Federal Court of Australia Lunniss v Comiskey Management Services Pty Ltd trading as Sandstone Point Hotel & Function Centre (No 2) [2024] FCA 113 File number: QUD 435 of 2022 Judgment of: LOGAN J Date of judgment: 14 February 2024 Catchwords: HUMAN RIGHTS – where the applicant commenced proceedings under the Australian Human Rights Commission Act 1986 (Cth) for alleged disability discrimination, contrary to s 24 of the Disability Discrimination Act 1992 (Cth) – where the applicant was refused access to the respondent's hotel in Bribie Island on 18 January 2021 – where there was a public health emergency due to COVID-19 and the Restrictions for Impacted Areas Direction (No 2) public health direction was in place – where the applicant attempted to access the hotel without a face mask – where applicant believed this was purportedly authorised by the Chief Health Officer due to his medical conditions – where the applicant refused at point of entry to provide a medical certificate when requested by the respondent's staff – whether the respondent's conduct, in requesting a medical certificate and/or refusing entry to the applicant, amounted to direct or indirect disability discrimination – application dismissed Legislation: Disability Discrimination Act 1992 (Cth) ss 3, 5, 6, 24, 30, 123 Evidence Act 1955 (Cth) s 140 Public Health Act 2005 (Qld) Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of hearing: 14 February 2024 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Carter Newell ORDERS QUD 435 of 2022 BETWEEN: CHRISTOPHER LUNNISS Applicant AND: COMISKEY MANAGEMENT SERVICES PTY LTD TRADING AS SANDSTONE POINT HOTEL & FUNCTION CENTRE ABN 20115254307 Respondent order made by: LOGAN J DATE OF ORDER: 14 FEBRUARY 2024 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of and incidental to the proceedings, including reserved costs, to be fixed in a lump sum by a Registrar, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 Mr Christopher Joseph Lunniss (Mr Lunniss) believes that on 18 January 2021, at the Sandstone Point Hotel and Function Centre near Bribie Island in Queensland, he was the subject of unlawful discrimination contrary to the Disability Discrimination Act 1992 (Cth) (DDA). 2 Having observed Mr Lunniss closely, in the course of both his oral evidence at the trial, as well as in the course of his most courteous and succinct submissions in support of his case, I have no doubt whatsoever about the sincerity of his belief as to having been the subject of unlawful discrimination. That sincerity of belief and the existence of unlawful discrimination in fact and law are not to be equated. 3 That Mr Lunniss, in company with friends and family, sought to enter the hotel on 18 January 2021 is, on the whole of the evidence, proved. Ordinary experience of life, in terms of recent phenomena, tells one that 18 January 2021 fell within a period during which there was a public health emergency, at least as apprehended by those governing us, in relation to the Coronavirus disease (COVID-19) both in Queensland, elsewhere in Australia and abroad. That recollection, in terms of public health regulation, is confirmed by the 'Restrictions for Impacted Areas Direction (No 2)' (public health direction) made by the then Chief Health Officer, pursuant to emergency powers arising from a declared public health emergency under the Public Health Act 2005 (Qld). 4 The hotel was operated by Comiskey Management Services Pty Ltd, which traded as Sandstone Point Hotel and Function Centre (CMS). CMS was subject to that public health direction, as for that matter was Mr Lunniss. Within that direction, para 32 required that: A person mentioned in paragraph 31 – and that would include Mr Lunniss – must: (a) carry a face mask at all times; and (b) wear a face mask covering the nose and mouth at all times if they – (iii) are in an indoor space. 5 "Indoor space" is a defined term for the purposes of the public health direction; suffice to say the indoor parts of the hotel fell within that definition. The obligation imposed by para 32 was subject to exceptions as provided for by para 33. Materially, para 33(h) provided: The requirements under paragraph 32 do not apply: … (h) to a person who has a physical or mental health illness or condition or disability which makes wearing a face mask unsuitable; or Examples: persons who have obstructed breathing, a serious skin condition on their face, an intellectual disability, a mental health illness or who have experienced trauma. … 6 There is some evidence that Mr Lunniss suffered, on 18 January 2021, from a skin condition. A general practitioner, Dr Harpreet Sawhney, in a certificate, has opined that Mr Lunniss has a history of eczema and bronchial asthma since 2016, when he first started to visit the medical practice at Burpengary at which Dr Sawhney practises. Dr Sawhney records that Mr Lunniss has had hospital admissions with respect to flare-ups of his eczema, as well as asthma. He also opines that, on 18 January 2021, Mr Lunniss still suffered from both asthma and eczema. 