Federal Court of Australia

Lal v Royal Australasian College of Physicians [2025] FCA 348

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be entered for the first, second and third respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), dismissing the whole of the proceeding against each of the respondents.

2.    The applicant pay the costs of the first respondent of and incidental to the proceeding, such costs to be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).

3.    Pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), a Registrar of the Court determine the amount of the lump sum costs the subject of Order 2 in such manner as he or she sees fit, including, if considered appropriate, on the papers, and make all necessary orders to facilitate the determination.

4.    The applicant pay the costs of the second and third respondents of and incidental to the proceeding, to be taxed if not otherwise agreed.

5.    The interlocutory applications lodged for filing on 28 November 2024 and 29 November 2024 be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court are three interlocutory applications filed by the first, second and third respondents, each seeking summary judgment against the applicant pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). The applicant, Dr Lal, had commenced originating proceedings against all three respondents, referable to accreditation of him in Australia as a medical practitioner, and his employment with the third respondent. In summary, the respondents seek summary judgment against Dr Lal in relation to all of his claims for reasons associated with jurisdiction of the Court and insufficient prospect of success of the originating process.

2    In my view, the orders sought by the respondents should be made, with costs. I have formed this view for the reasons that follow.

background TO THE DISPUTE

3    On 30 October 2017, Dr Lal commenced as a Staff Specialist with the third respondent, Mackay Hospital and Health Service (MHHS). As Dr Lal is an Indian national, and did not receive his medical training in Australia, his ongoing employment with MHHS was conditional on his satisfying certain training and supervision requirements. Relevantly, Dr Lal’s employment was subject to him receiving a comparability assessment of “substantially comparable” or “partially comparable” from the first respondent, the Royal Australasian College of Physicians (RACP), as determined by peer reviewers (the Peer Review).

4    On 26 June 2018, the Overseas Trained Professionals Assessment Subcommittee (OTP Subcommittee) of the RACP met and determined that Dr Lal’s performance under his Peer Review was unsatisfactory (the Original Decision). Dr Lal was informed of the Original Decision on 9 July 2018.

5    On 30 July 2018, MHHS wrote to Dr Lal advising that it was giving serious consideration to whether his employment with MHHS had become frustrated by operation of law as a result of:

(a)    the Original Decision;

(b)    the fact that as a result of the Original Decision, Dr Lal was required to complete 12 months of top up training in respiratory medicine at a tertiary training site accredited for advanced training, followed by a period of 12 months’ practice under peer review; and

(c)    MHHS was not a tertiary training site accredited for advanced training in respiratory medicine for the purposes of RACP accreditation.

6    In that letter, MHHS gave Dr Lal seven days to show cause why his employment had not become frustrated. Further, the letter advised Dr Lal that he was suspended from his employment, on full pay, pursuant to s 137(1) of the Public Service Act 2008 (Qld) (Public Service Act).

7    On 10 July 2018, Dr Lal wrote to the RACP, requesting that the Original Decision be reviewed (First Review Application). The OTP Subcommittee considered the First Review Application, including by reference to further evidence. On 19 September 2018, the OTP Subcommittee informed Dr Lal that it had upheld its Original Decision (First Review Decision).

8    On 31 August 2022, Dr Lal filed an “Application to review a decision” (dated 30 August 2022) with the Queensland Civil and Administrative Tribunal (QCAT) against the RACP, and the second respondent (the Australian Health Practitioner Regulation Agency (AHPRA)) (the QCAT Application).

9    On 3 October 2018, by his then-lawyers, Dr Lal filed a “Form 10 – Notice of Industrial Dispute” with the Queensland Industrial Relations Commission (QIRC), naming MHHS as the sole respondent (First QIRC Application). On 7 December 2018, Dr Lal and MHHS entered into a deed of settlement referable to the resolution of the First QIRC Application (Deed of Settlement). The Deed of Settlement provided, inter alia, for Dr Lal to discontinue the First QIRC Application and to resign from his employment with MHHS. I shall return to the terms of the Deed of Settlement later in this judgment.

10    On 10 October 2018, again by his then-lawyers, Dr Lal made an application to the OTP Subcommittee for review of the Original Decision and the First Review Decision (Second Review Application). On 5 November 2018, the OTP Subcommittee met and considered the Second Review Application. On 5 December 2018, Dr Lal was informed that the OTP Subcommittee had resolved to uphold the Original Decision and the First Review Decision (Second Review Decision).

11    On 11 October 2022, following a directions hearing before Judge Dann, Deputy President of QCAT, the QCAT Application was dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

12    On 7 December 2022, Dr Lal submitted a freedom of information (FOI) request to the Administrative Appeals Tribunal (AAT). On 19 December 2022, a Policy Officer at the AAT wrote to Dr Lal, noting that Dr Lal may need to make an FOI request directly to AHPRA because the AAT could not transfer requests.

13    On 7 July 2023, Dr Lal filed an application with the QIRC against the RACP and AHPRA (Second QIRC Application). On 13 July 2023, after the first mention of the Second QIRC Application, Dr Lal discontinued the Second QIRC Application.

Procedural Background in the federal court

14    Prior to the first case management hearing listed before me on 6 February 2025, Dr Lal sought to file two interlocutory applications in the Federal Court (on 28 and 29 November 2024).

15    I made orders on 3 December 2024 to the effect that those interlocutory applications be held as “pending” until the first case management hearing and that no further interlocutory applications in the matter be filed without leave of the Court. On 9 January 2025, Dr Lal filed an application to the High Court for leave to issue or file a proposed application for special leave to appeal against my orders of 3 December 2024. That application was dismissed by Steward J on 17 February 2025: In the Matter of an Application by Rakesh Lal for Leave to Issue or File [2025] HCASJ 8.

16    At the first case management hearing in the current proceedings, held on 6 February 2025, there was no appearance by Dr Lal, virtually or otherwise. The parties were provided with a Microsoft Teams link on 4 February 2025, two days prior to the case management hearing. The matter was called outside of the courtroom. There was no appearance by Dr Lal following the matter being called. I directed the Court Officer to call Dr Lal’s mobile phone; however, he did not answer that call. At that case management hearing, I granted leave for the RACP and AHPRA to file their respective applications for summary judgment against Dr Lal. I also ordered that the two interlocutory applications sought to be filed by Dr Lal on 28 and 29 November 2024 continued to be held as pending until the applications for summary judgment were heard and determined.

17    Following numerous emails to the Federal Court Registry from Dr Lal, I called the matter for further case management to be held on 6 March 2025. As a result of an impending cyclone potentially affecting Court operations, I directed the Registry to liaise with the parties to bring the case management hearing forward to 5 March 2025. Dr Lal sent an email to the Registry on 3 March 2025 as follows:

I acknowledge receipt of the Court’s correspondence regarding the relisting of the Case Management Hearing (CMH) to 5 March 2025 at 9:30 AM (Brisbane Time).

I wish to respectfully request that my application for leave to be absent from the CMH be considered on the following grounds:

1.    Time Zone Hardship: As I am based in India, the hearing falls at 4:00 AM IST, creating undue hardship.

2.    Power Imbalance in Legal Representation: The Respondents are legally represented, whereas I am self-represented.

3.    Written Submissions Are Sufficient: My submissions fully articulate my position, making oral argument unnecessary.

4.    No Prejudice to Respondents: The procedural nature of the CMH means my absence will not disadvantage any party.

Alternative Request (If Attendance is Required):

Should the Court require my attendance, I request that I be allowed to join via Microsoft Teams or video link. However, I reserve my right to remain silent and rely solely on my written submissions.

I appreciate the Court’s consideration of my request and kindly ask for confirmation of the next procedural steps

(emphasis in original)

18    The Registry sent an email to the parties on 3 March 2025 in reply to Dr Lal’s email of the same date as follows:

Dear Parties,

Her Honour expects the attendance of all parties at the case management hearing now listed for Wednesday 5 March 2025 at 9.30am (Brisbane time).

Her Honour is content for Mr Rakesh to appear via Microsoft Teams using the below link…

(emphasis in original)

19    At the case management hearing on 5 March 2025, there was no appearance by Dr Lal, virtually or otherwise. At that hearing, I granted leave for MHHS to file an interlocutory application for summary judgment against Dr Lal, to be heard together with the applications of the RACP and AHPRA.

