Federal Court of Australia

DJC21 v Medical Board of Australia [2022] FCA 832

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on the further amended originating application dated 15 September 2020 is refused.

2.    The originating application dated 10 August 2018 is summarily dismissed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    In DJC21 v Medical Board of Australia [2021] FCA 1037 (DJC21) I addressed a number of interlocutory applications made in this matter, and these reasons should be read in conjunction with those.

2    It is sufficient for present purposes to recall that this interlocutory application arose in the following circumstances. On 10 August 2018, the applicant, a doctor, commenced proceedings seeking ex parte interlocutory and other relief to restrict the Medical Board of Australia (the Board) from imposing or changing conditions on his registration as a medical practitioner on 13 August 2018. On 13 August 2018, the Board (without knowledge of this proceeding) considered the applicant’s submissions to it, and decided not to take any action against the applicant, thereby prima facie rendering the proceeding inutile. In April 2020, the respondents filed an application for summary dismissal of the proceedings, and, in the alternative, orders to have the second, third and fourth respondents removed from the proceedings. Since that time, the applicant has sought to amend his originating application on two occasions, with the latest dated 15 September 2020, being the version of the originating application which he now wishes to prosecute (that is, the first amended originating application dated 7 July 2020 was no longer relied on by the applicant). The respondents submitted that even if the amendments were made to the originating application, as reflected in the originating application dated 15 September 2020 (the further amended originating application), the matter should nonetheless be summarily dismissed. It was submitted that an extension of time was needed for the applicant to rely on the further amended originating application, which was opposed. In the meantime, and in the course of filing written submissions, the applicant filed an interlocutory application on 18 November 2020, seeking, inter alia, default judgment against each of the respondents: DJC21 at [1]-[2].

3    In DJC21, I dismissed the applicant’s application for default judgment. The reasons there indicated that leave to amend in the terms sought in the further amended originating application would not be granted in respect to all bases of claims (with the exception of the one claim not decided), and that even if leave were to be granted, the respondents’ application for summary dismissal would be allowed.

4    This judgment addresses the outstanding issue relevant to the applicant’s application for leave to rely on his further amended originating application, and the respondents’ application for summary dismissal. That summary dismissal application relates to the applicant’s claim in his further amended originating application, which alleges a breach of the Disability Discrimination Act 1992 (Cth) (DD Act) on the basis that the respondents are each a “qualifying body” within the meaning of the DD Act.

5    For the reasons given in DJC21 at [84]-[89], the Court sought the assistance of amicus curiae on the issue. I made orders to facilitate this process. As a result, the Court and parties received submissions from amicus, and in response, each party was given an opportunity to file written submissions on the topic. At the applicant’s request, an opportunity was provided to the parties to make further oral submissions (noting that the respondents had opposed that course, having submitted that the matter could be resolved on the papers).

6    For the reasons below, leave to amend the further amended originating application is refused. Had I decided otherwise, I would have summarily dismissed the application. As leave to amend is refused, only the original originating application dated 10 August 2018 remains. As explained in DJC21 at [74]-[76], those grounds are not repeated in the further amended originating application. In any event, the original originating application lacks any utility and is summarily dismissed.

Submissions

7    As explained in DJC21 at [84], the nub of the applicant’s complaints to the Australian Human Rights Commission (AHRC) appear to be related to conditions imposed on his registration as a medical practitioner, and the circumstances in which they were imposed, including the investigation process. As observed in DJC21, if that is the case, the provision which, on its face, appears the most likely to apply is s 19 of the DD Act, relating to “qualifying bodies”. Section 19 is in the following terms:

19    Qualifying bodies

It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person’s disability:

(a)    by refusing or failing to confer, renew or extend the authorisation or qualification; or

(b)    in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or

(c)    by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held.

8    The respondents submitted in that context the DD Act does not apply to them, as the Health Practitioner Regulation National Law (National Law) is enacted pursuant to legislation in each State and Territory, and is not a Commonwealth law, relying on s 12(6) of the DD Act. Section 12 is relevantly as follows:

12    Application of Act

…

(6)    Section 19 has effect in relation to discrimination by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification.

(7)     The limited application provisions have effect in relation to acts done by, or on behalf of:

(a)    the Commonwealth or the Administration of a Territory; or

(b)    a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory;

in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory.