7 Separately, another general practitioner, Dr William Rath, who practises at Brendale Medical Centre, in a medical certificate of 25 March 2021, has opined that from 30 December 2020, Mr Lunniss had suffered from "severe exacerbation of chronic ongoing dermatitis with associated psychological condition", with symptoms affecting his capacity to work or study likely to be present over a 12 to 24 month period. Dr Rath also opined, as recorded in the certificate, that Mr Lunniss' conditions would render him unfit to work or study between 25 March 2021 and 29 June 2021. 8 These medical opinions corroborate Mr Lunniss' evidence as to his suffering from asthma and a skin condition. Neither, of course, in terms, contains any opinion as to whether the conditions would render Mr Lunniss unable to wear a face mask. His own evidence is that they did. 9 In light of the medical evidence as to his suffering from a dermatological condition of long-standing, I find that Mr Lunniss' evidence as to the effect on him is to be accepted. In other words, on 18 January 2021, he did suffer from a medical condition and a manifestation namely the dermatological condition eczema and that, in turn, did have the effect as he recited, in evidence, of not being able to wear a face mask. 10 That in itself does not prove that he was the subject of discrimination in respect of what I accept is a disability. The disability concerned is not just the medical condition, but also its manifestation in terms of not being able to wear a face mask. 11 Before turning further to the facts, it is desirable to set out what appear to be the relevant provisions in the DDA. 12 Disability discrimination, in relation to the provision of goods and services and facilities, is prohibited by s 24 of the DDA, which provides: Goods, services and facilities It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person. 13 For the purposes of the DDA, discrimination may be either direct or indirect. What constitutes direct discrimination is defined by s 5. Put generally, to constitute direct disability discrimination, it needs to be shown that a person has been treated less favourably than a person without their disability would be treated in the same situation. Indirect disability discrimination is defined in s 6 of the DDA. To constitute indirect disability discrimination, and again, putting the effect of s 6 generally, it needs to be shown that: (1) A general requirement or condition was imposed on a person; and (2) Because of their disability, that person could not comply with that requirement or condition; and (3) That requirement or condition has the effect of disadvantaging people with that disability. 14 A qualification with respect to indirect disability discrimination is found in s 6(3), the effect of which is that it is not unlawful disability discrimination to require a person with a disability to comply with a requirement or condition that is reasonable in the circumstances. 15 Also pertinent, as will be seen, is s 30 of the DDA. The effect of that is to state circumstances where a request for information in the provision of goods and services or facilities may be unlawful where a person is required to provide information relating to their disability for the purpose of discriminating against them. An example of this type of unlawful request for information might be found in circumstances where an employer requests information about a person's disability for the purpose of using that information not to employ that person. 16 But not every request for information, as further regard to s 30 discloses, is unlawful. Section 30 countenances requesting a person for information related to their disability where this is not for an unlawful purpose. An example of this might be where an employer asks a person for information about the disability in order to make provision in the workplace to accommodate that disability. 17 Also relevant in this case is s 123 of the DDA. That provides for a form of vicarious liability of employers. It makes an employer liable for unlawful acts by agents or employees, unless the employer has exercised due diligence and taken reasonable precautions to prevent a particular act made unlawful by the DDA. 18 Apart from the medical evidence already mentioned, Mr Lunniss' case comprised affidavit and oral evidence from him, Mr Deano Capelli and Ms Monique Rochelle Walker. Mr Lunniss also sought to read affidavits made respectively by Mr John Martinero and Ms Annette Martinero to the end of offering a further corroboration of his account of events on 18 January 2021. Mr and Mrs Martinero live in Proserpine. A notice requiring their attendance for cross-examination was given. For one reason or another – and it may have been a misapprehension on their part or Mr Lunniss' – they were not produced for cross-examination. Upon objection taken on behalf of CMS, I refused to permit either of their affidavits to be read and relied upon in Mr Lunniss' case. 19 I am satisfied, however, that no adverse inference as to the credibility of Mr Lunniss' evidence, or, for that matter, those of the other witnesses he called, should be drawn on the basis of a failure to produce Mr and Mrs Martinero. It just looks to be one of those things that can happen when, as Mr Lunniss did, a person acts for himself. 