20    The respondents’ three interlocutory applications for summary judgment came before me for hearing on 2 April 2025. On 1 April 2025, Dr Lal sent an email to the Court which attached a “Notice of Non-Appearance” (subsequently marked “MFI-1”). In that Notice, Dr Lal stated as follows:

The Applicant, Dr Rakesh Lal, respectfully notifies the Court that he will not attend the interlocutory hearing scheduled for 2 April 2025 in the above matter.

As a self-represented litigant with no access to legal assistance or indemnity, the Applicant is not in a position to effectively engage in oral proceedings against institutionally represented Respondents. The Applicant has already placed all relevant material on the record by way of the Final Reply Submission, Supplementary Submission, and Clarification Note.

If required to attend, the Applicant may join the Teams link passively but will not be able to participate further in oral proceedings. This notice is filed to ensure the Court and parties are informed in advance of the Applicant’s position.

21    In the email to which Dr Lal attached the above Notice, he stated:

Dear Associate,

I write in relation to the interlocutory hearing listed for 2 April 2025 in the above matter.

I respectfully confirm that I will not be attending the hearing. As a self-represented applicant facing multiple institutionally represented respondents, I have placed all relevant facts, submissions, and evidence before the Court by way of:

•    Final Reply Submission and supplementary supporting materials (lodged 1 April 2025);

•    Supplementary Clarification Note (lodged 2 April 2025).

I am not in a position to offer oral advocacy due to the imbalance in legal resources and lack of assistance from any indemnifying party. Should the Court nevertheless require my appearance, I will log in via the Teams link provided but remain respectfully silent, as I would not be able to add to the written record or effectively engage with counsel.

I reaffirm my trust in the Court’s ability to reach a just outcome on the written materials.

Thank you for your understanding.

22    At the interlocutory hearing there was no appearance by Dr Lal, virtually or otherwise. The matter was called outside of the courtroom. I referred to an email sent to the parties by the Registry which, in part, specified that:

…the Parties are expected to appear at the interlocutory hearing and the matter will not be determined on the papers. Given the applicant is located overseas, her Honour is content for the applicant to appear via the below Teams link…

(emphasis in original)

23    The hearing of the three interlocutory applications for summary judgment filed by the RACP, AHPRA and MHHS proceeded in the absence of Dr Lal.

DR LAL’S ORIGINATING PROCESS

24    By his Originating Application filed 17 October 2024, Dr Lal sought various forms of relief from the Court. Relevantly those forms of relief were:

1.    Compensatory and Punitive Damages

%1.1    An order for compensation for economic losses, including: Lost wages, lost opportunities for professional advancement, and the costs associated with medical registration and Fellowship fees, as per Haines v Bendall (1991) 172 CLR 60.

…

%1.2    An order for compensation for non-economic losses, including: Emotional distress, reputational harm, and pain and suffering caused by the Respondents' actions, supported by MAGA v Birmingham Archdiocese of Roman Catholic Church Trustees [2010] EWCA Civ 256.

…

%1.3    An order for punitive damages due to the willful and malicious nature of the Respondents' actions, including fraud, misrepresentation, and coercion in forcing the Applicant to sign the Deed of Settlement (Lamb v Cotogno (1987) 164 CLR 1).

…

2.    Injunctive Relief

%1.1    An order restraining the Respondents from engaging in further adverse actions against the Applicant, including enforcement of the Deed of Settlement.

…

%1.2    An order for the reinstatement of the Applicant's position at Queensland Health (Job No. 00365748) with compensation for visa, repatriation, and rehabilitation costs. This request is supported by the Applicant’s rights under the Public Service Act 2008 (Qld) and Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.

…

%1.3    An order rescinding the Deed of Settlement on the grounds of duress and misrepresentation, as outlined in Crescendo Management Pty Ltd v Westpac Banking Corporation [1988] NSWLR 294.

…

3. Declaratory Relief

3.1     A declaration that the actions of the Respondents constitute: Fraud, as defined under Section 408C(1)(d) of the Criminal Code Act 1899 (Qld).

3.2 Breach of duty, as outlined under the Public Service Act 2008 (Qld), and Constructive dismissal, as established in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169.

…

3.3 A declaration under Section 16(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 or Section 39B of the Judiciary Act 1903 to affirm the Applicant’s rights and obligations under the relevant laws, particularly the Respondents' failure to follow procedural fairness.

…

4.    Costs

4.1     An order for the Respondents to cover all legal costs incurred by the Applicant, including:

4.2     Fees associated with law firms, as per Section 43 of the Federal Court of Australia Act 1976.

4.3     Reimbursement for AHPRA registration and RACP Fellowship fees as a direct result of the Respondents' misconduct.

…

4.4 Further or Other Orders

4.5 Any other orders that the Court deems appropriate in the circumstances of this case.

25    Dr Lal further relied on a Statement of Claim filed on 21 October 2024. Materially, Dr Lal pleaded as follows:

Introduction

The Applicant, Dr. Rakesh Lal, an Overseas Trained Physician, was lawfully appointed as a Staff Specialist in Respiratory Medicine at Mackay Base Hospital, Queensland. Despite fulfilling all necessary qualifications, the Applicant was wrongfully denied Fellowship by the Royal Australasian College of Physicians (RACP), unlawfully suspended by AHPRA, and coerced into signing a Deed of Settlement under duress. These actions constitute a violation of state and federal laws, resulting in significant harm to the Applicant’s professional standing.

…

Jurisdiction

This claim is brought before the Federal Court of Australia under Section 39B(1A) of the Judiciary Act 1903 (Cth), based on the following grounds:

1. Corporate Jurisdiction of RACP: The Royal Australasian College of Physicians (RACP) operates exclusively under the Corporations Act 2001 (Cth). As a corporate entity subject to federal regulations, the Federal Court has jurisdiction to hear matters concerning its actions, particularly those involving corporate governance, regulatory compliance, and professional accreditation standards.

2. Federal Regulatory Framework of AHPRA: Although AHPRA operates within state jurisdictions, it functions under a national regulatory framework that includes significant federal components. This dual jurisdiction, particularly in cases involving cross-state standards and federal obligations, provides grounds for Federal Court involvement. The actions of AHPRA in relation to the Applicant’s registration raise important federal questions that require adjudication at this level.

3. Broader Federal Implications: While Mackay Base Hospital’s actions are governed by Queensland state law, the interconnected nature of the Respondents’ conduct—particularly in relation to corporate governance and potential conflicts between state and federal laws—necessitates adjudication by the Federal Court. The case involves not only state-specific issues but also broader questions of federal law, making this Court the appropriate venue for resolving the disputes presented.

Background Facts

1. The Applicant was offered and accepted a permanent position at Mackay Base Hospital on 7th May 2017, with the understanding that his employment and subsequent Fellowship with RACP would be secured through compliance with specific procedural requirements. Despite meeting all necessary qualifications and providing comprehensive documentation, the Respondents engaged in actions that led to significant delays, misinformation, and wrongful denial of the Applicant’s registration and Fellowship (Exhibit [FC -5])

2. The Applicant fulfilled all the necessary qualifications and provided all required documentation to the Respondents.

3. Despite this, the Respondents engaged in actions that led to significant delays, misinformation, and the wrongful denial of the Applicant’s registration and fellowship.

4. On 7th July 2018, the Applicant’s status was changed from "Substantially Comparable" to "Partially Comparable" by RACP. Despite this, the Applicant should have retained his position as the criteria were still met as per the appointment letter.

5. The Respondents failed to fulfill their commitment to provide mandatory training as per their agreement and job plan provided to the Applicant before joining the job in Australia and the commitment made by RACP and Mackay Base Hospital (employer), which the Applicant relied upon (promissory estoppel – see Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130).

