Federal Court of Australia

Williams v State of Western Australia (WA Police Force) [2026] FCA 569

ORDERS

THE COURT ORDERS THAT:

1.    The further amended statement of claim filed on 2 September 2025 is struck out.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    In 2021, several directions were issued to police officers and other staff employed by the respondent, the Western Australian Police Force (WAPOL). By those directions various vaccination and other requirements were imposed on police officers because of the COVID-19 pandemic.

2    Ms Victoria Williams, who is the applicant in this matter, is a former police officer. In June 2022, Ms Williams lodged a complaint with the Australian Human Rights Commission (AHRC) pursuant to s 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). In that complaint, Ms Williams alleged that from 24 November 2021 the Commissioner of WAPOL had discriminated against her because of her disability, namely, '[b]eing unvaccinated against Coronavirus ('COVID-19'), such that [she] may in the future contract the COVID-19 virus, an organism causing or capable of causing disease or illness'.

3    The AHRC terminated Ms Williams' complaint on 24 April 2024. According to the AHRC's notice of termination, Ms Williams' complaint was terminated under s 46PH(1B)(b) of the AHRC Act because there was no reasonable prospect of it being settled by conciliation. Ms Williams then applied to this Court for relief under s 46PO of the ARHC Act. In her originating application filed on 26 June 2024, Ms Williams alleges that WAPOL engaged in 'unlawful discrimination' for the purposes of the AHRC Act.

4    Ms Williams alleges that WAPOL engaged in unlawful discrimination by acting contrary to various provisions of the Disability Discrimination Act 1992 (Cth) (Discrimination Act). In her originating application Ms Williams specifically alleges that she suffered unlawful discrimination because of her:

medical history and current medical condition [which] meant that [she] could not, and did not need to comply with the directions of the Commissioner of Police to be vaccinated against Covid-19 …

5    Ms Williams seeks various remedies, including an apology and compensation.

6    In October 2024, Ms Williams filed a statement of claim. Then, after she secured legal representation, an amended version of that statement of claim was filed in June 2025, before a final further amended version was filed on 2 September 2025 (statement of claim).

7    WAPOL submits that part, or all, of the statement of claim be struck out. WAPOL contends that parts of the statement of claim should be struck because the Court does not have jurisdiction in respect of certain claims made by Ms Williams. WAPOL also argues that the statement of claim should be struck out in any event because it fails to disclose a reasonable cause of action, contains frivolous or vexatious material, is evasive, ambiguous, and is likely to cause prejudice, embarrassment or delay.

8    The parties agreed that the question of whether the statement of claim should be struck out be determined by the Court without the need for an oral hearing and based only on written submissions.

9    For the following reasons, I have reached the conclusion that the statement of claim should be struck out.

The statement of claim

10    The statement of claim may be divided into six parts.

11    The first of those parts contains three definitions. The first definition concerns the word 'Disability':

'Disability' means the presence in the body of organisms capable of causing disease or illness and includes a disability that presently exists, or previously existed but no longer exists, or may exist in the future, or is imputed to a person pursuant to section 4 of the Disability Discrimination Act 1992 (Cth) (DDA)[.]

12    As the definition itself suggests, it reflects part of the definition of the word 'disability' that appears in s 4 of the Discrimination Act.

13    The two other definitions that appear in the statement of claim are:

'protected information' means personal information, relevant identifying information or information that is commercial - in - confidence, to the extent that this information is obtained under, or in accordance with the Australian Immunisation Register Act 2015[ ](Cth) or is derived from a record of information that was made under, or in accordance with the said Act; or is derived from a disclosure or use of information that was made under, or in accordance with the said Act as defined by section 4 of the Australian Immunisation Register Act 2015 (Cth).

'personal information' means information or an opinion about an identified individual, or an individual who is reasonably identifiable whether the information or opinion is true or not; and whether the information or opinion is recorded in a material form or not as defined by section 6 of the Privacy Act 1988 (Cth) and section 4 of the Australian Immunisation Register Act 2015 (Cth).

14    The second part of the statement of claim need only be referred to briefly as its sole purpose is to identify the parties to the proceedings.

15    In the third part of the statement of claim several background facts are pleaded. Specifically, it is pleaded that:

(1)    Ms Williams was employed by WAPOL from January 2007 until she was dismissed on 17 June 2024;

(2)    the Commissioner of Police issued an employer direction on 24 November 2021 (which was effective from 1 December 2021) that required all WAPOL employees to be vaccinated against COVID-19 and to provide evidence of having been vaccinated or evidence that they were entitled to rely on an exemption from being vaccinated;

(3)    the direction also required that, from 1 December 2021, WAPOL employees were not to enter or remain at a WAPOL facility unless vaccinated with a first dose and, from 1 January 2022, were not to enter or remain at such a facility unless fully vaccinated with two doses;

(4)    supplementary directions and guidance were issued by WAPOL on 30 November 2021 and 30 December 2021, which provided that the original direction did not apply to employees who were on an approved form of leave and that it would only apply upon their return to work; and

(5)    Ms Williams was on sick leave from 1 November 2021, which had been approved by WAPOL.

16    There then appears the following plea:

At all material times the Applicant had a disability as defined in section 4 of the Disability Discrimination Act 1992 (Cth) (DDA). Pursuant to the DDA, the specific nature or diagnosis of the disability is immaterial. What is relevant is that the Applicant provided the Respondent with valid medical certificates which substantiated her inability to work. The Respondent accepted those certificates, and no further disclosure was required under the Act.

17    This is the only place in the statement of claim where Ms Williams' relevant alleged disability, that is at the centre of her claims, is expressly pleaded.

18    In the seven paragraphs of the statement of claim that follow, various pleas appear that refer to the Australian Immunisation Register Act 2015 (Cth). According to Ms Williams' written submissions filed on 16 December 2025 in opposition to the respondent's application to strike out, the matters that are the subject of these pleas are relevant to:

The Respondent's state of mind, the imputation of disability, and the detriments imposed, all of which are central to the discrimination and victimisation claims under the Disability Discrimination Act 1992 (Cth) (DDA).

