FEDERAL COURT OF AUSTRALIA

Winters v Fogarty [2017] FCA 51

ORDERS

THE COURT ORDERS THAT:

1.    The parties are directed to confer with a view to agreeing to an amicable resolution of the proceeding or, in the alternative, on orders to give effect to the Court’s reasons.

2.    If there is agreement, the parties shall on or before 2 March 2017, file minutes of the orders which they consider should be made.

3.    In the absence of agreement or complete agreement, each party shall on or before 2 March 2017, file and serve minutes of the orders the party contends should be made, together with short submissions on those matters which remain not agreed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The parties are directed to confer with a view to agreeing to an amicable resolution of the proceeding or, in the alternative, on orders to give effect to the Court’s reasons.

2.    If there is agreement, the parties shall on or before 2 March 2017, file minutes of the orders which they consider should be made.

3.    In the absence of agreement or complete agreement, each party shall on or before 2 March 2017, file and serve minutes of the orders the party contends should be made, together with short submissions on those matters which remain not agreed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    There are two proceedings before me with identical parties. These reasons address interlocutory applications made by each of the respondents which seek to strike out the statements of claim or parts thereof in each of the two proceedings brought by the applicant in each proceeding (“Ms Winters”). There is also an application made by the fourth respondent for the summary dismissal of one of the proceedings. But before further detailing the nature of the orders sought by the respondents, I should set out some background matters which put those applications in their proper context.

2    The two matters before me were preceded by a related proceeding in which Ms Winters was the applicant and in which the first respondent was the respondent. That proceeding (“the original proceeding”) is numbered VID 1288 of 2013. The first respondent (“Mr Fogarty”) is a lawyer and sole principal of a small firm of solicitors. Ms Winters was employed by him between June 2010 and October 2012. In April 2013, Ms Winters made a complaint to the Australian Human Rights Commission (“AHRC”). She alleged that in the course of her employment with him, Mr Fogarty engaged in conduct which contravened the Sex Discrimination Act 1984 (Cth) (“SDA”) and the Age Discrimination Act 2004 (Cth) (“ADA”).

3    On 3 October 2013 the AHRC terminated the complaint pursuant to s 46PH of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) and on 2 December 2013 Ms Winters commenced the original proceeding in this Court. She sought damages and other relief against Mr Fogarty for contraventions of the SDA and the ADA.

4    The original proceeding was assigned to my docket. By an order of 10 February 2015, I referred the matter for mediation by a Registrar of the Court.

5    Ms Winters was initially self-represented in the original proceeding but was referred for pro bono legal assistance through the Court’s scheme under Div 4.2 of the Federal Court Rules 2011 (Cth) (“the rules”). By letter of 12 March 2015, the Court wrote to Ms Winters to advise her that she had been assigned pro bono legal representatives including the fourth and fifth respondents.

6    A mediation of the original proceeding took place on 18 March 2015 (“the mediation”). It was conducted by a Registrar of this Court (“the mediator”). At the mediation, Ms Winters was represented by the fourth and fifth respondents. Mr Fogarty was represented by the second and third respondents. It is common ground that as a result of the mediation, Ms Winters and Mr Fogarty executed a Deed of Release and Settlement (“Deed of Settlement”) which purported to be a settlement of the original proceeding.

7    In each of the two proceeding currently under consideration, VID 114 of 2016 (“VID 114”) and VID 323 of 2016 (“VID 323”), Ms Winters seeks to impugn the conduct at the mediation of each of the respondents as well as that of the mediator. She seeks damages against each respondent as well as an order declaring the Deed of Settlement to be void and unenforceable.

8    For reasons I will explain in more detail shortly, Ms Winters’ claims are replicated in each of the two proceedings in question. Each proceeding relies on an identical statement of claim. Broadly stated, in each proceeding Ms Winters makes the following claims that:

    Mr Fogarty and his legal representatives the second and third respondents, by their conduct as parties participating in the mediation, directly discriminated against Ms Winters under s 24(c) of the Disability Discrimination Act 1992 (Cth) (“DDA”) in the provision of a service;

    Those respondents, by their conduct at the mediation, indirectly discriminated against Ms Winters under s 24(c) of the DDA in the provision of a service;

    Those respondents, by reason of their conduct in the mediation and the operation of s 122 of the DDA, were accessories to the mediator’s discriminatory conduct in contravention of the DDA;

    Mr Fogarty, by his conduct in the original proceeding, victimised Ms Winters under s 51 of the ADA and s 94 of the SDA (while there is some ambiguity as between the originating application and the statement of claim, Ms Winters confirmed that the claim of victimisation is directed only to Mr Fogarty);

    The fourth and fifth respondents, in their provision of legal services to her at the mediation, directly discriminated against Ms Winters under s 24(c) of the DDA;

    By reason of their conduct at the mediation, the fourth and fifth respondents also indirectly discriminated against Ms Winters under s 24(c) of the DDA;

    In the premises, the Deed of Settlement was obtained unlawfully in breach of the DDA, the SDA and the ADA and ought to be set aside.

    By reason of Ms Winter’s lack of mental capacity to enter into the Deed of Settlement, the Deed is voidable at the election of Ms Winters; and

    By reason of the first respondent’s conduct (including at the mediation), the Deed of Settlement is the product of the unconscionable conduct of Mr Fogarty and voidable at the election of Ms Winters.

9    In each of VID 114 and VID 323, each of the first, second and third respondents seek orders pursuant to r 16.21(1)(e) of the rules that the proceeding be struck out on the ground that the statement of claim fails to disclose a reasonable cause of action against them. However, as the submissions of those respondents clarify, consistently with the terms of r 16.21(1), what is actually sought is that the statement of claim (rather than the proceeding) be struck out. Orders to that effect are also sought by the fourth and fifth respondents. In truth and because not every cause of action pleaded in the statements of claim is directed to every respondent, what each respondent seeks is that so much of the statements of claim as relate to that respondent be struck out on the basis that no reasonable cause of action is there disclosed as against that particular respondent. There is some qualification to that position as I will later explain.

10    As other grounds beyond that contained in r 16.21(1)(e) are relied upon, it is convenient that I set out r 16.21(1) in full. It provides:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

11    It is uncontentious that the power to strike out all or part of a pleading under r 16.21(1)(e) because it discloses no reasonable cause of action is a power that should only be exercised in plain and obvious cases. The power should only be exercised where it is clear that no reasonable amendment can cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Authority (2012) 203 FCR 325 at [42] (Perram, Dodds-Streeton and Griffiths JJ). Their Honours at [43] adopted the following observations made by Beaumont J in Allstate Life Insurance Company v Australian and New Zealand Banking Group Ltd (1994) 217 ALR 226 at 236:

(1)    A ‘reasonable cause of action’ means one with some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant; in such a case, the claim cannot be struck out (Davey v Bentinck ([1893] 1 QB 185)).

(2)    The mere fact that the case appears to be a weak one is not of itself sufficient to justify the striking out of the action (cf Wenlock v Moloney ([1965] 1 WLR 1238; [1965] 2 All ER 871)).

(3)    Normally, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect (cf Hodson v Pare ([1899] 1 QB 455)).

(4)    It goes without saying that if a substantial case is involved in the claim, the power to strike out cannot be exercised.

(5)    Where a point of law has to be decided, and the judge is satisfied that this can be done by him appropriately, thereby avoiding the necessity of, and expense in going to trial, he is entitled to determine the point (cf Williams & Humbert v W & H Trade Marks [1986] AC 368; [1986] 1 All ER 129)).

12    In relation to each cause of action which the respondents impugn, what is also sought is that the Court refuse any leave sought by Ms Winters to re-plead. As Flick J said in Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at [87], whilst “caution should be exercised before striking-out a pleading, even greater caution should be exercised before refusing a party an opportunity to re-plead”. As his Honour went on to acknowledge at [89]–[90], normally a party will be permitted to re-plead, particularly where the cause of action concerned is complex and where prior opportunities have not been extended. In this case, complex causes of action have been raised and Ms Winters has, to date, only had one opportunity to plead her case. In those circumstances, it would normally be the case that a party would be given leave to re-plead and I think so much is recognised by the submissions of the respondents. However, the respondents assert, and I think this relates only to those parts of the pleadings challenged on the basis that no reasonable cause of action is disclosed, that the defects in the pleading are incurable and that it would therefore be futile for leave to re-plead to be granted.

13    In Nulyarimma v Thompson (1999) 96 FCR 153 at [208], Merkel J (with whom Wilcox and Whitlam J relevantly agreed) cited with approval the following observations made by Kirby J in Thorpe v Commonwealth (No 3) [1997] HCA 21; 71 ALJR 767 at 774–775 (emphasis added):

… Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility. The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them. But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process.”

14    Where it is concluded that no reasonable cause of action is available to be pleaded, liberty to re-plead may be refused: Eagle v Civil Aviation Safety Authority (2014) 226 FCR 44 at [65] (Bennett J); Takemoto at [87] (Flick J).

15    Beyond their reliance upon paragraph (e) of r 16.21(1), the respondents also variously rely upon other of the grounds for strike out listed in that rule. It is convenient at this juncture to observe that it is now well established that whilst a pleading need not be formulated as an elegant model of legal purity and that a pedantic approach to the adequacy of a pleading ought not be taken, the modern system of pleading requires that the material facts on which a party’s claim is based be stated so as to enable the respondent to know, with sufficient clarity, the case which it is required to meet. That is the fundamental objective of a pleading.

16    A failure to meet that fundamental objective because a pleading is evasive or ambiguous may result in a pleading being struck out pursuant to r 16.21(c): Elston v Commonwealth [2013] FCA 108 at [30] (Logan J); Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 at [21] (Markovic J). Alternatively, a pleading may be embarrassing and may be struck out pursuant to r 16.21(1)(d) if it is susceptible to various meanings, contains inconsistent allegations, contains alternatives which are confusingly intermixed, contains irrelevant allegations which will tend to increase expense, or is unintelligible or vague: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22] (Edmonds J); Qualify Me Pty Ltd at [21]. A part of a pleading may also be struck out as embarrassing if it simply asserts a conclusion to be drawn from facts not stated: Spiteri at [23]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [39] (Collier J). Whilst the pleading of a conclusion may in some circumstances constitute the pleading of a material fact, the pleading will be embarrassing if allegations are made at such a level of generality that the other party does not know in advance the case it has to meet: Eastern Colour at [40].

