Federal Court of Australia

Tickle v Giggle For Girls Pty Ltd [2023] FCA 553

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth), the applicant be allowed until 22 December 2022 to make the originating application that was filed on that date.

2.    The respondents’ notice of objection to competency dated 15 February 2023 and filed 16 February 2023 be dismissed.

3.    The applicant’s interlocutory application dated 23 March 2023 and filed 24 March 2023 seeking a maximum costs order pursuant to r 40.51 of the Federal Court Rules 2011 (Cth) be allowed in sum of $50,000, confined to the constitutional validity and statutory construction issues.

4.    The respondents’ interlocutory application dated 30 March 2023 and filed 31 March 2023 seeking an order pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) and r 19.01 of the Federal Court Rules that the applicant provide security for costs and related relief be dismissed.

5.    The respondents pay the applicant’s costs of and incidental to the applications heard on 28 April 2023, including the post-hearing submissions, such costs to be assessed by a registrar on a lump sum basis unless agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an adjudication of four interlocutory disputes, being three interlocutory applications and a notice of objection to competency, each arising out of an application made under s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The application alleges unlawful discrimination, following the termination of a complaint made by the applicant to the Australian Human Rights Commission by a delegate of the President of that Commission.

2    The complaint to the Commission was made in December 2021. Section 46PH(1B) of the AHRC Act provides that the President of the Commission must terminate a complaint if satisfied that the complaint is trivial, vexatious, misconceived or lacking in substance, or there is no reasonable prospect of the matter being settled by conciliation. The respondents declined to participate in conciliation, as discussed in greater detail below. For that reason, the delegate was satisfied that there was no prospect of the matter being settled by conciliation. The delegate terminated the complaint on 5 April 2022 and gave notice of that termination to the applicant the same day.

3    Section 46PO(1) of the AHRC Act provides that if a complaint has been terminated under, inter alia, s 46PH, and notice of that termination has been given, an application may be made to this Court or to Division 2 of the Federal Circuit and Family Court of Australia (Federal Circuit Court). Section 46PO(2) provides that such an application must be made within 60 days after the issue of the termination notice, or within such further time as the court concerned allows.

4    On 6 June 2022, the applicant filed an application in the Federal Circuit Court, but filed a notice of discontinuance on 4 July 2022, before the first directions hearing scheduled to take place on 8 July 2022. The applicant’s reason for discontinuing that proceeding was a concern at being unable to pay a costs order if the application did not succeed.

5    On 21 December 2022, the applicant was given an indemnity against an adverse costs order of up to $50,000 by a specialist non-profit litigation funder known as the Grata Fund. The next day, 22 December 2022, the applicant filed the present application. That application also seeks an extension of time in which to bring the proceeding under s 46PO(2) of the AHRC Act.

Key provisions of the SD Act

6    Section 22 of the of the Sex Discrimination Act 1984 (Cth) (SD Act) provides:

22 Goods, services and facilities

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(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.

7    As relevant to s 22, what constitutes discrimination is described in earlier sections of the SD Act, specifically:

(a)    s 5 as to sex discrimination;

(b)    s 5A as to sexual orientation;

(c)    s 5B as to gender identity;

(d)    s 5C as to intersex status;

(e)    s 6 as to marital or relationship status;

(f)    s 7 as to pregnancy or potential pregnancy; and

(g)    s 7AA as to breastfeeding.

Background

8    The originating application sufficiently details the claim brought by the applicant for present purposes as follows:

The Applicant claims that:

[1]    The Applicant is a woman residing in New South Wales. The Registry of Births, Deaths and Marriages in Queensland (the Applicant's state of birth) has issued the Applicant with an updated birth certificate which designates her gender as female, following her transition from male to female.

[2]    In or around February 2021, the Applicant downloaded a digital application (‘app’) to her mobile device known as ‘Giggle’, which is marketed as a platform exclusively for women to share experiences and speak freely in a ‘safe space’.

[3]    Giggle is wholly owned by the first named respondent, Giggle for Girls Pty Ltd (the First Respondent). The CEO of the First Respondent is Ms Sally (‘Sall’) Grover (the Second Respondent).

[4]     To access to the app, users are required to provide information including a self-taken photograph of their face (a ‘selfie’) and upload it to the platform. It is clearly stated that a person must be a woman in order to gain access to the platform.

[5]    Once uploaded, the ‘selfie’ is assessed by third-party artificial intelligence (Al) software that determines whether the aspiring user is a man or a woman. If the Al accepts the 'selfie' as that of a woman, the user is provided full access to the platform.

[6]    The Applicant undertook this process upon downloading the app. The Al determined that the Applicant was a woman, and she was provided with full access to the app's functions.

[7]    Between February 2021 and September 2021, the Applicant enjoyed full access to the app’s features and used the app to read content posted by other users.

[8]    In late September 2021, the Applicant logged into the app and found that she could no longer post content, read or comment on posts made by other users on the platform. When the Applicant attempted to purchase the ‘Premium’ features available on the app, she received a 'User Blocked' message.

[9]    In late September 2021, the Applicant attempted to contact the First Respondent via an in-app contact form to raise the issue. She received no response from either the First Respondent or Second Respondent.

[10]    In October 2021, the Applicant sent a total of six emails to the First Respondent regarding her restricted access to the app. The Second Respondent, Ms Grover, replied to one of the Applicant's emails and requested that the Applicant provide her with her phone number. The Applicant did so but did not receive any phone call from Ms Grover.

[11]    In late October 2021, the Applicant attempted to contact the phone number listed in the Second Respondent’s email signature via SMS and two phone calls. She received no response.

