Federal Court of Australia

Chadwick v State of New South Wales (No 6) [2025] FCA 773

ORDERS

THE COURT ORDERS THAT:

1.    Prayers 5, 7 and 8 of the applicant’s interlocutory application filed on 19 February 2025 be refused.

2.    The proceeding be listed on a date to be advised, to hear from the parties on the terms of an order providing leave to file further evidence.

3.    The applicant’s interlocutory application filed on 24 February 2025 be otherwise dismissed.

4.    The applicant pay the respondent’s costs of the interlocutory application filed on 24 February 2025 as agreed or assessed, with those costs to be payable following the determination of the proceeding.

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

REASONS FOR JUDGMENT

KENNETT J:

1    These reasons deal with two interlocutory applications filed by the applicant in February 2025.

Access to documents and filing of further evidence

2    By her application filed on 19 February 2025 (the redaction application) the applicant sought the following orders in respect of documents that had been produced to the Court in response to a subpoena.

1.     Applicant seeks Leave to Redact Parts of Medical Records from PACKETS ‘S1’ and ‘S2’.

2.     The Applicant consents to Respondents viewing the Redacted Parts of her Medical Records from PACKETS ‘S1’ and ‘S2’.

3.     The Applicant consents to Respondents viewing the entire Medical Record from PACKET ‘S3’.

4.     Applicant seeks Leave to remove Either PACKET ‘S1 (277 pages)’ or PACKET ‘S2 (277 pages)’.

a.     Because PACKETS ‘S1’ and ‘S2’ are exact Duplicates of the Applicant’s Medical Record from Awabakal Medical Services - (Applicant is not seeking to delete both packets, just to delete one of them) and

b.     Deleting one of the Duplicated PACKETS ‘S1’ or ‘S2’ will reduce quantity down from combined 554 pages to just 277 pages remaining under one PACKET and

c.    Both of the Applicant’s GP and Psychologist work for Awabakal Medical Services and have direct access to the Applicant’s same Medical Records.

5.     Applicant seeks Leave to file Affidavit with the evidence from Either of Redacted Medical Record of PACKETS ‘S1’ or ’S2’.

6.     The Applicant consents to the Respondents filing Affidavit with the evidence from Either of the Redacted Medical Record of PACKETS ‘S1’ or ‘S2’.

7.     Alternatively, the Applicant seeks Leave to file Affidavit with the evidence of both PACKETS ‘S1’ and ‘S2’.

a.     This is if the Judgement ruling does not allow the Redaction of parts of the Applicant’s PACKETS ‘S1’ and ‘S2’ Medical Records and

b.     This is if a Judgement ruling does not allow the deletion of one of Either PACKET ‘S1 (277 pages)’ or PACKET ‘S2 (277 pages)’.

8.     Applicant seeks Leave to file Affidavit with the evidence from the entire Medical Record from PACKET ‘S3’.

9.     The Applicant consents to the Respondents filing Affidavit with the evidence from Medical Record from PACKET ‘S3’.

10. Respondents pay Applicant’s Costs under AHRC Act 1986, Section 46PSA, Subsections (1),(2),(3) and other reasons (listed in Affidavit of this Interlocutory Application).

(Emphasis and underlining in original.)

3    This application came before Registrar Burns who, on 6 May 2025, made the following orders.

1.    Leave is refused to the Applicant to redact parts of packets S1 and S2.

2.    Leave is refused to the Applicant to remove or delete either of packets S1 and S2 on the grounds of duplication.

3.    Each party bear their own costs arising in relation to Paragraphs 1-4 and 10 of the Interlocutory Application.

4    The Registrar did not deal with prayers 5 to 9 of the application, having accepted an argument put by the respondents that it was not appropriate for any applications to file further evidence in the proceeding to be dealt with other than by the docket judge.

5    Prayers 6 and 9 do not seek any order; rather, they indicate the applicant’s consent to the respondent filing certain evidence.