17    Furthermore, and of some relevance to the pleadings here in question, as a general proposition, the inclusion of particulars is not a panacea for a failure to plead material facts. Particulars are not statements of material facts they perform a different purpose: Eastern Colour at [45]. A pleading in which material facts are buried in particulars is liable to cause prejudice, embarrassment or delay including because the respondent need not plead to particulars and the matters at issue will not therefore be clearly defined.

18    In the alterative to striking out the statement of claim pursuant to r 16.21(1), the fourth respondent relies upon s 31A of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) and r 26.01 of the rules and seeks an order that VID 323 be summarily dismissed. Section 31A provides:

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.

19    In relation to summary dismissal of proceedings under s 31A, in Spencer v Commonwealth (2010) 241 CLR 118, upon review of the history of the provision and the authorities from analogous provisions in other jurisdictions, French CJ and Gummow J said this (at [25]):

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

20    By reference to those guiding principles and others later referred to, I will consider the challenges made to each of the statements of claim. I will first address the contention that the institution of two proceedings by Ms Winters which include identical claims is an abuse of process and that the duplicated pleading ought to be struck out pursuant to r 16.21(1)(f) of the rules. Next, I will turn to consider the challenges made to each of the particular claims made by Ms Winters. Thereafter, I will address consequential matters and the orders that ought to be made.

Abuse of Process

21    Pursuant to s 46PO of the AHRC Act, the jurisdiction of the Court is limited to matters raised by a complaint to the AHRC which has been terminated by its President. Whilst the complaint lodged by Ms Winters with the AHRC (“Complaint”) included allegations of direct and indirect discrimination in contravention of the DDA and also allegations of victimisation in breach of s 51 of the ADA and s 94 of the SDA, when the AHRC’s President terminated the Complaint on 17 December 2015, she did so only in respect of the DDA allegations. Why that occurred is not clear. It is evident, however, that that limited termination ultimately led to Ms Winters filing two proceedings in this Court rather than one comprehensive proceeding. That was done, I presume, in an effort to ensure that this Court had jurisdiction in relation to all of her claims.

22    The first in time proceeding (VID 114) was filed on 3 February 2016. It raised the DDA allegations that were the subject of that part of the Complaint which had been terminated on 17 December 2015. It also raised (at [134]–[148] of the Statement of Claim) the allegations of victimisation under s 51 of the ADA and s 94 of the SDA (“victimisation claims”). Recognising that the Court may not have jurisdiction in relation to the victimisation claims, Ms Winters sought the termination by the AHRC of that part of the Complaint. That occurred on 18 April 2016. With evident concern that the filing of a proceeding in this Court needed to pre-date the termination of a complaint by the AHRC, following the termination made by the AHRC of the victimisation claims on 18 April 2016, Ms Winter instituted a further proceeding being VID 323. In that proceeding Ms Winters raised the same claims under the DDA as were previously raised in VID 114 as well as the victimisation claims which had also been previously raised by that earlier proceeding.

23    Whether the duplication of allegations as between the two proceedings is justifiable or is an abuse of process, as the third and fourth respondents contended, is not necessary for me to determine. Ms Winters accepted that there ought not be duplication. She agreed to confine her DDA claims to VID 114 and her victimisation claims to VID 323. That has the consequence, as I indicated at the hearing, that I should order that [78]–[133] and [156]–[167] of the Statement of Claim in VID 323 be struck out, as well as [134]–[148] of the Statement of Claim in VID 114.

24    That has the further consequence that all that remains in VID 323 are the victimisation claims and an associated attack on the status of the Deed of Settlement detailed at [149]–[155]. If the respondents are correct that the Court has no jurisdiction in respect of the victimisation claims, it would follow that VID 323 should be dismissed. I turn then to consider the victimisation claims.

Victimisation claims (VID 323 [134]–[148])

25    As I have earlier set out, the victimisation claims are made by Ms Winters against Mr Fogarty and relate to his conduct of the original proceeding which Ms Winter’s alleges contravened s 94 of the SDA and s 51 of the ADA. The only challenge made to this part of the pleading is that no reasonable cause of action is disclosed because this Court has no jurisdiction to entertain the victimisation claims.

26    It is common ground that this Court has no jurisdiction to deal with the criminal prosecution of a person for a contravention of either s 94 of the SDA or s 51 of the ADA. As each of those provisions state, a contravention of the provision is an offence, attracting penalties including imprisonment. Section 49B of the AHRC Act provides that (emphasis added):

The Federal Court and the Federal Circuit Court have concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC.

27    On the other hand, it is also common ground that the AHRC has jurisdiction to inquire into and to attempt to conciliate complaints of “unlawful discrimination” (s 11(aa) of the AHRC Act). That phrase is defined in s 3 of the AHRC Act to include “any acts, omissions or practices that are unlawful”, including under Division 2 of Part 5 of the ADA (which includes s 51) and under s 94 of the SDA. That conduct constituting an offence under those provisions is included within the definition of “unlawful discrimination” is specifically adverted to in the definition.

28    Relying upon the s 3 definition of “unlawful discrimination” and the conferral of jurisdiction upon this Court by s 46PO(1) to deal with an application alleging “unlawful discrimination” in relation to a complaint which had been terminated by the AHRC, Ms Winters contended that, as an exercise of civil jurisdiction, this Court is empowered to deal with any “acts, omission or practices” rendered unlawful by either s 51 of the ADA or s 94 of the SDA.

29    In support of that contention, Ms Winters relied upon the judgment of Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925 at [6]–[10]. Although the issue does not appear to have been contested, Buchanan J observed that the Federal Magistrates Court had power to deal with an application alleging victimisation (which was an offence under s 42 of the DDA) if a complaint to that effect had been terminated by the AHRC. His Honour regarded a proceeding of that kind as a civil proceeding to be distinguished from a proceeding for an offence brought directly under s 42 of the DDA.

30    Ms Winters also relied on the judgment of Marshall, Rares and Flick JJ in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [70]–[71]. That was an appeal from Katzmann J who, in Dye v Commonwealth Securities Limited [2010] FCA 720 at [78], held that the AHRC Act “expressly provides a private remedy for a contravention of s 94 [of the SDA] and prescribes detailed procedures for obtaining it”. For that reason, Katzmann J concluded that a breach of s 94 of the SDA did not give rise to a common law cause of action, which was the central issue that her Honour was there addressing. The Full Court agreed. At [71], the Full Court said that “the purpose of s 46PO of AHRC Act is to create a private cause of action by an individual … for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act”. Further, the Full Court said that “the AHRC Act, read together with s 94 of the Sex Discrimination Act, creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination [in] s 3(1) of the AHRC Act”.

31    Principally by reference to s 49B of the AHRC Act, the first, second and third respondents contended that the Court had no jurisdiction to deal with conduct capable of constituting an offence under s 51 of the ADA or s 94 of the SDA. Those submissions relied on the judgment of Barker, Davies and Markovic JJ in Chen v Monash University [2016] FCAFC 66; 337 ALR 525 at [119]–[124]. That was an appeal from the judgment of Tracey J in Chen v Monash University [2015] FCA 130. The Full Court in Chen dismissed Ms Chen’s appeal because it held that, in the circumstances there relevant, the Court was not empowered to reinstate an appeal which Ms Chen had discontinued (at [110]).

32    The Full Court also considered whether the Court had jurisdiction under the AHRC Act to deal with a claim in relation to victimisation conduct under s 94 of the SDA. The Full Court determined that there was no appealable error in the approach of the primary judge, observing at [123] that the primary judge had properly found that there was no jurisdiction to hear a claim which amounted to a criminal offence. In coming to that view, the Full Court relied on obiter observations made by Gray J (with whom Reeves J agreed) in Walker v State of Victoria [2012] FCAFC 38; 297 ALR 284 at [99]. In that case, Gray J expressed some doubt as to the correctness of Penhall-Jones and stated that there was a real question as to whether a civil cause of action arose under the AHRC Act in relation to conduct dealt with by s 94 of the SDA. Gray J considered that it would be an odd step for Parliament to take to require a court to determine, in a civil case, whether an offence had occurred. Gray J noted (at [100]), however, that the issue had not been able to be fully explored on that appeal.

33    In Chen v Birbilis [2016] FCA 661, North J, on a summary judgment application, followed the Full Court in Chen ([10]–[11]). But with respect to his Honour, I do not consider that I am bound by the Full Court’s judgment in Chen because what was there said was obiter. Nevertheless, it is obiter from a Full Court and I would have followed it had the Full Court in Dye not made the observations to which I have referred. It is not apparent that either North J or the Full Court in Chen were taken to Dye. Nor, given that in each case Ms Chen was unrepresented, did North J, Tracey J or the Full Court have the benefit of fulsome argument on the point. Equally, the Full Court in Dye did not have the benefit of the observations made by Gray J in Walker or those of the Full Court in Chen.

34    In the circumstances, I am not persuaded that there is no reasonable question to be tried as to the Court’s jurisdiction and that, on the basis of a lack of jurisdiction, Ms Winters has no reasonable cause of action. Additionally, without being critical of the parties, I am of the view that the issues underlying the conflicting authorities to which I have referred were not fully explored at the hearing of the interlocutory application, and would benefit from more fulsome argument at final hearing. For those reasons, I consider that the challenge made to the Court’s jurisdiction is not a sufficient basis for striking out [134]–[148] of the Statement of Claim in VID 323.

disability discrimination by first, second, and third respondents (VID 114 [97]–[113])

35    The allegations made in the Statement of Claim in VID 114 at [100]–[113] of direct and of indirect discrimination against the first, second and third respondents, are all premised upon allegations made at [97]–[99] of a breach of s 24(c) of the DDA. Section 24 of the DDA provides:

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.

36    Section 4 of the DDA defines “services” to include at (e):

…

(e)    services of the kind provided by the members of any profession or trade; or

…

37    It was common ground that a critical element in the success of any cause of action based upon s 24 brought by Ms Winters against the first to third respondents (Mr Fogarty and his lawyers at the mediation), is that Ms Winters establishes that those respondents provided a professional service to her, and in particular legal services.

38    Paragraph [98] of the Statement of Claim in VID 114 is the pleader’s attempt to plead that the first, second and third respondents provided legal services to Ms Winters. That paragraph states (footnotes omitted):

The First, Second and Third Respondents provided services to the Applicant within the meaning of section 4 of the Disability Discrimination Act 1992 (Cth) in that they provided the Applicant with “services of the kind provided by the members of any profession or trade”.