20 It was put on behalf of CMS that there were others, including those who were at the time, but are no longer, infants, who might have been called. It is apparent enough from the evidence of Mr Lunniss, Mr Capelli and Ms Walker that there were others present beyond the Martineros and themselves in the party which included them and Mr Lunniss at the hotel entry point. But the main actors on the evidence were undoubtedly Mr Lunniss and, if anything, more so, Mr Capelli. I draw no adverse inference at all against any of the applicants witnesses in terms of credibility on the basis of failure to call yet further persons. 21 I formed a favourable impression of Mr Lunniss, Mr Capelli and Ms Walker, having had the benefit of observing each of them giving oral evidence. I shall record at once that I also formed a favourable impression of CMS' only witness, its Group Operations Manager, Mr Bradley John Harding. That impression, so far as Mr Harding was concerned, was necessarily constrained by a relatively brief period of cross-examination. But I have no doubt that, like the applicant's witnesses, he was doing his honest best to provide, insofar as he could, and that is a necessary caveat, an account of relevant facts. 22 It is true, and Mr Heath for CMS highlighted this in his submissions, that it is possible to discern some inconsistencies as between Mr Lunniss, Mr Capelli and Ms Walker in their affidavit and oral evidence. But it seemed to me that such inconsistencies, as there were, were nothing more than the product of persons trying, approaching three years after an event, to recall its detail. At the heart of the evidence, both affidavit and oral, of each of Mr Lunniss, Mr Capelli and Ms Walker, was an essential consistency as to key features of the incident alleged in the statement of claim to have occurred on 18 January 2021 at the entry point to the hotel. 23 Thus, I accept and find that, on that date, Mr Lunniss, in company with Ms Walker, Mr Capelli and friends, notably the Martineros as well as family, sought to enter the hotel. They did so for the purpose not just of having dinner together, but also celebrating a milestone birthday. As the group arrived at the front door entry of the hotel, they were met by a person (whose name is not in evidence but whom I find to be an employee of CMS) who asked why the group, but materially, Mr Lunniss, did not have face masks on. Mr Lunniss' evidence is that he did not have a face mask on at that time. I accept that evidence. 24 The principal spokesman for the group – and it is apparent enough from Mr Lunniss' evidence – was Mr Capelli, who spoke not just on his own behalf but also on behalf of Mr Lunniss. He informed this employee that they, and that includes Mr Lunniss, had a lawful reason not to wear a facemask. Mr Capelli was informed, in the presence and hearing of Mr Lunniss in words to the effect that the employee did not accept Mr Capelli's reason for not wearing a mask. Mr Capelli then requested to speak with the duty manager. 25 In short order, a female (again unnamed but whom I find to be the duty manager in the employ of CMS), came out to discuss the subject of not wearing a mask. Nearby there was a security guard – placed on the evidence led by Mr Lunniss and corroborated by Mr Capelli – standing about two metres away with his arms folded looking towards the group. Mr Capelli, I find, then in effect explained to the manager that the group – which included in terms of indication in conversation, Mr Capelli and Mr Lunniss – had a lawful reason not to wear a mask. I find that the manager then asked Mr Capelli in words to the effect to show her a medical exemption for not wearing a mask. I also find that Mr Capelli then said words to the effect to the manager that they – and that included not just Mr Capelli, but also Mr Lunniss – did not need one as per Queensland government directions at the time. 26 I also find that the manager then did not accept this and said directly to Mr Capelli – but also to the group, which included Mr Lunniss – words to the effect that if they – and that included, I find, in terms of its direction, Mr Capelli and Mr Lunniss – did not produce a certificate of an exemption, Mr Capelli and the rest of the group would be refused entry. The evidence led for Mr Lunniss is that at that point he along, with the other members of his group, decided not to press entry and left the hotel. 