[12]    On 5 December 2021, the Applicant made a complaint to the Australian Human Rights Commission (AHRC) under section 22 of the Sex Discrimination Act 1984 (Cth) (SDA), naming both the First Respondent and the Second Respondent. It was the Applicant's assertion that in being granted limited functionality to the app, she was being discriminated against on the basis of her gender identity. The Applicant wrote:

I believe that I am being discriminated against by being provided with extremely limited functionality of a smart phone app by the app provider compared to that of other users because I am a transgender woman. The app provider appears to not recognise transgender women as female. I am legally permitted to identify as female.

[13]    On 20 January 2022, the AHRC sent a copy of the complaint to the Respondents.

[14]    On 3 March 2022, the Feminist Legal Centre (FLC) sent a reply to the AHRC on behalf of the Respondents.

[15]    The Respondents asserted that:

a.    The Applicant was considered male based on a visual inspection of the selfie provided and was removed [from] the app on that basis. Further, the Applicant's gender identity was not known to the Second Respondent or other Giggle personnel at the time of removal and did not inform the decision to preclude the Applicant from the app

b.    Giggle constitutes a special measure aimed to achieve substantive equality between men and women and its exclusion of males is reasonable in the circumstances; as such, the exclusion of males by Giggle falls within the exceptions provided pursuant to sections 7N, 7D and 32 of the SDA.

[16]    On 21 March 2022, the Second Respondent tweeted from the twitter account @salltweets, ‘[i]n January 2022, I received an Australian Human Rights Commission complaint against both Giggle and me personally, from a trans-identified male who wants to use a social networking app for females & for me to be re-educated on sex and gender.’ [emphasis added].

[17]    On 1 April 2022, the AHRC advised the Applicant that the Respondents had declined to participate in conciliation.

[18]    On 5 April 2022, a delegate of the President of the AHRC provided the Applicant with notice that they were terminating the complaint pursuant to section 46PH(1 B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA), on the grounds that they were satisfied there was no reasonable prospect of the matter being settled by conciliation.

[19]    On 1 April 2022, The Australian newspaper published an article entitled Orwell: in threat of women's rights and safety by Angela Shanahan. The subject of the article was the Applicant's complaint to the AHRC, whereby the Second Respondent is quoted saying, ‘the person was removed from the Giggle app because they are male, no other reason. The removal was manual. I looked at the onboarding selfie and I saw a man. The Al software had let them through, thereby making a mistake that I rectified.’

[20]    On 6 June 2022, the applicant filed an application in the Federal Circuit and Family Court (SYG808/2022) with the assistance of her then legal representatives, the Inner City Legal Centre (ICLC), seeking orders pursuant to s 46PO( 4) of the AHRCA.

[21]    The matter was listed for a Directions Hearing before Her Honour Judge Laing on 8 July 2022.

[22]    On or around late June/early July 2022, comments posted on the Second Respondent’s Twitter feed led the Applicant and her representatives to believe that the Respondents intended to raise constitutional issues in their defence. These issues were not particularised, but the Second Respondent commented that she was willing to ‘take the matter all the way to the High Court’.

[23]    Being unwilling to bear the risk of an adverse costs order in the High Court on 4 July 2022 the Applicant filed a Notice of Discontinuance with the Court and the matter was discontinued.

[24]    The Applicant subsequently received limited funding to cover any adverse costs order that may be made against her and now wishes to pursue her claim.

[25]    The Applicant now seeks leave of the Court to bring this application out of time.

9    An earlier aspect of the applicant’s case relying upon the intersex provisions in s 5C of the SD Act as pleaded in the original statement of claim, has not been maintained in the amended statement of claim filed by leave on 4 May 2023. The case is now only brought in reliance of s 5B, alleging discrimination on the ground of gender identity. Section 5B provides that a person discriminates against another person on the ground of gender identity if, by reason of that person’s gender identity, or a characteristic that appertains generally to the persons who have the same gender identity, or a characteristic that is generally imputed to persons who have the same gender identity, if that discriminator treats the person less favourably than a person who has a different gender identity in circumstances that are the same or not materially different.

10    It is important to note that s 5B of the SD Act is subject to ss 7B and 7D. Section 7B addresses indirect discrimination and a test of reasonableness in relation to a condition, requirement or practice that has a disadvantaging effect. Section 7D allows for special measures for the purposes of achieving substantive equality between, for example and relevantly to the case that is advanced by the respondents, men and women.

11    The amended statement of claim uses the term cisgender. That term refers to a person whose gender corresponds to the sex registered for them at birth, to be contrasted with a person whose gender does not so correspond, which can be described as transgender to reflect that difference. By contrast, the respondents’ defence uses the terms adult male human and adult female human, which in contest adheres to the sex of a person registered at birth.

12    The burden of the applicant’s case, not presently dealing with more technical aspects of jurisdiction or liability, is that:

(a)    a condition was imposed by the first respondent, on the instruction of or at the will of the second respondent;

(h)    the condition was that to be allowed ordinary access to the Giggle App, a user had to be a cisgendered female, or be determined as having cisgendered physical characteristics by the second respondent on a review of a photograph provided by the applicant during the process of applying to use that App;

(i)    in breach of s 22 of the SD Act, either respondent or both of them discriminated against the applicant on the basis of gender identity within the meaning of s 5B(1) by imposing that condition, by excluding the applicant from using and assessing the App which was otherwise available to cisgender women and by not responding to the applicant’s requests for access;

(j)    the applicant was treated less favourably than cisgender women because the applicant is a transgender woman;

(k)    there was a breach of s 22 of the SD Act of discrimination on the basis of gender identity by imposing the condition, which has disadvantaged and will continue to disadvantage transgender women because they will not be able to gain ordinary access to the App and are vulnerable to disparaging conclusions and exclusion based on appearance;

(l)    unlike a transgender woman, cisgender women would not have their access to the App restricted or physical appearance questioned by either or both of the respondents, and either or both of them would have engaged with cisgender women and responded to their queries regarding access to the App.