19    The statement of claim then contains several pleas of direct and indirect disability discrimination. For the sake of clarity, it is best that those pleas be reproduced in full, omitting only the particulars:

16.    The Respondent's initiation and pursuit of disciplinary action against the applicant, at a time when the Applicant was on approved sick leave and had a disability as defined in section 4 of the DDA, constituted discrimination on the ground of disability, contrary to section 15 of the DDA. The disciplinary action constituted a detriment to the Applicant within the meaning of section 15(2)(d) of the DDA. This conduct amounts to direct discrimination within the meaning of section 5 of the DDA.

17.    The Respondent formed an adverse opinion about the Applicant's vaccination status and/or medical exemption status, based on an absence of protected information, and used that imputed opinion as a basis for initiating disciplinary action against the Applicant, at a time when the Applicant was on sick leave due to her disability. The Respondent's conduct in doing so constituted discrimination on the ground of disability, contrary to section 15(2)(d) of the DDA. This conduct amounts to indirect discrimination within the meaning of section 6 of the DDA.

18.    Further, the Respondent's demand for, and intended use of, the Applicant's protected information was unlawful under section 23 of the Australian Immunisation Register Act 2015 (Cth). The Respondent's adverse treatment of the Applicant, arising from the Applicant's status as a person who was not required to provide such information while on approved leave, and in the absence of any operative order requiring compliance at the relevant time, contributed to the detriment suffered by the Applicant within the meaning of section 15(2)(d) of the DDA. This conduct amounts to direct discrimination within the meaning of section 5 of the DDA.

19.    The Respondent stood the Applicant down from duty, contrary to its own Health, Welfare and Injury Management policies and procedures, at a time when the Applicant remained on approved sick leave and had a disability as defined in the DDA.

20.    At the time of the stand-down, the Applicant had provided current and valid medical certificates substantiating her continuing illness and inability to return to work, which the Respondent had previously accepted. The Respondent's decision to cease accepting these medical certificates, despite ongoing medical certification of unfitness for duty, and to proceed with the stand-down, was a deliberate attempt to avoid the requirement to initiate a proper Return to Work Program and to create a pretext for initiating disciplinary action.

21.    The Respondent's conduct constituted a detriment to the Applicant within the meaning of section 15(2)(d) of the DDA and was inconsistent with the Applicant's right to privacy in relation to her personal medical information. This conduct amounts to direct discrimination within the meaning of section 5 of the DDA.

22.    Formal disciplinary hearings are conducted under section 23 of the Police Act 1892 (WA) (s23 examination). The s23 examination conducted by the Respondent was unusually prolonged, extending over a period of approximately 21 months, 16 days, and involved two separate hearings. During the course of the process, the Respondent, through the Ethical Standards Division, was permitted to amend the date of the alleged failure to comply with the Direction, despite the fact that no new return-to-work date or operative order requiring compliance had been issued to the Applicant.

23.    At all material times, the Applicant, being on approved sick leave with a disability, was not subject to any valid order requiring her to comply with the Direction as at the amended date. It was therefore legally and factually impossible for the Applicant to have been in breach of the Direction on the amended date. The Respondent's conduct in pursuing the prolonged process, permitting the amendment of the charge, and continuing the s23 examination in these circumstances constituted further detriment to the Applicant within the meaning of section 15(2)(d) of the DDA, and caused the Applicant additional distress and harm.

24.    The Respondent's dismissal of the Applicant on 17 June 2024, following the s23 examination that had been instituted without proper basis and while the Applicant was on approved sick leave with a disability as defined in the DDA, constituted discrimination against the Applicant on the ground of disability, contrary to section 15(2)(c) of the DDA. This conduct amounts to direct discrimination within the meaning of section 5 of the DDA.

25.    As a result of the Respondent's conduct in subjecting the Applicant to detriments within the meaning of section 15(2)(d) of the DDA, as set out in paragraphs 16 to 23 of this Statement of Claim, and by dismissing the Applicant contrary to section 15(2)(c) of the DDA, as set out in paragraph 24, the Applicant has suffered loss and damage.

…

26.    Because of her illness, the Applicant did not, and was not required to, comply with the Direction to be vaccinated, nor was she required to provide evidence of vaccination against Covid-19 until she was subject to an order to return to work.

27.    The Applicant also relies upon section 25 of the DDA, which prohibits discrimination in the provision of accommodation.

28.    During the relevant period the Applicant was deployed to the Augusta Police Station.

29.    At all material times, it was a requirement or condition of the employment of the Applicant, that, to work in a regional deployment, the Respondent provide government housing as a condition of that deployment.

…

30.    The Respondent's eviction of the Applicant and her family from Government Regional Officer Housing (GROH) was based on the Respondent's reliance upon the Applicant's 'prolonged absence', as stated in correspondence from the Respondent to the Applicant.

31.    At that time, the Applicant's prolonged absence was a period of approved sick leave due to disability as defined in the DDA. Other officers on approved leave for other reasons were not required to vacate GROH housing. The Respondent's conduct constituted direct discrimination on the ground of disability within the meaning of section 5 of the DDA and discrimination in the provision of accommodation contrary to section 25 of the DDA.

…

33.    The Respondent discriminated against the Applicant when it failed to acknowledge the Applicant suffered a genuine disability and continued the s23 examination.

20    Ms Willaims then pleads that WAPOL committed an act of victimisation, contrary to s 42 of the Discrimination Act. The specific conduct upon which she relies is the 'continuation [by WAPOL] of the s23 [of the Police Act 1892 (WA)] examination after receiving notification of the Applicant's complaint to the [AHRC]'. Ms Williams alleges that WAPOL's 'continuation of the disciplinary process after notification of the AHRC complaint' caused her to be subject to several 'detriment[s]' on the ground that she had made a complaint under the AHRC Act.

21    In the fourth part of the statement of claim, the termination of Ms Williams' complaint to the AHRC is pleaded together with some other pleas that are concerned with establishing that the Court has jurisdiction to deal with her application under s 46PO of the AHRC Act.