Particulars

The First, Second and Third Respondents were legal practitioners and were participants in the Mediation.

The Mediation, as distinct from the litigation process which led up to it, was intended to be a tripartite, non-adversarial problem solving exercise.

During the Mediation, the First, Second and Third Respondents had obligations which extended beyond the promotion of their own interests and included a professional responsibility to maintain the integrity of the Mediation process, and to keep the process directed towards an efficacious and mutually acceptable outcome.

These obligations on the part of the First, Second and Third Respondents extended to having regard to the particular circumstances of the Applicant and, to taking responsibility for maintenance of the conditions necessary for both parties to meaningfully engage in the Mediation.

39    The first, second and third respondents contended that the pleading is defective, that the defect is incurable, that so much of the Statement of Claim which relies upon s 24(c) as against them should be struck out and that no leave to re-plead a breach of s 24(c) of the DDA as against them should be given.

40    In my view, paragraph [98] is defective and must be struck out. First, it pleads a conclusion unsupported by material facts. It asserts that services were provided to Ms Winters but then does no more than identify what aspect of “service” as defined by s 4, is relied upon. Second, even if it were permissible to treat the particulars under [98] as a pleading of the material facts relied upon, the particulars fail to specify what particular service or services each of the first, second and third respondents provided to Ms Winters in the mediation. The assertion that the person Ms Winters was suing and his legal representatives were providing legal services to her is a novel assertion that warrants a detailed explanation. In order for the respondents to know the case they must meet at trial, it was necessary for Ms Winters to have identified the material facts upon which she relied with precision. In my view, that called for the precise identification by Ms Winters of the kind of service or services she asserts were provided as well as all of the contextual or other facts relied upon to support the assertion that those services were provided to her. The particulars under [98] fail to do that.

41    If leave to re-plead were to be given, Ms Winters submitted that the services that she will allege were provided to her in the mediation by each of the first, second and third respondents could be pleaded as services of the kind provided by members of the legal profession participating in a mediation and namely, systematically isolating disputed issues, developing options, considering alternatives and reaching a consensual settlement. It was submitted on behalf of Ms Winters that a concrete example of a service of the kind that she would include if permitted to re-plead is the preparation by the first, second and third respondents of the Deed of Settlement.

42    In support of the proposition that services of the kind identified by that submission are capable of being services within the meaning of s 4 of the DDA, it was contended that the term “services” has a wide meaning. Reliance was placed on what was said by Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 at 11 that:

The term “services” has a wide meaning. The Macquarie Dictionary relevantly defines it to include “an act of helpful activity”.

Further, Ms Winters relied on the observations made by Dawson and Gaudron JJ at 23 that:

“[S]ervices”, a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context.

43    Ms Winters also relied on observations made by Sundberg J in Rainsford v Victoria (2007) 167 FCR 1 at [73] to contend that an activity which is designed to be helpful and beneficial to the class of persons to which the aggrieved person belongs is capable of being considered to be a “service”.

44    The first, second and third respondents accepted that the word “services” may be broadly construed. In their submission, the pertinent question is whether the services of the kind that Ms Winters would seek leave to include in any fresh pleading are capable of being services provided by the first, second or third respondents to Ms Winters.

45    In that respect, Ms Winters contended that, in the context of a mediation, all legal practitioners play a role which is intended to be helpful and beneficial to all participants in the mediation. That was said to arise out of the nature of a mediation and the obligation upon each of the participating legal practitioners to serve each of the parties to the mediation, not simply their own client, by isolating disputed issues, developing options, considering alternatives and assisting the parties to reach a consensual settlement. Ms Winters contended that the obligations upon each lawyer participating in a mediation to provide those services to each party, arose from the inherent context of a mediation which is designed to achieve consensual outcomes that do not just benefit or operate to serve a lawyer’s own client but are intended to service all parties in their joint objective of resolving their dispute.

46    Ms Winters relied upon a definition of “mediation”, taken from the National Alternative Dispute Resolution Advisory Council, Alternative Dispute Resolution Definitions (March 2000) and adopted by Branson J in Hopeshore Pty Ltd v Melroad Equipment Pty Ltd [2004] FCA 1445; 212 ALR 66 at [30], as follows:

Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.

47    Ms Winter’s submission falls to be considered by reference to the proper construction of s 24. That task requires me to construe the terms of s 24 by reference to the DDA as a whole as well as its evident purpose: AB v Western Australia [2011] 244 CLR 390 at [10] (French CJ, Gummow, Hayne, Kiefel and Bell JJ), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].

48    The protection from discrimination given to persons with a disability by the DDA is not comprehensive. It does not cover all fields of activity or interaction between the disabled and those who may discriminate against them on the ground of their disability. The fields or areas of activity are confined to those specified in Part 2 of the DDA. One such field is the provision of goods, services or facilities by one person to another. The text of s 24, including the words “provide” or “provides”, the connecting word “to” and the specification of “other person” as the subject of the contemplated provision of the goods, services or facilities, all support the idea that the provision requires a nexus between the provider and the person provided for or, in relation to s 24(a), the potential provider and the person refused the provision. The nexus need not necessarily be found in some legal obligation to provide the good, service or facility. That is apparent from the phrase “whether for payment or not”, as well as the terms of s 24(a). The prohibition of a refusal provided for in s 24(a), must be taken to include a refusal to enter upon a legal obligation to provide the goods, services or facilities in question.

49    Whilst the existence of a legal obligation is not the necessary touchstone, a sufficient nexus between the provider and the person provided for or who has sought the provision of the goods, services or facilities, is nevertheless required. The text to which I have referred contemplates a nexus between the provider and the recipient or potential recipient and a nexus must have been intended as a mechanism for marking out the limits of the area of activity covered by s 24.

50    It could not have been intended that every person who may be assisted or advantaged or who may take some benefit from the provision by one person of a good, service or facility to another person, is included in the protective field marked out by s 24. In other words, the requisite nexus is not the mere obtaining of a benefit or advantage. If it were, the protective field would be absurdly broad. It would, to take one example, include the general public in relation to the provision of a good or service by one person to another which has an incidental public benefit. For instance, the provision of solar panels to a householder in the context of the environmental benefit to the general public of that supply. Such a result is not supported by the text of s 24 or by any discernible policy or purpose of that provision.

51    To my mind, the reach of s 24 is confined to protecting those persons who are the subject of the provision or potential provision in question. Of course, the provision of a good, service or facility may be directed to multiple persons so that, for example, the subjects of the provision of a bus designed to carry passengers may include the passengers to be carried and not be confined to the person who hired the bus. But, the person who was advantaged by the provision of the bus because she was relieved of driving her relative to the bus’s intended destination was not the subject of the provision of the bus and has not been provided with a good or a service within the meaning of s 24. Third persons who happen to be advantaged, assisted or benefited merely as an incident of the provision of a good, service or facility by one person to another or to others, are not within the protected field contemplated by s 24 of the DDA.

52    With that construction of s 24 in mind, I turn to consider the submission made by Ms Winters. The subject of the provision of a service by a lawyer is, ordinarily, the lawyer’s client. The idea that the client’s opponent can be the subject of the lawyer’s service is manifestly unattractive, including because serving the client’s opponent is unlikely to be consistent with a lawyer’s duty to serve the interests of his or her own client. That is not to say that when the interests of the client and those of the opponent are aligned, the service provided by the lawyer to his or her client will not be of incidental advantage or benefit to the opponent. There are many instances where that may occur including in a hotly contested adversarial context. A lawyer may propose that an admission or concession be made by his or her client, or assist an unrepresented opponent of the client by identifying the correct process or procedure that that person should follow. A lawyer may draft a deed of settlement, thus relieving the opponent from doing so, or communicate a consent position to a court or other authority to the benefit of both the lawyer’s client and that of the opponent. However, in all of those examples, the subject of the service provided by the lawyer will be the lawyer’s client and not the client’s opponent.

53    The position is no different in relation to the service provided by a lawyer to his or her client in the context of a mediation conducted for the purpose of resolving litigation. There is nothing inherent to the process of mediation which relieves a lawyer of his or her duty to serve the interests of his or her client. The service of those interests may well involve the lawyer in isolating disputed issues, identifying options for resolution of the dispute including by suggesting concessions or compromises to be made by the lawyer’s client. But all of that must only be done on the client’s instructions and in the service of the client. The nature of mediation does not impose any obligation on a legal practitioner to serve a party to a mediation other than his or her own client. Any assistance, benefit or advantage received by the client’s opponent as a consequence of the nature of a mediation is not provided by the lawyer to the opponent but is merely an incident of the provision of a service by the lawyer to his or her own client.

54    It is not in contest that when the second and third respondents participated in the mediation, they did so as the lawyers of Mr Fogarty. Even if it were the case that, in providing legal services, they systematically isolated disputed issues, developed options, considered alternatives and assisted the parties to the mediation in reaching a consensual settlement (as Ms Winter’s intends to allege if given leave to re-plead), for the reasons given, I do not consider that Ms Winters has any real chance of establishing that those services were provided to her. It follows that no reasonable cause of action is available to be pleaded by Ms Winters as against the second and third respondents and that there is no utility in granting Ms Winters leave to re-plead this claim.

55    The position in relation to Mr Fogarty is even more problematic for Ms Winters. Her allegation is dependent upon her establishing that, at the mediation, Mr Fogarty provided legal services. Whilst it is common ground that Mr Fogarty was a lawyer, there is no suggestion in anything pleaded or submitted by Ms Winters that he attended the mediation other than in his capacity as a party to the litigation. I do not accept that there is any basis for an allegation that at the mediation Mr Fogarty provided services to anyone else, let alone that he provided legal services. If he did, Ms Winters has no tenable basis for contending that those services were provided by Mr Fogarty to her. There is no utility in providing any leave to re-plead this claim.

