Luck v Bunnings Group Limited & Ors

[2022] HCATrans 75

[2022] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M77 of 2021

B e t w e e n -

GAYE LUCK

Plaintiff

and

BUNNINGS GROUP LIMITED

First Defendant

OFFICEWORKS LIMITED

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

STATE OF VICTORIA

Fourth Defendant

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 19 APRIL 2022, AT 2.15 PM

Copyright in the High Court of Australia

____________________

HER HONOUR:   In this matter my orders are as follows:

1.Grant leave to the plaintiff to file an amended writ of summons in the form of the draft amended writ of summons annexed to the plaintiff’s affidavit filed 27 January 2022.

2.The amended application be dismissed.

3.The proceeding be summarily dismissed.

4.The plaintiff pay the first, second and third defendants’ costs of the proceeding.

5.Otherwise, there be no order as to costs.

I publish my reasons.  I direct that those reasons be incorporated into the transcript.

Outline of plaintiff’s case

The plaintiff commenced this proceeding by writ of summons filed on 23 November 2021.  Her case, as disclosed by the documents filed to date, is principally a complaint of discrimination contrary to the Disability Discrimination Act 1992 (Cth) (“DD Act”). The main factual basis of the complaint is that the plaintiff was allegedly denied entry to the premises of the first defendant, Bunnings Group Limited (“Bunnings”), and the second defendant, Officeworks Limited (“Officeworks”), on 20 November 2021 in the State of Victoria (“Victoria”) because she did not have proof of vaccination against COVID-19 or acceptable evidence of a medical exemption from vaccination. On that date, there were in force in Victoria directions made under the Public Health and Wellbeing Act 2008 (Vic) that prohibited persons from entering retail premises in Victoria who did not have proof of vaccination against COVID-19 or acceptable evidence of a medical exemption from vaccination. In addition to declaratory relief and damages sought against Bunnings and Officeworks, the plaintiff also sought declarations, injunctions and damages against the third defendant, the Commonwealth of Australia (“Commonwealth”), and the fourth defendant, Victoria.

Although not clearly stated in documents filed by the plaintiff, her case extends to other occasions since 20 November 2021 when the plaintiff was unable to attend venues and engage in activities because she did not have proof of vaccination against COVID-19 or acceptable evidence of a medical exemption from vaccination.

As the plaintiff explained her case to the Court on 14 April 2022, the alleged disability, the disease of COVID-19, is imputed to the entire population of Australia.  The universal nature of the alleged disability creates conceptual difficulties for the plaintiff’s case because the problem of disability discrimination is centrally concerned with unequal treatment resulting from a disability not shared with the general population.

Relief sought at 14 April 2022 hearing

On 16 December 2021, the plaintiff filed an application seeking directions in respect of the management of the proceeding, injunctive relief and other orders.  On 22 December 2021, prayer 1 of that application was refused.  The balance of the application was listed for hearing on 27 January 2022 but was adjourned to enable the plaintiff to appear in the Court’s Melbourne courtroom.

The parties agreed that it was convenient to hear the plaintiff’s application in the terms of the draft amended application annexed to the plaintiff’s affidavit filed on 12 April 2022 (“amended application”).  The defendants each consented to an order in the terms of prayer 2 of the application, granting leave to the plaintiff to file an amended writ of summons annexed to the plaintiff’s affidavit filed 27 January 2022 (“amended writ of summons”).  Accordingly, I will grant that leave.

In addition, on 28 March 2022 Bunnings and Officeworks jointly filed an application seeking summary dismissal of the proceeding against them, and on 28 March 2022, the Commonwealth and Victoria each filed applications seeking remittal of the proceeding against them to the Federal Court of Australia.

Balance of the plaintiff’s application

Apart from prayers 1 and 2 in the amended application, the balance of the relief sought by the plaintiff comprised two injunctions (which the plaintiff told the Court were substantially the same in effect); an order for discovery against the Commonwealth and Victoria; an order that Justices Gageler, Keane, Gordon, Edelman and Steward recuse themselves from hearing the application on the ground of apprehended bias; three declarations and orders in relation to costs.

Injunctions

As framed, the first injunction sought to prohibit the Commonwealth and Victoria from taking action against the plaintiff and others of the same class on the ground of their “disability of COVID-19, imputed to them” by the defendants. The second injunction sought to prohibit the Commonwealth and Victoria from breaching their respective statutory duties pursuant to s 29 of the DD Act because of the imputed disability.

In order to obtain an injunction, the plaintiff must demonstrate that she has, at least, an arguable case for that relief[1].  The plaintiff’s difficulty is that, having regard to all of the material filed by her to date, she has no arguable case.

[1]Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148 at 153.

The most important documents in which to locate an arguable case are the amended writ of summons and the statement of claim, labelled “draft” and “incomplete”, annexed to the plaintiff’s affidavit filed on 13 April 2022 (“draft statement of claim”).  A principal purpose of a writ of summons is to notify a defendant of the nature of the claim and the relief sought[2] and a principal purpose of a statement of claim is, relevantly, to state all the material facts on which the plaintiff relies[3]. In her affidavit filed on 13 April 2022, the plaintiff stated her belief that the draft statement of claim was sufficiently complete to enable a determination of her application for injunctive relief. I note that by r 27.03.3 of the High Court Rules 2004 (Cth), the plaintiff was required to file a statement of claim within 21 days after the filing of a notice of appearance. The first notice of appearance was filed by Victoria on 2 December 2021.