13    The respondents’ case is that the applicant was granted ordinary access to the App via the artificial intelligence (AI) assessment process, and that the applicant was removed from the platform (that is to say, use of the App) because the applicant was an adult human male, evidently rejecting the use of the word woman to describe the applicant. All of the allegations summarised above are flatly denied in that context.

14    It is apparent that a key dispute is one of characterisation of what has taken place, with the respondents essentially taking issue with the applicant’s characterisation having any validity. That is manifested in part by the respondents’ constitutional challenge to the constitutional validity of s 5B as being beyond the legislative power of the Commonwealth, and in part by the interpretation they give to the operation of ss 5 and 5B of the SD Act.

15    As to the interpretation question, the respondents contend that the applicant’s case as pleaded, while purporting to engage the discrimination jurisdiction in s 5B of the SD Act, is instead addressed to the definition of sex discrimination in s 5. That is said to be that the statement of claim (since amended, but in ways that are not material to this argument), elides the two attributes of sex and gender, conflating the two. The substance of the argument is that sex is a “multidimensional construct”, referring essentially to biological features which produce a binary position of man or woman, while gender is directed to a person’s individual identity as characterised by how a person signals their gender to others, referring essentially to behavioural features and questions of psychology and society.

16    The substance of the objection by the respondents concerns the statement of claim using the terms “cisgender” and “transgender” when neither is referred to in the SD Act, asserting that this term is only apposite to the sex discrimination definition in s 5. They contend that s 5 precludes the applicant’s case being brought under s 5B.

17    The applicant’s response is to agree that for the purposes of s 5 of the SD Act, a person’s sex is that of a man or a woman, and it is for that reason that the case is not framed by reference to s 5, noting that there is no barrier to a transgender woman being a woman for the purposes of sex discrimination. Rather, the applicant argues, the case alleges gender discrimination on the basis that the applicant is a transgender woman, not a cisgender woman. The case is instead brought under s 5B because the condition complained about is that it has allowed a transgender woman to be treated less favourably than a cisgender woman. The applicant alleges being removed from the App upon the basis of gender identity as a transgender woman, which does not, on that case, in any way pertain to the treatment of a man.

18    The difference between the applicant’s case and the respondents’ case is stark and wholly irreconcilable. One will ultimately be found to be right, and the other wrong. This is not the point at which that determination is to be made unless the applicant’s case is manifestly untenable. The arguments for the respondents do not go so far as to convince me that is so, largely because the SD Act deliberately draws a distinction between sex discrimination and gender discrimination, for which the metes and bounds of the latter have not been tested. Nor can they be appropriately tested in the course of a relatively short interlocutory dispute.

19    For the purposes of the interlocutory applications under consideration, all that is required to be determined is that the applicant’s case is reasonably arguable. It does not entail finding that the respondents’ argument is not reasonably arguable as well. I express no view on that. I consider that the applicant’s case is at least reasonably arguable, and accordingly it is a trial issue. That does not involve making any prediction or determination of which argument will ultimately prevail.

The interlocutory disputes

20    The four interlocutory disputes requiring adjudication are:

(a)    the applicant’s application under s 46PO(2) of the AHRC Act for an extension of time to 22 December 2022 to bring this proceeding, being the date upon which the originating application was filed (the application for an extension of time is contained in that originating application);

(m)    a notice of objection to competency filed by the respondents, dated 15 February 2023 and filed 16 February 2023;

(n)    an interlocutory application dated 23 March 2023 and filed 24 March 2023, by which the applicant seeks a maximum costs order pursuant to r 40.51 of the Federal Court Rules 2011 (Cth);

(o)    an interlocutory application dated 30 March 2023 and filed 31 March 2023 by which the respondents seek an order pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) and r 19.01 of the Rules that the applicant provide security for costs and related relief.

Notice of objection to competency

21    It is convenient to deal with the notice of objection to competency first, because it is easily disposed of. That is because, ironically, the notice itself was ultimately effectively conceded to be incompetent.

22    The Federal Court of Australia Act 1976 (Cth) makes no reference to notices of objection to competency, that being left to the Rules. An important purpose of a notice of objection to competency provided for by the Rules is to enable certain limited classes of trial and appeal proceedings that manifestly do not engage the jurisdiction of the Court to be dismissed upon that basis. Such a notice can be heard upon an interlocutory basis and before a final hearing, thereby avoiding or at least reducing the incurring of costs and the waste of court time. Bringing such an application at an early stage is encouraged, so much so that if an application or appeal is later dismissed because it is not competent, and no notice of objection to competency has been filed, the respondent, most often a Commonwealth Government legal entity given the classes of proceedings for which this procedure is available, is ordinarily not entitled to any costs of the application or appeal.

23    Both the option of filing a notice of objection to competency and the potential costs burden of failing to do so, are confined to the limited classes of proceedings to which the Rules refer. If a proceeding does not fall within the scope of one of the classes of proceedings for which this procedure is available, jurisdictional objections fatal to the bringing of the proceeding or appeal cannot be taken in this way. Rather, that must either be left to the ordinary processes of the Court, for example as part of a final hearing or as a separate question, or can be advanced by way of a summary dismissal application brought under s 31A of the Federal Court of Australia Act (and/or r 26.01 of the Rules).

24    A summary judgment application is subject to the breadth and limitations identified by the High Court in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 at [49]-[60] as to application of the test of there being no reasonable prospects of success and this being a step that is not taken lightly. If the presence or absence of jurisdiction is really contestable, and therefore a trial issue, that will ordinarily be when it is left to be addressed. As considered in more detail below, my present view is that the question of jurisdiction is contestable, such that a summary dismissal application is unlikely to succeed.

