Federal Court of Australia

Chadwick v State of New South Wales [2022] FCA 918

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 15 July 2022 be dismissed.

2.    The applicant pay the costs of the respondents of the interlocutory application as agreed, or in the absence of agreement, as assessed by a Registrar, such assessment to be on a lump sum basis.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

introduction

1    This is an interlocutory application filed by the applicant, Sandra-Anne Ngaone (Noni) Chadwick, in which she seeks urgent interlocutory relief in respect of the leased property in which she currently resides. The respondents, the State of New South Wales and the New South Wales Land and Housing Corporation, oppose the application.

2    Ms Chadwick says that on or about 22 December 2005 she entered into a residential tenancy agreement as defined in s 3 of the Residential Tenancies Act 1987 (NSW) (the RTA 1987), and subsequently, s 13 of the Residential Tenancies Act 2010 (NSW) (the RTA 2010), in respect of the leased property (the lease). Ms Chadwick’s residential tenancy agreement is a social housing tenancy agreement as defined in s 136 of the RTA 2010. The Housing Corporation is the relevant social housing provider under the applicable legislation. Ms Chadwick continues to reside at the leased property as a tenant. She says that her son, who lives with autism spectrum disorder, resides with her from time to time. He was 22 years old at the time she commenced the present proceedings.

3    There have been multiple proceedings between the parties in respect of the leased premises in the New South Wales Civil and Administrative Tribunal (NCAT). It was common ground that there are no NCAT proceedings presently on foot but that, for the purpose of this application, it could be assumed that the Housing Corporation intended to apply to NCAT for an order under s 147 of the RTA 2010 terminating Ms Chadwick’s lease on eligibility grounds.

4    Ms Chadwick seeks the following interlocutory orders until the substantive proceedings in this Court are finalised:

(1)    That she retain “possession” of the leased property;

(2)    Alternatively, that she “can occupy” the leased property; and

(3)    That the respondents, jointly or singly, be restrained from seeking any writ or warrant for possession of the leased property.

5    The respondents oppose the application on various grounds, including that the relief sought has no relationship with the claim brought in these proceedings and that there is accordingly no serious question to be tried in respect of which the injunctive relief might be called in aid.

BACKGROUND

Substantive proceedings

6    It is relevant to first outline the nature of the substantive proceedings and the relief sought. The proceedings were commenced by originating application, followed by a concise statement, at a time when Ms Chadwick did not have legal representation. Ms Chadwick acknowledges that her application was made two days late and accordingly she seeks an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

7    There are two interlocutory applications presently pending before this Court, which are set down for hearing on 20 September 2022. The first is an interlocutory application by the respondents seeking summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a), (c) and/or (d) of the Federal Court Rules 2011 (Cth) and, further or alternatively, an order pursuant to r 16.21 of the Rules that the concise statement be struck out in part. The second is an application by Ms Chadwick for leave to rely on a document titled “Points of Claim” as superseding the concise statement. The listing of the respondents’ application was delayed for a number of reasons, not least because Ms Chadwick was in the process of applying for and obtaining approval from the Attorney-General’s Department for assistance to obtain legal representation. Ms Chadwick had some success in that regard and was represented by Ms Dulhunty of counsel on the present application.

8    The present application was argued by reference to the originating application. The originating application is brought pursuant to s 46PO of the AHRC Act, which relevantly provides:

(1)  If:

(a)      a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)      the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

…

(2)      The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3)      The unlawful discrimination alleged in the application:

(a)      must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)      must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)      The application must not be made unless:

(a)     the court concerned grants leave to make the application; or

(b)      the complaint was terminated under paragraph 46PH(1)(h); or

(c)      the complaint was terminated under paragraph 46PH(1B)(b).

(4)      If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)      an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)      an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)      an order requiring a respondent to employ or re-employ an applicant;

(d)      an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)      an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)      an order declaring that it would be inappropriate for any further action to be taken in the matter.

…

(6)      The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7)      The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8)      The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.

9    Section 46PH(1B) of the AHRC Act provides that:

(1B)     The President must terminate a complaint if the President is satisfied that:

(a)     the complaint is trivial, vexatious, misconceived or lacking in substance; or

(b)     there is no reasonable prospect of the matter being settled by conciliation.