22    The fifth part of the statement of claim appears under a heading 'FURTHER MATTERS RELIED UPON'. At the risk of failing to accurately summarise this part of the statement of claim I will reproduce it in full:

47.    In addition to the matters pleaded above, the Applicant relies upon the following further matters under the DDA.

48.    The Applicant contends that the requirement to receive a COVID-19 vaccine, being an invasive medical procedure which introduces biological agents into the body that are capable of causing disease or illness, constitutes a risk of the presence of organisms capable of causing disease or illness within the meaning of 'disability' as defined in section 4 of the DDA.

49.     The Applicant was assessed by her medical practitioner as medically contraindicated to the COVID-19 vaccine on the basis that she was at high risk of adverse outcomes if vaccinated, thereby rendering her exempt from receiving the vaccine. The AHRC accepted the Applicant's complaint on this basis, recognising her condition as a disability under the DDA.

50.    The Respondent's requirement that the Applicant receive a COVID-19 vaccine or suffer adverse employment consequences, including disciplinary proceedings and stand-down, constitutes treatment on the basis of the Applicant's disability, being her medically assessed contraindication to vaccination and the risk of disease or illness arising from compelled vaccination.

51.    The Applicant further contends that policies which coerce employees to undergo such medical procedures expose them to the risk of acquiring a disability within the meaning of section 4 of the DDA, and give rise to discrimination contrary to sections 5, 6, and 15 of the DDA.

52.    The conduct of the Respondent's officers and employees as pleaded in this Statement of Claim was undertaken within the scope of their actual or apparent authority. Pursuant to section 123 of the DDA, the Respondent is taken to have engaged in all such conduct and is legally responsible for that conduct under the Act.

53.    The conduct of the Respondent as pleaded herein caused the Applicant to suffer extended and significant hardship. The Applicant contends that such hardship was, in all the circumstances of the case, unjustifiable within the meaning of section 11 of the DDA.

54.    The Respondent is not entitled to rely upon the exceptions contained in sections 21A or 21B of the DDA. At all material times, the Applicant was exempt from the vaccination requirement pursuant to the Respondent's own supplementary direction. The inherent requirements of the Applicant's work did not require vaccination, as the Respondent could, and previously did, achieve the relevant health and safety objectives through the exclusion of symptomatic persons and standard infection control measures. Further, avoidance of discrimination would not have imposed any unjustifiable hardship on the Respondent. The Applicant's inability to comply with the vaccination requirement arose from her disability, as defined in section 4 of the Act.

55.    Section 48 of the DDA is not confined to individuals perceived to be at risk of contracting an infectious disease. It does not permit discrimination against individuals merely because they may, at some hypothetical future point, contract an infectious disease. The mere possibility of future infection, such as becoming infected with Covid-19, does not justify differential treatment under the Act. A lawful and reasonable response to managing the risk of actual infection would be to require isolation or quarantine at the relevant time until the employee has recovered, not to impose blanket exclusions based on vaccination status alone. Nor is it valid for a State or Territory to pass a law to that effect, the Act binds them too.

56.    The Respondent is not entitled to rely upon section 48 of the DDA, which provides an exemption for discrimination that is necessary to protect public health where a person's disability is an infectious disease, and it is reasonably necessary to protect public health. Being unvaccinated is not an infectious disease and the Respondent, who dismissed the Applicant due to not being vaccinated against Covid-19, is in breach of the DDA and thus unreasonable.

57.    Further, the directions relied upon by the Respondent to obtain, use, record or disclose the Applicant's protected information directly from or derived from the Australian Immunisation Register was unlawful and thus unreasonable.

23    The sixth and final part of the statement of claim sets out the relief sought by Ms Williams. That relief includes declaratory relief and compensation, as well as various other orders, including an order that WAPOL issue her a formal written apology, make corrections to her employment record, and issue her with certain medals and service awards. Ms Williams also seeks compensation for loss and damage in relation to her victimisation claim under s 42 of the Discrimination Act.

24    Having summarised Ms Williams' statement of claim it is now convenient to briefly refer to the evidence on which the parties rely, before turning to the legal principles that must be applied in the context of WAPOL's application to strike out pleadings.

Evidence relied upon by the parties

25    WAPOL relies on an affidavit affirmed by one of the solicitors employed by the State Solicitor's Office, who has conduct of this matter on behalf of WAPOL. The affidavit evidences the parties' conferral about the statement of claim that took place in the lead up to WAPOL's strike out application. It is not necessary to refer to that evidence as it does not bear on the issues I am required to determine.

26    Ms Williams relies on an affidavit sworn by her solicitor, Ms Rosie Cornell. It is also unnecessary to summarise that evidence. Strangely, the purpose of that affidavit appears to be to establish that Ms Williams' case is supported by documentary evidence of which WAPOL are aware.

Legal principles - striking out pleadings

27    The relevant principles that apply in the context of an application to strike out pleadings are well established.

28    The starting point is rr 16.02(1) and 16.02(2) of the Federal Court Rules 2011 (Cth) (Rules), which provide as follows:

(1)     A pleading must:

(a)     be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b)     be as brief as the nature of the case permits; and

(c)    identify the issues that the party wants the Court to resolve; and

(d)     state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e)     state the provisions of any statute relied on; and

(f)     state the specific relief sought or claimed.

 (2)     A pleading must not:

(a)    contain any scandalous material; or

(b)     contain any frivolous or vexatious material; or

(c)    be evasive or ambiguous; or

(d)     be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)     fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     otherwise be an abuse of the process of the Court.

29    In the context of this case it is instructive to note that in KTC v David [2022] FCAFC 60, Wigney J (with whom Jackson J relevantly agreed at [415]) observed at [114] that in relation to the requirement in r 16.02(1)(d), the material facts must be pleaded with a degree of specificity which is sufficient to convey to the opposite party the case that the party has to meet and that a 'bare conclusion' is ordinarily not a proper allegation, is embarrassing and should not be permitted to stand.

30    Rule 16.21(1) provides that a party may apply for an order that all or part of a pleading be struck out on several grounds that essentially reflect the prohibitions in r 16.02(2). Relevantly, those grounds include that the pleading:

(1)    contains frivolous or vexatious material;

(2)    is evasive or ambiguous;

(3)    is likely to cause prejudice, embarrassment or delay in the proceeding;

(4)    fails to disclose a reasonable cause of action; or

(5)    is otherwise an abuse of the processes of the Court.