25    The Rules refer to objections to competency in five places, none of which apply to this proceeding. The five rules dealing with notices of objection to competency are:

(a)    r 31.05 for applications made under the Administrative Decisions (Judicial Review) Act 1977 (Cth);

(b)    r 31.24 for applications made under the Migration Act 1958 (Cth);

(c)    r 31.31 for applications arising under s 57 of the Australian Crime Commission Act 2002 (Cth);

(d)    r 33.30 for appeals from the Administrative Appeals Tribunal; and

(e)    r 36.72 for appeals generally.

26    The costs consequences for not filing a notice of objection to competency apply to each of those types of proceeding, other than applications arising under the Australian Crime Commission Act: see rr 31.05(4), 31.24(4), 33.30(4) and 36.72(4). This proceeding does not fall within any of those rules, such that no provision is made either for filing a notice of objection to competency or for any costs consequences for the respondents for failing to do so. There are, however, the ordinary costs consequences for seeking to bring a kind of interlocutory application that was never available.

27    The respondents ultimately accepted that the invalid notice of objection to competency had to be dismissed, and only resisted a costs order to the extent that the arguments advanced in support of it arose in relation to any of the other interlocutory applications.

Extension of time

28    Section 46PO(2) provides that an application must be made within 60 days after the date of issue of the notice of termination under s46PH(2), “or within such further time as the court concerned allows”. Strictly speaking, there is no obligation that the Court be satisfied that the extension of time is, for example, “necessary in the interests of the administration of justice”, as is the case for an extension of time under s 477A of the Migration Act, considered by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604. However, even if necessity is not required, the interests of justice more broadly are ordinarily relevant to any decision made by this Court, and in most cases will be self-evident.

29    In Tu’uta Katoa at [10], Kiefel CJ, Gageler, Keane and Gleeson JJ identified “the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application” as particularly relevant among the myriad of potential relevant facts and circumstances pertaining to the consideration of an application for an extension of time. Their Honours noted that the presence of the threshold of the extension of time being necessary in the interests of the administration of justice meant that it is not enough that the extension of time sought is merely desirable. Meeting that or another higher threshold is not mandated by s 46PO(2), but such a consideration may be taken into account in the exercise of the otherwise unfettered discretion. As already noted, the interests of justice will always be a generally relevant consideration, but a threshold of the extension being necessary for that purpose may not always be appropriate in the absence of that being mandated.

30    In Stepien v Department of Human Services [2018] FCA 1062, Mortimer J (as the Chief Justice then was) observed:

[20]    The Court has a discretion under s 46PO(2) to extend the time in which an application can be made under s 46PO(1). The discretion is unconfined, save by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J).

[21]    Discretionary powers such as the one in s 46PO(2) inevitably involve consideration of what is in the interests of the administration of justice, that being the Court’s core function.

[22]    In this sense, the discretion in s 46PO(2) is of the same character as that to be found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344. As I observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [41]-[42], Hunter Valley has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. In Hunter Valley at 348-350, Wilcox J reviewed the matters which had been treated as relevant by the authorities to that point. That list of factors has been endorsed repeatedly in this Court as providing guidance on how the exercise of such a discretion might be approached, and has been regularly endorsed and applied to similar discretions to extend time, including that in s 46PO(2): see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24]; Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 at [11]-[12].

[23]    The three principal matters Wilcox J found that a court takes into account are: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted.

31    In Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 3) [2022] FCA 1269, Bromberg J, after quoting from Tu’uta Katoa at [10]-[12], observed:

[10]    Taking into account and applying those observations, to my mind, the primary purpose of s 46PO(2) is to impose a time limit on the making of an application. However, the power there given to extend time recognises that the imposition of a rigid time limit may inflict injustice upon a prospective applicant. To avoid or ameliorate that potential for injustice, an extension of time may be granted but only where the interests of the administration of justice so require. To assess what the interests of the administration of justice require, a broad inquiry may be necessary which takes into account “a myriad of facts and circumstances”, including those which have often been regarded as the primary (though non-exhaustive) considerations identified in Tu’uta Katoa as:

(1)    the length of the applicant’s delay;

(2)    the reasons for the delay;

(3)    any prejudice to the respondent or third parties; and

(4)    the merits of the underlying application.

[11]    Other considerations which may be relevant, given the subject matter of a prospective application which alleges a contravention of the SD Act, may include the seriousness of the allegations of discrimination which are sought to be pursued and whether the allegations raise matters of public importance or of general application: see James [James v WorkPower Inc [2018] FCA 2083] at [38].

32    The thrust of the argument advanced by the applicant is that:

(a)    the delay is not significant, being in the order of six months, rather than some longer time, such that the dispute has not “festered”, citing Ferguson at [20];

(b)    there is no identified prejudice of the relevant kind identified by the respondents, with there being none of the common features of concern with delay, such as loss of memory by witnesses, this being a largely documentary case in a narrow compass, albeit with significant legal issues;

(c)    a proceeding had originally been commenced within time in the Federal Circuit Court and had only been discontinued before the first court date because of fears about costs;

(d)    there is a reasonable explanation for the delay in bringing a second application, namely being able to secure a partial indemnity of $50,000 towards any adverse costs order, with the application being filed immediately upon that being put in place;

(e)    the underlying issues are of public importance, being the interpretation and application of provisions rendering discrimination upon the basis of gender identity unlawful (this not having previously been litigated);

(f)    the constitutional challenge brought by the respondents serves only to heighten the public importance aspect;

(g)    the opportunity to bring the case is also important to the applicant personally in terms of identification as a woman as recognised by an undated birth certificate issued by the Registry of Births, Deaths and Marriages in Queensland, and being recognised as a woman by the artificial intelligence deployed by the first respondent in allowing access to the App;

(h)    In Tu’uta Katoa at [17], it was noted that it will often be appropriate to assess the merits for the purposes of an extension of time application at a reasonably impressionistic level, because those interests are likely to be advanced by granting the additional time to an application with “some merit”, depending on other relevant factors.