10    Ms Chadwick’s complaint to the AHRC was terminated under s 46PH(1B)(b) of the AHRC Act, on the ground that the Delegate of the President of the Australian Human Rights Commission (AHRC) was satisfied that there was no reasonable prospect of the matter being settled by conciliation. In the present proceedings, Ms Chadwick alleges she has been the subject of discrimination that is unlawful under (as written):

Racial Discrimination Act 1975,

Sex Discrimination Act 1984,

Australian Human Rights Commission Act 1986

RDA: Sections 12, 13, 18A and 18C.

SDA: Sections 28H and 28J

11    The relief which Ms Chadwick seeks in the originating application is as follows (as written):

Remedy sought

The Applicant asks the Court for public an apology, fully exonerated from NCAT, compensation and reimbursement of legal costs, medical costs, future medical costs [repair] from the respondent. I am seeking to also be fully exonerated for all applications and NCAT hearings placed against me by DCJ and NSWLHC (formerly known as Family and Community Services)

12    The reference to DCJ should be understood as a reference to the New South Wales Department of Communities and Justice, formerly the Department of Family and Community Services and the Department of Justice. The reference to NSWLC is a reference to the Housing Corporation.

13    The originating application attaches copies of what Ms Chadwick relies on as the original complaint to the AHRC and the notice of termination of complaint (with attachments) given by the Delegate.

14    Ms Chadwick includes in the originating application under the heading “Other Relevant Legislations” the following (as written):

…

Australian Human Rights Commission Act 1986

Civil and Administrative Tribunal Act 2013

Section: 71

Housing Act 2001

Sections: 54 (a), 55, 57 (3), 57 (4) [other sections that legal context needs]

Government Sector Employment Act 2013

Multiple sections of this Act, will be inserted

Civil Procedure Act 2005 No 28

Sections 100 and 101

NSW Defamation Act 2005 and 2020

Sections: To be inserted (Defamation is included in the excerpts of information)

Administrative Decisions Tribunal Act 1997

Sections: To be inserted (Defamation is included in the excerpts of information)

Privacy and Personal Information Protection Act 1998

Sections:     4 (1), 5. 6 (3) (a). 8 (1) (a) (b) (2). 9 (a). 10 (a), (b), (c), (d), I, (f).

11 (a), (b). 16. 18 (a), (b). 24 (1), (3), (5) i, ii. 53

Residential Tenancies Act 2010

Sections: To be inserted (Difficult to articulate with me not having legal background)

Limitation Act 1969 (NSW)

Sections: To be inserted

15    Ms Chadwick also includes the following under the heading “Other Relief” (as written):

The Applicant also claims other relief.

1.     All my complaints were submitted as a “Universal Complaint”. Which my complaints has always highlighted discrimination, bullying, harassment, intimidations, defamation, breach of privacy and confidentiality (disclosure of the personal information of my son and I), lying to NCAT, using NCAT as a platform to bully me.

a. Stop Ongoing Victimisation

b. Stop defaming me

c. Non-Economic Loss

d. DCJ Repair the damage

e. Stop breaching our personal and private information

f. All above are linked to discrimination, victimisation under RDA, SDA, AHRC Act

2.     Very recent new evidence of about 2000 pages that I have obtained [25th November 2020] under the GIPA Act 1998, I really believe confirms my accusations and allegations, while future showing causal links to bullying, discrimination and victimisation

…

Ms Chadwick’s complaint to the AHRC

The original complaint – 30 May 2019

16    In the complaint, initially lodged with the AHRC by email on 30 May 2019, and supplemented by further emails in June and July 2019, Ms Chadwick alleged that she was the subject of discrimination by the Housing Corporation and Family and Community Services in the course of communications with various staff and in the conduct of proceedings before NCAT in relation to a rent dispute. Ms Chadwick alleged discrimination on the following bases:

(1)    Age;

(2)    Low social and socio-economic status;

(3)    Association with a person with a disability (relevantly, her son);

(4)    Sex;

(5)    Marital or relationship status;

(6)    Family responsibilities; and

(7)    Race, ethnic origin, colour and/or descent.

17    Ms Chadwick further claimed that she had been victimised because she had made, or tried to make, a complaint about discrimination.

18    The AHRC considered and progressed the aspects of the complaint regarding discrimination based on race, ethnic origin, colour and/or descent and victimisation (under the Racial Discrimination Act 1975 (Cth) (RDA)), and sex and marital status discrimination and victimisation (under the Sex Discrimination Act 1984 (Cth) (SDA). The AHRC noted in its reasons for termination that it did not progress the allegation regarding family responsibilities discrimination because its jurisdiction to deal with such complaints is limited to family responsibilities discrimination in the context of employment. It also noted that federal anti-discrimination law does not cover discrimination because of a person’s social or socio-economic status. Further, that it did not deal with the allegations of discrimination regarding age and association with a person with a disability because Ms Chadwick did not provide sufficient information in relation to those allegations.