(8)    The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:

(a)    give effect to the Convention; or

(b)    give effect to the Covenant on Civil and Political Rights; or

(ba)    give effect to the Disabilities Convention; or

(c)    give effect to the International Covenant on Economic, Social and Cultural Rights; or

(d)    relate to matters external to Australia; or

(e)    relate to matters of international concern.

(9)    The limited application provisions have effect in relation to discrimination by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation.

…

(12)    The limited application provisions have effect in relation to discrimination in the course of, or in relation to, trade or commerce:

(a)    between Australia and a place outside Australia; or

(b)    among the States; or

(c)    between a State and a Territory; or

(d)    between 2 Territories.

(13)    The limited application provisions have effect in relation to discrimination within Australia involving persons or things, or matters arising outside Australia.

9    Amicus submitted that the preferable view is that the National Law is not a “Commonwealth law”. That was so for various reasons, including: because the reference to “an Act” in the definition of “Commonwealth law” is likely a reference to an Act passed by the Parliament of the Commonwealth; that s 29 prohibits unlawful discrimination by a person who performs a function or exercises power under a Commonwealth law or for the purpose of a Commonwealth program; that there are provisions broadly equivalent to s 19 of the DD Act in the anti-discrimination legislation of each of the States and Territories; that the word “Territory” is defined to expressly exclude the Northern Territory; and that it does not seem arguable that the Uniform Law could be said to be “an order or award made under a law” for the purposes of the definition. As a result of these arguments, s 12(6) of the DD Act would not be enlivened, and would prevent the application of s 19. Section 19 would have no effect in relation to any purported discrimination by the respondents.

10    The applicant takes issue with the conclusion. In doing so, the applicant’s written and oral submissions did not address the issues raised in the submissions of amicus, but rather raised further and different submissions to those made at the time of DJC21 as to why the respondents are a qualifying body. These were matters not referred to by amicus.

11    The applicant made submissions as to the approach to construction of the DD Act, which he submitted should be construed beneficially and not narrowly. It was submitted that the Court should take account of and give effect to the object of such legislation. The applicant called in aid the principle that statutes are to be interpreted and applied, as far as their language permits, to be in conformity with the established rules of international law and in a manner which accords with Australia’s international treaty obligations.

12    In summary, the applicant submitted, first, that the Australian Health Practitioner Regulation Agency (Ahpra), the second respondent, is a “qualifying body” within the meaning of s 19 of the DD Act, as it satisfied s 12(6); second, and alternatively, that s 19 applies to Ahpra because the authority or body should be treated as the Crown in right of the Commonwealth, Western Australia and Northern Territory; and third, that s 19 applies to Ahpra because of other provisions in s 12 of the DD Act. I note that at the end of the hearing the applicant submitted that all the respondents fell within the definition.

13    Pausing there. In relation to his second basis, the applicant’s written submission stated that he “awaits orders to make submissions about the same”. There is no basis for that proposition or expectation. If the applicant wishes to raise this as an argument (at this stage, for the first time) in support of his contention that s 19 applies, it was for him to put such an argument before the Court. The applicant has had repeated opportunities to make submissions on the application of s 19. There is no proper basis to further delay the resolution of this matter. This was explained to him during the hearing, and an opportunity was given for him to advance any submissions orally he wished to make.

14    As to the first basis, in relation to s 12(6), the applicant submitted that the definition of “Commonwealth law” in s 4 of the DD Act means that “Commonwealth law” is not given its ordinary meaning. Section 4 is relevantly as follows:

Commonwealth law means:

(a)    an Act, or a regulation, rule, by-law or determination made under an Act; or

(b)    an ordinance of a Territory, or a regulation, rule, by-law or determination made under an ordinance of a Territory; or

(c)    an order or award made under a law referred to in paragraph (a) or (b).

15    The applicant submitted that pursuant to sub-paragraph (c), the “law” referred to under sub-paragraphs (a) or (b) is apt to include a collection of laws in force in each state or territory that combine to form the Health Practitioner Regulation National Law; or, pursuant to sub-paragraph (a), an “Act” is apt to include a collection of Acts in force in each state or territory that combine to form the Health Practitioner Regulation National Law Act; and/or a single “Act” being the Constitution; or the applicant adopted some of the submissions of amicus in support of the contrary argument. Alternatively, the applicant submitted that pursuant to sub-paragraph (c), it is not necessary to identify a law under sub-paragraphs (a) or (b); and pursuant to sub-paragraph (a), it is not necessary to identify “an Act” and therefore the “order” or “award” as well as the “rule, regulation, by-law etc” are apt to include: an instrument of conditional registration; or an associated form; or the National Instrument of Authorisation.