33    The respondents’ opposition to the extension of time sought principally relies upon arguments also advanced in support of the notice of objection to competency, with only passing reference to the arguments advanced by the applicant summarised above, namely:

(a)    that the phrase “an application” in s 46PO(1), coupled with such a reading being consistent with primacy of conciliation and prompt commencement of proceedings if that does not succeed, and the undesirability of the alternative of introducing the notion of a freestanding cause of action inconsistent with the statutory constraints on the bestowing of curial jurisdiction, means that only a single application could be made following the termination of the complaint by the delegate of the President of the Commission, such that this had been exhausted and thereby extinguished once the application was made to the Federal Circuit Court and discontinued; and

(b)    a lack of merit because s 5B of the AHRC Act was not engaged.

34    Section 2 of the Acts Interpretation Act 1901 (Cth) provides:

2 Application of Act

(1)    This Act applies to all Acts (including this Act).

Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.

(2)    However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

35    Section 23(b) of the Acts Interpretation Act provides:

23 Rules as to gender and number

In any Act:

(a)    words importing a gender include every other gender; and

(b)    words in the singular number include the plural and words in the plural number include the singular.

36    The respondents contend that s 23(b) does not apply because the SD Act manifests a contrary intention, in the words of counsel for the respondents, “in circumstances where the statutory purpose allows parties to bring complaints with promptitude in circumstances where they are exercising a special statutory creature of rights, cluster of rights, such that if we were to allow them to recommence and recommence on that action, they could constitute vexation and that is not the purpose of these provisions”. I did not find this argument persuasive.

37    A seminal case is Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, a Privy Council decision on appeal from the High Court in which it was found that a provision of a corporations statute dealing with a power to acquire the shares of dissenting shareholder following a successful takeover. The provision referred to a single company and it was found that the provision applied according to its terms only to a single company, not to two companies. This meant that the then New South Wales equivalent to s 23(b) of the Acts Interpretation Act did not apply to make it applicable to more than one company, adopting, as did the High Court, the conclusion of the Chief Judge in Equity that the provision only contemplated singularity. Lord Morris of Borth-y-Gest said of the equivalent to s 23(b) and the approach to be taken in departing from it, at 656:

Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to anyone particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

38    The above passage was quoted with approval in Walsh v Tattersall [1996] HCA 26; 188 CLR 77, a case dealing with duplicity of criminal charges, finding by majority that the South Australian equivalent to s 23(b) of the Acts Interpretation Act did not apply. Gaudron and Gummow JJ reasoned at 90–91 that this precluded charging more than one offence in a single charge. The issue did not arise on the analysis of the dissentients, Dawson and Toohey JJ, upon the basis that only one offence had been charged.

39    The above passage from Blue Metal Industries Ltd v Dilley was partially quoted in Pfeiffer v Stevens [2001] HCA 71; 209 CLR 57, a case involving the power of a Minister to extend the period of time for the operation of an interim local law, and the question of whether that sunset period could be extended more than once. By majority it was found that the Queensland equivalent of s 23(b) of the Acts Interpretation Act did apply. Gleeson CJ and Hayne J at [25] said that the phrase in question, “a longer period”, was neutral on the question, so as not to exclude the operation of the plural. McHugh J at [59] reasoned that to read the Act in question as giving the power to extend the sunset period more than once did not change the character of the legislation, and still had to be done in accordance with and for the purposes of that Act. That has direct application to the present situation, it not being argued, let alone compellingly so, that allowing more than one application to be made, and only by leave if outside the 60 days, in any way changes the character of the SD Act.

40    In all three cases of Blue Metal Industries Ltd v Dilley, Walsh v Tattersall and Pfeiffer v Stevens, the statute in question presented compelling reasons for departing, or not departing, from the equivalent to s 23(b) of the Acts Interpretation Act. They do not support any reason at all, let alone a compelling reason, for s 23(b) of the Acts Interpretation Act not to apply to s 46PO(1) of the AHRC Act. To the contrary, the other statutes referred to below would likely need to be read in this way if this argument were to succeed. There is a manifest advantage in having s 23(b) apply to “an application” in s 46PO(1), namely to keep open the remedial provision of the SD Act, which in any event requires a court to permit a second application to proceed if it is outside the 60 day time limit. The ordinary provisions for abuse of process are ample to protect this outcome being misused.

41    I am unable to accept that the use of the singular “an” before “application” in s 46PO(1) goes anywhere in any event. Quite apart from s 23(a) of Acts Interpretation Act providing for the singular to import the plural and vice versa, there is no proper basis for reading down the right to bring a second application in this way. The phrase “an application” is frequently used in Commonwealth legislation, such as the Bankruptcy Act 1966 (Cth), the Administrative Decisions (Judicial Review) Act, the Australian Securities and Investments Commission Act 2001 (Cth), the Corporations Act 2001 (Cth) and the Competition and Consumer Act 2010 (Cth) to name but a few, which tell against such a phrase indicating that only one such application may be brought, or that discontinuing such an application and seeking later to start again is not legally possible.

42    Nor is the need for prompt commencement of a proceeding unique, with 60 days being both shorter and longer than allowed in other Commonwealth statutes. The ordinary 60 day limit is real and substantial, but it is clearly not an insurmountable barrier, because of the wide discretion for an application to be brought out of time if the Court allows it, which is a substantial control on any abuse of the process brought about by a proliferation of applications, but not a substantial hurdle to overcome in an appropriate case. The presence of that discretion does not detract from that being a real barrier, such that there is no freestanding cause of action as the respondents suggest. In any event, leave can also be sought to bring an application, which suggests that the legislature did not intend that a time limit was to be immutable or to operate more strictly than the language deployed in s 46PO(2).