27 Mr Lunniss' evidence is that he felt humiliated, embarrassed and frustrated. Although the statement of claim alleges that the incident aggravated a psychological condition, there is no medical evidence to that effect. The medical evidence is that Mr Lunniss did have a psychological condition, but that this was reactive to the physical medical conditions already mentioned. That said, I accept that the incident concerned did occasion some embarrassment and also a degree of humiliation on the day in question. 28 It appears inherently likely on the evidence that at the time, and apart from Mr Lunniss, Mr Capelli and others in the group, others also were seeking to enter the hotel. 29 It is also evident enough on the evidence that Mr Lunniss has – to use perhaps an inelegant term – stewed on his experience on 18 January 2021. He did not make a complaint to CMS about the incident for some six months. It was only on 16 July 2021 that he directed a letter of complaint concerning an alleged event on 18 January 2021 to CMS. 30 There was something sought to be made, and understandably enough with respect, on behalf of CMS in submissions about this delay. But again, having observed Mr Lunniss over the course of the trial, I do not draw any adverse inference about this delay. The impression is, as I have stated, that he was stewing on it. For some reason, it seems to have bubbled over and become the subject of his letter. 31 Mr Lunniss' complaint letter also makes reference to a feature of the incident being not consenting to uploading information to a QR code. That particular feature was not the subject of any alleged disability discrimination. I do not therefore draw any adverse inference from the evidence not making reference to that aspect of the complaint letter. The evidence, understandably enough, has focused upon what was said to be the disability discrimination. 32 The delay in making a complaint was not though without its effects. Mr Harding's evidence is that, notwithstanding an investigation having been undertaken concerning the alleged event, it was not possible to locate any security camera footage in respect of it. 33 I draw no adverse inference from this, rather the reverse. After six months and in the absence beforehand of any complaint, there does not appear to be any particular reason why one might see the hotel retaining such security camera footage. 34 Likewise, CMS did not produce any employees, Mr Harding apart, to give evidence. Once again, I draw no adverse inference from this absence of evidence. Mr Harding's evidence discloses that the investigation undertaken did disclose some six female employees who were on duty. But in the absence of a much more contemporaneous complaint, and in respect of what I infer was a most busy hotel venue indeed, there is no particular reason why any employee would remember the event concerned. 35 So the belatedness of the complaint did have an effect on CMS' ability meaningfully to conduct an investigation as to whether the event concerned happened or happened as alleged. But that is not to say that the absence of CMS being able to find evidence concerning the alleged event is probative that there was no such event. As I have already mentioned, I am well satisfied – on the balance of probabilities, I should add, in light of s 140 of the Evidence Act 1955 (Cth) – that the event did occur with the key features as described by me. 36 Mr Harding has been employed as the group operations manager of a corporate group, the Comiskey Group, which includes CMS for some 6.5 years. Considered together, his affidavit and oral evidence left me well satisfied that he is very well familiar with the operation of the hotel and group policies, which were applicable during that period, now happily receding memory, when public health directions and other apprehensions concerning COVID-19 were abroad in this State and elsewhere. 37 The effect of Mr Harding's evidence as to corporate policy was that the actions of the employees, as related particularly by Mr Lunniss and Mr Capelli, were not in accordance with corporate policy at the time concerning masks and seeking certified evidence of inability to wear a mask. 38 But it does not necessarily follow from Mr Harding's evidence as to corporate policy, which I accept, that the events concerned did not occur. As I have said, I regard the witnesses who gave evidence in the applicant's case as having given honest evidence. It is quite possible that particular employees at the barrier just sought to have the comfort of a certificate with respect to inability to wear a mask when encountering people who were not wearing masks. Perhaps regrettably, the public health direction is silent one way or the other with respect to whether there is a need to evidence the physical or mental inability, in terms of para 33(h) of the direction, to wear a facemask. 39 Mr Lunniss made reference in his evidence to an understanding as to an absence of a need to produce a certificate based on a public pronouncement, as he recalled it, of the then Chief Health Officer. It is quite possible, and I find, that Mr Lunniss might well have held such a belief. Particularly, that is so in light of the wording of the public health direction exemption in para 33(h). But, as I stated at the outset, a genuine belief and unlawful disability discrimination are not to be equated. 