Amendment of the complaint – March, June and October 2020

19    On 13 September 2019 and 13 December 2019, Ms Chadwick requested leave to amend the complaint to include a further allegation of victimisation. On 3 March 2020, leave was granted to amend the complaint in accordance with s 46PA of the AHRC Act.

20    On 25 June 2020, Ms Chadwick sought leave to amend the complaint to add further allegations of victimisation under the RDA and SDA. On 30 June 2020, leave to amend was again granted.

21    On 6 July 2020, Ms Chadwick emailed the AHRC with examples of alleged victimisation by the DCJ and the Housing Corporation. On 7 October 2020, leave was granted to, inter alia, amend the complaint to include particulars of the alleged victimisation, in accordance with s 46PA of the AHRC Act.

Termination of the complaint

22    As mentioned, on 7 October 2020, the Delegate decided to terminate Ms Chadwick’s complaint under s 46PH(1B)(b) of the AHRC Act and issued a notice of termination (the complaint termination notice) and written reasons.

23    The Delegate noted in her reasons that “an agreement to participate in a conciliation conference or otherwise resolve the matter has not been reached between the parties” notwithstanding that the AHRC had “shared information with both parties about the Commission’s conciliation process and facilitated conciliation discussions and an exchange of correspondence in relation to the possible resolution of this matter”.

THE APPLICATION FOR AN INTERIM INJUNCTION

24    The present application is brought under s 46PO(6) of the AHRC Act, which provides that the court may, if it thinks fit, grant an interim injunction pending the determination of the proceedings. The court cannot require a person to give an undertaking as to damages as a condition of granting an interim injunction: s 46PO(8) of the AHRC Act.

25    Before considering the events which give rise to the present application, it is necessary to first address the statutory context, namely the provisions of the RTA 2010 relating to the termination of social housing tenancy agreements.

26    After carrying out an assessment pursuant to s 144 of the RTA 2010, a landlord may give a termination notice under s 143 of the RTA 2010 (lease termination notice) to a tenant on the ground that the landlord has determined that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies (the eligibility ground).

27    Section 144 of the RTA 2010 relevantly provides that:

(1)      In carrying out an assessment of the eligibility of a tenant under a social housing tenancy agreement to reside in the class of social housing premises concerned, the landlord is to apply the criteria approved by the appropriate Minister for the purposes of this section.

(2)      Any such criteria may differ from the criteria used to assess a person’s eligibility to commence residing in that class of social housing premises.

(3)      The criteria used for the purposes of an assessment must not relate to whether or not the tenant has complied with any term of the agreement.

(4)      The landlord may request the tenant to provide any information that is reasonably required to enable the landlord to determine whether the tenant meets the criteria for the purposes of an assessment under this section.

(5)      If the tenant refuses to provide any such information to the landlord, the landlord may determine, without further inquiry, that the tenant is not eligible to reside in the class of social housing premises concerned.

…

(emphasis added)

28    Pursuant to s 145(1) of the RTA 2010, prior to giving a lease termination notice to a tenant under a social housing tenancy agreement on the eligibility ground, the landlord is required to provide the tenant with a written notice of intention to issue a lease termination notice. Upon receiving a notice of intention, the tenant may apply to the landlord for review of the decision, and make representations in writing or orally as to why the agreement should not be terminated: s 145(3) of the RTA 2010. After reviewing the decision, the landlord may give the tenant a lease termination notice relying on the eligibility ground, or advise the tenant in writing that the landlord has decided not to give the tenant the lease termination notice: s 145(5) of the RTA 2010.

29    Pursuant to s 146(1) of the RTA 2010, a landlord cannot issue a lease termination notice on the eligibility ground before the later of the period during which the tenant may apply for a review of the decision to give the lease termination notice, or the end of any such review carried out in respect of that decision.

30    A lease termination notice must also specify a termination date in accordance with s 146(2) of the RTA 2010.

31    The landlord is taken to have observed procedural fairness in respect of the giving of a lease termination notice on the eligibility ground if the landlord complies with s 145: s 145(6) of the RTA 2010.