56    For those reasons, I would strike out [97]–[113] of the Statement of Claim in VID 114 and refuse Ms Winter’s leave to re-plead a claim against the first, second and third respondents under s 24 of the DDA in relation to their conduct in the mediation.

direct discrimination claims against fourth and fifth respondents (VID 114 [78]–[89])

57    Although not entirely clear on the face of the statement of claim in VID 114, Ms Winters confirmed that her pleading of direct discrimination against the fourth and fifth respondents commenced at [78] and ended at [89]. The pleading asserts a contravention of s 24(c) of the DDA by each of the fourth and fifth respondents on the basis that those respondents did “discriminate”, within the meaning of s 5(2) of the DDA, against Ms Winters on the ground of her disability. Section 5(2) of the DDA provides:

…

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

…

58    The form of the pleading presents a number of difficulties. But of more importance is the challenge made to the substance of what is pleaded at [78]–[89]. The fourth and fifth respondents contended that first, there is no proper pleading of what were the reasonable adjustments that Ms Winters asserts each respondent should have made to the manner in which each provided a service to her. Second, the fourth and fifth respondents contended that there is, in relation to each asserted failure to provide a reasonable adjustment, a failure to plead the material facts relied upon in support of various elements of the cause of action.

59    For Ms Winters, it was accepted that the pleading lacks precision and that more clarity and detail could have been provided. Nevertheless, Ms Winters submitted that sufficient indication of the matters said by the respondents to be deficient has been given. Ms Winters submitted that, if there is a deficiency, leave to re-plead should be given. It was not suggested by the fourth or fifth respondents that the asserted deficiencies were incurable but each resisted leave to re-plead being granted prior to the presentation by Ms Winters of a proposed pleading for which leave to re-plead would be sought.

60    The pleader’s attempt to set out the reasonable adjustments, which it is asserted the fourth and fifth respondents failed to provide, is set out in the particulars to [85] of the statement of claim as follows:

The Fourth and Fifth Respondents did not ensure that potentially distressing material was provided to the Applicant in a timely manner and with appropriate support.

The Fourth and Fifth Respondents did not make any enquiries or assessment of the Applicant’s mental state or capacity to participate meaningfully in the Mediation, or to make decisions concerning her future and the future of the Initial Proceedings, either prior to, or during, the Mediation.

The Fifth Respondent communicated with the Applicant in an aggressive and belligerent manner.

The Fourth Respondent did not ameliorate in any way the impact of the Fifth Respondent’s behaviour on the Applicant, despite the Applicant’s requests that this be done.

The Fourth and Fifth Respondents allowed the First Respondent to be in the same room as the Applicant during the Mediation, despite his history of sexual violence toward her, and despite the considerable material in the brief provided to the Fourth and Fifth Respondents concerning the Applicant’s fear of the First Respondent and the psychological symptoms she suffered in connection with that fear.

The Fourth and Fifth Respondents did not respond to the Applicant’s repeated requests to bring the Mediation to an end.

The Fourth and Fifth Respondents did not ensure that the Applicant had the opportunity to obtain input from her treating psychologist as to the effect of the proposed settlement on her mental health.

The Fourth and Fifth Respondents did not allow sufficient time at the conclusion of the Mediation to ensure that the Applicant had considered and understood the terms of the Deed.

The Fourth and Fifth Respondents did not insist on, or even request, a cooling off period in circumstances where the Applicant was, by reason of her disability, unable to comprehend and retain information which was material to the decisions she was required to make and the likely consequences of making any such decisions.

61    Thereafter at [86] the statement of claim addresses the asserted failure to make reasonable adjustments as follows:

[86]    The failure to make these adjustments had the effect that the Mediation was conducted in a manner which re-traumatised the Applicant, and the Applicant suffered from a psychiatric condition which severely affected her cognitive functioning during the Mediation.

Particulars

Psychologist report from Mike Lake dated 23 September 2015.

Psychiatric reports from Dr David Hickingbotham dated 27 July2015 and 24 August 2015.

[87]    The failure to make reasonable adjustments had the effect that the Applicant was, because of her disability, treated less favourably than a person without the disability would be treated in circumstances that were not materially different.

[88]    The Applicant was unable to participate in the Mediation process in the manner which would have been open to a person without her disability.

Particulars

Psychologist report from Mike Lake dated 23 September 2015.

Psychiatric reports from Dr David Hickingbotham dated 27 July 2015 and 24 August 2015.

62    I think that the fourth and fifth respondents are right to insist upon a great deal more precision about what it is Ms Winters asserts they should have done to make reasonable adjustments in the manner in which they provided services to her.

63    An “adjustment” is an act of adjusting. The term ought not be narrowly construed. As Mortimer J said in Watts v Australian Postal Corporation (2014) 222 FCR 220 at [24], “[b]readth and flexibility in the meaning of the word ‘adjustment’ is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals”. As her Honour further observed, an adjustment “for” a person may involve human interactions.

64    The use of the word “adjustment” in the context of the subject matter dealt with suggests that what is contemplated by the meaning of “discriminate” given by s 5(2) when applied to s 24(c), is a failure by a first person to do an act “for” a second person which would adjust (in the sense of alter or modify: Watts at [22]; Mulligan v Virgin Australia Airlines (2015) 234 FCR 207 at [146] (Flick, Reeves and Griffiths JJ)) the manner in which a good, service or facility is provided by the first person to the second person so as to avoid the second person being treated less favourably on the ground of her disability.

65    It follows, in my view, that a proper pleading of a contravention of s 24(c) of the DDA (relying on s 5(2)) will need to identify with sufficient precision the act or acts of adjusting that it is asserted that the first person failed to make for the second person. In simple terms and in an ordinary case, what must be identified is the positive act or acts that the first person failed to take for the second person in the manner in which the first person provided to the second person the relevant goods, services or facilities.

66    In Wade v Victoria [2012] FCA 400 I said (at [6]) that in pleading a reasonable adjustment “it is incumbent upon the applicant to set out with sufficient particularity what steps or steps it says the [respondent] should have taken”. That observation was followed by Davies J in Lambert v Victoria [2014] FCA 1064 at [36] who said that “[a]n allegation that a ‘reasonable adjustment’ is required must be pleaded with precision”. Furthermore, sufficient precision needs to be provided because as Mortimer J said in Watts at [25]:

Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at 45, this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.

67     A common fault in each of the allegations made at [85] is the failure to identify what specific act or acts should have been done that was or were not done. There is also a failure to identify the act or acts in question by reference to both the nature of the service and the manner in which the service in question was provided by the fourth and fifth respondents to Ms Winters. The practical difficulties presented to the fourth and fifth respondents in understanding what it is Ms Winters says they should have done are obvious. For instance, what was the “potentially destressing material” and what step or steps should the fourth and fifth respondents have taken to “ensure” that the material was provided “in a timely way and with appropriate support”? What “enquiries or assessments of the Applicant’s mental state or capacity” should the fourth and fifth respondents have made?

68    I also accept most of the contentions made by the fourth and fifth respondents that material facts have not been pleaded in support of the elements of the cause of action required by the definition provided by s 5(2)(b) of the DDA. An attempt to address s 5(2)(b) is made in [86]–[88]. But, those paragraphs suffer from what seems to have been the adoption of the erroneous idea that the pleading of material facts with specificity can be circumvented by referring to the reports of experts with a suggestion that the material facts may there be discovered.

69    The Statement of Claim needed to set out the material facts relied upon by Ms Winters to establish that each alleged failure to make a reasonable adjustment (or some or all failures in combination) had “the effect” that Ms Winters was “treated less favourably than a person without the disability would be treated in circumstances that are not materially different”. Additionally, material facts needed to be pleaded to establish why “the effect” was “because” or, in other words, brought about or caused by Ms Winter’s disability. I do not accept the contention of the fifth respondent that it was necessary for Ms Winters to plead material facts to establish that the failure to make the reasonable adjustments occurred because of the alleged disability. Nor, on the basis of the observations made by Mortimer J in Watts at [21]–[22], [27] and [258] (cf Lambert at [35]), do I accept that it was necessary for Ms Winter’s to plead the reason why the adjustments she asserts should have been made were reasonable for her.

70    Nevertheless, it follows from the deficiencies that I have held exist, that [78]–[89] of the statement of claim in VID 114 should be struck out. I am, however, prepared to consider giving Ms Winters leave to re-plead her claims of direct discrimination by the fourth and fifth respondents. It was accepted for Ms Winters that any leave to re-plead should only be considered upon the production by Ms Winters of a proposed re-pleading. I intend to follow that course. I should add that the reliance placed upon s 53B of the FCA Act by the fourth and fifth respondents is addressed at [139] below.

indirect discrimination claims against fourth and fifth respondents (VID 114 [90]–[96])

71    Paragraphs [90]–[96] of the statement of claim in VID 114 make various allegations which, although not stated, seem to be directed to pleading a contravention of s 24(c) of the DDA relying upon s 6(1) of the DDA. That intent was confirmed by submissions made for Ms Winters. Section 6(1) addresses discrimination on the ground of a disability by reason of the imposition of a “requirement or condition” by the alleged discriminator upon the person discriminated against. Section 6(1) provides:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

72    In broad outline, the pleading proceeds as follows. At [90] it is alleged that the fourth and fifth respondents required, or proposed to require, Ms Winters to comply with certain requirements or conditions. At [91] it is alleged that those requirements and conditions were “inherent” in the manner in which the fourth and fifth respondents provided services to Ms Winters. Then, in the particulars to [91], the pleader has sought to specify some nine requirements or conditions. I shall set those out in full shortly. At [92] it is alleged that Ms Winters was unable to comply with the requirements and conditions. At [93] it is stated that the requirements and conditions particularised at [91] were likely to have the effect of disadvantaging persons with a mental disability. Then at [94]–[95] there follows what I can only describe as an argument which submits that requirements and conditions in the manner in which legal services are provided “which are nettlesome in their nature”, will have the effect of particularly disadvantaging persons with a mental disability. Lastly at [96] it is concluded that by engaging in the above described conduct the fourth and fifth respondents discriminated against Ms Winters on the ground of a disability within the meaning of s 6 of the DDA.

73    The following are the particulars to [91] where the pleader has sought to specify the requirements or conditions relied upon:

It was a requirement or condition of the manner in which the Fourth and Fifth Respondents provided their services to the Applicant that:

•    legal representation be accepted without any discussion of, enquiry into or assessment of, the mental health or capacity of the client;

•    legal representation be accepted in the absence of discussion about the details of the case the subject of mediation, the strategy to be adopted at the mediation, or the parameters for settlement, prior to the mediation taking place;

•    the parties to the mediation confront each other physically in the same room regardless of any history of sexual violence between them;

•    the client refrain from attempting to engage in meaningful discussions with the legal representatives;

•    the client be subject to pressure to accept settlement;

•    instructions from the client to bring the Mediation to an end not be acted on;

•    a lack of correlation between a proposed settlement and the client’s particulars of loss and damage will be considered irrelevant to the question of whether the legal representatives will recommend acceptance of a settlement amount;

•    no provision will be made as part of the legal services undertaken for consultation with treating medical specialists about the fitness of the client to engage in mediation, to agree to any settlement proposal, or the potential impact of any proposed settlement on the client’s mental health;

•    no provision will be made as part of the legal services undertaken for any cooling off period prior to finalising any settlement at the conclusion of the mediation.