43    Moreover, the very presence of discontinuance being automatically fatal to bringing fresh proceedings would have a tendency to deter discontinuing proceedings, which it is difficult to accept would be allowed by such an interpretative side wind. It is enough that any second application after discontinuance would likely need to rely upon the exercise of the Court’s discretion to allow more time.

44    For all of those reasons, this first argument by the respondents must fail.

45    The respondent’s second argument entails conducting a mini trial of the central legal issues raised, largely upon the basis of little more than assertion. On my perusal, and as noted earlier in these reasons, there is at least an arguable case for a contrary view, as advanced by the applicant. It is not appropriate to endeavour to determine this trial question on an extension of time application. Applying the impressionistic view authorised (but not mandated) by the High Court in Tu’uta Katoa, I consider that there is sufficient merit in the case that the applicant seeks to bring for this to be a reason in favour of granting the extension of time.

46    I consider it best not to go further in assessing the prospect of the application being successful, so as to avoid any impression of pre-judgment of the ultimate issue. I have not formed a preliminary concluded view either way, not least because the point has not yet been properly argued or fully developed, beyond the general impression of it being arguable. The trial issue raised is not so clearly required to be determined in the respondents’ favour for this to be a barrier to the grant of the extension of time sought.

47    The respondents have not put forward any compelling argument in answer to the case advanced for an extension of time as summarised above. I consider that there is not just a private interest on the part of the applicant to seek to vindicate a claim of unlawful discrimination, but also a public interest in having a determination of the metes and bounds of the prohibition determined in a context where the scope for any substantial factual dispute appears at this stage to be quite limited. I am therefore satisfied that it is appropriate and generally in the interests of justice to allow the extension of time sought.

48    It follows that the extension of time sought by the applicant is granted. The respondents must pay the applicant’s costs of and incidental to this aspect of the hearing on 28 April 2023.

Maximum costs order

49    The applicant applies for a maximum costs order under r 40.51 of the Rules, in the sum of $50,000, in relation to the costs flowing both ways. That is, if the order was made, it would cap the costs exposure of both the applicant and the respondents. The respondents oppose the order being made.

50    Rule 40.51 provides as follows:

Maximum costs in a proceeding

(1)    A party may apply to the Court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding.

Note:    Costs as between party and party is defined in the Dictionary.

(2)    An order made under subrule (1) will not include an amount that a party is ordered to pay because the party:

(a)    has failed to comply with an order or with these Rules; or

(b)    has sought leave to amend pleadings or particulars; or

(c)    has sought an extension of time for complying with an order or with any of these Rules; or

(d)    has not conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, and another party has been caused to incur costs as a result.

51    The principles in relation to such an application were succinctly summarised by Griffiths J in Houston v State of New South Wales [2020] FCA 502:

[17]    There was substantial agreement between the parties as to the relevant principles guiding the exercise of the Court’s discretion under r 40.51. The discretion is to be exercised judicially, having regard to all the relevant circumstances. Those circumstances include the nature of the relief sought, the complexity of the litigation and the interests of the parties in both prosecuting and defending the litigation, whether the applicant’s claims are reasonably arguable, whether a party would otherwise be forced to abandon a proceeding if such an order were not made, whether there was a public interest element to the proceeding, the costs which are likely to be incurred in the proceeding, the timing of the maximum costs application and whether the party opposing the making of the orders has been uncooperative and/or delayed the proceedings.

[18]    I emphasise that those factors are not exhaustive. In my view, another relevant factor is the normal rule in civil litigation that costs are awarded to the successful party, not to punish the unsuccessful party but rather to compensate the successful party against the expense to which it has been put by reason of the legal proceedings. It is well settled that this normal rule can be displaced in an appropriate case. The applicant’s application for a maximum costs order effectively seeks to displace the normal rule at this relatively early stage of the proceeding, rather than defer the matter of costs to when the proceeding has been determined.

[19]    It has been acknowledged in various cases relating to r 40.51 that the principal purpose of the provision (and its predecessor, order 62A) was not so much a desire to limit the exposure of a respondent to an adverse costs order in complex and lengthy commercial litigation, but rather with concerns as to access to justice, public interest, and a desire to limit the costs of all parties, particularly in less complex and shorter cases. As Drummond J noted in Hanisch v Strive Pty Ltd [1997] FCA 303; 74 FCR 384 at 387:

The principal object of O 62A is to arm the Court with power to limit the exposure to costs of parties engaged in litigation in the Federal Court which involves less complex issues and is concerned with the recovery of moderate amounts of money, although it may be appropriate for an order to be made under O 62A in other cases…

[20]    I respectfully agree with those observations. Subject to the overarching requirement to avoid unduly narrowing the discretion under r 40.51, I also respectfully agree with Beach J’s observations in McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215 at [74] that “if the proceeding is complex forensically and also lengthy then this may militate against the making of such an order”.

52    The parties both refer to the non-exhaustive considerations identified by Griffiths J and elsewhere in support of an opposite conclusion.

53    The applicant contends that the application is reasonably arguable and not frivolous. For the reasons already given, I am satisfied that is so, and reject the contrary argument advanced by the respondents.

54    The applicant contends that the application for a maximum costs order has been brought promptly. I accept that the application has been brought at a reasonably early juncture. The respondents did not seriously contend otherwise.