31    In DHI22 v Qatar Airways Q.C.S.C (No 2) [2024] FCA 348 at [134] Halley J, citing Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44], summarised the principles governing the Court's exercise of its discretion to strike out pleadings:

(a)     great caution should be exercised before striking out a party's pleaded case and thereby potentially placing an impediment in the path to the vindication of a claim for relief by exposing a party to the prospect of being unfairly denied access to the courts;

(b)     greater uncertainty, perhaps, surrounds those circumstances in which a party may be exposed to the prospect of unfairness by being confronted with a deficiently pleaded case, by way of example, if the pleading is accepted to be sufficiently ambiguous or uncertain such that it should be struck out;

(c)     where any unfairness may be addressed by the provision of further particulars or evidence, the discretion may be exercised to permit such a case to proceed to hearing notwithstanding non-compliance with r 16.02 of the Rules;

(d)     there would need to be a reason why a claim which is accepted to be inadequately pleaded should proceed to hearing without any potential unfairness to the opposing party being adequately addressed;

(e)     a pleading should adequately place an opposing party in a position where it fairly knows the case to be met; and

(f)     ultimately, pleadings, are the 'servants, not the masters of the judicial process'.

(citations omitted)

32    Having particular regard to the evidence on which Ms Williams relies in opposing WAPOL's application to strike out her statement of claim, it should also be noted that a strike out application is directed to the sufficiency of the pleadings as opposed to the underlying prospects of success of the proceedings: Australian Competition and Consumer Commission v Meta Platforms, Inc (formerly Facebook, Inc) (No 4) [2025] FCA 1084 at [8]; citing Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [23] (French CJ and Gummow J).

33    The various grounds on which pleadings may be struck out that appear in r 16.21 were further explained by Wigney J in KTC in the following way at [119] to [125]:

The word 'vexatious' in the context of rules such as r 16.21 is an 'omnibus expression' that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing, or the inclusion of which is otherwise an abuse of the processes of the Court. Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are 'obviously untenable or manifestly groundless'.

A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.

A pleading may be considered to be embarrassing if it suffers from narrative prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to. A party cannot be expected to respond to mere context, commentary, 'history, narrative material or material of a general evidentiary nature'.

A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading.

A 'reasonable cause of action', for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded. A cause of action cannot be struck out merely on the basis that it appears to be weak.

If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the 'residue would be confusing'.

Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency. The power is discretionary and should be employed sparingly and only in a clear case 'lest one deprive a party of a case which in justice it ought to be able to bring'.

(citations omitted)

34    Ordinarily leave to replead parts of a pleading that have been struck out, or to file an entire amended or substituted pleading, will be granted. But leave will be refused if the Court takes the view that no reasonable amendment can cure the alleged defect and there is no reasonable question to be tried: DHI22 at [135]; citing Crowley v WorleyParsons Limited [2017] FCA 3 at [61]; and Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [43].

The grounds relied on by WAPOL in support of its strike out application.

35    WAPOL contends that there are two main problems with the statement of claim.

36    Firstly, it is submitted that the Court does not have jurisdiction to determine two of Ms Williams' claims, namely:

(1)    the victimisation claim I have summarised at [20] of these reasons; and

(2)    the discrimination claims that are made at para 24 and 25 of the statement of claim.

37    Secondly, WAPOL contends that the balance of Ms Williams' statement of claim is deficient in that:

(1)    it fails to properly plead Ms Williams' alleged disability;

(2)    it fails to properly disclose a reasonable cause of action in relation to her allegations of direct and indirect disability discrimination;

(3)    it impermissibly pleads overlapping claims of direct and indirect disability discrimination;

(4)    it pleads irrelevant breaches of the Australian Immunisation Register Act; and

(5)    it pleads responses to anticipated defences.

38    I will deal with both of those contentions in turn.

The Court's jurisdiction to determine Ms Williams' claims

39    Pursuant to s 46PO(1) of the AHRC Act, if a complaint alleging unlawful discrimination has been terminated by the President of the AHRC under, relevantly, s 46PH and notice of that termination has been given to the complainant, the complainant may make an application to this Court, or to the Federal Circuit and Family Court of Australia (Div 2) alleging unlawful discrimination by the respondent to the terminated complaint.

40    In this case there is no issue that Ms Williams lodged a written complaint with the AHRC on or about 22 June 2022, in which she made an allegation of unlawful discrimination by WAPOL. There is also no dispute that this complaint was terminated by the President of the AHRC on 24 April 2024 and that Ms Williams was given notice of the termination.

41    Section 46PO makes provision for several other matters that are relevant to the making of an application to this Court upon termination of a complaint to the AHRC. However, it is only necessary for present purposes to refer to s 46PO(3), which is in the following terms:

(3)    The unlawful discrimination alleged in the application:

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

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

42    The purpose of s 46PO(3) is to define and filter the cause of action created by s 46PO so that it will correspond, within the limits set in subss (1) and (3) of s 46PO, with the complaint terminated by the President of the AHRC: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43]. However, s 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination and the terms of s 46PO(3) are suggestive of a degree of flexibility: Dye at [46].

43    In Dye at [47], the following passages from the judgment of Katz J in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at [38] and [39] were referred to with apparent approval and which, in my view, very clearly explain the degree of suggested flexibility:

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

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

44    It may be seen, therefore, that paras (a) and (b) of s 46PO(3) have different work to do. The focus of para (a) of s 46PO(3) is on the degree of correlation between the 'unlawful discrimination' that was the subject of a 'terminated complaint' made to the AHRC and the 'unlawful discrimination' that is alleged in an application sought to be made to a relevant court under s 46PO(1). At this point it is important to appreciate that the phrase 'unlawful discrimination', which is used in s 46PO(3) and which is defined in s 3(1) of the AHRC Act, is concerned with 'acts, omissions or practices' that are 'unlawful' under certain specified legislation. However, I deal with the statutory definition of the phrase 'unlawful discrimination' in more detail later in these reasons.