74    On the face of the pleading, there is some doubt as to whether the requirements or conditions identified are intended to specify requirements or conditions that were imposed upon Ms Winters by the fourth and fifth respondents in providing legal services to her or whether they are said to be requirements or conditions of general application. That is, requirements or conditions imposed by the fourth and fifth respondents on their clients generally.

75    The written submissions of the fourth and fifth respondents assumed that the conditions and requirements specified were directed at those imposed only on Ms Winters. On that premise, those respondents challenged the pleading on the basis that, if it was a claim of indirect discrimination reliant on s 6(1) of the DDA, it was deficient because the requirements or conditions must be formulated in facially neutral terms. As those respondents submitted, the requirement that a condition be facially neutral in order to be the subject of an allegation of indirect discrimination was a matter dealt with by Tracey J in Abela v Victoria [2013] FCA 832 where at [83]–[85], his Honour said this:

[83]     The distinction between direct and indirect discrimination was explained by Dawson and Toohey JJ in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392, in these terms:

“Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.”

See also at 357 (per Mason CJ and Gaudron J); New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 at 77-8 [39], [40] (per Emmett J).

[84] The distinction is important because the definitions of direct and indirect discrimination in the DDA are mutually exclusive: cf Australian Medical Council v Wilson (1996) 68 FCR 46.

[85]     The requirements or conditions with which s 6 of the DDA is concerned are requirements or conditions which have general application but which bear oppressively on a particular cohort or group which the legislation is designed to protect. Relevantly that group or cohort comprises persons suffering from some form of disability which is comprehended by the Act. Thus, a requirement that students at a school should utilise a toilet in a building other than the one in which their classroom was located was found to be discriminatory against disabled students who, by reason of physical disability, regularly required urgent access to a toilet: see Travers v New South Wales (2001) 163 FLR 99. Similarly, a requirement that all students attending a school should comply with the school discipline policy was found to be discriminatory against students who suffered from the psychological condition of “conduct disorder”, the manifestations of which rendered them incapable of compliance: see Minns v New South Wales [2002] FMCA 60.

76    At [88]–[92], Tracey J held that the indirect discrimination case pleaded in Abela did not allege any terms or conditions, within the meaning of s 6 of the DDA, which were of general application or which were facially neutral but rather were complaints that the respondent failed to act in particular ways in response to the applicant’s particular disability-related needs.

77    In response to those submissions made in the written submission of the fourth and fifth respondents, Ms Winters accepted that, for an indirect discrimination claim, the requirements and conditions specified needed to be facially neutral. She contended that the requirements and conditions specified at [91] were intended to plead requirements or conditions of general application. Ms Winters submitted that the requirements and conditions specified “were an implicit part of the manner in which the Fourth and Fifth Respondents provided legal services and that these requirements and conditions had a disproportionally negative impact on the Applicant”.

78    To my mind, the pleading must be struck out. There are no material facts pleaded in the statement of claim as to the general practice of the fourth and fifth respondents in providing legal services to their clients that could possibly sustain the allegation that, as a matter of general application, the fourth and fifth respondents impose any of the requirements or conditions specified under [91]. Indeed, on my reading of the material facts pleaded which relate to the fourth and fifth respondents and their conduct at the mediation ([63]–[76]), taken at their highest, the material facts pleaded would not even sustain many or most of the requirements or conditions specified at [91] even if those requirements and conditions were intended to specify the alleged requirements and conditions imposed by the fourth and fifth respondents on Ms Winters alone. As requirements or conditions of general application, what is specified under [91] are simply conclusions to be drawn from facts not stated and are embarrassing and should be struck out for that reason alone.

79    Furthermore, a question arises as to whether the pleading should be regarded as scandalous. Each requirement and condition pleaded identifies conduct which would be inappropriate for a legal practitioner to engage in. Whilst the pleading is ambiguous and leaves room for debate, at least some and perhaps many of the requirements or conditions specified assert conduct that, if true, would likely constitute professional misconduct. For instance, it follows from the submissions put for Ms Winters that her pleading asserts that the fourth and fifth respondents, as a matter of general application, fail to follow instructions given by their clients, pressure clients to accept settlements, recommend acceptance of a settlement without regard to the loss and damage suffered by the client and require their clients to confront other persons regardless of a history of sexual violence between the client and those other persons.

80    Whilst grave imputations of that kind may be offensive, they will not be struck out as scandalous if the making of them is necessary or relevant to a question in the proceeding: Christie v Christie (1873) LR 8 Ch APP 499. But, the making of unsupported allegations of impropriety, in the absence of proper material facts being alleged, is a basis for a pleading to be struck out as scandalous: Manolakis v Carter [2008] FCA 505 at [12] (Mansfield J); Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9] (Rares J). As I have said, there is no proper foundation in the pleading for the allegations made at [91]. That the paragraph is scandalous provides an additional basis for striking it out.

81    I then come to the question of whether leave should be given to Ms Winters to re-plead her claim of indirect discrimination by the fourth and fifth respondents.

82    When challenged as to whether there is a factual basis known to Ms Winters for the allegations that the fourth and fifth respondents impose, as a matter of general application, the requirements and conditions alleged, the Court was informed that the only facts available in support of those allegations were confined to the alleged conduct of the fourth and fifth respondents at the mediation. It was contended for Ms Winters that from the conduct alleged against the fourth and fifth respondents in relation to the services provided to Ms Winters in the mediation, it may be extrapolated or inferred that the same conduct, or the same imposition of the conditions and requirements specified at [91], is imposed upon the clients of the fourth and fifth respondents generally. I reject that submission as untenable. As a matter of logic, it is equally, if not more, open to infer that the alleged conduct comprised an isolated incident. As Dixon CJ said in Jones v Dunkel (1959) 101 CLR 298 at 304–305, citing Bradshaw v McEwans Pty Ltd (unreported, High Court of Australia, 27 April 1951), an applicant’s case “must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”. That conclusion is reinforced taking into account the standard of proof provided for by s 140(1) of the Evidence Act 1995 (Cth), and in particular that before a finding may be made about conduct alleged against a person, account must be given to the gravity of the matters alleged by reason of s 140(2)(c). It is clear from the submissions made for Ms Winters that Ms Winters has no additional material facts available to her for inclusion in any further pleading. There is, in those circumstances, no utility in granting Ms Winters leave to re-plead.

83    I will strike out [90]–[96] of the Statement of Claim in VID 114 and will refuse leave for Ms Winters to re-plead a claim of indirect discrimination against the fourth and fifth respondents in relation to the conduct of those respondents at the mediation.

84    There are a number of other deficiencies in the pleading at [90]–[96] but, in the circumstances, I need not address them.

accessorial liability claim against first, second and third respondents (VID 114 [114]–[133])

85    Section 122 of the DDA provides as follows:

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 2A or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.

86    At [114] of the Statement of Claim in VID 114, Ms Winters alleges that the first, second and third respondents caused, instructed, induced, aided or permitted the mediator to conduct the mediation in a manner which was unlawful under Division 2 of Part 2 of the DDA.

87    At [115] it is acknowledged that the mediator has the protection and immunity provided by s 53C of FCA Act. That provision is in the following terms:

A mediator or an arbitrator has, in mediating or arbitrating anything referred under section 53A, the same protection and immunity as a Judge has in performing the functions of a Judge.

88    Having referred to the immunity conferred upon the mediator, the pleading then asserts that the immunity does not prevent a finding that acts or omissions on the part of the mediator were unlawful for the purposes of the DDA. It is then asserted (at [117]) that unlawful acts on the part of the mediator provide a basis for liability under s 122 of the DDA on the part of the first, second and third respondents as persons involved in the unlawful acts.

89    Thereafter the pleading attempts to set out the alleged unlawful acts of the mediator relied upon. It is asserted that the mediator provided mediation services in a manner which breached s 24(c) of the DDA. That the conduct of the mediator constituted direct discrimination within the meaning of s 5(2) of the DDA is asserted at [123]. That allegation seems to be based on the content of [119]–[122]. Paragraph [119] is a conclusion that the mediator failed to ensure that reasonable adjustments were made for Ms Winters. Paragraph [120] states that the adjustments which the mediator failed to ensure were made were those particularised under [104] as follows:

The [mediator] took no steps to ensure that the Applicant was in a fit mental state to participate in the Mediation.

The [mediator] acquiesced in the First Respondent being in the same room as the Applicant during the Mediation, despite the First Respondent’s history of sexual violence toward the Applicant.

The [mediator] failed to provide the Applicant with a cooling off period prior to the finalisation of any settlement at the conclusion of the Mediation.

90    Paragraph [121] seems to be an attempt to justify why the adjustments which it is said the mediator failed to make should be regarded as reasonable. Paragraph [122] asserts that the failure to make the adjustments had the effect that Ms Winters, because of her disability, was treated less favourably than a person without the disability would be treated in similar circumstances.

91    At [129] the pleading also asserts that the conduct of the mediator constituted indirect discrimination within the meaning of s 6(2) of the DDA. That assertion seems to be based upon the contents of [124]–[128]. Paragraph [124] is a conclusion that the mediator provided mediation services in a manner which involved the imposition of requirements or conditions with which Ms Winters was unable to comply because of her disability. At [125] it is stated that the requirements and conditions are those particularised at [109] as follows:

It was a requirement or condition of the manner in which the First, Second and Third Respondents provided their services that:

•    there be no discussion of, enquiry into, or assessment of, the mental health or capacity of the Applicant prior to or during the Mediation;

•    there be no consultation with treating medical specialists about the fitness of the client to engage in mediation, to agree to any settlement proposal, or the potential impact of any proposed settlement on the Applicant’s mental health;

•    the parties to the Mediation confront each other physically in the same room during the Mediation, regardless of any history of sexual violence between them;

•    there be no cooling off period prior to finalising any settlement at the conclusion of the Mediation.

