrimination claim have no reasonable prospect of success?
What seems clear from the terms of the Emergency Direction is that the requirement to wear a face mask depended upon whether a person did, in fact, have a relevant medical condition. If (as was the case, and is not disputed by SNP) Mr Linden did have such a medical condition, then the Emergency Direction did not require him to wear a face mask.
SNP accepts that its employees were not Authorised Officers for the purpose of the Emergency Direction. The “note” to cl 8(2) of the Emergency Direction did not state explicitly whether the requirement to produce evidence of a relevant medical condition “on request” meant “on request by an Authorised Officer”. It is not necessary to determine whether that is the better interpretation of the Emergency Direction. If that was the correct interpretation, then it would follow that SNP employees did not have authority to require production of evidence of a relevant medical condition on request.
On the other hand, if the reference to producing medical evidence “on request” did enable SNP employees to request a person to produce medical evidence for the purposes of the Emergency Direction, they must also have been persons who were able to assess that evidence. There is no basis to construe the Emergency Direction as empowering certain officers to request that a person produce evidence but not as empowering those same officers to consider it. What is clear is that the employees of SNP proceeded on the basis that only an Authorised Officer could consider whether they were satisfied that a person had a relevant medical condition, and SNP employees took on the function (whether authorised or not) of preventing persons who were not wearing a face mask from passing through the screening point and requiring them to wait until the attendance of an Authorised Officer.
It is not apparent that SNP employees were legally tasked with performing any official role in the enforcement of the Emergency Direction. In particular, it is not apparent, from the material presently before the Court or the submissions made on the summary judgment application, that employees of SNP had any legal authority to:
(a)prevent a person passing through a screening point on the basis that they were not wearing a face mask and had not had their evidence of a relevant medical condition checked by an Authorised Officer;
(b)require a person to produce evidence of a relevant medical condition to an Authorised Officer, or at all; or
(c)require a person to wait before passing through a screening point for the purpose of enabling an Authorised Officer to attend and request that they produce evidence of a relevant medical condition.
It is not necessary for the purposes of the present summary judgment application to finally determine whether the employees of SNP did have any authority to take these actions. The question of whether SNP’s conduct in relation to Mr Linden constituted discrimination on the ground of his disability does not depend on whether SNP’s interpretation or application of the Emergency Direction was legally correct, justified or reasonable. It depends on making the technical comparisons required by s 5(1) and (2) of the Disability Discrimination Act.
In my view, in relation to the question of whether the conduct of SNP employees constituted direct disability discrimination, the submissions of SNP must be accepted.
The focus must be on the conduct of the employees of SNP. The action against SNP is not concerned with whether the requirement of the Emergency Direction itself amounted to disability discrimination. The requirement to wear a face mask does have the capacity to impact adversely on persons with a medical condition, and the exception for people who were able to produce evidence of a relevant medical condition was evidently designed as a form of accommodation for those people. The relevant conduct of SNP was not to require Mr Linden to wear a face mask, but to require him (as a person who was not wearing a face mask) to wait for the attendance of an Authorised Officer so that the Authorised Officer could request that he provide evidence of a relevant medical condition and determine whether he was exempt from the requirement to wear a face mask.
The reason why SNP employees required Mr Linden to wait, and did not allow him to pass through the screening point, was that he was not wearing a face mask. The policy applied by SNP was to require all persons who were identified as not wearing a face mask to wait until an Authorised Officer attended in order to request and/or check their evidence of a relevant medical condition. I do not understand Mr Linden to dispute that this was the approach that was applied by SNP.
To establish discrimination of the kind described in s 5(1) of the Disability Discrimination Act by SNP, Mr Linden would need to establish that SNP, because of Mr Linden’s disability, treated him less favourably than SNP would have treated a person without the disability in circumstances that are not materially different.
In Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 (Purvis), the High Court considered the application of an earlier version of s 5(1) of the Disability Discrimination Act that was in different terms, but what was said remains applicable to the current s 5(1). Justices Gummow, Hayne and Heydon (with whom Callinan J agreed at 175 [273]) described the operation of s 5(1) as follows (at 158 [213]‑[214]):
Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability “in circumstances that are the same or are not materially different”. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added [by Gummow, Hayne and Heydon JJ]). The “comparator” identified by s 5(1) is “a person without the disability”.
The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability “in circumstances that are the same or are not materially different”. Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act. ...
