MULLIGAN v Virgin Australia Airlines Pty Ltd

[2015] FCCA 157

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLIGAN v VIRGIN AUSTRALIA AIRLINES PTY LTD [2015] FCCA 157

Catchwords:
HUMAN RIGHTS – Disability Discrimination Act – whether an assistance animal needed to be trained by an approved organisation – whether the Civil Aviation Regulations prescribed the definition of assistance animal.

Legislation:  
Acts Interpretation Act 1901
Australian Human Rights Act 1986
Civil Aviation Act1988

Civil Aviation Regulations 1988

Disability Discrimination Act 1992

Applicant: DAVID MULLIGAN

Respondent: VIRGIN AUSTRALIA AIRLINES PTY LTD

File Number: SYG 1660 of 2013

Judgment of: Judge Street

Hearing date: 27 January 2015

Date of Last Submission: 27 January 2015

Delivered at: Sydney

Delivered on: 27 January 2015

REPRESENTATION

Counsel for the Applicant: Ms Keys

Solicitors for the Applicant: N/A

Counsel for the Respondent: Mr Baartz

Solicitors for the Respondent: Allens

ORDERS

1. The proceedings be dismissed.

2. The Applicant pay the costs of the Respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1660 of 2013

DAVID MULLIGAN

Applicant

And

VIRGIN AUSTRALIA AIRLINES PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by the applicant within the court’s jurisdiction conferred by s.49B of the Australian Human Rights Act 1986.  The substance of the applicant’s further amended statement of claim is an allegation of discrimination under s.8 and s.24 of the Disability Discrimination Act based on circumstances surrounding a desire to travel on the respondent’s aircraft with a particular dog called Willow. 

2. The circumstances surrounding the communications between the applicant and the respondent were set out in an exchange of emails and relevantly the respondent identified a need for satisfaction by the applicant of the requirements then applicable under the Civil Aviation Authority Instrument 1FHQK3(4) dated 11 June 2011 which was then replaced on 20 February 2013 by Instrument 1FHQK3(5).  Willow was not an assistance dog trained and identified by an approved organisation within those requirements.

3. It was accepted that that each instrument was a legislative instrument within the Legislative Instruments Act 2003 and in that regard had the force of law and that each instrument applied to the respondent as the operator of aircraft. 

4. Each instrument was expressly entitled Permission – Carriage of Assistance Dogs in the Aircraft Cabin.  On the face of each instrument it purported to identify exhaustively the permission applicable to the respondent for the purpose of permission to carry an assistance dog in the cabin.  In particular para.4:

   4      Permission

   The Operator may carry an assistance dog in the cabin of its aircraft if:

   (a)     it has been trained and accredited by a foreign assistance dog training organisation which meets or exceeds the minimum standard as set out by Assistance Dogs International for full membership of that organisation, or

   (b) it has been trained or is being trained as an assistance dog by an approved organisation, and

   i) it has passed a public access test showing it to be suitable for travel on public transport, or

   ii) for an assistance dog being trained, documented evidence has been provided from an approved organisation showing it to be suitable for travel on public transport.

5. The approved organisations were expressly defined.

6. It was common ground between the parties that Willow did not meet the requirements identified by para.4 of the respective instrument issued by the Civil Aviation Safety Authority (CASA). Under the Civil Aviation Act 1988 the entity CASA is given the responsibility for ensuring safety of air navigation. Specifically, s.9A provides that in exercising its powers and functions including powers and functions relevantly under the Civil Aviation Regulations 1988, CASA must regard the safety of air navigation as the most important consideration.

7. In my opinion it is clear that the function performed by CASA in issuing the instruments to which I have referred was one intended to address considerations of safety of air navigation in relation to the carriage of assistance dogs in aircraft cabins by the respondent.  On its face, the instrument was evidently intended to be exhaustive in relation to the circumstances in which carriage of assistance dogs were to occur so far as concerns the respondent. Those considerations of safety in air navigation in respect of an assistance dog in the cabin were accepted by counsel for the applicant to involve the safety of both the applicant and the other passengers.

8. It is common ground that the instruments had force of law which gives rise, in my opinion, to the application of s.47(2) of the Disability Discrimination Act 1992 which expressly provides:

   (2) This Part does not render unlawful anything done by a person in direct compliance with a prescribed law. 

9. Prescribed law is defined by s.2B of the Acts Interpretation Act 1901 and would clearly apply to the instrument, in this case issued by CASA. 

10. Only unlawful discrimination under the Disability Discrimination Act gives rise to the remedies identified. Section 47(2) recognises an important qualification applicable to all human rights in relation to the application of the rule of law. The right to freedom from discrimination on the grounds of disability or sex or race or freedom of religion are all ones which are not absolute rights, they are governed by the rule of law.