92    At [126] it is asserted that Ms Winters was unable to comply with those requirements and conditions because of her disability. Reliance is placed on the particulars given at [110] as follows:

The Applicant suffered from a psychiatric condition which severely affected her cognitive functioning during the Mediation. As a consequence of that psychiatric condition, the Applicant was unable to meaningfully participate in the Mediation.

93    At [127] it is pleaded that the requirements and conditions were likely to have the effect of disadvantaging persons with Ms Winter’s disability. Paragraph [128] is a submission to the effect that there has been judicial recognition that persons who have a mental disability are disadvantaged in navigating court processes compared with persons without such a disability.

94    Thereafter at [130]–[132] the following allegations are made in relation to the conduct of the first, second and third respondents:

[130]    The First, Second and Third Respondents were active participants in the Mediation with the ability to guide the course of the Mediation and the manner in which it was conducted.

[131]    In addition to their role as providers of a service to the Applicant, the First, Second and Third Respondents also aided, induced and permitted the mediator to conduct the Mediation in the manner described above.

[132]    It was in the First, Second and Third Respondents’ power to prevent the Mediation from being conducted in the absence of the adjustments identified above at paragraph [104] and to prevent the imposition of the requirements and conditions identified above at paragraph [109].

95    Lastly, [133] is a submission about the extent of the common law advocate’s immunity from suit and includes the assertion that it has no application to the conduct alleged against the first, second and third respondents.

96    The first, second and third respondents raised five but I think, in truth, four grounds in support of the accessorial liability claim being struck out and that no leave to re-plead it be given. First, that, by reason of the immunity conferred on the mediator, there can be no accessorial liability because the immunity has the effect that there can be no principal contravention of the DDA by the mediator. Second, the immunity prohibits the revelation and scrutiny of the conduct of the mediator and that prohibition would foreclose any capacity for accessorial liability to be established. Third, that it is not possible for a tenable allegation to be made that, in the conduct of a mediation, a Registrar of the Federal Court acting independently could be instructed, induced, aided or permitted by a party or legal representative participating in the mediation. Fourth, the pleading is in any event defective because no material facts are pleaded capable of attracting accessorial liability under s 122 of the DDA and, relatedly, that the defect is incurable because by reason of s 53B, nothing said in the course of the mediation could be admissible as evidence. It would therefore be pointless to permit an allegation to be pleaded which could never be proved.

97    Section 53B of the FCA Act provides:

Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under section 53A is not admissible:

(a)    in any court (whether exercising federal jurisdiction or not); or

(b)    in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

98    It is convenient that I address the fourth ground of challenge first. The first, second and third respondents are, in my view, correct to contend that insufficient material facts are pleaded to sustain the allegations of accessorial liability. There are no material facts pleaded at [130]–[132] as to what it is that Ms Winters alleges the first, second and third respondents did to cause, instruct, induce, aide or permit the mediator to do anything at all. All that is asserted are the three conclusions I have listed at [94] above. The first and third conclusions address the asserted power or capacities of the first, second and third respondents. The second conclusion is the ultimate conclusion asserting accessorial liability. The pleading fails to identify what it is alleged each of the first, second and third respondents actually did or failed to do and how that conduct is said to have caused, instructed, induced, aided or permitted the mediator to conduct the mediation in contravention of the DDA. The allegations made are pitched at such a level of generality that it is not possible for the respondents to know the case they have to meet. The pleading is embarrassing and should be struck out.

99    I should add that in my view, it was also necessary for the pleading to have properly identified the material facts relied upon concerning the mediator’s conduct. Insofar as the pleader has attempted to meet that requirement, what is pleaded is inappropriately buried in particulars to [104] and [109] which directly addressed the alleged conduct of persons other than the mediator and which, in any event, do so in generalised and ambiguous terms. The pleading needed to identify with specificity what the mediator should have done or not done. For instance it is inadequate to allege that steps should have been taken “to ensure that the Applicant was in a fit mental state to participate in the Mediation” without identifying the steps that it is alleged the mediator should have taken. Having identified the acts or omissions of the mediator, the pleading then needed to specify the acts or omissions of the first, second or third respondents which caused, instructed, induced, aided or permitted the mediator to do or not do the impugned actions or omissions. Ms Winter’s failure to do so has resulted in the fundamental objective of a pleading not being satisfied: the first, second and third respondents have not been put in the position of knowing the case they must meet. The pleading is embarrassing. I will strike out [114]–[133] of the statement of claim in VID 114.

100    Additionally, insofar as the allegations made against the mediator are allegations directed to establishing indirect discrimination, it was acknowledged for Ms Winters that the facts pleaded are to be taken as addressing allegations of conduct of general application undertaken by the mediator at mediations generally. No tenable foundation is provided in the pleading to support a suggestion that the alleged conduct is conduct generally applied by the mediator in the conduct of mediation conducted by him. For the same reasons as expressed at [80], that part of the pleading which asserts indirect discrimination by the mediator is, in my view, scandalous. It was conceded for Ms Winters that she has no factual foundation (beyond the facts of the mediation) to support the allegations made that the conduct asserted against the mediator is conduct of general application. For the same reasons as expressed at [82], if it were necessary to decide the issue, I would have declined to grant Ms Winters leave to re-plead her claim of accessorial liability against the first, second or third respondent based upon an allegation that the conduct of the mediator at the mediation constituted indirect discrimination.

101    There is, however, another basis for striking out Ms Winters’ claims of accessorial liability and refusing Ms Winter’s leave to re-plead those claims. In my view, and by reason of the operation of the immunity conferred upon the mediator by s 53C of the FCA Act, the accessorial liability claims do not disclose a reasonable cause of action.

102    That conclusion addresses what I have described as the first and second challenges made by the first, second and third respondents. What is there raised is a point of law about the scope and operation of the mediator’s s 53C immunity. I have given close consideration to whether it is appropriate that the point be determined now rather than left to trial. I am mindful of the principle that the strike-out power should be exercised with caution and only in a plain and obvious case. I am also mindful of the caution expressed by French and Gummow JJ in Spencer quoted at [19] above, that summary processes must not be used to stultify the development of the law. However, I also take into account the fifth principle referred to by Beaumont J in Allstate (see [11] above) and the following application of it by Kenny J in this passage from Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293, quoted (with apparent approval) by the Full Court on appeal from her Honour in Polar Aviation at [44]:

Notwithstanding the need for caution, where in a strike-out application, a point of law arises, which can appropriately be decided at the interlocutory stage, the judge is entitled to determine the point, thereby avoiding the need for and expense of a lengthy trial. For the reasons set out below, this is a case in which certain points of law should be decided at this stage, since their disposition does not depend on further evidence and findings of fact, and their resolution will limit any future trial.

103    To my mind, it is appropriate that the point of law raised by s 53C be determined at this interlocutory stage. Each of the reasons referred to by Kenny J are applicable here and there is an additional reason of great importance. If the scope of the mediator’s immunity extends to prohibit the revelation and scrutiny of the mediator’s conduct in curial proceedings as the first, second and third respondents contended, the immunity conferred would be largely defeated by the conduct of the trial if the question was left to be determined at trial. To avoid the possibility of the immunity being rendered nugatory, it is clearly appropriate that the point of law be determined prior to any trial. The capacity for judicial immunity to be pleaded in bar to suits at the outset was reflected upon by Heydon JA (with whom Fitzgerald JA and Davies AJA agreed) in Wentworth v Wentworth (2001) 52 NSWLR 602 at [260]. Having received full and comprehensive submissions from all of the relevant parties on the point in question, I consider that this is an appropriate juncture for the point to be decided.

104    It was common ground that accessorial liability under s 122 of the DDA is derivative, in the sense that the liability of the accessory depends upon it being established that there was a principal contravention of the DDA by “another person”. The first, second and third respondents contended that the immunity provided to the mediator by s 53C of the FCA Act has the effect that there can be no principal contravener and that where there is no principal contravention there is no accessorial liability. For that contention reliance was placed upon Cain v Doyle (1946) 72 CLR 409. That was a case in which a factory manager was charged with aiding and abetting the Commission of an offence by the Commonwealth against s 18 of the Re-establishment and Employment Act 1945 (Cth).

105    It was uncontroversial and may be accepted that Cain v Doyle (and in particular the observations made by Latham CJ at 419 and Dixon J at 426) supports the proposition that where there can be no principal offence a person cannot be found guilty of being an accessory. But that concession only goes so far. The more critical issue is whether the immunity conferred upon a mediator by s 53C has the effect that a mediator cannot commit a civil wrong.

106    I addressed the principles formulated in Cain v Doyle in Construction, Forestry, Mining and Energy Union v Victoria (No 2) [2013] FCA 1034. As I sought to there explain (particularly at [12]–[25]), the approach taken by Dixon J in Cain v Doyle was to identify a “rule of interpretation” for discerning whether a clear legislative intention existed to impose a criminal sanction upon the Crown. Applying that rule of interpretation, Dixon J held that the provision in question was not intended to impose criminal liability upon the Crown (at 425–426). As I also observed at [19]–[21], Latham CJ took a different approach and identified a number of reasons as to why he considered the Crown was not amenable to a criminal sanction. One of those reasons was the application of the rule that “the King can do no wrong” and is thus not liable for a civil or criminal wrong unless made liable by statute. As I went on to observe at [20], the immunity of the Crown to which Latham CJ referred was a matter reflected upon by Weinberg J in McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409. At [224], Weinberg J explained that the “King’s unquestioned immunity from prosecution for crime” was based upon “the somewhat arcane legal fiction that the Sovereign was incapable of possessing the requisite mens rea”. However, at [225], Weinberg J said this:

A more modern and less dubious justification for the doctrine is that the Sovereign is immune from punishment, rather than being incapable of committing a crime.

107    Those observations raise some doubt as to whether the common law immunity of the Crown from criminal liability has the effect of converting otherwise unlawful behaviour into lawful behaviour. However, even if that were the case, the rationale for Crown immunity from criminal liability, to which reference has just been made, is quite different to that which underpins the judicial immunity upon which s 53C is founded, to which I will shortly refer. There is no basis for thinking that the effect of the s 53C immunity on the characterisation of the underlying conduct was intended to parallel that of the common law immunity of the Crown in relation to criminal liability. As Kyrou J observed in Towie v Victoria (2008) 19 VR 640 at [62], the cases on judicial immunity have not “stated that the principle has the effect of converting an act which, in the absence of the immunity, would be a breach of the law, into an act that is not in breach of the law”.

