Federal Court of Australia

Balinda v Australian Health Practitioner Regulation Agency [2025] FCA 1173

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed as incompetent.

2.    Each party is to bear his or its own costs up to and including 15 September 2025.

3.    By 4.00 pm on Monday, 22 September 2025, the Respondents are to file and serve the following in support of its application for lump sum costs:

a. any affidavit; and

b. any submissions of no more than 2 pages.

4.    By 4.00 pm on Monday, 6 October 2025, the Applicant is to file and serve in response to the Respondents' application for lump sum costs:

a. any affidavit; and

b. any submissions of no more than 2 pages.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

BENNETT J:

1    On 10 May 2022, the applicant lodged a complaint of unlawful racial discrimination against the respondents with the Australian Human Rights Commission (Commission).

2    On 21 September 2022, the President of the Commission (through a delegate), terminated the complaint without enquiry pursuant to s 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

3    An application was made under s 46PO(3A) of the AHRC Act for leave to make an application alleging unlawful discrimination by the respondents in breach of the Racial Discrimination Act 1975 (Cth) (the RDA). Her Honour considered the claims by Mr Balinda that the first respondent, Australian Health Practitioner Regulation Agency, and the second respondent, the Paramedicine Board of Australia, unlawfully discriminated against him by requiring him to take an English language test to become a registered paramedic and various other matters which he raised in the course of the hearing, which I do not summarise here.

4    On 20 December 2024, the primary judge gave reasons for her decision to refuse leave in Balinda v Australian Health Practitioner Regulation Agency [2024] FedCFamC2G 1429 (the Primary Decision). There was an issue about the time within which the present purported application for leave to appeal was instituted, but I will set aside that issue for the purposes of the present analysis.

5    The Court has appellate jurisdiction to hear and determine appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2), exercising original jurisdiction under a law of the Commonwealth other than:

(a)    the Family Law Act 1975 (Cth);

(b)    the Child Support (Assessment) Act 1989 (Cth); or

(c)    the Child Support (Registration and Collection Act) 1989 (Cth); or

(d)    Regulations under an Act referred to in subparagraph (i), (ii) or (iii).

6    Section 24(1AA) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that an appeal must not be brought from a judgment referred to in s 24(1)(a), (d) or (e) if the judgment is a determination of an application of a kind mentioned in s 20(3).

7    The FCA Act lists the following types of applications at s 20(3):

(a)    for leave or special leave to institute proceedings in the Court; or

(b)    for an extension of time within which to institute proceedings in the Court; or

(c)    for leave to amend the grounds of an application or appeal to the Court; or

(d)    to stay a decision of the tribunal or authority mentioned in subsection (2); …

8    Because the present case is a purported appeal from an application for leave to institute proceedings in the Court, being a leave requirement imposed by s 46PO of the AHRC Act, it is the determination of an application of the kind mentioned in s 20(3).

9    Until recently, such an appeal was competent before a single judge because of the decision of the Full Court of the Federal Court in Cement Australia Proprietary Limited v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 (Keane CJ, Gilmour and Logan JJ). Certainly, the matter progressed to this point and timetabling orders were made, submissions exchanged and affidavits filed on the basis of that authority.

10    However, on 4 September 2025, the Full Court handed down its decision in Praljak v the Office of the Australian Information Privacy Commission [2025] FCAFC 126 (Praljak). In that case, the Full Court, comprising of Mortimer CJ, Colvin and Thawley JJ concluded (at [48]):

Given the plain language of the text and this legislative history and statutory context, s 24(1AA)(a) should be construed as focussing attention on the kind of application which was determined. It precludes appeals from “a determination of an application of the kind mentioned” in s 20(3). If the application was of a kind identified in s 20(3), then s 24(1AA)(a) operates to prevent an appeal from a determination of that application. There is no power to entertain an appeal from a judgment which is “a determination of an application of the kind mentioned” in s 20(3), or to grant leave to bring such an appeal. 

11    The Court's analysis and conclusion were, with respect, clear. If a decision is “a determination of an application of the kind” mentioned in s 20(3), then s 24(1AA)(a) renders an appeal incompetent.

12    My Chambers wrote to the parties on 9 September 2025, asking they address the relevance of Praljak in the present proceedings. Each party filed submissions on this question. At the commencement of the hearing today, I asked to be addressed about that issue by both parties, along with any other matters they felt appropriate to raise.