6    I will formally refuse prayers 5, 7 and 8, as I understand them to be overtaken by a broader application to file further evidence, which is not opposed (and is discussed below). Any remaining issues concerning redaction of the documents produced, before access to those documents is afforded to the respondents, should remain with the Registrar.

Relationship of this proceeding with NSD 1380 of 2023, and further evidence

7    By an interlocutory application filed on 23 January 2025 and amended on 24 February 2025 (the consolidation application), the applicant sought the following orders.

1.     Pursuant to Rule 30.11 (d) of the Federal Court Rules 2011, this proceeding be heard together with proceeding no. NSD1380 of 2023; or

2.     Alternatively, pursuant to Rule 30.11(c) of the Federal Court Rules 2011 this proceeding be consolidated with proceeding no. NSD 1380 of 2023; or

3.     Further in the alternative, pursuant to Rule 30.11(e) of the Federal Court Rules 2022, this proceeding be heard immediately after proceeding no. NSD1380 of 2023.

4.     To the extent relevant, evidence received at the hearing is to be evidence in both proceedings no. NSD1307 of 2020 and NSD 1380 of 2023

5.     The Applicant seeks permission to adduce remaining evidence or

6.     If more appropriate the Applicant seeks leave to submit another application to adduce remaining evidence.

7.     The Applicant seeks permission (or leave) for a period of time to put together a Chronology of Events and Chronology of Evidence, whichever is easier and more appropriate for these proceedings NSD1307.2020 and NSD1380.2023.

8.     The Applicant seeks permission (or leave) to remove Affidavits written by Applicant and filed when Applicant was unrepresented in 2021. (These Affidavits are too large and was written when the Applicant did not know how to present an Affidavit properly). Dates filed were; 25 May 2021, 16 June 2021, 17 June 2021, 28 June 2021, 10 December 2021 (and maybe others).

9.     Respondents pay Applicant’s Costs under AHRC Act 1986, Section 46PSA, Subsections (1),(2),(3) and other reasons (that will be listed in Applicant’s Submissions that is required by the court before the 6 May 2025 Interlocutory Hearing).

(Emphasis and underlining in original.)

Prayers 1 to 4 – management of the two proceedings

8    The respondent did not submit that I was precluded from dealing with these prayers by reason of the absence of a parallel interlocutory application in proceeding NSD 1380 of 2023 (the 2023 proceeding) or that proceeding not being formally listed before me.

9    The 2023 proceeding, like the present proceeding (referred to in what follows as “the 2020 proceeding”), is a claim of unlawful discrimination against the respondents (the State of New South Wales and the New South Wales Land and Housing Corporation) arising out of the applicant’s experiences as a public housing tenant. It arises out of a later and separate complaint that the applicant made to the Australian Human Rights Commission and involves events alleged to have occurred during a later period.

10    Rule 30.11 of the Federal Court Rules 2011 (Cth) (the Rules) is as follows.

30.11 Consolidation of proceedings before trial

If several proceedings are pending in the Court and the proceedings:

(a)    involve some common question of law or fact; or

(b)    are the subject of claims arising out of the same transaction or series of transactions;

any party to any of the proceedings may apply to the Court for an order that the proceedings be:

(c)    consolidated; or

(d)    heard together; or

(e)    heard immediately after one another; or

(f)    stayed until after the determination of any of the other proceedings.

11    It is apparent from the structure of r 30.11 that it envisages the steps in paras (c) to (e) being taken only if one or both of the circumstances referred to in paras (a) and (b) are present. However, the Court’s implied power to control proceedings before it, and the express power in r 1.34 to dispense with compliance with the Rules, indicate that it is unproductive to devote significant energy to analysis of paras (a) and (b) as gateway provisions. For reasons mentioned below, it is not apparent that the two proceedings involve common questions of fact, and any commonality of legal issues goes no further than the need to apply the standards in Commonwealth anti-discrimination legislation to similar events. I accept, however, that the cases involve claims arising out of “the same transaction” or a “series of transactions” in the sense that both cases arise out of the applicant’s relationship with the respondent in her capacity as a public housing tenant (and, it would seem, as tenant of the same property). The powers in r 30.11 are enlivened. What is probably more significant, however, is that the extent of any commonality of issues is a relevant factor in the exercise of discretion under r 30.11 (see eg Aiguille Pty Ltd v Caffissimo Holdings Pty Ltd as Trustee for the Caffissimo Franchising Unit Trust [2021] FCA 361 at [40] (Jackson J) (Caffissimo)).