108    But my acceptance of Ms Winter’s contention that the judicial immunity does not have the effect of converting an unlawful act into a lawful act does not answer an anterior inquiry as to whether a person to whom the judicial immunity extends can contravene the DDA. In other words, does the conduct rendered unlawful by s 24 of the DDA include conduct to which the judicial immunity attaches?

109    It is to that inquiry that the “rule of interpretation” formulated in Cain v Doyle may have more bite. A case in point is Re East; Ex parte Nguyen (1998) 196 CLR 354 in which the High Court applied the same kind of interpretative presumption based in the principle of legality (see Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at [30] (French, Crennan and Kiefel JJ)) as was applied by Dixon J in Cain v Doyle to reject a contention that the acts or omissions of a judge and a magistrate had contravened s 9 of the Racial Discrimination Act 1975 (Cth) (“RDA”), by virtue of a failure of those judicial officers to ensure that the person dealt with in proceedings before each of them had the benefit of an interpreter. Broadly stated, s 9(1) of the DDA made it “unlawful for a person to do any act involving a distinction … based on race … descent or national or ethnic origin which has the … effect of … impairing the … exercise, on an equal footing, of any human right or fundamental freedom in the … field of public life”.

110    Kirby J at [80] said this (emphasis added, footnotes omitted):

Thirdly, when the Act was enacted the Parliament would have been well aware of the importance of the independence of judicial officers and of their immunity from personal suit or other proceedings in respect of conduct performed judicially. If it had been the object of the Parliament to render such conduct, in a particular case, unlawful, well established principle would require that the Parliament should say so expressly. If independent judicial officers were to be subject to complaint of allegedly “unlawful” conduct before agencies of the Executive Government, longstanding principle would require that this be expressed in plain terms. In particular, if it had been the purpose of the Parliament to render judicial officers of State courts amenable to such federal remedies (assuming that to be possible), it might have been anticipated that the Parliament would have said so. These considerations make it unthinkable that the unlawfulness mentioned in s 9 was intended to apply to judicial officers at all and, in particular, to the judicial officers of a State, such as those against whom the applicant sought relief.

111    At [30], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ made observations to the same effect, stating (footnotes omitted):

First, there is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity.

112    An interpretative presumption of this kind has also been applied in the United States of America in relation to the judicial immunity: Pierson v Ray (1967) 386 US 547 at 554-555 (Warren CJ, delivering the opinion of the majority).

113    Section 24 of the DDA prohibits the discriminatory conduct of “a person”. The word ‘person’ is there used with “perfect generality”, as Kirby J said of the same word used in s 9(1) of the RDA (at [61] of Nguyen). But that does not mean, as Kirby J went on to say, that the word ‘person’ utilised in s 9(1) of the RDA should be taken to apply to a judicial officer acting as such. His Honour said this at [61]:

The kinds of conduct mentioned in the succeeding sections of the Act and the procedures for redress afforded by Pt III suggest that judicial officers, not least those of a State, were not intended to fall within the ambit of the section at all.

114    In my view, the very same observations may be made in relation to s 24 and the procedures for redress provided for by the DDA. There is nothing in the DDA which expressly conveys the intention of Parliament to override the judicial immunity and, in the absence of a clear indication to that effect, s 24 ought not be construed as including within its ambit the conduct of a judge in the performance of judicial functions. That conclusion is confirmed by the following holding made by Murphy, Pagone and Perry JJ in Luck v University of Southern Queensland [2014] FCAFC 135 at [41]:

… At least in the performance of judicial functions, judicial officers are not subject to the DD Act and any claim of discrimination would be precluded by the principle of judicial immunity: Fingleton v The Queen (2005) 227 CLR 166 at [36]-[39] per Gleeson CJ citing Sirros v Moore [1975] QB 118 at [132] per Lord Denning MR; Yeldham v Rajski (1989) 18 NSWLR 48. In our view a complaint in respect of actions taken or not taken in the exercise of a jurisdiction conferred on a Chapter III judge cannot found an action under the DD Act.

115    However, the interpretative presumption which supports the conclusion that s 24 of the DDA has no application to judicial conduct does not necessarily support the same conclusion in relation to the conduct of a mediator covered by s 53C. The immunity conferred upon a mediator by statute is not a fundamental common law right that can give rise to an interpretative presumption based upon the principle of legality. That a judge performing judicial functions cannot be the subject of a s 24 proceeding is, as I have sought to explain, a product of the ambit of s 24 construed by reference to the interpretative presumption. Whether the conduct of the mediator falls within the ambit of s 24 is a difference question.

116    It may be that s 24 of the DDA should be construed in the light of s 53C of the FCA Act, a provision which was enacted earlier in time. The harmonious construction of the two provisions may require the conclusion that s 24 of the DDA was not intended to include the conduct of any person who had the protection of the judicial immunity whether conferred by common law or by the Parliament. However, that proposition was not contended for by the respondents and ought not be a basis upon which I should find that no reasonable cause of action exists.

117    For those reasons, I do not accept the first challenge made by the first, second and third respondents – that there is no reasonable cause of action shown against them as accessories because s 53C has the effect that the mediator’s conduct could not have constituted a contravention of the DDA.

118    The second ground raised by the respondents is more persuasive. In my view, the protection and immunity conferred upon a mediator by s 53C precludes the curial examination of the conduct of the mediator for the purpose of determining whether a finding ought to be made that the conduct constituted a civil wrong. In other words, whether a mediator engaged in civil unlawfulness in the course of mediating anything referred under s 53A is, in my view, not a justiciable issue.

119    I reject Ms Winter’s contention that s 53C is merely a bar to the institution of proceedings against a mediator and provides the mediator no protection against a court holding that his or her conduct constituted a civil wrong. If the protection and immunity conferred was so confined, the rationale upon which the immunity is founded would be largely undermined. I turn then to consider the rationale for the immunity in order to explain the view I have reached.

120    The discussion must commence with the rationale for the common law judicial immunity, given that, by its terms, s 53C provides “the same protection and immunity as a Judge has in performing the functions of a Judge”. Whether the scope of the s 53C immunity differs from that conferred upon a judge by reason of the different functions of a judge compared to those of the mediator, is a matter to which I will return.

121    As Beazley P (with whom McColl JA and Tobias AJA agreed) said at [72] of O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698:

The principle of judicial immunity is of ancient origin, extending from the time of Lord Coke. In R v Skinner (1772) 98 ER 529, Lord Mansfield (at 530) stated the principle in terms that “neither party, witness, counsel, jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.” The principle was applied in Scott v Stansfield (1868) 3 LR Ex 220, which involved an action for slander brought by a disgruntled litigant against a County Court judge. Kelly CB referred (at 223) to the general proposition that “no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice.”

122    The most recent High Court authority on judicial immunity is Fingleton v The Queen (2005) 227 CLR 166. Diane Fingleton was the Chief Magistrate of Queensland. She was accused and convicted of unlawful retaliation against a witness arising out of certain administrative conduct in which the Chief Magistrate was engaged. Section 30 of the Criminal Code (Qld) provided that “judicial officers” were not criminally responsible for anything done in the exercise of judicial functions. Section 21A of the Magistrates Act 1991 (Qld) provided that a magistrate has, in performing an administrative function, the same immunity as a magistrate in a judicial proceeding. The High Court unanimously upheld the appeal on the ground that the appellant was immune from prosecution.

123    After referring (at [36]) to the general principle stated by Lord Denning MR in Sirros v Moore [1975] QB 118, Gleeson CJ (with whom McHugh J, Gummow and Heydon JJ, and Hayne J relevantly agreed) explained the policy underlying judicial immunity (emphasis added, footnotes omitted):

[38]    This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has "emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have." She said that "[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits."

[39]    This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.

124    In a separate judgment, Kirby J emphasized that the purpose of the immunity was to forestall “curial examination” of the exercise of judicial functions (at [176]) (emphasis added, footnotes omitted):

Secondly, the purpose of the immunities provided by the cited provisions of the Queensland statute law is to forestall, in the cases to which they apply, the very kind of proceedings that occurred in this instance, involving as they did curial examinations of the exercise of functions and powers which the statutory provisions aimed to remove from such accountability, and do so for important principles of public policy supportive of judicial independence. It would defeat the expression and policy of the legislation and be wholly inappropriate to introduce an obligation in every case to examine all the facts so as to provide the characterisation of the "true nature" of what was done or omitted to be done by the judicial officer as within or outside the exercise of that officer's functions. To require this would be to undermine the achievement of the purpose of the immunity. It would render it ineffective in practice and would be contrary to the obvious object of the Queensland Parliament in enacting the provisions as it did.

125    At [188]–[189], Kirby J elaborated and said this (emphasis added, footnotes omitted):

[188]    Judicial independence from external pressure from litigants and others is one of the legal immunities that can be fully justified. It is supported by reference not only to legal authority but also to legal principle and policy, including considerations of the protection of human rights and fundamental freedoms and the functions of the judiciary in securing those ends. Such immunity is an essential precondition to the rule of law. The independence of judicial officers comes at a price. It is a price that our society has long been prepared to pay. That price is the immunity provided by law. The Queensland Parliament has enacted, and also extended, that immunity. It protects the public interest, not just the interests of individual judicial officers.

[189] The Supreme Court of the United States explained the rationale for this immunity. Speaking of constitutional and common law principles akin to those which in Australia preceded the Queensland laws, that Court said in Pierson v Ray :

“Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v Fisher . This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences’ … [A judge's] errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”

126    In Rajski v Powell (1987) 11 NSWLR 522, a claim for damages was made against a judge of the Supreme Court of New South Wales for allegedly wrongful acts committed in the abuse of his powers, and against the Attorney-General of New South Wales in vicarious liability. The allegedly wrongful acts of the judge related to the purported exercise of his jurisdiction as a judge of the Supreme Court. The Court of Appeal unanimously summarily dismissed the proceeding. In relation to the judicial immunity, Kirby P said at 527–528 (emphasis added):

It is a fundamental principle of our law that a judge of a superior court is immune from civil liability for acts done in the exercise of his judicial function or capacity. Such immunity rests, as it has been said, upon considerations of public policy. Its object is not to protect judges as individuals but to protect the interests of society. The purpose of the rule is to preserve the integrity, independence and resolve of the judiciary and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion — not influenced by any apprehension of personal consequences.