32    The next step in the termination process is that the landlord must apply to NCAT for termination of a social housing tenancy agreement on the eligibility ground. Section 147 of the RTA 2010 provides that:

(1)      The Tribunal must, on application by the landlord under a social housing tenancy agreement, terminate the agreement on the eligibility ground if it is satisfied that—

(a)      any notice required to be given, or any review required to be carried out, was given or carried out in accordance with this Subdivision before giving the termination notice on the eligibility ground, and

(b)      a termination notice has been given in accordance with this Subdivision, and

(c)      the landlord has determined, as a result of an assessment under this Subdivision, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies.

(2)      In deciding whether or not to make an order, the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies.

33    Against that statutory framework, the events giving rise to the present application may be summarised as follows.

34    It appears that, by correspondence dated 26 December 2021 and 23 February 2022, the DCJ requested Ms Chadwick to complete a Lease Review Survey for the purpose of assessing her future eligibility for a lease extension. The power to request information for this purpose is conferred on the landlord by s 144(4) of the RTA 2010. It appears that, subject to an extension being granted, Ms Chadwick’s lease was due to expire on 26 June 2022.

35    On 21 April 2022, the DCJ issued a notice of intention to Ms Chadwick. In that notice, the DCJ said that it had decided that Ms Chadwick was not eligible for an extension of her current lease and that it intended to issue a lease termination notice under s 143 of the RTA 2010. In the letter, the DCJ noted that Ms Chadwick had not returned a completed Lease Review Survey. Pursuant to s 144(5) of the RTA 2010, the landlord may, in circumstances where a tenant refuses to provide information requested under s 144(4), determine without further inquiry that the tenant is not eligible to reside in the relevant class of social housing premises. Ms Chadwick was informed of her right to apply for a review of the DCJ’s decision to proceed to issue a notice of termination, and that the right to so apply must be exercised within 30 days.

36    On 31 May 2022, Ms Chadwick’s counsel sought from the respondents’ legal representatives an undertaking from the respondents that Ms Chadwick would not be evicted until the finalisation of the substantive proceedings. That request was rejected by the respondents’ legal representatives on the same day.

37    On 14 June 2022, notwithstanding that the respondents are represented by MinterEllison in these proceedings, Ms Chadwick’s counsel communicated directly with the DCJ for the purpose of seeking the same undertaking. On 24 June 2022, a representative of the DCJ declined to give an undertaking. The DCJ representative noted that although the DCJ’s decision was initially to have been reviewed by the Housing Appeals Committee and for that reason the DCJ was prepared to extend Ms Chadwick’s lease for three months while the review was pending, Ms Chadwick had subsequently withdrawn her consent to the review proceeding. The DCJ representative further noted as follows:

We understand Ms Chadwick has commenced proceedings against DCJ Housing and the Land and Housing Corporation in the Federal Court of Australia alleging unlawful discrimination. We confirm that the above processes and decisions were made in accordance with DCJ Housing policy only and without any regard for the Federal Court proceedings. However, the fact that there are Federal Court proceedings on foot does not limit DCJ Housing's ability to manage Ms Chadwick’s tenancy in accordance with its policies or terminate Ms Chadwick's tenancy if it otherwise ought to be terminated under DCJ Housing policy, including due to not meeting social housing eligibility criteria.

38    Counsel for Ms Chadwick made submissions in respect of Ms Chadwick’s eligibility for social housing based on email correspondence between Ms Chadwick and an employee holding a FACS email account (now the DCJ) dated 31 May 2022 and 7 June 2022. It was submitted that Ms Chadwick requested details of the way in which gross income had been calculated. It was further submitted that, even if the relevant threshold amount was exceeded by Ms Chadwick, then as a tenant of more than ten years standing, Ms Chadwick’s lease should still be renewed or extended on other grounds. It was not clear how the dispute Ms Chadwick was seeking to agitate in relation to her household income was relevant on this application. The emails by which Ms Chadwick sought to interrogate the DCJ in relation to that issue appear to have been sent as part of a review of the DCJ’s decision to issue a notice of termination. The relevant documents were not in evidence on this application. The submissions advanced on Ms Chadwick’s behalf did not address the apparent failure of Ms Chadwick to respond to the Lease Review Survey which, pursuant to s 144(5), provided grounds for the landlord to determine, without further inquiry, that Ms Chadwick was not eligible for social housing.