12    In Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11] (Humphries), Besanko J identified the following factors as relevant in considering whether to make an order for proceedings to be heard together.

1.    Are the proceedings broadly of a similar nature?

2.    Are there issues of fact and law common to each proceeding?

3.    Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

4.    Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

5.    Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

6.    Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

7.    Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

8.    Is one proceeding further advanced in terms of preparation for trial than the others?

9.    Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

13    Although Humphries was decided by reference to a provision in the former Federal Court Rules (Cth) which was not identical to r 30.11, judges applying the current rule have found this list of issues helpful: see eg Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (in liq) v Commissioner of Taxation [2018] FCA 1739 at [18] (Greenwood J); Caffissimo at [39]; Yang v Wong, in the matter of Axis North Pty Ltd (receiver and manager appointed) (in liquidation) [2024] FCA 1017 at [22] (Collier J). That said, the factors that will be influential in each case will depend on the particular circumstances. For example, Humphries involved several proceedings brought by different applicants against the same group of respondents or subsets of that group (hence Besanko J’s interest in the factors numbered 4, 8 and 9 in the extract above), while Caffissimo involved related cases with overlapping but not identical parties. Here, the 2020 proceeding and the 2023 proceeding involve a series of acts by the respondents through their officers which, the applicant contends, involved unlawful discrimination against her. (The respondents are obviously closely related entities and have been jointly represented throughout both proceedings.)

14    In the 2020 proceeding, the applicant filed an amended concise statement on 1 November 2022 and the respondents filed a concise statement in response on 15 June 2023. Although I was critical of the amended concise statement in an earlier interlocutory judgment (Chadwick v New South Wales (No 4) [2024] FCA 651 at [30]), I refused an application to strike parts of it out and I consider that it can and should be used to identify what the case is about. Although the applicant now expresses reservations about this document (having parted company with the lawyer who prepared it), it seems to me that the only fair way to move forward is to treat the amended concise statement — unless and until the Court is persuaded to allow some further amendment — as identifying the acts on which the applicant’s claims are based and, at least in outline, the basis on which she alleges unlawful conduct.

15    In the 2023 proceeding the applicant filed a concise statement on 4 April 2024; however, there is not yet a concise statement in response and evidence has not been filed. The respondents’ written submissions on the consolidation application include a detailed summary of the matters alleged in these respective concise statements, which I have found useful but will not repeat here.

16    The options to be considered are consolidating the proceedings, hearing them together or hearing the second proceeding immediately after the first. Consolidation would clearly be possible, given that the parties to the proceedings are the same, and would appear to be relatively simple in terms of trial management and procedure. However, the concise statements already filed in the 2020 proceeding would need to be extensively amended or possibly done again from scratch. There is potential for much of the effort that has gone into that process to be wasted.

17    As to all three of the possible approaches, the following points arise from a consideration of the (apparent) factual and legal issues in the two proceedings. It will be apparent that I have used the factors mentioned in Humphries (above) as a framework in identifying these points.

(a)    The proceedings are broadly of a similar nature. Both arise in broadly the same statutory and institutional milieu and both involve allegations of breaches of the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) and Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act).

(b)    There do not appear to be any significant common issues of fact. The proceedings relate to different time periods and therefore different alleged acts or omissions. Some background factual matters may be relevant to both proceedings (eg as to the time period of the applicant’s tenancy, her ethnic background and family situation), but I do not understand these to be in issue. Common issues of law may arise, in that the two proceedings call for interpretation of the same legislation, but these have not yet been identified with any clarity. The applicant’s submissions in support of the second interlocutory application emphasised what she sees as the continuity of adverse treatment and a consistency of approach by the respondents. She suggests that consolidation would assist the Court and, as I understood her submissions, suggests also that the Court would gain a deeper understanding of her experiences by seeing the whole history. However, the respondents rightly point out that the proceedings as currently framed do not make any causal link between the two sets of events. There is not, for example, any suggestion of an intention to rely on events in the 2020 proceeding as tendency evidence (under s 97 of the Evidence Act 1995 (Cth)) in the 2023 proceeding.