127    Wentworth concerned the taxing of costs by a Taxing Officer, in the exercise of the jurisdiction of the court. On the basis that the underlying rationale for the judicial immunity applied equally to a master or registrar exercising the court's jurisdiction or performing judicial functions, Fitzgerald JA (with whom Heydon JA and Davies AJA agreed) found (at [58]–[59]) that the immunity also so applied. Fitzgerald JA relevantly explained the rationale of the immunity as follows at [24] (emphasis added):

... Judicial immunity is an essential corollary of judicial independence, which requires that judges be free to administer justice free from not merely the risk of personal liability but also the burden of resisting the claims and allegations of disaffected litigants. The protection which judicial immunity is intended to provide to those who perform the controversial but essential function of adjudicating disputes would be denied them if the ambit and operation of the doctrine were open for debate.

128    At [260] Heydon J cited the following passage from the judgment of Channell J in Bottomley v Broughan [1908] 1 KB 584 at 587–586 which is also instructive (emphasis added):

… absolute privilege … is [not] a very accurate expression, and I am sure that calling it a ‘privilege’ is sometimes misleading. Privilege means, in the ordinary way, a private right. Now there is no private right of a judge … to be malicious. … The real doctrine of what is called 'absolute privilege' is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be malicious, but that, so far as it is a privilege of the individual — I should call it rather a right of the public — the privilege is to be exempt from all inquiry as to malice; that he should not be liable to have his conduct inquired into to see whether it is malicious or not — the reason being that it is desirable that persons who occupy certain positions as judges … should be perfectly free and independent, and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious.

129    A second rationale for the judicial immunity is the need for the finality of litigation. That rationale is expressed in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and repeated in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [75] (Gummow, Hayne and Crennan JJ) as well as O’Shane at [78] (Beazley P). D’Orta-Ekenaike concerned the advocate’s immunity rather than judicial immunity, however, in discussing the basis for the advocate’s immunity (at [31]–[47]), Gleeson CJ, Gummow, Hayne and Heydon JJ considered the rationale for the judicial immunity, noting that it was also founded in the need for the finality of litigation (at [40]). At [42] their Honours said this (emphasis added, footnotes omitted):

In R v Skinner, Lord Mansfield said that “neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office”. Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, “to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences” and “the avoidance of the re‑agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in “the effective performance” of its function by the judicial branch of government.

130    Many of the cases to which I have referred are cases in which a judge was personally sued and, in those authorities, the judicial immunity is sometimes referred to as an “immunity from suit” (see for instance O’Shane at [187]). However, I do not think that “suit” was necessarily intended to be used in the narrow sense of a proceeding brought against the judge personally (but cf. Towney at [59]). In Nguyen, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, (at [30]) referred to the immunity as an “immunity from suit” but applied the judicial immunity in a case in which judicial officers were not sued personally but where their conduct was impugned in proceedings seeking prerogative relief against the courts in which those judges sat. By reference to the judicial immunity, their Honours at [29] spoke of “the notion that either a judicial officer, or a court, may be subject to legal redress” as being problematic. At [80] Kirby J spoke of the immunity as an “immunity from personal suit or other proceedings”. That the operation of the judicial immunity is not confined to proceedings where the holder of the immunity is personally sued is also apparent from Herijanto v Refugee Review Tribunal [2000] HCA 16; 170 ALR 379 (“Herijanto (No 1)”) and Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; 170 ALR 575 (“Herijanto (No 2)”).

131    Herijanto (No 1) concerned the claims of a number of claimants for protection visas that various members of the Refugee Review Tribunal had failed to comply with procedural fairness requirements under the Migration Act 1958 (Cth). The claimants sought relief in the High Court under s 75(v) of the Constitution. They served interrogatories upon the members of the Refugee Review Tribunal whose decisions they sought to impugn. An application was made to set aside those interrogatories. The basis for that application was that the Tribunal member enjoyed the same immunity as that of a Justice of a High Court and that the immunity precluded examination of the material read by member in reaching his or her decision. At [13]–[16] of Herijanto (No 1), Gaudron J set out the principles governing the scrutiny of the exercise of judicial power concluding that any aspect of the record that betrays a decision-maker’s decision-making process is protected by the immunity (footnotes omitted):

[13]    It has been settled law since Knowles' Trial that judges cannot be compelled to answer as to the manner in which they have exercised their judicial powers. In Hennessy v Broken Hill Pty Co Ltd, the immunity was said to be such that judges cannot be compelled "to testify as to matters in which they have been judicially engaged". However, it was also pointed out in that case that "their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers".

[14]    In MacKeigan v Hickman, the Supreme Court of Canada held that judges could not be compelled to disclose what affidavit evidence had been received when that did not clearly appear from the record. However, Wilson J, in dissent on this point, would have held that they might be asked "what as a factual matter comprised the final record for purposes of their decision".

[15]    In MacKeigan, the immunity of judges from compulsory disclosure was rested on the principle of judicial independence. In Sirros v Moore, a case concerned with immunity from civil suit, Lord Denning MR suggested that the reason underlying that immunity was to ensure that judges "may be free in thought and independent in judgment". That, in my view, is also the true basis of the immunity from compulsory disclosure. And on that basis, I see no reason why a judge might not be compelled to disclose the record upon which he or she has acted. However, that is subject to the qualification that disclosure of the record cannot be compelled if it would also reveal some aspect of the decision-making process, as may well have been the case in MacKeigan.

[16]    There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, "the record" bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy.

132    Her Honour confirmed her conclusion in Herijanto (No 2) at [10] and extended the principle to the revelation by any other means (ie evidence from a source other than the decision-maker) of the decision-maker’s decision-making process. Other authorities are to the same effect. After reviewing relevant authorities from the UK (Warren v Warren [1997] QB 488, citing Duke of Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418), New Zealand, Canada (MacKeigan v Hickman [1989] 2 RCS 796) and Australia (Hennessy v Broken Hill Proprietary Company Limited (1926) 38 CLR 342; Zanetta v McClearly [1976] 1 NSWLR 230; Herijanto (No 1)), Gilbert J in Deliu v New Zealand District Court [2016] NZHC 2806 concluded (at [31]):

Although the authorities have developed in response to widely differing factual scenarios, the underlying rationale for the immunity is to preserve the independence of the judiciary. There is a consistent line of authority tracing its origins to cases decided in the seventeenth century establishing that Judges cannot be compelled to give evidence relating to their performance of their judicial functions.

133    It is not necessary for me to try and chart the outer perimeter of the judicial immunity. It is sufficient to say that many if not most of the ills, burdens, pressures, apprehensions and influences likely to afflict a judge when personally sued would also be present when a judge is faced with a curial examination of the judge’s exercise of his or judicial function for the purpose of determining whether that exercise constituted civil unlawfulness. Exposure to a finding of unlawful conduct would entail a heavy burden upon a judge, irrespective of whether a financial impact was also in prospect because the judge had been sued personally. Such an exposure to curial examination of a judge’s exercise of the judicial function would also provide a significant capacity for disgruntled litigants to hound the judge through collateral attacks which re-litigate the matter from which the disgruntlement arose. Exposure of that kind is sufficiently corrosive of the principled and fearless functioning of a judge as to warrant its preclusion. Whilst there is no authority to which I was referred (or that my researches have revealed) which is directly on point, the rationale for the judicial immunity, as expressed and applied by the authorities to which I have referred, strongly supports the proposition that the judicial immunity extends to prohibiting the curial examination of the conduct of a judge exercising judicial functions for the purpose of determining whether that conduct constituted civil unlawfulness.

134    There are obvious differences between the functions of a judge and that of a mediator. Those differences must have been readily apparent to the drafter of s 53C; as must have been apparent the differences between the functions of a mediator and those of an arbitrator upon whom s 53C also confers the same immunity. The provision can only be sensibly read as intending to provide the same protection and immunity in relation to the performance of the functions of an arbitrator or those of a mediator as a judge has in the performance of the functions of a judge. That the functions of a judge are different and that the reasons that may support the need for those functions to be protected may be different, does not appear to be a consideration which is accommodated by the text of s 53C. The provision seems to me to be founded upon the idea that whatever protections judges have in relation to the exercise of their functions is to be conferred upon arbitrators and upon mediators in the exercise of their respective functions.

135    If it be the case that the underlying rationale for the functions of a mediator were intended as a guiding consideration, to my mind, the need for a mediator to perform his or her functions without fear or favour is an important consideration which, of itself, provides a policy justification for conferring an immunity upon a mediator. For similar reasons as those applicable to the judicial immunity, an immunity from being personally sued would not of itself protect the principled and fearless functioning of a mediator. I would also observe that, if an immunity from being personally sued was the only protection intended to have been conferred, s 53C could readily have said so and limited protection of that kind could have been provided without reference to the judicial immunity. Parliament had more in mind and its reference to the judicial immunity has effectively said so.

136    It necessarily follows from my conclusion about the scope of the immunity conferred upon the mediator by s 53C, that the accessorial liability claims do not disclose a reasonable cause of action. If the Court is precluded from examining the conduct of the mediator and from making a finding that the mediator’s conduct contravened the DDA, no finding of a contravention by the first, second and third respondents as accessories is available and the claims of accessorial liability must fail. It follows that the accessorial liability claims (VID 114 [114]–[133]) must be struck out and, in the circumstances, it would be futile to grant Ms Winters any leave to re-plead those claims.

137    In coming to this view, I have taken into account the principle, observed by Kirby J in Fingleton at [168], that immunities such as that conferred by s 53C which “derogate from an individual's ordinary legal obligations to others, and to the community, on a footing of full equality before the law” should, where possible, be confined. I consider this principle to be outweighed, however, by the countervailing principle and policy underlying the judicial immunity, as applied to mediators by virtue of s 53C, to which I have adverted.

138    If the conclusion I have just reached is wrong and the only basis for striking out the accessorial liability claims is the inadequacy of the pleading of those claims, the question of whether leave to re-plead those claims should be given would arise. For completeness I will indicate my view on that issue. To do that I need to consider the reliance placed by the first, second and third respondents upon s 53B of the FCA Act as well as the protection against disclosure which flows out of the immunity just discussed.

139    I would agree with those respondents’ proposition that it would be futile to give Ms Winters leave to plead material facts that could never be proven. It may well be that s 53B and the mediator’s immunity will preclude evidence being called to prove material facts upon which Ms Winters will want to rely should leave to re-plead be granted.