Legal Grounds

1. Fraud and Misrepresentation

1.1 The Respondents knowingly provided false and misleading information regarding the Applicant’s registration status, leading to the wrongful assumption that the SPPA 30 form was in the Applicant's best interest. This misrepresentation, which included altering and backdating documents, constitutes fraud as defined under Section 408C(1)(d) of the Criminal Code Act 1899 (Qld). The fraudulent conduct is further supported by the principles established in Derry v Peek (1889) 14 App Cas 337, where it was held that a party who knowingly or recklessly makes false representations, intending another party to rely on them, is liable for deceit. Additionally, the Respondents' actions are subject to the doctrine of estoppel as outlined in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, where a party who induces another to rely on a promise to their detriment is precluded from going back on that promise. Together, these principles establish that the Respondents are liable for both fraudulent misrepresentation and estoppel due to their false assurances regarding the Applicant’s registration and employment status. (Exhibits FC-1, FC-2, FC-3)

1.2 The Respondents’ deliberate provision of false and misleading information, as well as their alteration and backdating of documents, were intended to deceive the Applicant and prevent him from obtaining his rightful fellowship and employment status. This conduct constitutes fraudulent misrepresentation under Section 408C(1)(a) of the Criminal Code Act 1899 (Qld). (Exhibits FC-4, FC-5, FC – 14, FC – 15)

1.3 The Respondents’ actions by altering and falsifying documents also contravened Section 145.4(1) of the Criminal Code Act 1995 (Cth), which pertains to the falsification of documents and fraudulent conduct. The Applicant was thus misled and harmed by these illegal acts. (Exhibits FC-6, FC-7, FC – 14, FC – 15)

1.4 The defendants' actions in backdating key documents, such as the SPPA 30 form and other related communications, demonstrate fraudulent intent and misrepresentation. In particular, the creation of these documents with the potential for deception, even if no immediate financial loss occurred, satisfies the legal definition of fraud, as established in Welham v DPP (1961) AC 103. The intent to induce reliance on a false document, regardless of the outcome, is sufficient to prove fraud under Criminal Code Act 1899 (Qld), Section 408C(1)(d).

The defendants’ deliberate concealment of the plaintiff's dual responsibilities in both General Medicine and Respiratory Medicine, and the failure to communicate these duties, further supports this claim. As held in R v Baden-Clay (2016) 258 CLR 308, circumstantial evidence can be relied upon to infer fraudulent intent. The creation of backdated documents, such as FC - 21 and FC - 44, and their concealment from the plaintiff, presents a clear pattern of deceptive behavior. The High Court in Green v The Queen (1971) 126 CLR 28 and M v The Queen (1994) 181 CLR 487 established that circumstantial evidence, when viewed in its totality, can be sufficient to prove fraudulent intent and misrepresentation.

Moreover, the plaintiff’s decision to enter into the Deed of Settlement on 7 December 2018 was made under duress and based on misleading information provided by the defendants. This is further supported by the principles in Johnson v Buttress (1936) 56 CLR 113, where undue influence was found to invalidate agreements made under coercion. The plaintiff was pressured into signing the Deed without full knowledge of the concealed documents and misrepresented job responsibilities, further reinforcing the fraudulent nature of the defendants' conduct.

Lastly, in line with Shepherd v The Queen (1990) 170 CLR 573, the defendants’ fraudulent actions must be proven beyond reasonable doubt in criminal contexts, but the standard of evidence in civil proceedings like this is on the balance of probabilities. The plaintiff asserts that the defendants’ pattern of backdating, concealment, and misrepresentation clearly meets this civil standard.

2. Procedural Fairness and Natural Justice

2.1 The Respondents’ actions, including the deliberate omission of critical information, violated the principles of natural justice as established in Kioa v West [1985] HCA 81. This omission directly resulted in the Applicant’s wrongful suspension and the failure to obtain Fellowship, constituting a breach of the Administrative Decisions (Judicial Review) Act 1977 - Sect 5. (Exhibits [FC-8], [FC-9])

2.2 The Respondents intentionally withheld critical information that would have enabled the Applicant to address and rectify any deficiencies in his Fellowship application. This omission directly led to the Applicant's inability to continue his employment, despite the strong recommendations and support of Dr. Pranav Kumar, the only direct on-site Respiratory Medicine physician who had significant influence over administrative decisions following the Applicant’s commencement at the hospital.

2.3 The Respondents’ (RACP) selective emphasis on negative feedback, coupled with their failure to consider positive evaluations, reveals a systemic bias in the peer review process. As established in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, even statutory provisions designed to protect administrative decisions cannot shield those decisions from judicial review when they are affected by jurisdictional error or a failure to adhere to the principles of natural justice. Moreover, the High

Court's ruling in Annetts v McCann [1990] HCA 57 reinforces that the denial of an opportunity to be heard, particularly when critical information is withheld, constitutes a breach of procedural fairness and natural justice. The Respondents’ actions, therefore, not only undermine the integrity of the peer review process but also violate the Applicant’s right to a fair and just determination of his Fellowship application. (Exhibits [FC-10], [FC-11])

2.4 The Applicant’s experience of procedural unfairness and the misuse of the medical complaints process is consistent with findings by the Senate Community Affairs References Committee. The Committee highlighted systemic issues within the medical profession regarding bullying, harassment, and the misuse of the complaints process to undermine medical professionals. These findings contextualize the Applicant’s case within broader systemic issues recognized by a governmental body. (Exhibits[FC-12, FC-13)

3. Duress and Rescission of Deed of Settlement

3.1 The Applicant contends that the Deed of Settlement was executed under duress, with the Respondents exerting unlawful pressure to force the Applicant’s compliance. In Crescendo Management Pty Ltd v Westpac Banking Corporation [1988] NSWLR 294, it was established that duress occurs when one party exerts illegitimate pressure on another, rendering a contract voidable. The Respondents threatened immediate suspension and termination, citing the frustration of the contract due to the hospital’s non-tertiary care status and refusal to implement the agreed-upon job plan. This undue pressure is evidenced by the Suspension Order (Exhibit FC-31), which limited the Applicant's role solely to Respiratory Medicine, despite prior agreements. The Deed of Settlement, signed under these coercive circumstances, is documented in Exhibit FC-32, providing key evidence of the pressure applied to secure the Applicant’s resignation. Additionally, the refusal by AHPRA to disclose critical information regarding the Applicant's peer review process, as detailed in Exhibit FC-53, further contributed to the confusion; which persists till date.

3.2 The Respondents not only applied undue pressure but also misrepresented the nature and scope of the Applicant’s role and responsibilities. As held in Crescendo Management Pty Ltd v Westpac Banking Corporation [1988] NSWLR 294, a contract can be voided if unlawful pressure and misrepresentation are involved. Initially, the Applicant’s position was meant exclusively for Respiratory Medicine, as outlined in Exhibit FC – 3, FC – 4, FC – 8, FC – 16. However, subsequent changes encompassed the Applicant’s role to both General Medicine and Respiratory Medicine after joining the job (Exhibit FC – 21, FC – 22, FC – 27, FC – 35, FC – 49), The SPPA 30 (Exhibit FC-22) further details how the Applicant's performance was to be assessed under false pretenses, reinforcing the claim of misrepresentation. This deviation from the original terms of employment contributed significantly to the undue pressure that ultimately led to the Applicant’s coerced resignation The Deed of Settlement should be rescinded due to the duress under which it was signed and the misrepresentation of its terms by the Respondents in lieu of his resignation. The Applicant, relying on the Respondents’ assurances, signed the Deed without fully understanding its implications, having been misled into thinking it was in his best interest, did so without fully understanding the implications. This reliance was induced by the Respondents' conduct and the coercive pressure they exerted, which left the Applicant with no reasonable alternative. The principle of promissory estoppel, as established in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, applies here. In High Trees, the court recognized that where one party makes a promise or representation, and the other party relies on that promise to their detriment, the promisor is estopped from going back on their word. Similarly, the Respondents should be estopped from enforcing the Deed of Settlement, as the Applicant’s consent was not given freely but was induced by undue influence and misrepresentation. (Exhibits [FC-19], [FC-20])

3.3 Given these circumstances, the Applicant’s consent to the Deed was not genuine, rendering the contract voidable at his option. Therefore, the Deed of Settlement should be rescinded, and the Applicant restored to his position prior to the duress and misrepresentation. Additionally, as the Applicant completed 13 months and 7 days of employment, he should be recognized as a permanent employee under the Public Service Act 2008 No. 38 - SECT 126(5), which confirms employment after 13 months if not terminated. (Exhibits [FC-21], [FC-22])

3.4 The omission and concealment of the Applicant's involvement in General Medicine is evident in the Suspension Order (Exhibit FC-31), which exclusively references the Applicant's role in Respiratory Medicine, thereby misrepresenting the full scope of the Applicant’s duties and responsibilities.