(c)    In so far as the respective concise statements and the applicant’s evidence identify particular officers of the respondents as involved in or responsible for the acts that she claims involved discrimination against her, there is no overlap between the proceedings. This makes it unlikely that any of the respondents’ lay witnesses will need to give evidence in both proceedings. The applicant has not yet filed affidavit evidence in the 2023 proceeding, so it is not yet possible to determine whether any of her lay witnesses (other than the applicant herself) will give evidence in both proceedings.

(d)    It does appear likely that there will be expert evidence in both cases concerning psychological injury that the applicant claims to have suffered as a result of her discriminatory treatment. The same experts are likely to be called. In the event that the applicant achieves some measure of success in one or both cases, disentangling the causal relationships between the various alleged acts of the respondents and her current mental health may prove complicated. It might assist to have the expert witnesses give their evidence in both proceedings at the same time.

(e)    If the cases are heard separately, there is clearly a possibility that both judgments will be appealed. At least at this stage, however, there is no reason to apprehend that an appeal in the 2020 proceeding would cause the 2023 proceeding to be delayed.

(f)    Because of the very limited overlap between the cases, it appears unlikely that any of the proposed approaches would result in significant savings of court time.

(g)    Hearing the two cases together (without consolidation) would involve some complexity in resolving what Besanko J referred to as the cross-admissibility of evidence. The respondents, faced with allegations that are (to put it neutrally) not as tightly defined as they might be, can be expected to be vigilant in seeking rulings to establish the particular allegations to which each piece of evidence is relevant. The applicant, who is currently not represented, may not be well equipped to manage this process and it would be likely to prolong the trial to some extent.

(h)    The 2020 proceeding is significantly further advanced than the 2023 proceeding. Any of the proposed approaches would delay its resolution. However, the applicant presumably recognises this and nevertheless has sought for one of these steps to be taken.

(i)    The parties to the proceedings are the same. The last of the factors mentioned in the extract from Humphries set out above therefore does not arise. Meanwhile, the fourth of those factors is of limited relevance: resolving the first proceeding would be likely to give the parties some indication of the prospects of success of the second, but it would not serve as a “test case” because the two proceedings concern different events.

18    While findings made in the 2020 proceeding may have some potential to shed light on the issues in the 2023 proceeding, I am not persuaded that the reverse is the case. Consolidation, hearing the proceedings together or hearing one immediately after the other seem unlikely to produce significant efficiency gains for the parties, witnesses or the Court; indeed, mingling the evidence in the two proceedings may increase the complexity of resolving them.

19    The potential benefits do not, in my view, justify the delay in resolving the 2020 proceeding that would inevitably result (not to mention the potential for work done on that proceeding to be wasted). I am conscious that the applicant is evidently prepared to live with that delay. However, hers are not the only interests to be considered here. The respondents, and through them the people of New South Wales, have a legitimate interest in having these cases resolved without undue delay. More generally, the interests of the administration of justice are not served by delay, particularly in a case which is likely to turn on witnesses’ recollection of events.

20    In making the observations in the previous paragraph, I am mindful that the applicant also seeks, and the respondents do not oppose, an order permitting further evidence to be filed in the 2020 proceeding (this is mentioned further below). I also understand that the respondents are not necessarily opposed to a timetable that would allow the 2023 proceeding to be heard directly or very soon after the 2020 proceeding. However, given the considerable time that the 2020 proceeding has been on foot, it is preferable that it should move forward as quickly as is reasonably possible and should not be procedurally shackled to another case. If the 2023 proceeding is able to catch up, it can be listed for hearing directly after the 2020 proceeding.