13    The respondents argued that the present matter was of a kind referred to in s 20(3) because the Primary Decision was a decision to refuse leave under s 46PO of the AHRC Act and was, therefore, one of the kinds listed. In particular, s 20(3)(a) of the FCA Act.

14    The applicant argued s 24(1)(d) of the FCA Act was relevant, and said that an appeal would lie from the Federal Circuit and Family Court of Australia unless it fell within one of the four listed categories, ie, the Family Law Act 1975 (Cth), Child Support (Assessment) Act 1989 (Cth), Child Support (Registration and Collection) Act 1989 (Cth) or Regulations under an Act referred to in subparagraph (i), (ii) or (iii). The applicant said that because human rights was not one of the listed exclusions, the appeal was preserved.

15    That argument must be rejected. Section 24(1AA) operates specifically upon s 24(1)(d), being decisions of the Federal Circuit and Family Court of Australia (Division 2), that are not otherwise specifically excluded.

16    The applicant also argued that the operation of RDA, the terms of the Health Practitioner Regulation National Law Victoria (Victoria) Act 2009 (Vic) or the various discrimination conventions and international laws to which Australia is a party should operate to preserve his entitlement to an appeal. I understand that submission to be an argument to the effect that the beneficial purpose of those instruments or Australia's obligations for compliance with international law, including in relation to race discrimination, should impact upon the construction of s 24(1AA) to limit its terms or to preserve the application presently made. I reject that argument. There is no relevant ambiguity in the terms of s 24(1AA) that would justify a reading that would preclude the operation of the clear words of the statute. My task is one of construction of the statute before me, and there is no basis not to read it in accordance with its terms.

17    The applicant further argued the requirement to file a notice objecting to the competency under r 36.72 of the Federal Court Rules 2011 (Cth) meant that, because no such notice had been filed, there could be no objection to competency or that the competency objection should otherwise not be entertained. Rule 36.72 provides:

36.72  Notice of objection to competency of appeal

(1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency:

(a) in accordance with Form 125; and

(b) that, briefly but specifically, states the grounds of the objection.

(2) The appellant carries the burden of establishing the competency of an appeal.

(3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal.

(4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal.

(5) If the Court decides that an appeal is not competent, the appeal is dismissed.

18    However, it is plain, on its terms, that the rule is concerned with ensuring that all parties share responsibility for ensuring that an incompetent appeal does not reach a hearing and to therefore avoid the expense and delay that comes from continuing proceedings to a hearing unnecessarily. There is no suggestion that any failure to comply with a notice requirement renders an otherwise incompetent appeal competent, nor could it do so. It is a step which can, in certain circumstances, have costs consequences for a party, but cannot impact upon the statutory jurisdiction of this court.

19    In this case, of course, the timing of the Full Court decision in Praljak means the issue of competency of this application was raised by the Court itself before the parties could be expected to have identified the issue. I therefore do not consider the rule has any role to play in my determination of the issues before me, and to the extent it were an issue, I would be minded to grant leave to dispense with any obligation to comply with the rule in the specific circumstances of this case.

20    The Primary Decision was made by a judge of the Federal Circuit and Family Court of Australia (Division 2), exercising jurisdiction under a law of the Commonwealth. Thus, it is an appeal of a kind mentioned in s 24(1)(d), which is therefore subject to s 24(1AA).

21    Section 24(1AA) is clear that an appeal must not be brought from a judgement referred to in paragraph (1)(d) if it is of a kind mentioned in s 20(3). Because the Primary Decision is a decision on an application for leave to institute proceedings in the Court (and there, I note the comments of this court in Rindeklev v Comcare [2025] FCA 291 at [12]) it falls within the terms of s 20(3)(a).

22    The appeal is therefore incompetent. In Praljak, the Full Court was clear that having reached that conclusion, it was neither necessary or appropriate to address the basis upon which the application for leave to appeal was brought. To do so would undermine the purpose of s 24(1AA). Therefore, the application for leave to appeal should be dismissed as incompetent.

23    These reasons have been delivered ex tempore and will be revised in accordance with Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]–[31] (Steward J; Kiefel CJ, Keane, Gordon and Edelman JJ agreeing).

24    I will hear the parties as to costs.

Associate:

Dated:    29 September 2025