4. Breach of Duty

4.1 The Respondents breached their statutory duties under the Public Service Act 2008 (Qld), particularly Section 25, by failing to treat the Applicant fairly and equitably. This breach, which includes the wrongful suspension without considering alternative duties as required under Section 137(3), aligns with the principles established in Prior v Wood [2019] QIRC 56, where the importance of procedural fairness in suspensions was emphasized. (Exhibits [FC-23], [FC-24])

4.2 The Respondents further breached their duty under the Industrial Relations Act 2016 (Qld), specifically Section 285, which provides for the protection of employees from adverse action, including unfair dismissal or unjust treatment in the workplace. The cumulative effect of the Respondents' actions—including the unjust suspension, coercive pressure to sign the Deed of Settlement, and failure to provide necessary support – created an intolerable work environment that left the Applicant with no reasonable option but to resign. This conduct amounts to constructive dismissal as it constituted a fundamental breach of the Applicant's employment contract. In Bligh v Queensland Rail [2012] QSC 346, the court recognized that constructive dismissal occurs when an employer’s conduct effectively forces an employee to resign, thereby constituting an unfair dismissal. (Exhibits [FC-25], [FC-26])

4.3 The Respondents also failed to fulfill their obligation to provide necessary training and support to the Applicant as required under the Public Service Act 2008 (Qld), Section 25(2)(d), which mandates that public service employees are to be provided with training and development opportunities that are relevant to their roles. The Respondents' failure to provide such training directly contributed to the Applicant's inability to secure his Fellowship and maintain his employment. (Exhibits [FC-27], [FC-28])

4.4 The Applicant contends that the breaches of duty by the Respondents were not only unlawful but also unjust, causing significant harm to his professional standing and future career prospects. The Senate Community Affairs References Committee report highlights systemic failures in the management of complaints processes, which were often misused as tools for harassment and professional sabotage within the medical profession. The Respondents’ actions align with these documented issues, further demonstrating a breach of their duty to act in good faith. The Federal Court's jurisdiction under Judiciary Act 1903 - Section 39B(1A) is invoked due to the federal implications of these breaches, particularly where state laws interact with federal rights and protections. (Exhibits [FC-29], [FC-30]).

26    In the Statement of Claim, Dr Lal sought orders for:

    Compensatory damages, relying on the Industrial Relations Act 2016 (Qld) (Industrial Relations Act) and the Public Service Act 2008 (Qld);

    Reinstatement of his position and compensation for future costs associated with visa applications, repatriation, and rehabilitation of his family members, again relying on the Industrial Relations Act 2016 (Qld) and the Public Service Act 2008 (Qld);

    Damages for non-economic losses, relying on the Civil Liability Act 2003 (Qld) and s 23 of the Federal Court of Australia Act 1976 (Cth);

    Punitive damages, relying on Lamb v Cotongo (1987) 164 CLR 1 and Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71;

    Nominal damages for violation of his legal rights, relying on Ashby v White (1703) 92 ER 126 and Marzetti v Williams (1830) 109 ER 842;

    Injunctive relief, including an injunction restraining the respondents from engaging in further adverse actions against him, including the enforcement of the Deed of Settlement, relying on s 39B(1A) of the Judiciary Act 1903 (Cth) (Judiciary Act), s 23 of the Federal Court Act and s 145.4(1) of the Criminal Code Act 1995 (Cth);

    Declaratory relief, specifically declaration of breach of duty and constructive dismissal, an order rescinding the Deed of Settlement, relying on s 408C(1)(a) and (d) of the Criminal Code Act 1899 (Qld), ss 25 and 137(3) of the Public Service Act 2008 (Qld), s 285 of the Industrial Relations Act 2016 (Qld) and s 39B(1A) of the Judiciary Act; and

    Costs, including legal costs and registration and fellowship costs.

Interlocutory applications FOR SUMMARY JUDGMENT

Power of the Court to Hear Interlocutory Applications in the Absence of a Party

27    As I have previously noted, Dr Lal did not appear at the hearing of the interlocutory applications on 2 April 2025. Nor has he appeared at the two prior case management hearings in this matter.

28    Dr Lal was plainly aware of each of these hearings and made the decision to not appear.

29    Rule 17.04 of the Federal Court Rules states:

Hearing and determination of interlocutory application--absence of party

An interlocutory application may be heard and determined in the absence of a party if:

 (a)  service of the interlocutory application on that party is not required; or

 (b)  service has been effected but the party does not appear; or

 (c)  the Court has dispensed with service.

30    In the present matter, each of the interlocutory applications for summary judgment has been served on Dr Lal. So much is clear from both the evidence filed by each respondent, and the fact that Dr Lal has filed submissions in response to each interlocutory application. It is also clear that Dr Lal was aware of the hearing on 2 April 2025.

31    Accordingly, it was open under r 17.04 of the Federal Court Rules to hear the interlocutory applications in the absence of Dr Lal.

Principles Referable to Summary Judgment

32    The power of the Court to give summary judgment for a respondent is found in s 31A of the Federal Court Act and r 26.01 of the Federal Court Rules. Section 31A of the Federal Court Act relevantly provides:

Summary judgment

(1) …

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

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

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

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

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

…

33    Section 31A(2) of the Federal Court Act is relevant in the context of the present interlocutory applications.

34    Similarly, r 26.01 of the Federal Court Rules materially provides:

Summary judgment

(1) A party may apply to the Court for an order that judgment be given against another party because:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b) the proceeding is frivolous or vexatious; or

(c) no reasonable cause of action is disclosed; or

(d) the proceeding is an abuse of the process of the Court; or

(e) …

35    A helpful summary of the principles to which the Court may have regard in considering an application for summary judgment pursuant to s 31A of the Federal Court Act was set out by Jackson J in Quach v Commissioner of Taxation [2019] FCA 1729. In that case, his Honour at [12] observed:

(1)    It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].

(2)    It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]; see also at [22].

(3)    As the combined effect of s 31A(2) and 31A(3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].

(4)    The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].

(5)    Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].

(6)    Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court 'may' give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; 259 ALR 319; [2009] FCAFC 117 at [28].

(7)    A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

36    Justice Feutrill in Mpinda v Fair Work Commission [2022] FCA 1111 adopted those principles referable to s 31A of the Federal Court Act but continued:

23.     Rule 26.01(1) also includes ‘no reasonable cause of action is disclosed’ as a ground for judgment. It seems to me that there is not a great deal of difference between an absence of a reasonable cause of action and a proceeding or part of a proceeding for which there is no reasonable prospect of a successful prosecution. However, there may be circumstances in which a reasonable cause of action is disclosed yet there is no reasonable prospect of successfully prosecuting that cause of action. For example, because the evidence necessary to prove the material facts at trial is not available: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [51]. Otherwise, if it is demonstrated that no reasonable cause of action is disclosed for the purposes of summary judgment under r 26.01(1), as opposed to the failure to disclose a reasonable cause of action in a statement of claim for the purposes of a strike-out under r 16.21(2), it will also be demonstrated that there is no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding to which the applicable cause of action relates.

24.    Section 31A is not an appropriate procedure for applying to strike-out the relief sought in an originating application. The relevant question on an application under s 31A is whether the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. Put another way, the question is not whether the applicant has no reasonable prospect of obtaining the relief claimed in the originating application. The Court gives judgment in respect of the issues as these amount to a cause of action in the proceedings. If the applicant proves facts that amount to a cause of action, the Court will give judgment for the applicant on the cause of action and fashion the relief to which the applicant is entitled. If the applicant fails to prove facts that amount to a cause of action, the Court will not give judgment by dismissing the relief claimed, but by dismissing the proceedings: Noble Investments at [34].

25.    Pursuant to r 6.01, if a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the court for an order that the matter be struck out of the document. Therefore, if a respondent is able to demonstrate that the applicant could not obtain any part of the relief claimed, that part of the originating application may be struck out, but that is not to give judgment for the respondent on that part of the relief claimed: Noble Investments at [40]. Also, pursuant to r 8.21(1)(a), an applicant may apply to the Court for leave to amend an originating application for any reason, including to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding. Accordingly, a claim for relief that is struck out may be capable of cure by adding a claim for relief if the material facts set out in the document accompanying the originating application disclose a reasonable cause of action for that relief.