45    The focus of para (b) of s 46PO(3) is different. It is concerned with whether the unlawful discrimination that is alleged in an application to a relevant court under s 46PO(1) arises out of the same, or substantially the same, 'acts, omissions or practices' that were the subject of a terminated complaint to the AHRC. Accordingly, s 46PO(3)(b) requires an assessment be made about whether the 'acts, omissions or practices' that were the subject of the terminated complaint are the same, or substantially the same, as the 'acts, omissions or practices' out of which the unlawful discrimination that is the subject of the application made to a relevant court under s 46PO(1) is alleged to arise.

46    The centrality of the specific 'acts, omissions or practices' that are the subject of a terminated complaint to the assessment required by s 46PO(3)(b) is further highlighted by s 46P(1), which is concerned with the contents of a written complaint lodged with the AHRC. In that regard, s 46P(1) provides that a written complaint may be lodged with the AHRC:

(a)    alleging:

(i)     that one or more acts have been done; or

(ii)     that one or more omissions or practices have occurred; and

(b)     alleging that those acts, omissions or practices are unlawful discrimination.

47    Section 46P(1B) also provides that a complaint to the AHRC must 'set out, as fully as practicable, the details of the alleged acts, omissions or practices'. Further, under s 46PH(1) the President of the AHRC may terminate a complaint on one of several grounds, including that the President is satisfied that the 'alleged acts, omissions or practices are not unlawful discrimination': s 46PH(1)(a).

48    Nevertheless, it is established that in ascertaining the ambit of a terminated complaint, it must be borne in mind that a complaint made to the AHRC will usually not be drawn by a lawyer and that it does not need to adhere to the rules of pleading. However, it must be noted that it is evident that Ms William's initial complaint to the AHRC was, in fact, prepared by a lawyer.

49    For the purposes of s 46PO(3), the ambit of a complaint to the AHRC is to be determined as at the time it was terminated not at the time it was initially made: Dye at [47]. That is particularly important in the circumstances of this case, as on 13 July 2023 the AHRC granted leave to Ms Williams to amend her complaint pursuant to s 46PA. Based on the AHRC's notice of termination and its written reasons for termination, both of which accompanied Ms Williams' application to this Court as required by r 34.163(2) of the Rules, the relevant amendment comprised an additional 12 pages of an 'amendment request' together with '55 attachments of supporting information'. Other documents were attached to Ms Williams' application to this Court. However, they do not appear to have formed part of the complaint that was ultimately terminated by the AHRC as they were not referred to in the AHRC's written reasons. Nevertheless, and favourably to Ms Williams, I will assume for present purposes that those documents did form part of her terminated complaint to the AHRC.

50    Ultimately, if the unlawful discrimination alleged in an application made under s 46PO(1) satisfies the requirements of s 46PO(3), as well as the other preconditions to the exercise of the Court's power that do not need to be referred to here, the Court is required to determine whether it is satisfied that there has been 'unlawful discrimination': s 46PO(4). If the Court is so satisfied, it may make such orders as it thinks fit, including such orders as are mentioned in paras (a) to (f) of s 46PO(4).

51    Against this background it is then necessary to first consider Ms Williams' victimisation claim.

The victimisation claim

52    As I have already said, Ms Williams pleads that she was subjected to an act of victimisation by WAPOL, contrary to s 42 of the Discrimination Act.

53    Section 42 of the Discrimination Act is relevantly in the following terms:

42     Victimisation

(1)     It is an offence for a person to commit an act of victimisation against another person.

Penalty: Imprisonment for 6 months.

(2)    For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)    has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

…

54    Ms Williams pleads that the AHRC first notified her that her complaint had been accepted for investigation on 26 May 2023. It is in that context that she pleads that WAPOL committed an act of victimisation, contrary to s 42(1), by subjecting her to detriments caused by the 'continuation of the s23 examination after receiving notice of [her] complaint to the [AHRC]' (emphasis added) on the ground that she had made a complaint under the AHRC Act. Thus, Ms William's allegation is concerned with an act that she says occurred at the very least after 26 May 2023.

55    When Ms Williams lodged her complaint with the AHRC in June 2022, the phrase 'unlawful discrimination' that appears in the chapeau to s 46PO(3) was relevantly defined in s 3(1) of the AHRC Act as follows:

unlawful discrimination means any acts, omissions or practices that are unlawful under:

…

(a)     Part 2 of the Disability Discrimination Act 1992; or

…

and includes any conduct that is an offence under:

…

(d)     Division 4 of Part 2 of the Disability Discrimination Act 1992; or

...

56    However, this definition was amended in December 2022 by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth). That amendment was made in circumstances in which there had been some uncertainty about whether a federal court had jurisdiction to entertain a case of 'victimisation' under s 42 of the Discrimination Act because victimisation was then exclusively a criminal offence: Revised Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) at [40].

57    The amended definition of the phrase 'unlawful discrimination' that then appeared in s 3(1) of the AHRC Act was in the following terms:

unlawful discrimination means any acts, omissions or practices that are unlawful under:

…

(a)     Division 1, 2, 2A, 3 or 6 of Part 2 of the Disability Discrimination Act 1992; or

…

and includes any conduct that is an offence under:

…

(d)     Division 4 of Part 2 of the Disability Discrimination Act 1992 (other than section 42).

58    Other amendments were also made to the Discrimination Act, including the introduction of s 58A in Div 6 of Pt 2 of that Act. Section 58A now expressly makes provision for an unlawful act of victimisation that does not amount to a criminal offence.

59    It may be seen from para (d) of the amended definition of 'unlawful discrimination' that it expressly excludes conduct that is an offence under s 42 of the Discrimination Act. What this means is that, insofar as Ms Williams pleads that WAPOL committed an act of victimisation under s 42, and that such an act at least occurred after 26 May 2023, those pleadings fail to disclose a reasonable cause of action. Even if Ms Williams were eventually able to establish that WAPOL did, contrary to s 42 of the Discrimination Act, commit the act of victimisation on which she relies that would not constitute 'unlawful discrimination' for the purposes of s 46PO of the AHRC Act. On this basis alone, the pleas that appear at paras 35 to 43 of the statement of claim, and the remedy of an award of compensation for loss and damage arising from a contravention of s 42 of the Discrimination Act that is sought at para 58(c) of the statement of claim, must be struck out.