16    As to the third basis, the applicant relies on a number of sub-sections in s 12 of the DD Act. He submitted that pursuant to s 12(9), “section 19 has effect in relation to discrimination by Ahpra as a trading corporation and/or financial corporation formed within the limits of the Commonwealth”. In this regard, he submitted, inter alia, that s 12(9) was inferred to apply s 19 in Sklavos v Australasian College of Dermatologists [2016] FCA 179 ( Sklavos) at [40].

17    The applicant submitted that pursuant to s 12(12), s 19 has effect in relation to discrimination in the course of, or in relation to, trade or commerce: (a) between Australia and a place outside Australia; or (b) among Western Australia and New South Wales; or (c) between Western Australia and the Northern Territory. Pursuant to s 12(8)(ba), s 19 has effect in relation to discrimination against a person with a disability to the extent that s 19 gives effect to the Disabilities Convention. Pursuant to s 12(7), s 19 has effect in relation to acts done by, or on behalf of, the Commonwealth or acts done by, or on behalf of a body or authority established for a public purpose in the exercise of a power conferred by a law of the Commonwealth in that: Ahpra is a National Agency established as a single national entity empowered to act throughout Australia on behalf of the Commonwealth as a “Commonwealth Employee” within the meaning provided in s 4 of the DD Act. The Commonwealth is in a position to exercise control, including through directions to Ahpra by Ministers of the Commonwealth, about operational matters relevant to policies, administrative processes and procedures (s 14); and statutory obligations requiring Ahpra to cooperate with the Commonwealth in the exercise of power (s 27(1)). Alternatively, it is submitted that the authority or body is apt to be treated as the Crown in right of the Commonwealth, Western Australia, Northern Territory, Ahpra and/or the first respondent. It was submitted that the National Law is a “Law of the Commonwealth” in force throughout Australia. The applicant also relied on s 12(13) submitting that s 19 has effect in relation to discrimination within Australia involving Ahpra and/or other things, being registration and reasonable adjustments.

18    The applicant criticised the submissions of both amicus and the respondents on the basis that neither had explained their position. The applicant emphasised that the DD Act is beneficial and ought to be construed accordingly, and referred also in this context to s 15AA of the Acts Interpretation Act 1901 (Cth) (and other provisions contained therein). The applicant also submitted that the respondents are operating under Commonwealth law, for example, the Human Services (Medicare) Act 1973 (Cth).

19    In submissions in reply the applicant appeared to narrow the scope of his submissions, and was “prepared to withdraw substantive submissions”, confining them to the following: Ahpra is a “qualifying body” within the meaning of s 19 of the DD Act, the Court should follow the precedent in Sklavos, and the Court should apply s 19 by reason of s 12(9), in that Ahpra is a trading or financial corporation formed within the limits of the Commonwealth.

20    At the conclusion of the hearing, the applicant referred to a number of cases that he had not referred to in his written submissions, and requested that he be able to provide a list of cases to chambers after the hearing, which he said were relevant to the issues. I gave him leave to do so.

21    The respondents agreed with the written submissions of amicus that the National Law is not a "Commonwealth" law, and that consequently s 19 of the DDA is not enlivened in relation to the applicant’s claim. The first and second respondents exercise functions and powers under State and Territory laws and not “Commonwealth laws”. The first and second respondents submitted that the “qualifying body” part of the summary judgment application falls to be determined by reference to ss 12(6) and 19 of the DD Act. Section 12(6) defines the scope of application of the "qualifying bodies" provision of the DD Act. On a proper construction, this means that the conduct of a “qualifying body” may engage the DD Act where the conduct emanates from a “Commonwealth law.” The first and second respondents are not the Crown: Medical Board of Australia v Yu [2020] SACAT 3 at [53]. Rather, they are self-funded agencies created by uniform law enacted across the states and territories of Australia. It was submitted that in this case, the applicant’s complaint is about the response of the first respondent (the Medical Board) to notifications it received about the applicant, including the investigation of those notifications and conditions imposed on his registration in response. In respect of the second respondent, Ahpra, it does not have any substantive function or power in respect of the subject matter of the applicant's complaint. In any event, the source of its functions and powers is the National Law, as enacted through relevant state and territory legislation (as opposed to under a Commonwealth law).