26.     It is also relevant to note that pursuant to r 1.32, the Court may make any order that the Court considers appropriate in the interests of justice. Pursuant to r 1.34, the Court may dispense with compliance with any of the Rules, either before or after the occasion for compliance arises. Pursuant to r 1.40, the Court may, at any stage of the proceeding, exercise a power mentioned in the Rules in the proceeding on its own initiative.

37    In KTC v David [2022] FCAFC 60, Wigney J also discussed principles of summary judgment as follows:

127     Subsection 31A(2) of the FCA Act relevantly provides that the Court may give judgment for a party if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01 of the Rules, which also deals with summary judgment , provides that a party may apply to the Court for an order that judgment be given against another party on grounds that essentially mirror the grounds for striking out a pleading in r 16.21 of the Rules.

128     The relevant principles in relation to summary judgment or dismissal under s 31A of the FCA Act were considered by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 and have been discussed in numerous judgments in this Court. They may be summarised as follows.

129     First, s 31A of the FCA Act authorises summary disposition of proceedings “on a variety of bases under its general rubric”, including, but not limited to: where the pleading discloses no reasonable cause of action and the deficiency in that regard is “incurable”; where “there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment”; and the “longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’”: Spencer at [22] (French CJ and Gummow J).

130     Second, the power to summarily dismiss a proceeding is to be distinguished, in its application to deficient pleadings, from rules such as r 16.21 of the Rules: Spencer at [23] (French CJ and Gummow J). Where the evidence shows that a person may have a reasonable cause of action or reasonable prospects of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] HCA 511 at [47], referred to in Spencer at [23]. That said, a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries at [47].

131     Third, an applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is hopeless or bound to fail: Spencer at [17] (French CJ and Gummow J). The inquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52] (Hayne, Crennan, Kiefel and Bell JJ).

132     Fourth, the “exercise of powers to summarily terminate proceedings must always be attended with caution”, whatever may be the basis upon which that disposition is sought: Spencer at [24] (French CJ and Gummow J). It is not a power “to be exercised lightly”: Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ). There must be a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46], referred to in Spencer at [24] (French CJ and Gummow J).

38    I gratefully adopt the observations of Jackson J, Feutrill J and Wigney J in their respective judgments, and apply these general principles to the merits of each interlocutory application before the Court.

RACP’s Interlocutory Application for Summary Judgment

39    On 14 February 2025, the RACP filed an interlocutory application seeking the following orders:

1.     Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) and/or rule 26.01 (1) of the Federal Court Rules 2011 (Cth) (the Rules), the First Respondent have summary judgment against the Applicant on the whole of the proceeding, or alternatively pursuant to rule 13.01(1)(a) of the Rules the Originating Process as against the First Respondent be set aside on the basis that the Federal Court is without jurisdiction.

2.     Further, or in the alternative, pursuant to rule 16.21(1) of the Rules, and/or sections 23 or 37P of the FCA, and/or the inherent jurisdiction of the court, the Applicant's Originating Process and Statement of Claim be struck out or permanently stayed, because the Originating Process and Statement of Claim fail to disclose a reasonable cause of action against the First Respondent or are otherwise an abuse of the process of the Court.

3.     Leave be granted nunc pro tunc for the First Respondent to make the application in paragraph 2 above (insofar as leave is required).

4.     Such further or other order as this Honourable Court deems fit.

5.    The Applicant pay the First Respondent's costs of this Application.

(the RACP Application).

The RACP’s Submissions

40    In summary, the RACP submitted:

    Dr Lal pleaded that the Federal Court had jurisdiction over the RACP because it was a corporation and operated exclusively under the Corporations Act 2001 (Cth). However, that of itself was insufficient to confer jurisdiction on this Court.

    None of the matters raised by Dr Lal in his Statement of Claim “arise under” a law of the Commonwealth Parliament.

    The assessment carried out by the RACP to determine Dr Lal’s comparability for specialist accreditation was in accordance with State legislation.

    The RACP was not a party to the settlement agreement between Dr Lal and MHSS of which Dr Lal complains. In any event, Dr Lal’s allegations in respect of that Deed do not attract federal jurisdiction.

    The alleged breaches of the Public Service Act and Industrial Relations Act, and the alleged fraud, concern State law, and do not attract federal jurisdiction.

    The alleged failure to afford procedural fairness is not a matter enforceable by way of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

    The proceedings are frivolous or vexatious.

Dr Lal’s Submissions

41    Dr Lal filed three sets of written submissions dated 11 March, 19 March and 27 March 2025. These submissions primarily raised matters referable to the substantive proceedings.

42    In his 11 March 2025 submissions, Dr Lal submitted more generally, in summary, that:

    the summary judgment applications are premature and procedurally unfair;

•    the Federal Court has clear jurisdiction under s 39B(1A)(c) of the Judiciary Act; and

•    the Court must address financial relief before any summary judgment proceedings.

43    Dr Lal materially submitted, with specific reference to the RACP Application, that:

    the RACP had failed to produce critical evidence that confirmed peer review violations; and

    any objections to the jurisdiction of the Court to hear the matter must be summarily dismissed because there were regulatory failures by the RACP in credentialling, and peer review obligations.

44    In his 19 March 2025 submissions, Dr Lal materially submitted, in relation to the RACP, that:

    the RACP’s credentialing determination is reviewable, as its role in relation to specialist pathways is regulatory in nature;

    the RACP has a duty to afford procedural fairness as a body exercising statutory influence over rights;

    the RACP failed to comply with its own credentialing requirements by only having one onsite peer reviewer; and

    statements made by the RACP are inconsistent with statements made before the Federal Court, amounting to “regulatory bad faith”.

45    Dr Lal’s submissions filed 27 March 2025 essentially repeated his earlier submissions in respect of the RACP, although he further submitted, in summary:

    the conduct of the RACP affects rights under federal law including migration, employment and statutory recognition;

    the national registration and accreditation scheme is a federally co-ordinated regime with significant Commonwealth involvement; and

    the RACP failed to engage with its own documentary contradictions including peer review inconsistencies and contradictory email metadata.

Consideration of the RACP Application

46    The RACP sought orders for summary judgment in its favour, strike out of the proceedings, or that Dr Lal’s originating application be set aside.

47    In determining this interlocutory application, the issue whether this Court has jurisdiction to hear the substantive proceedings brought by Dr Lal is plainly a threshold issue. If it is clear that the Court does not have jurisdiction to consider Dr Lal’s claims, it follows that there is no reasonable prospect of Dr Lal successfully prosecuting the proceeding or part of the proceeding.

48    Earlier in this judgment I noted the following paragraph from Dr Lal’s Statement of Claim:

Corporate Jurisdiction of RACP: The Royal Australasian College of Physicians (RACP) operates exclusively under the Corporations Act 2001 (Cth). As a corporate entity subject to federal regulations, the Federal Court has jurisdiction to hear matters concerning its actions, particularly those involving corporate governance, regulatory compliance, and professional accreditation standards.

49    Dr Lal has pleaded that the Court has jurisdiction over his claims against RACP pursuant to s 39B(1A) of the Judiciary Act. Section 39B(1A) of the Judiciary Act provides:

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note: Section 67G of this Act, along with certain other laws of the Commonwealth, confer criminal jurisdiction on the Federal Court of Australia.

50    As Dr Lal’s claims do not involve an injunction or declaration sought by the Commonwealth, or a matter arising under the Constitution, the only possible basis of jurisdiction of the Court is because the matter arises under any laws made by the Federal Parliament (s 39B(1A)(c) of the Judiciary Act). Dr Lal claims that because he is bringing an action against a corporation, the RACP, his substantive claim against the RACP concerns a matter arising under a Commonwealth law.

51    The mere fact that the RACP is an entity incorporated under the Corporations Act 2001 (Cth) does not mean that Dr Lal’s allegations relate to matters arising under a Commonwealth law or laws. As Derrington J observed in DJ Builders & Son Pty Ltd (in liq), in the matter of DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission (No 3) [2021] FCA 1041 at [17], the word “matter” as used in the Judiciary Act and the Constitution focuses attention on the substance of the dispute between the parties. His Honour in that case continued:

17    … The same focus on the essentiality of the disputation or controversy can be seen in the comments of Anderson J in RNB Equities Pty Ltd v Credit Suisse Investment Services (Australia) Ltd [2019] FCA 760; (2019) 370 ALR 88 (RNB Equities) at 94 – 95 [19]:

The essential question under this provision (as it would be under s 39B(1A)(c) of the Judiciary Act) is whether the matter may be characterised as “arising under” the relevant federal law. A matter arises under federal law if that law is the source of the relevant right or duty, or if that law created the relevant subject matter, or if federal law provides the authority for enforcing the right or duty, or if the matter’s resolution turns on the federal law’s interpretation.