39    On 24 June 2022, a lease termination notice was issued to Ms Chadwick by a delegate of the Housing Corporation pursuant to s 143 of the RTA 2010. The lease termination notice said that Ms Chadwick’s continuing eligibility had been assessed according to s 144 of the RTA 2010 and that the DCJ had decided that she was not eligible. Further, that she had been given a notice of intention on 21 April 2022 following which, the DCJ had, at Ms Chadwick’s request, reviewed its decision and decided it was correct. It is not clear on the materials before the Court whether this review was separate to the review by the Housing Appeals Committee which is referred to in the communication of 24 June 2020 outlined at paragraph [37] above. That is a matter which may be relevant in any future application to NCAT for an order under s 147 of the RTA 2010. The notice stated that Ms Chadwick was required to give vacant possession on 29 August 2022 (being a date not earlier than 60 days’ after the service of the termination notice).

40    As noted above, in order to formally terminate Ms Chadwick’s social housing tenancy agreement, it is necessary for the Housing Corporation to make an application to NCAT for an order under s 147 of the RTA 2010.

41    On behalf of Ms Chadwick, it was contended that her lease “already is, or shortly will be, at an end” and that as a result there was no possibility of seeking orders under ss 187 and 188 of the RTA 2010. On the evidence on this application, that submission must be rejected. In order to terminate the lease, it is necessary for NCAT to make an order under s 147 of the RTA 2010. That has not occurred.

42    It was next submitted for Ms Chadwick that NCAT had no jurisdiction to hear or determine any issue in relation to Ms Chadwick’s lease because NCAT ceased to have jurisdiction as a result of the substantive proceedings in this Court. Ms Chadwick relied on schedule 4, part 5, clause 5, subclause (7) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act 2013) which provides:

(7)     Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

43    Whether subclause (7) has the effect of withdrawing NCAT’s jurisdiction because of the proceedings in this Court depends on whether “an issue arising under the application was the subject of a dispute in proceedings pending before” this Court. The relationship between proceedings in NCAT seeking an order under s 147 of the RTA 2010 to terminate Ms Chadwick’s lease and the substantive proceedings in this Court is an issue which I will consider in the context of assessing whether Ms Chadwick has established that there is a serious question to be tried for the purpose of obtaining injunctive relief.

CONSIDERATION

44    As mentioned, Ms Chadwick was represented by counsel at the application. Written submissions were filed and served by the parties in advance of the hearing. Ms Chadwick relied on her affidavits lodged on 16 May 2022 and 12 July 2022, and the documents annexed to the originating application, being the complaint termination notice, the original complaint, and the amendments to the original complaint. The payslips of Ms Chadwick and her son from 2022, and a Centrelink statement for Ms Chadwick issued in 2022, were provided to the Court but were not tendered. The relevance, if any, of those documents to the present application was not addressed.

45    Ms Chadwick seeks an interim injunction under s 46PO(6) of the AHRC Act. Ms Chadwick brings the application after proceedings have been commenced in this Court and pending the determination of the proceedings in this Court. She correctly recognises that an interim injunction under s 46PP of the AHRC Act is not available because her complaint to the AHRC has been terminated: s 46PP(3) of the AHRC Act. As such, the exercise of the discretion conferred by s 46PO(6) of the AHRC Act falls to be considered by reference to the usual tests for an interlocutory injunction: Carlsson v Ford [2019] FCA 584; 371 ALR 382, 390 at [28]; cited with approval in Summers v Qantas Airways Limited [2021] FCA 391 at [71]; Reisner v Bridge Housing Ltd [2021] FCA 279 at [50]; and Daccache v BOC Limited [2020] FCA 485 at [29].

46    Ms Chadwick must establish that: (1) there is a serious question to be tried as to her entitlement to relief; (2) that she is likely to suffer injury for which damages will not be an adequate remedy; and (3) that the balance of convenience favours the granting of an interlocutory injunction: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [65] to [72]; see also Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238. It is well established that the tests are interrelated. It is generally accepted that a strong arguable case may require a lower balance of convenience examination and vice versa. The assessment of the interests of justice is fundamental: Samsung Electronics at [67].

Is there a serious question to be tried?

47    The submissions advanced on behalf of Ms Chadwick on this issue were broadly as follows. First, that “the potential of a person in social housing being made homeless” is a serious question to be tried. Secondly, that the respondents’ continuing attempts to evict Ms Chadwick are ongoing examples of unlawful discrimination and victimisation. Further, that unlawful discrimination and victimisation on an ongoing basis was part of Ms Chadwick’s complaint before the AHRC and, as such, forms part of the controversy that is the subject of the originating application before this Court. In this regard, Ms Chadwick relied on the decision of this Court in Turner v State of Victoria (Department of Human Services) [2011] FCA 459 at [17] (Bromberg J):

17.     The ambit of a complaint made to the Commission is to be ascertained for the purpose of s 46PO(3) by considering the shape it had assumed at the time of its termination, not by reference to its initial form and not as though what is being construed is a legal pleading. The broad approach contemplated by s 46PO(3) was identified by Marshall, Rares and Flick JJ in Dye v Commonwealth Securities Limited(No 2) [2010] FCAFC 118 at [46] – [48] as follows:

46.     Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

47.    As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].

48.    The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”. It provided in relation to, among other provisions, s 46PO:

“Court not bound by technicalities

46PR    In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.”