55    The applicant contends that there is a public interest in the application because it concerns alleged overt discrimination on the basis of gender identity. The applicant submits that it is reasonable to expect that the wider public will be interested in the outcome, amplified by the absence of any case thus far to have considered s 5B of the SD Act in a context of a gender diverse person, being something of a test case. The respondents counter by characterising this case as being predominately to advance the private interests of the applicant, seeking to align this case with the outcome in Houston in which his Honour found, at [27], that while persons other than the applicant in that case may have an interest in whether the legislation there under consideration was valid, that was not sufficient to characterise the matter as involving public interest litigation. His Honour considered that an equally important factor was that it could not be said that the applicant, Mr Houston, had no private interest in the proceeding, because he was facing criminal prosecution for what was alleged to be illegal land clearing, and if successful, he would avoid the financial consequences associated with fines, remediation orders or conservation agreements flowing from a conviction.

56    The conclusion I reach is that this case is neither a purely public interest proceeding, nor a purely private interest proceeding. It has features of both. It has a more of a private interest dimension insofar as the applicant seeks access to a service, and more of a public interest dimension insofar as that access, and the application of any finding that denial of such access in these and legally like circumstances is unlawful or lawful, would be likely to have wider application than the facts and circumstances of this case. That in turn is largely driven by the validity and scope of the legislation. It does have a test case quality to it, either way.

57    Viewed in another way, the public interest factor is strongest in relation to the question raised by the respondents as to constitutional validity and statutory construction. That has three collateral features assisting in the conclusion that this aspect is appropriate for a maximum costs order. First, the question of the validity and the scope of the legislation by way of its interpretation are the points of greatest public interest. Of itself, resolution of those relatively abstract issues is likely to go some way in ascertaining the metes and bounds of the legislation.

58    Secondly, both constitutional validity and statutory construction are in a relatively narrow ambit in terms of time and effort as they will not turn on evidence to any marked degree, if at all, so should take relatively less resources and therefore cost.

59    Thirdly, the Sex Discrimination Commissioner seeks to leave to appear amicus curiae on these issues, but not on the question of whether what took place was unlawful. Although I have not heard from the parties on whether or not to grant that leave, I would need some persuading not to do so. If that leave is given, then the logical way to advance those arguments would be to have the Sex Discrimination Commissioner go first in terms of submissions and any evidence that is needed, and for that purpose to assemble, order and furnish to the parties such authorities and other materials as will assist in determining those questions, without precluding the parties from asking for certain material to be included by the Commission, or supplementing it themselves. This too will help to contain the costs of the parties.

60    Fourth, constitutional invalidity and adverse statutory construction arguments are the aspects of the case most stridently advanced by the respondents as barriers to the case proceeding in the first place. Proceeding on this aspect first has much of the content and effect, but not the form, of a summary judgment application. I would also be open to considering this aspect of the case in a cost-effective way, including possibly being framed by one or more separate questions, and perhaps by reference to certain baseline agreed facts to contextualise the legal arguments to be advanced.

61    The private interest aspect is strongest in relation to the unlawful aspect alleged by the applicant. This phase of the proceeding will only take place at all if the legislation is both constitutionally valid and if it is interpreted in a way that permits the applicant’s case to be brought by properly engaging s 5B of the SD Act. If that point is reached, this aspect is more concerned with the applicant’s personal interest as to unlawfulness and as to remedies, although the wider public interest is not altogether irrelevant. It would involve evidence, albeit it seems likely that this will be largely documentary and in a narrow ambit. But nonetheless, it will likely take:

(a)    preparation time for the evidence and any opening submissions;

(b)    hearing time to adduce that evidence, for the purpose of establishing any disputed facts;

(c)    preparation time for closing submissions, including on the facts that are asserted to be established by the evidence and whether such facts do, or do not, establish unlawful conduct; and

(d)    hearing time to advance those submissions.

62    Weighing up all the competing considerations, I have reached the conclusion that the application for a maximum costs order should:

(a)    not succeed in relation to the costs of and incidental to the interlocutory hearing that took place on 28 April 2023;

(b)    succeed in relation to the costs of and incidental to the preparation and hearing of the competing arguments as to constitutional validity and statutory construction, which I propose to cap at $50,000 as being an ample sum for essentially legal arguments;

(c)    not succeed in relation to the costs of and incidental to the preparation and hearing of the remainder of the proceeding, if that is reached.

63    As I consider that the applicant has had substantial success in the maximum costs application, the respondents should pay the applicant’s costs of and incidental to this aspect of the hearing on 28 April 2023.

Security for costs

64    The respondents seek a security for costs order, acknowledging that it is unusual for such orders to be made against natural persons, although not unheard of. I accept that the application has been made sufficiently promptly, so will focus on the merits.

65    The respondents rely upon the summary of the circumstances in which such an order will be made by Lindgren J in Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [33] (bold emphasis in original), to which I add [32]:

[32]    Many cases can be cited for the proposition that there is a disinclination to order an applicant who is a natural person to provide security, at least, in the absence of some factor in addition to impecuniosity. Cases which can be cited against the ordering of security and in favour of allowing natural persons, even impecunious ones, free access to the courts, include Hinde v Haskew (1884) 1 TLR 94; Pearson v Naydler [1977] 1 WLR 899 (Megarry VC) at 902; Orr v Lusute Pty Ltd (1987) 72 ALR 617 (Sheppard J) at 622: Morris v Hanley [2000] NSWSC 957 at [15]; The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400 (Branson J) at [22]; Chang v Comcare Australia [1999] FCA 1677 (Moore J) at [25]; James v Australia and New Zealand Banking Group Ltd (No. 1) (1985) 9 FCR 442 (Toohey J) at 445; Weston v Beaufils (1993) 43 FCR 292 (Burchett J) at 298; Famel Pty Ltd v Burswood Management Ltd (1989) 11 ATPR 40-962 (French J) at 50,514; Cameron’s Unit Services Pty Ltd v Kevin R Whelpton and Associates (Australia) Pty Ltd (1986) 13 FCR 46 (Burchett J) at 53; Gartner v Ernst & Young (No. 3) [2003] FCA 1437 (Mansfield J) at [36].