        (Citations omitted).

18     Similarly, in Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1, the Full Court (Allsop CJ, Besanko and White JJ) identified a variety of ways in which a matter may arise under a law of the Commonwealth Parliament as follows (at 5 – 6 [18]):

A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation — that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: ...

19     The common thread which runs through the several examples is that the rights, duties, or subject matter with which the controversy is concerned have their origin in or owe their existence to a law of the Commonwealth. It is, perhaps, not insignificant that their Honours did not extend the categories to cases where the existence of one or more of the parties was founded upon a relevant law even if that issue was not relevantly in dispute.

52    Similarly in Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87 the Court of Appeal of Western Australia said:

103.    For these reasons, we agree with the conclusion expressed in Thurin that the mere fact that one of the parties to the dispute is a corporation incorporated under the Corporations Act is insufficient to characterise the dispute as a matter arising under the Corporations Act. The matter before the Tribunal in the present case was not a matter arising under the Corporations Act, and so was not a matter referred to in s 76(ii) of the Constitution. The matter is not outside the Tribunal's jurisdiction on the first basis contended for by Hanssen.

53    In Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226 the Court of Appeal of Victoria said:

111.    The cases discussed above are clear authority for the proposition that, where the ‘very subject’ of the dispute is something that owes its existence to a Commonwealth law, then the dispute will be a ‘matter arising’ under that law, even if the cause of action is founded in a State law or the common law. That proposition has since been accepted many times, most recently in Hobart International Airport. But it does not follow that any dispute to which a corporation is a party is a matter of that kind. To the contrary, we do not think that it is. In that regard, the authorities make clear that if a Commonwealth law is ‘lurking in the background’, or merely an ‘incidental consideration’, then the matter will not be one arising under that law.

112.    If a corporation is in dispute with another person about a contract, and nothing else, then the ‘very subject’ of the dispute is the contract — it is not the corporate status and capacity of the corporation. If the contract is regulated by a Commonwealth law (as in Hobart International Airport), or the property the subject of the contract owes its existence to a Commonwealth law (as in LNC Industries), then the matter is one arising under that law. But if the property the subject of the contract has no relevant connection with a Commonwealth law, the contract is not regulated by a Commonwealth law, and the only connection with a Commonwealth law is that a party is a corporation incorporated under the Corporations Act, then in our opinion the authorities do not compel, or even point towards, the matter being one ‘arising under’ a Commonwealth law.

113.    Thus, we consider that a matter in which the sole connection with a Commonwealth law is that one or more of the parties to the dispute is a corporation incorporated under the Corporations Act lacks the necessary sufficiency of connection required to characterise the matter as one that arises under the Corporations Act. In that context, we accept the distinction identified by Besanko J in Malecki:

There would appear to be a distinction between a ‘matter’ — in the sense of the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties ... — arising under federal law, and a party’s ability or capacity to agitate a matter or liability in relation to a matter arising under federal law. It is the matter which must itself arise under federal law in order for jurisdiction to be engaged, in that the jurisdictional basis must be endogenous to the justiciable controversy between the parties. If this is a valid and relevant distinction, it means that the Court will not have jurisdiction in a matter itself bearing no real connection to federal law merely by reason of the link, exogenous to the justiciable controversy, between a party or parties to the matter, and the Corporations Act.

(emphasis added)

54    The claims advanced by Dr Lal against the RACP do not attract the jurisdiction of the Federal Court merely for the reason that the RACP is a corporate entity – rather, as has been explained repeatedly, it is necessary that the rights, duties, or subject matter with which the controversy is concerned have their origin, in or owe their existence to, a law of the Commonwealth. Dr Lal has not identified any other basis for his claim that the substantive proceedings against the RACP arise under a Commonwealth law. While Dr Lal refers in his submissions to migration, employment and statutory recognition, he has not pleaded any cause of action against the RACP referable to such areas of law.

55    To the extent that Dr Lal alleges that the RACP has “regulatory compliance” functions such that it enforces a Federal regulatory scheme, it is prudent to examine the framework and operation of the RACP’s function.

56    The RACP is a public company and registered charity. The RACP exercises its role pursuant to (for example) the Health Practitioner Regulation National Law (Queensland) 2009 (Qld) (Qld National Law).

57    In Broadbent v Medical Board of Queensland [2011] FCA 980, Greenwood J observed as follows in relation to the history of the Qld National Law and the corresponding laws of other States and Territories:

[115]    As to implementation, the States and Territories undertook to use their best endeavours to submit to their respective parliaments whatever bill or bills would be necessary to give effect to achieving a national scheme from 1 July 2010 (cl 6.1, Intergovernmental Agreement). The structure and functions of the national scheme were to be set out in the legislation establishing the scheme. The State of Queensland would host the substantive legislation to give effect to the national scheme subject to the approval of the Australian Health Ministers’ Conference (“AHMC”). Once approved by the AHMC, the State of Queensland would take the lead in enacting the primary legislation to establish the scheme (cl 6.3). The remaining States and Territories agreed to use their best endeavours to enact legislation in their jurisdictions applying the Queensland model legislation as a law of those jurisdictions so as to permit the scheme to be established on 1 July 2010 (cl 6.4). The parties agreed to take steps to modify other legislation inconsistent with legislation establishing the new scheme (cl 6.6).

…

[119]    The implementation of the national scheme was to be effected by a national law passed by the State of Queensland as the host jurisdiction. The first stage of implementing the national scheme was to be effected by enacting the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) (the “Administrative Arrangements Act”). The substantive provisions of the national scheme would be the subject of proposed second stage legislation emerging out of further consultation with the professions and other interested persons. The second stage legislation became the Health Practitioner Regulation National Law Act 2009 (Qld) which by s 4 applied the Health Practitioner Regulation National Law (often described as the model law) set out in the schedule to that Act as a law of the jurisdiction of Queensland as from 1 July 2010.

…

[121]    The Bill also provided for the establishment of the Australian Health Practitioner Regulation Agency (the “National Agency”) which would be responsible for the administration of the national scheme in accordance with the legislation of each jurisdiction and policy directions issued by the Ministerial Council. The Bill also provided for the establishment of National profession-specific boards for the health professions within the scope of the national scheme. The Bill also provided for the establishment of the Australian Health Workforce Advisory Council (the “Advisory Council”) to provide independent advice to the Ministerial Council on matters related to the national scheme.

…

[127]    The National Law, enacted as a law of the State of Queensland by operation of s 4 of the National Law Act, plainly enough, is not a law of the Commonwealth. Section 6 of the National Law Act declares QCAT as the responsible tribunal for the purposes of the National Law in Queensland.

[128]    The adoption in Queensland of the National Law involved no transfer of authority in a constitutional sense to the Commonwealth of jurisdiction in respect of the establishment, powers or functions of the organs of the national scheme. The executive governments of each participating jurisdiction entered into the Intergovernmental Agreement and each jurisdiction enacted uniform legislation, based on the model law. The national scheme is the expression of cooperative federalism to establish, by State legislative instruments in each separate jurisdiction, a common or uniform set of laws and organs to achieve the particular policy objectives adopted by COAG and reflected in the State legislation. The model law was enacted by the State of Queensland as host jurisdiction and foundation constitutional actor in developing the national scheme.

(emphasis added)

58    The applicant in Broadbent also sought to raise the ADJR Act as a source of the Federal Court’s jurisdiction. On that issue, Greenwood J found:

[180]    The applicant has failed to [identify] either an enactment under which a relevant decision was made or omitted to be made or a decision to which the ADJR Act applies in respect of the conduct outlined in the application.

[181]    The applicant makes no attempt to address these issues. The applicant’s submissions simply recite the grounds of review contained in ss 5 and 6 without explaining the basis upon which the ADJR Act applies to the conduct under challenge. All of the decisions made by the Medical Board (and by the HPT and later QCAT) in relation to the disciplinary proceedings were made pursuant to legislation of the Queensland Parliament. None of the relevant Acts fall within Sch 3 to the ADJR Act. If Mr Broadbent is also suggesting that the ADJR Act is engaged because the Medical Board made a decision under s 37 of the Mutual Recognition Act to disseminate information to medical boards in other States or engaged in conduct for the purpose of making such a decision, the application does not recite such a contention and nor does he identify a properly formulated ground of challenge under the ADJR Act to such a decision or conduct relevantly related to such a decision.