Their Honours distinguished s 5(1) from the Disability Discrimination Act 1995 (UK), which did not require a comparison with a person in circumstances that were the same or not materially different: at 158-9 [214]-[216]. In Purvis, the appellant had submitted that, in making the comparison, the Court should disregard the circumstance that a child who had been expelled from school had acted violently towards teachers and others, because his behaviour was due to his disability. Justices Gummow, Hayne and Heydon said (at 160 [222], 161 [224]):
It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
…
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
To similar effect, Gleeson CJ said (at 101 [11]):
… It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant’s argument lies in the contention that, because the pupil’s violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. …
As the Full Court of the Federal Court later put it in Zhang v University of Tasmania (2009) 174 FCR 366; [2009] FCAFC 35 at 384 [63], “the relevant comparator is a person displaying the same behaviour as [the person] but without the disability, not a person without the disability and without the behaviour”.
Mr Linden did not, of course, exhibit any behaviour that was violent or disruptive; all he did was not wear a face mask, in circumstances where he had a proper medical reason not to wear one. Nevertheless, applying the reasoning in Purvis to the circumstances of Mr Linden’s case, I consider that the relevant comparator – “a person without the disability in circumstances that are not materially different” – must be a person with no relevant medical condition or disability, who was not wearing a face mask. That is so, even though the circumstance that Mr Linden was not wearing a face mask was “connected with” his disability. The policy applied by employees of SNP was to require persons to wait if they were not wearing a face mask, irrespective of whether they had a disability. The SNP employees thus treated Mr Linden in the same way as (ie, not less favourably than) they would have treated a person without his disability in circumstances that were not materially different.
To hold that the relevant comparison should be between Mr Linden and a person who did not have a disability and who was wearing a face mask would, in my view, effectively be to ignore the words “in circumstances that are not materially different” as they appear in s 5(1) of the Disability Discrimination Act. If the comparator person without the disability is simply a person who complied with the requirement to wear a face mask, it is difficult to see what content is being given to the requirement that the circumstances be “not materially different”: cf Purvis at 101 [12] (Gleeson CJ).
Mr Linden’s further submission is that SNP discriminated against him in the manner contemplated by s 5(2) of the Disability Discrimination Act because it failed to make reasonable adjustments for Mr Linden, and that failure to make the reasonable adjustments had the effect that he was, because of the disability, treated less favourably than a person without the disability would have been treated in circumstances that are not materially different.
I do not accept this submission. The reasonable adjustment proposed by Mr Linden is that the employees of SNP should have checked his evidence of a relevant medical condition themselves. He says that that adjustment would have been reasonable because it was evident that he had a disability. However, SNP employees were proceeding on the basis (rightly or wrongly) that they were entitled to refuse to allow persons to pass through the screening point if they were not wearing a face mask, and to require them to wait until an Authorised Officer had determined whether they could produce evidence of a relevant medical condition pursuant to cl 8(2)(a) of the Emergency Direction. The failure of SNP employees to make the adjustment which Mr Linden identifies – to exempt him from the requirement to wait and to check his evidence themselves – did not cause him to be treated differently from a person who did not have his disability “in circumstances that are not materially different”. Again, a person who did not have a disability and was not wearing a face mask would have been required to wait and would not have had their evidence of a relevant medical condition checked by SNP employees. The adjustment proposed by Mr Linden would, rather, have seen him treated more favourably than a person without his disability and, indeed, more favourably than a person who did have a disability that prevented them from wearing a face mask but which was a “hidden” disability.
Further, while it is fairly apparent that Mr Linden does have a disability of some kind, it would not necessarily have been apparent to a screening officer at the airport that his disability was such as to amount to a relevant medical condition within the meaning of cl 8(2)(a) of the Emergency Direction (even though it is now accepted that that was, in fact, the case).
There is an obvious sense in which what happened to Mr Linden was because of his disability. He was treated differently from most other people at the airport because he was not wearing a face mask, and he was not wearing a face mask because he had a relevant medical condition, which was due to his disability. The existence of a causal connection between a person’s disability and the way the person was treated is one element of disability discrimination in s 5 of the Disability Discrimination Act, but it does not itself suffice to establish direct disability discrimination.
As has been noted above, Mr Linden’s position is that this was a case of direct discrimination. Indirect discrimination, contrary to s 6(1) of the Disability Discrimination Act, could only be established if it were shown that, because of his disability, Mr Linden did not comply, or was not able to comply, with a relevant “requirement or condition”: see s 6(1)(b) and (2)(b). The requirement or condition imposed by employees of SNP was not the requirement to wear a face mask but the requirements not to pass through the screening point and to wait until an Authorised Officer arrived. Mr Linden was able to, and did in fact, comply with those requirements.