Consideration

22    The primary issue is one of statutory construction.

23    The starting point for ascertaining the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] citing Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [35]-[39] and [69]-[71], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

24    The DD Act is beneficial legislation. The objects of the DD Act are, inter alia, to eliminate, as far as possible, discrimination against persons on the grounds of disability in a number of areas, one being work: s 3(a)(i). The objects also include ensuring, as far as practical, that persons with disabilities have the same rights to equality before the law as the rest of the community and to promote the recognition and acceptance within the community that persons with disabilities have the same fundamental rights as the rest of the community: s 3(b) and (c). Beneficial and remedial legislation is to be given a liberal construction, although a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11-12, 22-23, 58. The principle does not justify an assumption that whatever furthers the statute’s primary purpose must be determinative: Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 at [46]; Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5]- [7]; Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36 at [110]. That “beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively”: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [92] per Gageler J, and see the Acts Interpretation Act.

25    As the applicant correctly submitted, s 15AA of the Acts Interpretation Act applies, which states:

15AA Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

26    The applicant seeks to rely on claims pursuant to s 19 of the DD Act, claiming it appears that the each of the respondents are a qualifying body. Pausing there. As previously noted, the applicant’s submission in this regard was originally directed to Ahpra, the second respondent, with no submission relating to the first, third or fourth respondents. It is Ahpra who was said to be the qualifying body. During the submissions that position changed.

27    Section 12 addresses the application of the DD Act, and in doing so explicitly addresses the application of s 19. That provision has effect “in relation to discrimination by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification”: s 12(6). The issue therefore is whether the National Law is a Commonwealth law for the purposes of s 12(6). Commonwealth Law is defined as described above at [14].

28    It is important to recall, as described in DCJ21 at [9] and [10], the source of Ahpra’s functions and powers (and that of the first respondent, the Australian Medical Board), is the National Law, as enacted through relevant state and territory legislation (as opposed to under a Commonwealth law).

29    Section 38 of the Acts Interpretation Act, in respect to references to Acts, provides:

38    Reference to Acts

(1)    An Act passed by the Parliament of the Commonwealth may be referred to by the word “Act” alone.

(2)    An Act passed by the Parliament of the United Kingdom may be referred to by the term “Imperial Act”.

(3)    An Act passed by the Parliament of a State may be referred to by the term “State Act”.

(4)    An Act passed by the legislature of a Territory may be referred to by the term “Territory Act”.

30    This provision applies, subject to contrary intention: s 2(2) of the Acts Interpretation Act.

31    On the face of the text in the definition of “Commonwealth Law” in the DD Act, the reference to “Act” is a reference to a Commonwealth Act.

32    There does not appear to be any contrary intention expressed in the definition or indeed elsewhere in the DD Act. The reference to “Territory” in the definition is to external territories: s 12(1) and (2), and the definition of “Territory” (that is, the reference in the definition of “Commonwealth Law” to “Territory”) does not include the Australian Capital Territory or the Northern Territory.

33    A consideration of other definitions in s 4 reflects that when a definition is to include the States (which the DD Act defines as including the Australian Capital Territory and the Northern Territory) and Territories, it says so. For example, the definition of “voluntary club” includes “a body established by a law of the Commonwealth, a State or a Territory”. I note that “law of the Commonwealth” and “law” are not defined in the DD Act, although they are defined in the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). Parliament chose not to do so in the DD Act; rather, it chose to define “Commonwealth Law”. I note also that the DD Act includes provisions that refer to a law of a State or Territory, and sometimes the provision refers to all of the laws of the Commonwealth, State or Territory.

34    There has been no judicial consideration of s 19 of the DD Act. As I noted in DJC21 at [89], in Sklavos, the respondent in that case accepted that it was a qualifying body for the purposes of s 19 of the DD Act, and as consequence, the primary judge did not need to address the issue: Sklavos at [42], and on appeal: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 at [45]. The respondent in that case also accepted it was an education provider, although it denied the application of other aspects of the DD Act, inter alia, in respect to being a club and the provisions concerning administration of Commonwealth laws and programs applied to it. As explained above, the applicant relies on a reference in Sklavos at [40] to s 12(9) applying. The extent of the observation at [40] is that “[t]he College conceded that its conduct was subject to the provisions of that Act. I infer that the College accepts for the purpose of this case that it is a trading or financial corporation (see s 12(9) of the Disability Discrimination Act)”. That says nothing about the definition of qualifying body. Moreover, as this issue relating to a “qualifying body” was not one to be decided in Sklavos, that obiter comment, in the context in which it was made, does not assist in the present case.