11. In this case there was a binding obligation of law upon the respondent to comply with the instrument issued by the authority for safety of air navigation. In those circumstances, s.47(2) makes clear that that law applies and binds the respondent and there is no substance in the contention that Part 2 of the Act can have application in the present case. Counsel for the applicant did take the court to the provisions of the regulation and in particular r.265A(2) of the Civil Aviation Regulations and sought to argue that r.265A(2) created a separate and express permission.

12. In my opinion the work done by r.265A(1) is to create an offence to which the respondent would be exposed if it failed to comply with the terms of the instrument issued relating to the Permission – Carriage of Assistance Dogs in the Aircraft Cabin.  Subregulation (2) is, in my opinion, in the nature of a defence where the events identified have occurred.  It is not an independent ground upon which the respondent can disregard an applicable instrument that creates an offence for non-compliance. 

13. In any event, to the extent of the language of r.265A(2), I find that the applicant is not a person who is only visually impaired or hearing impaired. To that extent even if it was a provision that had a broader application than the defence to which I have referred, the applicant in this case has cerebral palsy disabilities which required an assistance dog, beyond the application of the defence or exemption within r.265A(2). I am satisfied on the evidence before me, including the report of Dr Platt dated 23 March 2009 and Dr Baker dated 15 January 2015 that the applicant requires an assistance dog by reason of his cerebral palsy as well as problems with his hearing and eyesight. Accordingly, I find the defence or exemption under r.265A(2) has no application to the respondent for the carrying of the assistance dog Willow in the company of the applicant in the cabin.

14. In those circumstances, Part 2 of the Disability Discrimination Act has no application because the respondent was required by law to comply with the instruments to which I have referred, which permissions have force of law and are a prescribed law within the meaning of s.47(2).

15. It was also common ground to the extent relevant in this case, that there was no compliance with s.54A(5) of the Disability Discrimination Act in terms of the instruments to which I have referred in that Willow was not trained and identified by an approved organisation. There was not produced to the respondent evidence of the kind specified that would be required under the instrument for the respondent to be satisfied of the criteria under 54A(5). Based on the email communications I find that the respondent requested that information. I find absent its production and the safety standard set by the instrument as to the approved organisation training and identifying the dog Willow neither requirement under s.54A (6) (b) (i) or (ii) were satisfied. The consequence of that finding is that Part 2 does not render it unlawful for the respondent to decline to carry the assistance dog Willow.

16. Further, in my opinion, in the circumstances of the present case where the regulator has gone to the trouble of issuing an instrument which, on its face, is in no way qualified or limited to visually impaired or hearing impaired persons, it would have been imposing an unjustifiable hardship, in all the relevant circumstances of this case, to expect the respondent to carry the assistance dog in circumstances which would, on their face, be contrary to the express confinement of permission identified in instruments and as such a potential offence.

17. It is not for operators to cavil with or selectively comply with permissions, directions or orders of CASA. In circumstances where CASA has gone to the trouble of identifying particular requirements for permission to carry an assistance dog in the aircraft cabin, it would completely inappropriate and unfair for, the respondent to be expected to assume the risk of prosecution under r.265A(1), to assume the risk that r.265A(2) might not apply, to assume the risk to other passengers from non-compliance with the CASA instrument and to assume the risk to its licence as an operator under the regulatory authority of CASA. I find these risks would impose an unjustifiable hardship on the respondent in circumstances where, on the face of the instrument, it was exhaustive and given the want of training and identification by an approved organisation there was no permission for the respondent to carry Willow in the cabin of its aircraft.

18. In those circumstances, taking into account the nature of the benefit or detriment likely to accrue, or to be suffered by the respondent as well as the applicant and risk to other passengers from failing to comply with the applicable instrument, and taking into account the disabilities identified in the evidence of the applicant and the need for an assistance dog, and taking into account potential consequences that might flow from non-compliance and prosecution in respect of failure to comply with the CASA permission, that could impact on the retention of the licence by the operator and taking into account the other factors identified, I am satisfied that this is a case where it would impose unjustifiable hardship on the respondent, within the meaning of s.11, if it were otherwise required to comply with s.24. 

19. It was also advanced in submissions that there was a potential breach of s.32 of the Act.  For the reasons I have already identified that provision has no application. Further I am satisfied on the evidence before this Court and in particular the correspondence tendered that there was no contravention of Disability Standard by the respondent. For these reasons the application should be dismissed

20. The respondent seeks an order for costs.  The ordinary rule is that costs follow the event.  The respondent has succeeded.  The applicant, through counsel, has sought to identify that there was a want of timely provision of the instruments to the applicant.  However it is clear, in my opinion, on the terms of the letter to the applicant sent on 19 September 2012 that there was an instrument being referred that identified approved organisations for the training and identification of Willow. I do not regard that a proper basis to exercise my discretion to depart from the general rule.

21. The defence put in issue the alleged unlawful conduct, squarely identified the application of s.265A, and sought to rely upon the same for its full effect. I do not regard any want of reference in the defence to s.47(2) as giving rise to a grounds as to why the ordinary order as to costs should not be made.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 January 2015