Other possible causes of action potentially available to Mr Linden
As explained above, in support of his claim, Mr Linden pointed to the failure of SNP to identify any lawful authority to prevent him from passing through the security screening point or to require him to wait until the arrival of a police officer or other Authorised Officer. Mr Linden does, in my view, have a reasonable basis to contend that the officers employed by SNP may not have had authority to require him to wait, or to prevent him from passing through the screening point for reasons unrelated to security. In saying this, I am conscious that SNP has been responding to allegations that it unlawfully discriminated against Mr Linden, and has not been required to respond to any other clearly articulated cause of action. I should not be understood as expressing any views as to the ultimate merits of any other possible cause of action on which Mr Linden might seek to rely.
In the course of the argument on its summary judgment application, SNP fairly accepted that Mr Linden may have some basis to argue that employees of SNP acted in a manner that was not supported by the Emergency Direction, that they had no lawful basis for the action they took and that Mr Linden may perhaps have some other cause of action against SNP such as an action in tort. However, SNP’s position is that these proceedings are based only on a claim of disability discrimination, and so should be summarily dismissed because that claim has no reasonable prospect of success.
Although Mr Linden has presently identified his claim as one of disability discrimination, his originating application also includes allegations or assertions to the effect that:
(a)the conduct of employees of SNP was not authorised by, and/or was not consistent with, the Emergency Direction;
(b)the conduct of SNP employees was unlawful because they did not have authority to conduct “screening” other than security screening (which can be understood as a reference to screening of the kinds provided for in the Aviation Transport Security Regulations);
(c)employees of SNP “acted like they had some sort of detention power, they did not”; and
(d)Mr Linden was “[u]nlawfully made to wait for about 1 hour (24 May 2021) and 1½ hours (17 April 2021) for the attendance of police”.
The allegation that employees of SNP acted without authority in preventing Mr Linden from proceeding through the screening point could, if accepted, potentially provide the basis for Mr Linden to seek a declaration that those officers exceeded their authority under Division 5 of Part 5 of the Aviation Transport Security Act, that their conduct was not authorised by the Emergency Direction, and/or that their conduct was not otherwise authorised by law. It cannot be said, on the basis of the evidence and submissions before me, that an action for a declaration based on a contention that employees of SNP exceeded their lawful authority has no reasonable prospect of success.
Not every excess of lawful authority by an official will give rise to a cause of action sounding in damages or compensation. Mr Linden has not, in these proceedings to date, alleged facts sufficient to support a contention that SNP officers committed a tort such as misfeasance in public office. Nor is it clear that what happened to Mr Linden amounted to “detaining” him for the purposes of the tort of false imprisonment. That might depend on a detailed consideration of the facts such as, for example, whether Mr Linden was required by SNP employees to wait, or whether he remained free to leave the airport (that is, whether he was prevented only from passing through the screening point or whether his movement was more severely restricted).
It is unnecessary to consider these issues further at the present time. It is sufficient to observe that the alleged conduct of SNP employees could provide a reasonable basis on which Mr Linden might succeed in obtaining declaratory relief in relation to the lawfulness of that conduct, or could provide a basis for a claim in tort against SNP.
Conclusion
Under s 31A of the Federal Court of Australia Act, the Court has power to give judgment for one party against another in relation to the whole or any part of a proceeding. I have given careful consideration to whether the appropriate course is to summarily dismiss the whole of the proceedings or to dismiss only that part of the proceedings that alleges disability discrimination. The latter course would allow Mr Linden, in the existing proceedings, to attempt to plead any other cause of action that might be available to him – such as a claim in tort or an application for declaratory relief. I think there is a real doubt as to whether Mr Linden will be able to plead a claim adequately without legal assistance, but I think he should be given the opportunity to do that if he wishes to attempt to do so.
It seems to me that other claims Mr Linden might feasibly have against SNP arising from the conduct of its officers towards him in April and May 2021 would be part of the same “matter” as the claim of unlawful disability discrimination. It would follow that this Court has jurisdiction in relation to all such claims, and they may be pursued in the present proceedings, even though the disability discrimination claim is to be dismissed: see, eg, Fencott v Muller (1983) 152 CLR 570 at 602, 607; New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 384-5.
The order I will make will be to give judgment to the respondent on the originating application insofar as it claims disability discrimination in contravention of the Disability Discrimination Act. Mr Linden should be given the opportunity to file an amended originating application that does not seek to rely on disability discrimination. Whether Mr Linden elects to attempt to pursue any other claim will be a matter for him. Before he does so, the parties may wish to engage further with a view to settling the proceedings, in light of the remaining issues acknowledged by SNP at the hearing of the summary judgment argument.
As noted above, SNP did not seek an order for costs against Mr Linden. That is a reasonable and appropriate position for SNP to have taken. I will make an order that each party bear their own costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. Associate:
Dated: 7 March 2025
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