[33]    In the cases in which natural persons have been ordered to provide security, some factor in addition to impecuniosity has been present; cf Barton v Minister for Foreign Affairs (1984) 2 FCR 463 (Morling J) at 594 (impecuniosity and residence outside Australia); Cunningham v Olliver (unreported, Burchett J, 21 November 1994) (but for delay, security would have been ordered on ground of impecuniosity and bringing of claim to a significant extent for benefit of others); Chang v Comcare Australia [1999] FCA 1677 (Moore J) at [32] (impecuniosity and lack of prospects of success); Loque v Hansen Technologies Ltd [2003] FCA 81 (Weinberg J) (impecuniosity and residence outside Australia); Morris v Hanley [2000] NSWSC 957 (Young J) at [21], [38] and [39] (but for delay, Young J would have ordered security on grounds of impecuniosity and lack of prospects of success and large costs involved to defendants. Young J’s decision was reversed on appeal on the ground that defendants had not adequately explained their delay in moving for security, but the Court of Appeal did not consider other aspects of his Honour’s reasons: see Morris v Hanley & Ors [2001] NSWCA 374 at [30]-[31]); Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82 (CA) at [132] (per Heydon JA) (impecuniosity and applicant’s failure to show that order would stultify proceeding and sum ordered by primary Judge not oppressive).

66    A more recent summary of the overall principles, including those articulated in Knight, was provided by Abraham J in Etnyre v Australian Broadcasting Corporation [2021] FCA 610 at [6]-[17], which I adopt without reproducing.

67    Among the key issues advanced by the respondents are the quantum of risk that a costs order will not be satisfied, whether the order would be oppressive by stifling a reasonably arguable claim, whether any impecuniosity arises out of the conduct complained of, the prospects of success, whether there were aspects of public interest which weigh in the balance against such an order and whether there are any particular discretionary matters peculiar to the circumstances of the case.

68    With the maximum costs order for the constitutional validity and statutory interpretation arguments, and having regard to the indemnity that the applicant has secured, I am not satisfied that there is any substantial risk that a costs order will not be satisfied, but that even if there was such a risk, it has been limited by the maximum costs order and is not of itself a sufficient reason to order security for costs. Given that the applicant previously commenced and discontinued a proceeding in the Federal Circuit Court, I am willing to infer that making a security for costs order is, on the balance of probabilities, likely to stifle a claim that I have already found is reasonably arguable. In this instance, the past is the best guide to the future.

69    I am satisfied that there is a distinct public interest in the constitutional validity and statutory interpretation aspects. I am presently unable to form any concluded view as to the prospects of success or failure of those aspects, such that this is a neutral consideration. There do not appear to be any other discretionary matters of note. All of these factors are sufficient to refuse to grant the application for security for costs.

70    There is a further factor which reinforces this conclusion, although not determinative of itself. That factor is that the respondents declined to participate in conciliation as invited to do so by the Commission. As already noted, this led to the sole reason why the complaint was terminated, namely that the delegate was satisfied that there was no prospect of the matter being settled by conciliation.

71    I received post-hearing evidence and submissions from both the respondents and the applicant on the reasons why the respondents declined to participate in conciliation. The respondents largely confined the circumstances in which they declined to participate in conciliation as not being a reason to make a maximum costs order, while the applicant advanced these circumstances as reasons both to make a maximum costs order and not to make a security for costs order. I did not find it necessary to have regard to the respondents declining to participate in conciliation as any part of the reason to make the maximum costs order.

72    At the interlocutory hearing, it was submitted that the respondents had declined to participate in conciliation because of pregnancy-related illness on the part of the second respondent. Unfortunately, the evidence did not establish that this was so. Rather, the evidence established that the pregnancy of the second respondent and recovery from an unrelated illness was the reason advanced for seeking, and obtaining, an extension of time of a month to respond to the complaint. There is no evidence that these medical issues were renewed with the Commission. To the contrary, the express reason given in writing by email for not participating in the conciliation was disappointment at the Commission finding that there was a reasonably arguable claim of discrimination such that conciliation appeared appropriate, instead of finding as the respondents had sought that the complaint was unfounded, vexatious and other related objections. No medical issue was cited as any part of the reason for declining to participate in conciliation.

73    The respondents contend that it is wrong to characterise them declining to participate in conciliation as in any way leading to the commencement of this proceeding. Instead, the substance of the argument seems to be that the applicant simply had a binary choice to commence this proceeding, or not to do so, and that accordingly the respondents declining to participate in conciliation was irrelevant. While this may not be a complete representation of the argument, the undeniable fact is that the dispute might have been able to be resolved, or at the very least, narrowed, by conciliation. Given that was not attempted, it ill behoves the respondents to seek security for costs when a no-costs avenue available to both sides was rejected by the respondents. However, this conclusion was not necessary to decide to refuse the making of a security for costs order. It does no more than reinforce the conclusion already reached that such an order should not be made.

74    I am not satisfied that a security for costs order should be made. The respondents should pay the applicant’s costs of and incidental to this aspect of the hearing on 28 April 2023

Conclusion

75    The applicant has succeeded in obtaining the extension of time and substantially succeeded in obtaining a maximum costs order. The respondents have failed in relation to both the invalid notice of objection to competency and the application for security for costs. It follows that the respondents must pay the applicant’s costs of and incidental to the interlocutory hearing on 28 April 2023, including the post-hearing submissions.

Associate:

Dated:    1 June 2023