[182]    No ground of jurisdiction is made out under the ADJR Act.

59    The statements of Greenwood J appear equally applicable in the present case. It is clear that the RACP does not perform any national regulatory function under a Commonwealth law, nor did it make any “decision” that could enliven the Court’s jurisdiction under the ADJR Act.

60    Further, I note that in the Statement of Claim Dr Lal relied on the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) in respect of allegations of fraud against the respondents. Section 145.4(1) of the Commonwealth Criminal Code, on which Dr Lal specifically relies, does not found jurisdiction in this Court in this matter in light of ss 39B(1A)(c) and 67G of the Judiciary Act.

61    To the extent that Dr Lal relies on the ADJR Act in respect of alleged fraudulent conduct of the respondents, I again note the decision of this Court in Broadbent. Dr Lal has not referenced any “decision” of the RACP for which he could seek relief under the ADJR Act.

62    For these reasons, I am satisfied that Dr Lal has no reasonable prospect of successfully prosecuting that part of the proceeding that is against the RACP. I am satisfied that the RACP Application ought be allowed, and summary judgment entered against Dr Lal insofar as his originating process relates to the RACP. It is unnecessary for me to further consider whether strike out of the proceedings pursuant to r 16.21(1) of the Federal Court Rules is warranted, or whether the proceedings should be set aside, pursuant to r 13.01(1)(a) of the Federal Court Rules.

AHPRA’s Interlocutory Application for Summary Judgment

63    On 12 February 2025, AHPRA filed an interlocutory application seeking the following orders:

1.     Judgment be entered for the Second Respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(a) of the Federal Court Rules 2011 (Cth) or, alternatively, the Originating Application be set aside insofar as it relates to the Second Respondent pursuant to r 13.01(1)(a) of the Rules, on the basis that the Federal Court does not have jurisdiction to deal with the Originating Application as against the Second Respondent and, there is no reasonable prospect of the Applicant successfully prosecuting the Originating Application as against the Second Respondent.

2.     An order that the applicant pay the respondent’s costs of and incidental to the proceeding.

(the AHPRA Application).

AHPRA’s Submissions

64    Materially, AHPRA submitted as follows:

    Dr Lal asserted that the Federal Court has jurisdiction to deal with the Originating Application, insofar as it relates to AHPRA, because AHPRA “functions under a national regulatory framework that includes significant federal components.” Dr Lal also asserted in correspondence that the Court had jurisdiction under s 75(v) of the Constitution. However, neither 39B of the Judiciary Act nor s 75(v) of the Constitution are relevant sources of jurisdiction.

    Section 75(v) of the Constitution grants original jurisdiction to the High Court of Australia only.

    For s 39B(1) of the Judiciary Act to apply, the relevant writ must be “sought against an officer or officers of the Commonwealth”. Neither AHPRA nor any of its employees are officers of the Commonwealth, accordingly jurisdiction does not arise under s 39B(1).

    Sections 39B(1A)(a) and 39B(1A)(b) of the Judiciary Act do not apply.

    For a matter to arise under a law made by the Commonwealth Parliament for the purposes of s 39B(1A)(c) there must be an “immediate right, duty or liability” in question that “owes its existence to Federal law or depends upon Federal law for its enforcement. Dr Lal relied only on the ADJR Act, the Criminal Code Act 1995 (Cth) and the Federal Court Act. None of these Acts provide a basis for jurisdiction to arise under s 39(1A)(c) of the Judiciary Act.

    For a decision to be reviewable under the ADJR Act, s 5 provides that a person must be aggrieved by a “decision” to which the ADJR Act applies. Dr Lal does not identify in his Statement of Claim the decision, if any, of AHPRA on which he relies.

    There is no reasonable prospect of Dr Lal successfully prosecuting his claims against AHPRA, and summary judgment should be entered against him.

Dr Lal’s Submissions

65    Dr Lal’s more general submissions in relation to the applications for summary judgment outlined at [42] above remain relevant to the AHPRA Application.

66    In his 11 March 2025 submissions, Dr Lal materially submitted in relation to AHPRA that:

•    AHPRA made contradictory statements to the Medical Council of Canada in relation to his medical credentials; and

•    any objections to the jurisdiction of the Court to hear the matter must be summarily dismissed because there were regulatory failures by AHPRA in credentialling and in respect of peer review obligations.

67    In his 27 March 2025 submissions, Dr Lal materially submitted in relation to AHPRA that:

•    the conduct of AHPRA affects rights under federal law including migration, employment and statutory recognition; and

•    the national registration and accreditation scheme is a federally co-ordinated regime with significant Commonwealth involvement.

68    Dr Lal’s submissions dated 19 March 2025 made no specific reference to AHPRA.

Consideration of the AHPRA Application

69    Like the RACP, AHPRA submitted that the claims of Dr Lal against it were not within the jurisdiction of the Federal Court. Again, if that is the case, it follows that Dr Lal has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding against AHPRA.

70    Section 75(v) of the Constitution is plainly not a source of jurisdiction for this Court. For the same reasons as I explained earlier in this judgment, in respect of the RACP’s Application, Dr Lal’s submission that s 75(v) of the Constitution gives rise to jurisdiction is incorrect.

71    Dr Lal also asserts that s 39B(1) of the Judiciary Act is a relevant source of jurisdiction in respect of his claims against AHPRA. Clearly, ss 39B(1), (1A)(a) and (1A)(b) of the Judiciary Act cannot give rise to jurisdiction as the Commonwealth is not a party to the matter, no relief is sought against the Commonwealth, and the matter does not involve interpretation of the Constitution.

72    As was the case with the RACP Application, the only potential source of jurisdiction of the Federal Court is under s 39(1A)(c) of the Judiciary Act.

73    For reasons I have already explained in relation to the RACP Application, s 145.4(1) of the Commonwealth Criminal Code does not found jurisdiction in this Court in this matter in light of ss 39B(1A)(c) and 67G of the Judiciary Act.

74    To the extent that Dr Lal relies on the ADJR Act in respect of alleged conduct of AHPRA, I again note the decision of this Court in Broadbent. Dr Lal has not referenced any “decision” of AHPRA for which he could seek relief under the ADJR Act.

75    For these reasons, I am satisfied that Dr Lal has no reasonable prospect of successfully prosecuting that part of the proceeding that is against AHPRA. I am satisfied that the AHPRA Application ought be allowed, and summary judgment entered against Dr Lal insofar as his originating process relates to AHPRA. It is unnecessary for me to further consider whether the proceedings should be set aside, pursuant to r 13.01(1)(a) of the Federal Court Rules.

MHHS’ Interlocutory Application For Summary Judgment

76    On 5 March 2025, MHHS filed an interlocutory application seeking the following orders:

1.     Leave be granted nunc pro tunc for the Third Respondent to make this application.

2.     A direction be made pursuant to Rule 5.04 of the Federal Court Rules 2011 (the Rules) that the name of the Third Respondent be corrected to Mackay Hospital and Health Service.

3.     Orders 4 and 5 of the orders of Collier J dated 6 February 2025 be varied so as to provide:

a.     By 4:30 pm on 5 March 2025, the Third Respondent is to file and serve an outline of submissions of not more than 10 pages in length and any affidavit material in support of its application for summary judgment.

b.     By 4:30 pm on 20 March 2025, the Applicant is to file and serve an outline of submissions of not more than 10 pages in length and any affidavit material in response to the applications for summary judgment.

c.     By 4:30 pm on 27 March 2025, the Respondents are to file and serve any submissions in reply of no more than 5 pages in length and any affidavit material in reply.

4.     Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) or rule 26.01 of the Rules, the Court give judgment for the Third Respondent against the Applicant in relation to the whole of the proceeding.

5.     Alternatively, pursuant to rule 13.01(1)(a) of the Rules, the originating application be set aside.

6.     Alternatively, pursuant to rule 16.21(1) of the Rules or ss 23 and 37P of the FCA, or in the inherent jurisdiction of the Court, the originating application and statement of claim be struck out.