21    I will therefore refuse prayers 1 to 4 in the second interlocutory application.

Prayers 5 to 8: evidence

22    The respondents consent to prayer 5 in the second interlocutory application, which seeks leave to file further evidence. However, my current view is that any such order should include a deadline for filing the evidence. Before making the order, therefore, I will seek the parties’ input as to what that deadline should be.

23    In the light of the respondents’ consent to prayer 5, prayer 6 does not need to be addressed.

24    As to prayer 7, it will naturally be of considerable assistance to the Court to receive a chronology before the commencement of the trial. However, there are two difficulties with what is proposed in prayer 7. One is that it proposes a combined chronology including both proceedings: this is not appropriate in circumstances where I have decided that the proceedings should not be consolidated or heard together. The other is that the proposed status of the chronology is not clear from the terms of the proposed order: ie, is it intended to constitute evidence in its own right, or to serve as part of the applicant’s submissions or an aide memoire?

25    It is thus preferable not to make an order in the form of prayer 7. However, in the course of preparing further evidence for filing, the applicant may wish to consider recasting her own affidavit material in chronological sequence. Whether that is done or not, the parties should expect that, as part of the preparation for the hearing, they will be asked to prepare documents listing the relevant events in chronological sequence and including references to the evidence for each event.

26    As to prayer 8, I am not persuaded that there is any basis for removing the applicant’s existing affidavits from the Court file even if she does not now intend to rely on them. The fact that these affidavits were filed, and what they said, may yet be relevant. In respect of any affidavit the applicant has filed, it is a matter for her whether she reads it (ie, relies on it as evidence) in the trial.

Prayer 9: costs

27    The application for the costs of the second interlocutory application relies on s 46PSA of the AHRC Act, which currently provides as follows in respect of costs against a respondent.

46PSA Costs

Scope

(1)     This section applies to proceedings (including an appeal) in a court that relate to an application made by a person (the applicant) under section 46PO in respect of one or more respondents to a terminated complaint.

When respondent liable for costs

(2)     Subject to subsection (4), if the applicant is successful in proceedings on one or more grounds, the court must order each respondent against whom the applicant is successful to pay the applicant’s costs.

(3)     The court may order that the costs to be paid by the respondent be assessed on an indemnity basis or otherwise.

(4)     If the court is satisfied that the applicant’s unreasonable act or omission caused the applicant to incur costs, the court is not required to order the respondent to pay the costs incurred as a result of that act or omission.

…

28    Section 46PSA was put into this form by amendments to the AHRC Act effected by the Australian Human Rights Commission (Costs Protection) Act 2024 (Cth) (the AHRC Costs Act).

29    Clause 7(2) in Part 3 of Schedule 1 to the AHRC Costs Act provides that s 46PSA in its earlier form continues to apply in relation to any application made under s 46PO before the commencement of the AHRC Costs Act. It is therefore the earlier form of s 46PSA that applies to the 2020 proceeding. That earlier form of s 46PSA did not include any provisions of the kind now seen in subsections (2)-(4) as set out above.

30    It is therefore not necessary to consider whether the orders to be made in respect of the second interlocutory application amount to a circumstance in which “the applicant is successful in proceedings on one or more grounds” within the meaning of the current s 46PSA(2). That provision does not apply to the proceeding. Costs are therefore within the ordinary discretion of the Court under s 43 of the Federal Court of Australia Act 1976 (Cth).

31    The respondents, meanwhile, sought their costs of the consolidation application. The application has, to the extent that it was contested, been unsuccessful. While caution has been expressed concerning the making of costs orders at an early stage in human rights litigation (Low v Australian Tax Office [2000] FMCA 6 at 11 (Driver FM)), the present proceeding has been on foot for more than four years and the applicant has had opportunities to take advice. The proceeding is one in which monetary compensation is sought, and it is hard to see why the applicant should not have to make the same calculations concerning litigation risk as (for example) a plaintiff in a personal injury case. There will therefore be an order for costs in favour of the respondents. However, those costs will be payable only upon the determination of the proceeding.

Associate:

Dated:    15 July 2025