35    The National Law, which is state legislation, is not a “Commonwealth law” within the meaning of the DD Act, and therefore Ahpra is not a qualifying body. It cannot be brought within the definition of a “qualifying body” through some other provision in s 12, as the applicant attempted to do. To be a qualifying body, the person or body must fall within s 12(6). That the respondents are a qualifying body within s 19 is the aspect of the DD Act on which the further amended originating application is based.

36    The applicant’s submissions which attempt to use other provisions of s 12 to contend that s 19 applies to Ahpra cannot avoid s 12(6). Moreover, many of the bases on which the applicant now contends s 19 applies relate to arguments of discrimination not pleaded or referred to in the further amended originating application (or the affidavit in support).

37    The only alternative interpretation advanced by amicus, which amicus submitted was not the preferred interpretation, is that the reference to “Commonwealth” in s 12(6) is “adjectival in nature describing a law which has the qualities or attributes of being of the Commonwealth”. However, the text of the definition considered in the context of the DD Act does not support that interpretation. That such an interpretation might be said to be consistent with the objects of the DD Act is not sufficient.

38    I am not persuaded that there is a proper basis for a claim based on an assertion that the second respondent (or the other respondents) is a “qualifying body” under the DD Act.

39    Amicus observed (without commenting on the merits of this case), subject to the precise terms of the relevant State or Territory anti-discrimination legislation, the applicant may, depending on the circumstances, have a remedy elsewhere. In that context, I note that such legislation typically encompasses conduct by a qualifying body: see for example, Equal Opportunity Act 1984 (WA), s 66G; Anti-Discrimination Act 1992 (NT), s 33; Equal Opportunity Act 2010 (Vic), s 36; and Anti-Discrimination Act 1977 (NSW) s 49J. As the National law is state legislation, the officers and agencies are acting pursuant to the legislation of a State or Territory, not the Commonwealth. I note in that context that the review process for decisions made pursuant to the National Law are to the relevant state administrative tribunal: see for example, the State Administrative Tribunal under the Health Practitioner Regulation National Law (WA) Act 2010, s 6, and Schedule 1, s 199; VCAT under the Health Practitioner Regulation National Law (Victoria) Act 2009, s 6; NCAT under the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), s 6C; NTCAT under the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT), s 6. For completeness, I also note, that in so far as the applicant appears to refer in his written submissions to judicial review of actions taken by the Board to impose conditions (which is not a claim advanced in his further amended originating application), then as the respondents contended, this Court does not have jurisdiction to conduct a review, as the proceeding is brought against officers and agencies acting pursuant to the legislation of a State or Territory and not the Commonwealth.

40    As noted above, at the conclusion of the hearing I gave leave to the applicant to provide a list of cases to chambers, on which he wished to rely. The applicant referred to Leach v Burston [2022] FCA 87 at [176]-[178] in relation to the concept of “commonwealth program”. This was primarily referred to so to illustrate the breadth of the term “program”. This reference does not assist as the definition in s 4 of the Sex Discrimination Act 1984 (Cth) is that it is a program conducted “by or on behalf of the Commonwealth government” (which is relevantly the same as in the DD Act.) There is no proper basis to contend that the respondents in this case are part of a program operated by the Commonwealth government in the manner defined in the DD Act. The applicant also referred to some authorities as to the meaning of “trade or commence” said to apply to s 12(12). Again, these do not assist as they do not overcome the fact that to be a qualifying body, the person or body must satisfy s 12(6).

Conclusion

41    As explained in DJC21, the applicant requires an extension of time in which to file an application and leave to file the further amended originating application. In DJC21 at [50]-[51] I referred to the bases relied on by the applicant in r 8.21 on which he seeks leave to amend. The onus is on the applicant to establish that leave should be granted.

