Maksacheff v Commissioner of Police (WA)

The applicants in this matter sought leave to bring an application against the Commissioner of Police for Western Australia under the Disability Discrimination Act 1992 (Cth) alleging unlawful discrimination in relation to a requirement to wear a face mask in an airport. The applicants, who did not produce medical exemption documentation, were allegedly refused passage through the airport. The applicants alleged direct and indirect discrimination but did not specify the nature of their alleged disabilities. The Federal Court was required to decide whether the application was reasonably arguable and if leave to bring the application should be granted.

The court found that the application was manifestly deficient as there was no evidence to support the allegations and the nature of the alleged disabilities was not specified. The applicants had not provided any evidence to establish that their claim was reasonably arguable, and it would be contrary to the interests of the administration of justice to allow a claim to advance on the basis of speculation. The existence and nature of an alleged disability are fundamental to any claim for disability discrimination. The applicants had not provided any evidence of their alleged disabilities, and it appeared that this omission was a deliberate choice.

The court refused leave to bring the application, stating that it lacked any evidentiary foundation and the alleged disabilities had not been particularised or otherwise described. The court found that the apparent complaint that indirect discrimination arose from a requirement to produce medical evidence was incoherent. The Commissioner of Police was entitled to his costs of the proceeding, and the applicants were ordered to pay those costs on a party-party basis if no special costs order was made within two weeks.

The court dismissed the interlocutory application and the proceeding, and the respondent was given liberty to apply for any special costs order within two weeks. The applicants or any other affected person were given the ability to respond if such an application was made. If no application was made within that time, the applicants were ordered to pay the respondent's costs of the proceeding on a party-party basis.