60    Ordinarily, and in circumstances in which it would otherwise be open to Ms Williams to rely on an allegation of victimisation contrary to s 58A, it would be appropriate to simply grant leave to Ms Williams to replead the victimisation claim. However, there is a further and more fundamental problem with Ms Williams' victimisation plea, which means that leave to replead cannot be granted in the circumstances of this case. Even if Ms Williams were to replead her victimisation case to rely on s 58A, rather than on s 42 of the Discrimination Act, the requirements of s 46PO(3) of the AHRC Act could not be satisfied.

61    As I have said, Ms Williams' case is that WAPOL committed an act of victimisation by subjecting her to various detriments, as a result of continuing with disciplinary proceedings against her, on the ground that she had made a complaint to the AHRC. However, that alleged victimisation is not the same, or the same in substance, as the unlawful discrimination that was the subject of Ms Williams' terminated complaint as required by s 46PO(3)(a) of the AHRC Act. Considering the ambit of Ms Williams' complaint to the AHRC at the time it was terminated, the unlawful discrimination that was the subject of that complaint, for the purposes of s 46PO(3)(a) of the AHRC Act, was discrimination on the ground of a disability. So much is made clear by what is set out in Ms Williams' terminated complaint itself. It is also confirmed by the AHRC's reasons for terminating Ms Williams' complaint, which included the following:

I am writing to advise you of my decision regarding your complaint to the Australian Human Rights Commission (the Commission), against the State of Western Australia - Western Australia Police (WA Police), alleging disability discrimination under the Disability Discrimination Act 1992 (Cth) (DDA).

(emphasis added)

62    Those reasons are consistent with what was set out in a letter sent by the State Solicitor's Office to the AHRC on 17 August 2023, which is attached to Ms Cornell's affidavit. In that letter reference was made to an email that was sent by the AHRC to the State Solicitor's Office on 13 July 2023, to which Ms Williams' complaint was attached, and which recorded that the AHRC had accepted it as a complaint of direct and indirect disability discrimination.

63    Insofar as s 46PO(3)(b) is concerned, and as I have already identified, the act of victimisation alleged in Ms Williams' originating application arises out of what is contended to have been WAPOL subjecting Ms Williams to various detriments on the ground that she had made a complaint to the AHRC, where those detriments are alleged to have been caused by continuing with disciplinary proceedings against her. However, even if Ms William's terminated complaint is given a generous reading, that act is not the same, or even substantially the same, as any of the acts that were the subject of her terminated complaint of discrimination on the ground of disability. Importantly, the terminated complaint makes no reference whatsoever to anything having been done by WAPOL in connection with the making of that complaint by Ms Williams.

64    Further, and in any event, Ms Williams pleads at para 42 of the statement of claim that WAPOL committed an act of victimisation after it became aware that her complaint to the AHRC had been accepted for investigation. Although Ms Williams does not plead exactly when she alleges WAPOL became aware that her complaint had been accepted for investigation, it must be read in the context of her originating application. In that regard, the AHRC's reasons for decision accompanied Ms Williams' originating application, as required by r 34.163 of the Rules. In those reasons, under a heading 'Contact with the Respondent', it is recorded that the terminated complaint was provided to WAPOL on 13 July 2023. To the extent confirmation of that fact is required, this is consistent with the letter from the State Solicitor's Office to the AHRC dated 17 August 2023 to which I have already referred.

65    In those circumstances, it is nonsensical to suggest that the victimisation alleged by Ms Williams in her application before this Court arises out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint, as required by s 46PO(3)(b) of the AHRC Act. On Ms Williams' own case, the relevant act out of which her victimisation claim is alleged to arise did not occur until after the ambit of her terminated complaint had been finalised by 13 July 2023.

66    For these reasons, the victimisation pleas that appear at paras 35 to 43, and the remedy sought at para 58(c) of the statement of claim, must be struck out on the ground that they fail to disclose a reasonable cause of action.

67    In circumstances in which Ms Williams' victimisation claim does not amount to an allegation of unlawful discrimination that could ever satisfy either para (a) or (b) of s 46PO(3) of the AHRC Act, I would refuse to grant leave to Ms Williams to replead that claim.

The discrimination claims made at paras 24 and 25 of the statement of claim

68    I have already reproduced paras 24 and 25 of the statement of claim earlier in these reasons. It may be seen that in para 24, Ms Williams alleges that her dismissal by WAPOL on 17 June 2024 'constituted discrimination against [her] on the ground of disability, contrary to section 15(2)(c) of the DDA'. Ms Williams also alleges that this conduct constituted 'direct discrimination' for the purposes of s 5 of the Discrimination Act.

69    Paragraph 25 of the statement of claim contains several rolled-up allegations. However, for present purposes it is only necessary to note that it includes an allegation that 'by dismissing the Applicant contrary to section 15(2)(c) of the DDA, as set out in paragraph 24, the Applicant has suffered loss and damage'.

70    As I have already observed, Ms Williams first made a complaint to the AHRC on or about 22 June 2022. Ms Williams pleads that on 26 May 2023 she was notified by the AHRC that her complaint had been accepted for investigation. The AHRC's notice of termination establishes that her complaint was terminated by the AHRC on 24 April 2024. In those circumstances, the unlawful discrimination alleged in para 24 and in part of para 25 of the statement of claim cannot be said to be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint as is required by s 46PO(3)(a) of the AHRC Act. The unlawful discrimination that was the subject of the terminated complaint could not logically have been discrimination on the ground of Ms Williams' disability, where that discrimination was constituted by an act of terminating Ms Williams' employment. This is because Ms Williams' employment was terminated in June 2024, almost two months after her complaint to the AHRC was terminated.

71    For similar reasons the unlawful discrimination alleged in para 24 and in the relevant part of para 25 of the statement of claim cannot be said to arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint, as required by s 46PO(3)(b) of the AHRC Act. As I have said, the unlawful discrimination pleaded in para 24 of the statement of claim is alleged to arise out of WAPOL's act of dismissing Ms Willliams. However, it is plain that this was not an act that was the same, and it is not an act that was substantially the same as any of the acts that were the subject of Ms Williams' terminated complaint.