[2]High Court Rules 2004 (Cth), r 27.01.

[3]High Court Rules 2004 (Cth), r 27.04.

In the amended writ of summons, the plaintiff seeks declarations to the effect that she was the subject of discrimination by each of the defendants on the ground of disability; declarations to the effect that each defendant was negligent and breached its statutory duty pursuant to the DD Act; and damages (including general, aggravated and exemplary damages), interest and costs against each defendant.

As to the declarations of discrimination, the Court would not grant declaratory relief of this nature in the face of the regime set out in Pt IIB of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) for addressing complaints of disability discrimination[4].  To do so would be to undermine the legislatively stipulated procedure for addressing such a complaint.

[4]cf Re East (1998) 196 CLR 354 at 366 [32].

As to the declarations of negligence and breach of statutory duty, the draft statement of claim discloses no material facts from which there might be identified a common law duty of care owed to the plaintiff by any of the defendants. In several places, the draft statement of claim refers to a “statutory duty of care” to comply with the DD Act but there is no arguable basis for a contention that any of the provisions of the DD Act referred to in the draft statement of claim creates any such duty. An example is s 29 of the DD Act, which provides:

It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

Section 29 proscribes certain conduct: it imposes no duty of care, either explicitly or implicitly. Further, s 125(1) expressly states that the DD Act does not confer on a person a right of action in respect of the doing of an act that is unlawful under a provision of Pt 2 unless a provision of the Act expressly provides otherwise. Further again, Pt IIB of the AHRC Act creates the procedures and remedies available to a person who claims to have been subjected to unlawful discrimination within the meaning of the DD Act. As the Full Court of the Federal Court of Australia observed in relation to the Sex Discrimination Act 1984 (Cth)[5], neither the AHRC Act nor the DD Act create, or could be construed as creating or giving rise to, a common law cause of action to recover damages that duplicates the statutory cause of action and remedy for damages in s 46PO of the AHRC Act. It necessarily follows that the plaintiff has no basis for her claims for damages.

[5]Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [71].

In the absence of any identifiable cause of action based on the plaintiff’s claims of unlawful discrimination and breach of duties owed under the DD Act, there is no basis for the injunctions sought.

Discovery

It is not appropriate to grant discovery by the Commonwealth or Victoria in the circumstances of this case where the plaintiff has been unable to articulate an arguable cause of action or even a basis for a reasonable belief that there may exist a right to obtain relief against either the Commonwealth or Victoria.

Recusal order

As I heard the plaintiff’s application, the question of recusal of other justices did not arise.

Declarations

The plaintiff sought declarations concerning the Medicare Australian Immunisation Register immunisation medical exemption Form IM011; s 22(3) of the Australian Immunisation Register Act 2015 (Cth), two instruments made pursuant to s 200 of the Public Health and Wellbeing Act 2008 (Vic) and three instruments made pursuant to s 165AI of the same Act. Declaratory relief of the kind sought is final relief to be granted after a party has established their case. In this case, as the plaintiff has been unable to identify even an arguable case, there is no basis for making the declarations sought.

Summary dismissal of proceeding against Bunnings and Officeworks

High Court Rules r 28.01.02 provides relevantly that if a proceeding generally, or any claim in a proceeding does not disclose a cause of action or has no reasonable prospect of success, the Court may give judgment in the proceeding or in relation to a claim made in the proceeding.

In this case, despite the production of voluminous documents, the plaintiff has not disclosed a cause of action against either Bunnings or Officeworks or any basis upon which the Court might consider that she has a cause of action.  In those circumstances, it is appropriate to dismiss the proceeding against those two defendants.

Remittal of balance of proceeding to Federal Court of Australia

Having received the plaintiff’s draft statement of claim yesterday, the Commonwealth and Victoria did not press their respective applications for remittal.  That was appropriate where the plaintiff has not disclosed any arguable cause of action or any reason to believe that she might have an arguable cause of action against either defendant.  The plaintiff has had ample opportunity to identify any cause of action that might exist against either the Commonwealth or Victoria.  She has had since November 2021 to formulate a statement of claim disclosing a cause of action, as well as several opportunities at the 14 April 2022 hearing to raise any matter that might suggest that she has a cause of action against either of those defendants, but she has not been able to do either of those things.  In the circumstances, the preferable course is to dismiss the proceeding against the Commonwealth and Victoria.

Costs

All of the defendants apart from Victoria sought their costs of the proceeding.  There is no reason why costs should not follow the event.

Orders

Accordingly, I make the following orders:

(1)Grant leave to the plaintiff to file an amended writ of summons in the form of the draft amended writ of summons annexed to the plaintiff’s affidavit filed 27 January 2022.

(2)The amended application be dismissed.

(3)The proceeding be summarily dismissed.

(4)The plaintiff pay the first, second and third defendants’ costs of the proceeding.

(5)Otherwise, there be no order as to costs.

Please adjourn the Court.

AT 2.15 PM THE MATTER WAS CONCLUDED