7.     The Applicant be ordered to pay the Third Respondent’s costs of this application and the proceeding.

(the MHHS Application).

MHHS’ Submissions

77    Materially, MHHS submitted as follows:

    The submissions of Dr Lal dated 11 March 2025 are largely unresponsive to the issues currently before the Court.

    MHHS is not required to indemnify Dr Lal and is not subject to any disclosure obligations at this stage in the proceedings, as no orders for discovery have been made or sought.

    The MHHS Application is not dependent on, and can be resolved without determining, whether Dr Lal is entitled to the indemnity claimed under “HR Policy I2 (QH-POL-153)”.

    No matter in the substantive proceedings falls within the jurisdiction of the Court –neither alleged contraventions of statutory obligations imposed by State legislation nor “broader public law” issues.

    The decision in Braun v St Vincent’s Private Hospital Northside Ltd [2023] FCA 166 relied on by Dr Lal in his submissions is not relevant in the present circumstances as there was no dispute in that case that the applicant’s existing pleadings sought relief in respect of alleged contraventions under federal statutes which attracted the Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act.

    The decision in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 relied on by Dr Lal in his submissions is not relevant in the present circumstances as that case concerned the operation of s 79 of the Judiciary Act, which is not relevant in the present circumstances.

    The third respondent is not subject to any disclosure obligations in this proceeding, and Dr Lal has not identified any other basis on which the third respondent is required to disclose documents.

    There is no relevant factual dispute in the substantive proceedings as none of the facts alleged by Dr Lal could establish that the Court has jurisdiction to grant the relief claimed.

    The asserted obligation to indemnify Dr Lal under the “HR Policy I2 (QH-POL-153)” relied on by Dr Lal in submissions does not contemplate providing indemnity in circumstances where, as here, a former employee brings a claim against MHHS.

    The submissions of Dr Lal dated 23 March 2025 largely restate his earlier submissions save for his reference to s 1317AE(1) of the Corporations Act 2001 (Cth) – Dr Lal has made no allegations referable to s 1317AE(1) and, in any event, MHHS is incapable of offending that provision as it does not fall within the categories of offenders identified in s 1317AE(1)(d).

Dr Lal’s Submissions

78    Dr Lal’s more general submissions in relation to the applications for summary judgment outlined at [42] above remain relevant to the MHHS Application.

79    In relation to MHHS, Dr Lal further submitted in his 19 March 2025 submissions, in summary, that:

    MHHS cannot rely on “frustration of contract” under s 137 of the Public Service Act as Dr Lal’s employment with MHHS was suspended after his protected disclosure to RACP and AHPRA, not due to any unforeseen possibility.

    the Deed of Settlement entered into between MHHS and Dr Lal does not cover future regulatory misconduct or concealment of peer review failures;

    the Deed of Settlement was executed under severe duress and visa-dependent coercion; and

    MHHS cannot rely on limitations under s 310 of the Industrial Relations Act or s 38 of the Limitation of Actions Act 1974 (Qld) as the claim involves ongoing breaches and procedural suppression.

Consideration of the MHHS Application

80    Any claims made by Dr Lal against MHHS in reliance on the Commonwealth Criminal Code are not within the jurisdiction of this Court for the same reasons outlined above in relation to the RACP Application and AHPRA Application.

81    Notwithstanding that the evidence indicates execution of the Deed of Settlement by Dr Lal while he was legally represented, Dr Lal submitted that the Court ought to set aside the Deed of Settlement on the basis that he executed it under duress. To the extent that this issue is relevant in the context of the present interlocutory proceedings, as Counsel for MHHS made clear at the hearing of 2 April 2025, MHHS did not rely on the Deed of Settlement as being the bar to proceedings to deny the Court’s jurisdiction. Rather, Counsel for MHHS submitted that even if the bar was ineffective, Dr Lal’s employment was subject to State law, namely the Public Service Act and the Industrial Relations Act. Any employment dispute by Dr Lal with MHHS in respect of his previous employment would be in the State jurisdiction, not the jurisdiction of this Court.

82    Dr Lal also sought to enliven the Court’s jurisdiction by submitting that MHHS’ actions concerned “corporate governance” and “potential conflicts between State and Federal laws”. In the absence of particularisation of these claims, they are not matters giving rise to the Court’s jurisdiction.

83    In the circumstances, I am satisfied that Dr Lal has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding against MHHS. I am satisfied that the MHHS Application ought be allowed, and summary judgment entered against Dr Lal insofar as his originating process relates to MHHS. It is unnecessary for me to further consider whether strike out of the proceedings pursuant to r 16.21(1)(d) of the Federal Court Rules is warranted, or whether the proceedings should be set aside, pursuant to r 13.01(1)(a) of the Federal Court Rules.

COSTS

84    All respondents sought costs of and incidental to the proceedings. Section 43(2) of the Federal Court Act provides that the award of costs is in the discretion of the Court or Judge. As each respondent has been successful in their respective interlocutory applications for summary judgment, in the ordinary course costs follow the event: Oshlack v Richmond River Council [1998] HCA 11.

85    AHPRA and MHHS were content with an order to the effect that they be awarded costs, to be taxed if not otherwise agreed. In my view, an order in such terms in favour of those respondents is appropriate.

86    The RACP however sought an order that it be awarded costs in a lump sum, to be assessed by a Registrar of this Court. At the hearing, Counsel for the RACP submitted that a lump sum costs order promoted cost effectiveness and efficiency.

87    Section 37M of the Federal Court Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 40.02(b) of the Federal Court Rules allows a person who is entitled to costs to apply the Court for an order that costs be awarded in a lump sum instead of, or in addition to, any taxed costs. Further, Costs Practice Note (GPN-COSTS) para 4.1 provides that the Court’s preference, wherever it is practicable and appropriate to do so, is for the making of a lump sum costs order, and also that the parties be given a fair opportunity to present their views as to the appropriateness of utilising a lump sum costs procedure (para 4.2). Paragraphs 4.10-4.14 of the Costs Practice Note provides for material to be filed referable to an assessment of a lump sum costs order, and paras 4.16-4.17 makes reference to timetabling orders.

88    The RACP applied for the amount of costs to be determined by a Registrar of this Court. There is authority for an order in such terms. As Katzmann J explained in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810:

31.    In Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 4) [2017] FCA 436 Perram J ordered that costs be paid in a lump sum and directed the Registrar, pursuant to r 1.37 of the Rules to determine the quantum of the applicant’s costs in such manner as he or she deems fit including, “if thought appropriate”, on the papers. There is no good reason why a similar order should not be made in the present case.

32.    Section 35A(1) of the FCA Act provides that, subject to subs (2), a number of powers of the Court may, if the Court or a judge so directs, be exercised by a registrar. One of those powers is the power to make an order as to costs: s 35A(1)(f). Another is a power of the Court prescribed by the Rules: s 35A(1)(h).

33.    Rule 3.01(1) prescribes, for the purposes of s 35A(l)(h), the relevant powers of the Court, including relevantly a power of the Court under a provision of the Rules mentioned in column 2 of an item in Schedule 2 to the Rules. Item 221 of Schedule 2 is the power under r 40.02 to make an order about the amount of costs.

34.    As the Ombudsman submitted, this means that, if the Court considers that the Ombudsman should be awarded costs, a Registrar of the Court has the delegated power to fix the costs amount in a lump sum, pursuant to r 40.02(b).

89    See also, Virag v Eastern Victoria GP Training Ltd [2024] FCA 1283.

90    In my view, the Court has power to direct a Registrar to determine the amount of costs in a lump sum in favour of the RACP. I will make an order in those terms.

CONCLUSION

91    For the reasons outlined above, the interlocutory applications of the three respondents should be allowed with costs, and summary judgment be entered against Dr Lal on the whole of the originating process.

92    Finally, I note that Dr Lal lodged two interlocutory applications on 28 and 29 November 2024, and that those interlocutory applications are currently sitting as “pending” in the Court’s electronic lodgement system in light of my orders dated 3 December 2024. I note that those interlocutory applications related to Dr Lal’s substantive claims. As I have ordered that Dr Lal’s substantive application be summarily dismissed, there is no utility in me determining those interlocutory applications. Out of an abundance of caution, I also order that those interlocutory applications be dismissed.

Associate:

Dated:    11 April 2025