72    It follows that para 24, and the relevant part of para 25 of the statement of claim fail to satisfy the requirements of s 46PO(3) of the AHRC Act. This means that this Court does not have the power to determine the unlawful discrimination alleged in those paragraphs and to make orders under s 46PO(4) of the AHRC Act. In short, this Court does not have jurisdiction to determine an allegation of unlawful discrimination based on events that post-date the termination of Ms Williams' terminated complaint to the AHRC: Chadwick v State of New South Wales [2022] FCA 918 at [53]. It follows that para 24, and the words 'and by dismissing the Applicant contrary to section 15(2)(c) of the DDA, as set out in paragraph 24', in para 25, must be struck out as failing to disclose a reasonable cause of action.

73    As those paragraphs must be struck out because the alleged unlawful discrimination cannot satisfy s 46PO(3) of the AHRC Act, I would refuse to give Ms Williams leave to replead the claims made in para 24, and in the relevant part of para 25 of the statement of claim.

The other alleged deficiencies with the statement of claim

74    Ms Williams claims that WAPOL has engaged in various forms of conduct amounting to unlawful discrimination justifying the making of orders under s 46PO(4) of the AHRC Act. However, WAPOL contend that several of those claims, which concern allegations that it unlawfully discriminated against Ms Williams on the ground of her disability, have not been properly pleaded. Before considering the alleged deficiencies in the statement of claim, it is necessary to say something about the legal framework within which these claims of unlawful discrimination are sought to be made.

75    At a high level of generality, Ms Williams seeks to make three broad claims of unlawful discrimination relying on acts said to be unlawful under the Discrimination Act:

(1)    direct disability discrimination in employment;

(2)    indirect disability discrimination in employment; and

(3)    direct disability discrimination in the provision of accommodation.

76    Section 15 of the Discrimination Act provides that discrimination in employment on the ground of a person's disability is unlawful. In this case, Ms Williams relies on paras (c) and (d) of s 15(2):

(2)     It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability:

…

(c)     by dismissing the employee; or

(d)     by subjecting the employee to any other detriment.

77    Section 25 of the Discrimination Act also provides that it is unlawful to discriminate against another person in relation to the provision of accommodation on the ground of that person's disability. Ms Williams appears to rely on s 25(2)(b), which provides:

(2)     It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's disability:

…

(b)     by evicting the other person from accommodation occupied by the other person; …

78    The word 'discriminate', which appears in both ss 15 and 25, is defined in s 4(1) of the Discrimination Act. That definition in turn directs attention to ss 5 and 6, which are in the following terms:

5     Direct disability discrimination

(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)     For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)     the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

6     Indirect disability discrimination

(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)     because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)     the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)     For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)     because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)     the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)     Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)     For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

(original emphasis)

79    The word 'disability', which is used in both ss 5 and 6, is defined in s 4(1) of the Discrimination Act to mean:

(a)     total or partial loss of the person's bodily or mental functions; or

(b)     total or partial loss of a part of the body; or

(c)     the presence in the body of organisms causing disease or illness; or

(d)     the presence in the body of organisms capable of causing disease or illness; or

(e)     the malfunction, malformation or disfigurement of a part of the person's body; or

(f)     a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)     a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)     presently exists; or

(i)     previously existed but no longer exists; or

(j)     may exist in the future (including because of a genetic predisposition to that disability); or

(k)     is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

80    The expression 'reasonable adjustment', which appears in both ss 5(2) and 6(2), is defined in s 4(1) as:

an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

81    The meaning of 'unjustifiable hardship' that appears in that definition is in turn provided for in s 11 of the Discrimination Act, which reads:

11     Unjustifiable hardship

(1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a)     the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b)     the effect of the disability of any person concerned;

(c)     the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d)    the availability of financial and other assistance to the first person;

(e)     any relevant action plans given to the Commission under section 64.

Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(2)     For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

82    Against that background, and before moving on to deal with the specific complaints raised by WAPOL, it is convenient to first make some general observations about pleadings in the context of claims under the Discrimination Act.

83    In Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 at [7], the Full Court said:

A statement of claim must allege a cause of action with sufficient particularity and not simply make allegations in general terms. The adequacy of a statement of claim is to be assessed by reference to whether the cause of action is pleaded at a level of particularity that is sufficient to define the issues and inform the other party of the case that it has to meet, in the context of the particular allegations. A respondent or defendant is entitled to know the factual foundation for the case that is being alleged, so that the respondent or defendant can prepare to meet that case at trial. In order to disclose a reasonable cause of action, a statement of claim must contain an allegation of all of the relevant facts necessary to support any allegation made in it. A pleading that simply pleads a conclusion is embarrassing and should not be permitted to stand.

84    The general principles regarding the rules of pleadings were also referred to by Banks-Smith J in EIX20 v State of Western Australia [2022] FCA 1357 at [19] to [26]. Those rules of pleading also apply to pleadings concerning allegations of contraventions of the Discrimination Act: Varasdi v State of Victoria [2018] FCA 1655 at [3].

85    As O'Callaghan J said in Varasdi at [9], a pleading under the Discrimination Act must put the respondent on notice of the case it is required to meet, rather than asking the respondent or the Court to identify the applicant's case on its behalf. In that regard, O'Callaghan J said, citing Sievwright v State of Victoria [2013] FCA 964 at [48], the pleading must do 'more than scope out the nature of the problem, and leave it to the trial of the action for the content of the respondent's omissions to become apparent'. A pleading must also identify the material facts that are relied on to give rise to a claim of discrimination: Varasdi at [15]. At a minimum, those material facts include the necessary elements of such claims that are identified in the relevant statutory provisions.

86    Having regard to the obvious differences between direct disability discrimination in ss 5(1) and 5(2), and indirect disability discrimination in ss 6(1) and 6(2), it is clearly necessary for pleadings to articulate which form of discrimination is alleged. This is particularly important as direct and indirect disability discrimination are mutually exclusive, such that a person cannot claim on the basis of the same facts that they were both directly and indirectly discriminated against: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [13] to [16] (Bromberg J, Griffiths and Bromwich J agreeing at [179] and [213], respectively).