The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.

48    The submission advanced, based on the above extract, was that notwithstanding the “filter aspect” of s 46PO(3) of the AHRC Act, the “thrust of the decision is that there is scope and flexibility to add claims” which post-date the termination of the complaint before the AHRC, where the additional complaints relate to “allegations of ongoing discrimination and victimisation, those should be allowed and should be considered”.

49    Similarly, Ms Chadwick submitted that the reasoning in Charles v Fuji Xerox Australia Proprietary Limited [2000] FCA 1531; 105 FCR 573 was directly applicable and supported the contention that new facts within the same category of the complaint made before the AHRC were not subject to the filter imposed by s 46PO(3) of the AHRC Act. The submission advanced for Ms Chadwick based on Charles v Fuji was that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged. Accordingly, so the submission went, in the present case, even though the complaint was terminated on 7 October 2020, properly construed the complaint included a generalised complaint of ongoing victimisation and ongoing unlawful discrimination and so, events which post-date the termination of the complaint are properly regarded as being part of the terminated complaint.

50    The submission advanced by Ms Chadwick as to the manner in which the complaint to the AHRC should be construed also relied on s 46PR of the AHRC Act which relevantly provides that the Court is not “bound by technicalities or legal forms”, subject to Chapter III of the Constitution.

51    For the reasons to which I will come to, Ms Chadwick’s reliance on the decisions in Turner and in Charles v Fuji is misplaced.

52    The starting point on this application is to identify the legal or equitable rights which are to be determined in the substantive proceedings and in respect of which final relief, that may or may not be injunctive in nature, is sought: Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380, 395-396 at [31], as referred to in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199, 241 at [91] per Gummow and Hayne JJ (Gaudron J agreeing at 231 [58]). If there is no serious question to be tried because, upon examination, it appears that the facts alleged by the moving party cannot, as a matter of law, sustain such a right, then there is no subject matter to be preserved by the making of an interlocutory injunction: Lenah Game Meats at 218 [16] per Gleeson CJ.

53    I have concluded that the arguments advanced on behalf of Ms Chadwick must be rejected. The substantive proceedings do not extend to the determination of allegations of unlawful discrimination which have not been the subject of a terminated complaint before the AHRC: s 46PO(1) and (3). The effect of s 46PO of the AHRC Act is that the Court’s jurisdiction is subject to the conditions in s 46PO of the AHRC Act being met. The Court does not have jurisdiction in relation to an allegation of unlawful discrimination based on events which post-date the termination of the AHRC complaint. It follows that Ms Chadwick has not established a serious question to be tried which would support the making of an interim injunction. My reasons for reaching that conclusion are as follows.

54    Section 46PO(3) of the AHRC Act provides that the unlawful discrimination alleged in an application to the Federal Court pursuant to s 46PO(1) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

55    The purpose served by s 46PO(3) of the AHRC Act is to ensure that the AHRC is the first filter for claims for unlawful discrimination before such claims are brought before the courts. In Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450 the Full Court observed (at 454 [19]):

19     The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).

56    In Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [18] to [20], White J observed in respect of s 46PO(3) that:

18     It means on my understanding that, to come within subpara 3(a), the pleaded claim must, at least in substance, be in respect of the same conduct which was the subject of complaint to the AHRC. The required identity must exist in the conduct alleged. An identity between the kind of conduct alleged and the kind of conduct about which the complaint was made is insufficient if the acts, omissions, or practices occurred at materially different times. This was the position stated by Katzmann J in Dye v Commonwealth Securities Ltd [2010] FCA 720 at first instance, at [105]:

To fall within s 46PO(3) it is not enough that an act is similar in kind to the acts complained of in the terminated complaint. Nor is it sufficient that the act is alleged to be the act of the same individual. A new incident is different – not the same or substantially the same – conduct …

19     That view of s 46PO(3) was not disturbed on the appeal in Dye.

20     Were the position otherwise, proceedings in this Court or in the FCC could require consideration of conduct which has not been the subject of any assessment in the AHRC.

