Smith v Bunnings Group Limited

Case [2023] FCA 516

FEDERAL COURT OF AUSTRALIA

Smith v Bunnings Group Limited [2023] FCA 516  

File number(s): QUD 415 of 2022
Judgment of: SARAH C DERRINGTON J
Date of judgment: 24 May 2023
Catchwords:

HUMAN RIGHTS – application alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) – whether respondent engaged in direct or indirect discrimination – whether respondent engaged in unlawful discrimination – where respondent required customers to wear face mask or produce medical exemption – where no evidence adduced as to alleged disability

PRACTICE AND PROCEDURE – application for leave to commence proceeding otherwise barred by operation of s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) – where applicant requires leave following termination of compliant by the Australian Human Rights Commission – whether claim is reasonably arguable – whether applicant adduced sufficient evidence to support allegations in the application – where applicant did not depose to truth of allegations

Legislation:

Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A)

Disability Discrimination Act 1992 (Cth) ss 4(1), 5, 6, 23, 24, 47(2)

Public Health Act 2010 (NSW) ss 7, 10

Work, Health and Safety Act 2011 (NSW)

Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021 (NSW)

Cases cited:

Budini v Sunnyfield [2019] FCA 2164

Bull v Lee (No 2) [2009] NSWCA 362

Chircop v Technical and Further Education Commission [2022] FCA 1015

James v WorkPower Inc [2018] FCA 2083

Jones v Westpac Banking Corporation [2020] FCA 238

Lu v University of New South Wales (No 2) [2022] FCA 1010

Maksacheff v Commissioner of Police (WA) [2023] FCA 406

Matthews v Markos [2019] FCA 1827

Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230

Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460

Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 47
Date of last submission: 12 May 2023
Date of hearing: 3 May 2023
Solicitor for the Applicant: JKR Lawyers
Counsel for the Respondent: Ms H Blattman KC
Solicitor for the Respondent: Corrs Chambers Westgarth

ORDERS

QUD 415 of 2022
BETWEEN:

KRISTEN SMITH

Applicant
AND:

BUNNINGS GROUP LIMITED ABN 26008672179

Respondent

ORDER MADE BY:

SARAH C DERRINGTON J

DATE OF ORDER:

24 MAY 2023

THE COURT ORDERS THAT:

1.The originating application dated 11 November 2022 be dismissed.

2.The applicant pay the respondent’s costs to be assessed if not agreed.

3.The proceeding is otherwise dismissed.

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


REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

  1. By this application, Ms Kristen Smith seeks leave to commence an unlawful discrimination claim under the Disability Discrimination Act 1992 (Cth) (DD Act). Leave is required pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to bring the claim as her complaint to the Australian…

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Details
AGLC
Smith v Bunnings Group Limited [2023] FCA 516
Case
[2023] FCA 516
Decision Date

CaseChat Overview and Summary

Smith v Bunnings Group Limited is an Australian court decision that involved a dispute between the applicant, Ms Smith, and the respondent, Bunnings Group Limited. Ms Smith alleged that Bunnings engaged in unlawful discrimination against her under the Disability Discrimination Act 1992 (Cth) by requiring her to wear a face mask or produce a medical exemption when entering the store. The legal issues that the court had to decide were whether Bunnings engaged in direct or indirect discrimination, and whether such discrimination was unlawful. The court found that there was no evidence to support Ms Smith's allegations that she had a disability or that Bunnings engaged in discrimination against her. The court also found that the application for leave to commence the proceeding was otherwise barred by operation of s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth). The court dismissed the originating application and ordered that the applicant pay the respondent’s costs. The court held that the applicant did not adduce sufficient evidence to support her allegations in the application, and that the claim was not reasonably arguable. The court also noted that the applicant did not depose to the truth of the allegations. The decision highlights the importance of providing sufficient evidence to support allegations of discrimination, and the need for applicants to depose to the truth of their allegations.

Orders

Orders of the court

1. The originating application dated 11 November 2022 be dismissed.

2. The applicant pay the respondent’s costs to be assessed if not agreed.

3. The proceeding is otherwise dismissed.

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

Background

Background to the litigation

For those reasons, I have had no regard to the further submissions.Background On 25 June 2021, the New South Wales Government had promulgated the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021 (NSW) (Mask Direction) pursuant to s 7 of the Public Health Act 2010 (NSW). The Mask Direction came into effect on 26 June 2021. Section 7 of the Public Health Act empowers the Minister to deal with public health risks. The Minister implemented the Mask Direction on the grounds explained in cl 4 noting: (a) public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2),(b) COVID-19 is a potentially fatal condition and is highly contagious, (c) there is an ongoing risk of [transmission of infection]… Clause 5(1)(d)(i) of the Mask Direction directed that a person must wear a fitted face covering at all times when the person is in an indoor area in retail premises. Clause 5(6)(b) provided that the requirement to wear a fitted face covering pursuant to cl 5(1) did not apply to a person with a physical or mental health condition or disability that made wearing a fitted face covering unsuitable. It is an offence under s 10 of the Public Health Act not to comply with a ministerial direction, such as the Mask Direction, without reasonable excuse. The Mask Direction was operational for less than three months, being repealed on 11 September 2021. In response to the Mask Direction, Bunnings imposed a policy which required all customers to wear a face mask when entering its stores, unless a medical exemption applied. Bunnings purported to enforce the Mask Direction by requiring any customer who refused to wear a mask to provide evidence of a medical exemption. The background to Ms Smith’s complaint is best described in the AHRC’s summary of events as they occurred on 26 June 2021 (Aff-Grealy, Annexure RG2 at 14):[U]pon entering [the] Bunnings store located in Nowra (the Store), Miss Smith was told by a staff member at the entrance to wear a mask, to which she replied, “I am medically exempt”.While in the Store, another staff member approached her and told her that she would need to wear a mask, to which she replied, “I’m medically exempt”.Shortly after, Miss Smith was approached by the Store Manager (Mr Beavis) who asked to see her medical exemption to wearing a mask, to which she replied, “that’s private and confidential medical information between me and my doctor, the Privacy Act states that I am not required to give you private medical information”.Miss Smith says Mr Beavis advised that she would “have to either wear a mask or a visor or [she] will have to leave the store”.After obtaining the items that she wished to purchase and proceeded to the checkout point, Miss Smith says the cashier (Ms Bell-Tobin) asked to see her medical exemption or she would not be able to serve her because Miss Smith was not wearing a mask.Miss Smith advised Ms Bell-Tobin she considers the exemption to be private medical information and that she had already told Mr Beavis about her medical exemption, and he was aware of it.Miss Smith paid for her items and left the Store.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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