42    It is appropriate also to recall that the content of this application in so far as it refers to discrimination claims is as follows: that “[t]he applicant is aggrieved by the acts, omissions and practices of the respondents” and “[t]he applicant claims that discrimination aggrieved of is unlawful under the Disability Discrimination Act 1992 (Cth). The sections relevant to the claim are stated in the alternative/combinations as follows: 5, 6, 15, 19, 20, 22, 23, 24, 27, 29, 30, 35, 37, 39, 42, 44, 122, 131”. No further detail is provided in that document. Although there was no further pleading, given the applicant’s position, for the purposes of these applications, regard was had to the affidavit dated 17 September 2020, filed at about the same time as the application, which was said to set out the complaints. I observe that these are not set out as any pleadings and there is no link between any complaints within the affidavit to the provisions alleged to be breached, nor is there identification of what must be established. It is also appropriate to recall as explained in DJC21, that s 46PO of the AHRC Act operates as a constraint on the relief that a complainant to the AHRC can later seek through the Court.

43    For the reasons given in DJC21 and in this judgment, I am not satisfied that the applicant has a reasonably arguable case such as to warrant an extension of time or leave to file the further amended originating application. Although in DJC21, it is apparent that the respondents raised other factors in opposing the exercise of the discretion to grant leave, this basis is sufficient of itself to resolve the application.

44    Nonetheless, there are also a number of other factors which tell against the grant of leave which are appropriate to briefly refer to. This is to be considered in the context of the relevant principles summarised in DJC21, which there is no need to repeat here. The other factors include the following. First, as explained in DJC21, the applicant requires an extension of time in which to file any claim in relation to the DD Act: s 46PO(2). Whether the period of delay is taken from the date of filing the first amended originating application or the further amended originating application, the delay is significant. Moreover, any attempt to amend the originating application only arose after the respondents applied for the original originating application to be summarily dismissed. Second, the relief sought in the original application is of no utility and is futile, as it related to preventing the respondents from acting in a particular manner. Any suggestion to the contrary by the applicant in his written submission cannot be accepted. By 13 August 2018, the applicant had already obtained the interlocutory outcome sought in this proceeding, as the Board independently decided to take no action against him. That original application could not bring a substantive application under the DD Act. It is only after a complaint has been terminated by the AHRC that an applicant can make an application alleging unlawful discrimination. This Court had no jurisdiction until that time: s 46PO(1). It follows that this further amended originating application is far removed from anything that could have been claimed at the time the original application was filed. Third, the further amended originating application, as reflected in DJC21, seeks to bring many new claims. It appears to have been an attempt to further broaden the scope of the application, to, it can be inferred, overcome arguments raised by the respondents in respect to the discrimination claims. The breadth of the discrimination claims and the nature of the pleading is reflected above at [42]. No regard is had to the limitations in bringing discrimination claims as imposed by s 46PO of the AHRC Act. In addition, the applicant’s submissions in support of the further amended originating application included many matters not pleaded or referred to in the original originating application or affidavit. Moreover, given the state of the pleading, the matter could not progress on the further amended originating application (or the original originating application) as drafted (and it would inevitably require further amendment).

45    The respondents have also established that there is no reasonable prospect of success in respect to the further amended origninating application (and the original originating application).

46    In DJC21 I deferred making orders in respect to the application for leave to amend until further submissions were provided in respect to the claim based on s 19 of the DD Act regarding the respondents being “qualifying bodies”. However, I made clear that the reasons published there reflect that, in respect to all other bases of claims in the further amended originating application, leave to amend would not be granted, and even if leave were to be granted, the respondents’ application for summary dismissal would be allowed.

47    In the above reasons I have concluded that the respondents are not a qualifying body within the meaning of the DD Act. I note the applicant seeks to add further respondents to the proceedings, being the Northern Territory and Western Australia. Adding respondents (if it occurred) does not overcome the flaws with the application.

48    In those circumstances, I refuse the application by the applicant for an extension of time and leave to file his further amended originating application. If I had not so decided, then on that basis I would have summarily dismissed the proceedings. As previously explained, that leaves the original originating application which is no longer relied upon. It is futile, and is not, and cannot (without amendment) be the basis of claims the applicant now seeks to make in the later amended applications. Accordingly, I summarily dismiss that originating application. The respondents have established that there is no reasonable prospect of success. I make orders accordingly.

Associate:

Dated:    19 July 2022

SCHEDULE OF PARTIES