57    The proceedings in Charles v Fuji were preceded by a complaint which straddled the transitional period before and after the substantive provisions of the Human Rights Legislation Amendment Act (No 1) 1999 (Cth) commenced. For present purposes, it is relevant to note that the amendments introduced included the insertion of s 46PO(3) into what is now the AHRC Act. The complaint in Charles v Fuji concerned unlawful disability discrimination in employment and was filed on 3 April 1999 and was not amended thereafter. Justice Katz accepted that Mr Charles’ complaint to the then Human Rights and Equal Opportunity Commission must effectively have covered only up to the period ending on 3 April 1999, when the complaint was lodged (at [30]). Justice Katz next considered the effect of s 46PO(3) and concluded that the Court was precluded by the operation of s 46PO(3) from dealing with any allegation by Mr Charles against Fuji Xerox of an act of unlawful disability discrimination in employment done by it after 3 April 1999, the date the complaint was filed (at [36]). Justice Katz gave detailed reasons for reaching that conclusion with which I respectfully agree (at [37] to [43]):

37     It appears to me that s 46PO(3) of the HREOCA is only incidentally concerned with those allegations of fact which can be made in an application under s 46PO(1) of the HREOCA; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear. In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.

38     Paragraph (a) of s 46PO(3) of the HREOCA proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.

39     Paragraph (b) of s 46PO(3) of the HREOCA, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character "arise[s] out of" the facts which are now being alleged.

40     It is worth recording here that, although the Senate explanatory memorandum for the Bill which became the amending Act did not elaborate on the intended operation of the proposed s 46PO(3)(a) of the HREOCA, it did elaborate on the intended operation of the proposed s 46PO(3)(b) of the HREOCA, saying:

"This second limb is intended to cover situations in which different instances of unlawful discrimination arise out of essentially the same factual circumstances. For example, an Asian woman may make a complaint to HREOC alleging that her dismissal from employment amounted to discrimination on the ground of her sex. On the basis of things said or done during the inquiry or conciliation process, the woman may form the view that her dismissal also amounted to discrimination on the ground of her race. If the complaint cannot be conciliated and is terminated, and the woman makes an application to the Federal Court in respect of the terminated complaint, this paragraph may permit her to allege racial discrimination in that application. "

It appears to me that the first limb of s 46PO(3) of the HREOCA was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work (see s 17 of the DDA).

41     On the construction which I give to s 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant's earlier complaint to the Commission. On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant's earlier complaint to the Commission. However, I find nothing, either in the language of par (b) itself or in the example of its operation given in the Senate explanatory memorandum, insofar as that example reveals a legislative intent regarding the operation of par (b), which would support a construction of the paragraph that permitted Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment.

42     I add that a construction of s 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment appears to me to be consistent with the policy of the HREOCA of ensuring that there exists an opportunity for the attempted conciliation of complaints before they are litigated: compare s 46PF(1) and (4) of the HREOCA.

…

43     I add further that a construction of s 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox, particularly after 11 May 2000 (the date on which the present proceeding was begun), of any act constituting unlawful disability discrimination in employment would also be consistent with a longstanding judicial approach to litigation. That approach is that a moving party is prevented from relying in a proceeding on a cause of action accruing after the commencement of the proceeding.

58    As summarised above, Ms Chadwick relevantly made a complaint to the AHRC on 30 May 2019, which was subject to various amendments which were permitted on 3 March 2020, 30 June 2020, and 7 October 2020. Ms Chadwick’s complaint was terminated by the AHRC on 7 October 2020 pursuant to s 46PH(1B)(b) of the AHRC Act.

59    The interlocutory relief that Ms Chadwick seeks relates to events that post-date her complaint and that occurred well after the termination of her complaint, and after the substantive proceedings were commenced. That is plain from the summary of the evidence in respect of what has given rise to the present application at paragraphs [33] to [39] above.

60    Ms Chadwick alleges that these events are part of her complaint to the AHRC because she amended her complaint to add an allegation of “ongoing victimisation”. Ms Chadwick’s complaint refers to the “ongoing nature of the harassment…[which] has lead me to see this is full on discrimination, harassment, bullying, [and] victimisation”. Whilst the complaint was only subsequently formally amended to include “ongoing victimisation”, for the purpose of this application I am prepared to accept that the rolled-up nature of the complaint and the way in which it is phrased had the effect of alleging “ongoing discrimination”, either as a consequence of, or in addition to, ongoing victimisation. However, even if Ms Chadwick’s complaint is regarded as having included a complaint of “ongoing” unlawful discrimination and victimisation, Ms Chadwick’s contention that she is not precluded by s 46PO(3) from pursuing relief in respect of the events of late 2021 and 2022 in the substantive proceedings in this Court must be rejected.