40 Has there then been – in terms of the DDA – unlawful discrimination, either direct or indirect, on the facts as found by me and earlier related? 41 As to discrimination, I bear in mind that as a result of amendments made to the DDA in 2009, it is not correct any longer to separate a symptom or manifestation of a disability from the disability itself. Here, a manifestation of a disability, which I accept was a skin condition, was the inability to wear a mask. 42 The difficulty in relation to reaching a conclusion that in the events which occurred there was direct discrimination is that the evidence does not suggest that Mr Lunniss was treated any less favourably because of his medical condition compared with another person with or without that medical condition seeking to enter the hotel without a mask on 18 January 2021. It appears, even on the evidence which I have accepted, that the questions that were asked of Mr Lunniss were just asked because he was not wearing a mask, full stop. 43 Further, whilst I have found Mr Lunniss and notably also Mr Capelli were asked to provide evidence of medical exemption or a certificate, the effect of s 30(3) of the DDA in the circumstances is that it was not unlawful to request information about a disability if the purpose for which the information were requested was not a discriminatory purpose. Taking the evidence led for Mr Lunniss at its highest, in terms of the request made by CMS staff, be it the initial employee or the duty manager at the entry point, it seems to me that the purpose was nothing more than to seek evidence of a medical exemption in order to allow Mr Lunniss and others not wearing a mask to enter the hotel without wearing one. 44 That is entirely congruent with an exemption found in para 33(h) of the public health direction. In effect, all that the hotel staff were doing was seeking assurance that the exemption was engaged. I do not consider that to be a discriminatory purpose. Indeed, again, it appears that these questions were not specific just to Mr Lunniss and his group, rather, it seems inherently likely that they were of a generic quality, which would have been directed to anyone seeking to enter without a mask, irrespective of whatever may have been their medical condition. 45 The case in respect of indirect disability discrimination is no better. Taking the request as found at its highest, it was, in my view, a general requirement imposed on Mr Lunniss. There was nothing about his medical conditions which made it not possible for him to comply with that requirement. The requirement in no way disadvantaged persons with Mr Lunniss' disability. Indeed, having regard to the public health direction (and in particular para 33(h)), the request made of him was, I find, reasonable in the circumstances. 46 Thus, the conclusion which I have reached is that disability discrimination, contrary to s 24 of the DDA, is not proved. 47 In the event that I am mistaken as to that conclusion, I consider it necessary to make an assessment in respect of compensation, which would be awarded in the event that disability discrimination were proved. As I have mentioned already, there is no medical evidence of an exacerbation of a psychological condition as a result of the experience on 18 January 2021. There is no suggestion – and Mr Lunniss, with respect, commendable frankness confirmed this – that the effects of the incident occasioned any loss of income or other economic loss. 48 The incident was of short duration but, as I have found, one which nonetheless occasioned embarrassment and some humiliation, both in front of friends and family and perhaps others. It was of short duration. Although Mr Lunniss has dwelt upon it since its occurrence, the incident concerned needs to be kept in perspective in relation to any assessment of compensation. If it were discrimination, it was transient. It doubtless, if it were discrimination, cast a pall over what was apprehended to be a happy event. That hardly makes it unique in life's experience. In my view, an appropriate award of compensation in respect of the incident, if it amounted to discrimination, would be the sum of $3,000. 49 I do not consider the behaviours of the hotel staff, as found on the evidence, to be in any way contemptuous or malicious. To the contrary, they appear to have been well-intentioned and, if they did amount to unlawful discrimination, not intentionally to have been so. At most, they appear to have been directed to provide a level of comfort, to persons having barrier responsibilities and immediate supervision thereof, that an exemption was engaged. I see no occasion for the awarding of any aggravation component in compensation. 50 For these reasons then, I dismiss the application. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 21 February 2024