61    The ambit of Ms Chadwick’s complaint before the AHRC is to be ascertained for the purpose of s 46PO(3) by considering the shape it had assumed at the time of its termination, not by reference to its initial form and not as though what is being construed is a legal pleading. Even so, I do not accept that the events in late 2021 and 2022 are capable of giving rise to unlawful discrimination that is the “same (or the same in substance as)” or that arises out of the “same (or substantially the same) acts, omissions or practices” as the unlawful conduct that was the subject of the terminated complaint. The events of late 2021 and 2022 were not the subject of the proceedings before the AHRC. To the extent that Ms Chadwick contends that the respondents engaged in unlawful discrimination by reason of those events, no complaint has been made to, or considered by the AHRC. That being so, the conditions in s 46PO(1)(a) and (b) of the AHRC Act have not been met and this Court does not have jurisdiction to grant remedies based on conduct which post-dates the termination of the relevant complaint: see Picos v Servcorp Limited [2015] FCA 344 (at [46] to [48]), Perry J. The evidence and submissions relied on by Ms Chadwick on this application do not establish the requisite connection between the review of Ms Chadwick’s eligibility for social housing in late 2021 and 2022 and the allegations the subject of the terminated complaint. It follows that, in the present proceedings, there is no serious question to be determined relating to the issue in respect of which Ms Chadwick now seeks interlocutory relief. To allow Ms Chadwick to include allegations of unlawful discrimination and/or victimisation based on conduct which has not been the subject of any assessment by the AHRC would circumvent s 46PO of the AHRC Act. I am not satisfied that Ms Chadwick has established there is a serious question to be tried in these proceedings that would support the grant of an interlocutory injunction.

Damages not an adequate remedy

62    Counsel for Ms Chadwick did not address this issue in her submissions. In light of my conclusion in respect of the jurisdiction of this Court and, relatedly, whether there is a serious question to be determined, it is not necessary to address this issue.

Balance of convenience

63    Again, in light of my conclusion in relation to jurisdiction and whether there is a serious question to be tried, it is not strictly necessary to address the balance of convenience. Notwithstanding that, I make the following observations. The respondents on this application acknowledged that in order to terminate the lease it is necessary to apply to NCAT under s 147 of the RTA 2010 and that Ms Chadwick has a right to be heard on such an application. The scope of such an application is necessarily constrained by s 147 of the RTA 2010. On this application, Ms Chadwick submitted that, pursuant to subclause (7) of clause 5 of part 5 of schedule 4 of the NCAT Act 2013, NCAT had no jurisdiction to make an order under s 147 of the RTA 2010. Ms Chadwick is free to pursue that argument before NCAT. If she is correct as to the effect of subclause (7), NCAT will not make an order under s 147 of the RTA 2010. On that hypothesis, there is no utility in granting an injunction in these proceedings. If, however, she is not correct and there is not the requisite identity of issue between the proceedings before NCAT and the proceedings before this Court, then NCAT will, pursuant to the statutory task assigned to it under s 147 of the RTA 2010, consider and, if thought fit, make an order terminating Ms Chadwick’s lease. If Ms Chadwick wishes to pursue her contention that the conduct of the DCJ and/or the Housing Corporation in late 2021 and 2022 constitutes unlawful discrimination or victimisation, then that contention should properly be the subject of a complaint to the AHRC. Only if such a complaint is terminated for the reasons and in the manner contemplated by s 46PO(1) of the AHRC Act, can that contention inform proceedings in this Court. If a complaint is made to the AHRC in respect of the conduct of the respondents in late 2021 and 2022, then Ms Chadwick has an available remedy under s 46PP of the AHRC Act which enables an application for the grant of an interim injunction to preserve the status quo in respect of complaints pending before the AHRC. In short, assuming Ms Chadwick can establish a basis for relief, her remedy lies elsewhere and not within the confines of these proceedings.

64    For completeness, I note that the respondents submitted that what is really being sought is to circumvent the statutory framework in respect of the termination of social housing tenancy agreements as contained in the RTA 2010. In light of the conclusions I have reached, it is not necessary to determine the issue raised by that submission.

CONCLUSION

65    For the reasons given, the interlocutory application filed on 15 July 2022 is dismissed with costs.

Associate:

Dated:    10 August 2022