87    It is now necessary to consider the specific complaints made by WAPOL about the statement of claim.

The statement of claim fails to properly plead Ms Williams' alleged disability

88    As WAPOL submit, Ms Williams has described her alleged disability in different ways in her terminated complaint to the AHRC, in her originating application filed in this Court, and then ultimately in her statement of claim.

89    In the terminated complaint the disability was said to be:

[b]eing unvaccinated against Coronavirus ('COVID-19'), such that the Complainant may in the future contract the COVID-19 virus, an organism causing or capable of causing disease or illness.

90    In the originating application the disability appeared to be:

because [Ms Williams'] medical history and current medical condition meant that [she] could not, and did not need to comply with the directions of the Commissioner of Police to be vaccinated against Covid-19 …

91    As I have already observed, in para 8 of the statement of claim the relevant disability is described as follows:

At all material times the Applicant had a disability as defined in section 4 of the Disability Discrimination Act 1992 (Cth) (DDA). Pursuant to the DDA, the specific nature or diagnosis of the disability is immaterial. What is relevant is that the Applicant provided the Respondent with valid medical certificates which substantiated her inability to work. The Respondent accepted those certificates, and no further disclosure was required under the Act

92    This articulation of Ms Williams' alleged disability is plainly inadequate. Paragraph 8 of the statement of claim completely fails to identify the material facts upon which Ms Williams relies to contend that she had, at the relevant time, a disability within s 4 of the Discrimination Act.

93    Contrary to what is suggested by para 8 of the statement of claim, the specific nature of the disability is far from 'immaterial'. The existence and nature of an alleged disability is fundamental to any claim for disability discrimination: Maksacheff v Commissioner of Police (WA) [2023] FCA 406 at [38]. Accordingly, the alleged disability on which an allegation of unlawful discrimination under the Discrimination Act is based must be clearly pleaded. That there is a need to clearly plead the alleged disability is illustrated by the fact that for direct disability discrimination under s 5(1), proof is required that less favourable treatment occurred because of an aggrieved person's disability. Further, under s 6(1)(b) there is only indirect disability discrimination if, because of their disability, an aggrieved person does not or would not comply, or is not able or would not be able to comply, with a relevant requirement or condition an alleged discriminator requires, or proposes to require, the aggrieved person to comply with.

94    The confusing state of affairs presented by the varying, and ultimately inadequate way, in which Ms Williams has particularised her alleged disability is compounded by the presence at the beginning of the statement of claim of the following definition of 'Disability':

[T]he presence in the body of organisms capable of causing disease or illness and includes a disability that presently exists, or previously existed but no longer exists, or may exist in the future, or is imputed to a person pursuant to section 4 of the Disability Discrimination Act 1992 (Cth) (DDA).

95    It may be seen that this definition is simply part of the statutory definition of the word 'disability' that appears in s 4 of the Discrimination Act. However, it adds nothing to an understanding of the particular disability that is said to be the subject of Ms Williams' claims.

96    The ambiguity surrounding Ms Williams' claims is further exacerbated by what is pleaded at paras 48, 50 and 51 of the statement of claim:

48.    The Applicant contends that the requirement to receive a COVID-19 vaccine, being an invasive medical procedure which introduces biological agents into the body that are capable of causing disease or illness, constitutes a risk of the presence of organisms capable of causing disease or illness within the meaning of 'disability' as defined in section 4 of the DDA.

…

50.    The Respondent's requirement that the Applicant receive a COVID-19 vaccine or suffer adverse employment consequences, including disciplinary proceedings and stand-down, constitutes treatment on the basis of the Applicant's disability, being her medically assessed contraindication to vaccination and the risk of disease or illness arising from compelled vaccination.

51.    The Applicant further contends that policies which coerce employees to undergo such medical procedures expose them to the risk of acquiring a disability within the meaning of section 4 of the DDA, and give rise to discrimination contrary to sections 5, 6 and 15 of the DDA.

(emphasis added)

97    The purposes of pleadings are well known. They include enabling the opposing party to have fair notice of the case that must be met at trial and enabling the Court to know what issues are to be determined: Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike‑out Application) [2024] FCA 1206 at [8]. Contrary to those purposes, the statement of claim fails to put WAPOL and the Court on notice of the disability Ms Williams' alleges she had and therefore of the case WAPOL is required to meet.

The statement of claim fails to disclose a reasonable cause of action in relation to Ms Williams' allegations of direct and indirect disability discrimination

98    At paras 16 (read with paras 14 and 15), 18, and 21 (read with paras 19 and 20) of the statement of claim, which are reproduced above, Ms Williams alleges that WAPOL engaged in various forms of conduct that amounted to direct disability discrimination in employment, contrary to s 15(2)(d) of the Discrimination Act. There is a further allegation of direct disability discrimination in employment, contrary to s 15(2)(c), that is made at para 24 (read with para 25) of the statement of claim.

99    In my view, paragraphs 14 to 16 and 18 to 21 must be struck out because they are ambiguous, they are likely to cause prejudice, embarrassment or delay and because they fail to disclose any reasonable cause of action. Although it is unnecessary to do so because I have previously determined that para 24, and part of para 25, should be struck out because the Court does not have jurisdiction to determine that claim, I would reach the same conclusion in respect of those paragraphs. While Ms Williams pleads that certain conduct by WAPOL constituted or amounted to direct disability discrimination, those pleas amount to little more than conclusionary statements. The statement of claim abjectly fails to plead any material facts that form the basis of the allegations that WAPOL discriminated against Ms Williams on the ground of a disability. More particularly, the statement of claim fails to identify which form of direct disability discrimination, in either s 5(1) or s 5(2) of the Discrimination Act is relied upon. If s 5(1) of the Discrimination Act is relied upon, there are no material facts pleaded in support of a contention that because of Ms Williams' alleged disability, WAPOL treated, or proposed to treat her less favourably than it would have treated a person without the alleged disability in circumstances that are not materially different. If s 5(2) is relied upon, there are no material facts pleaded concerning the matters that are the subject of paras (a) and (b) of that subsection.

100    Ms Willliams also pleads at para 17 of the statement of claim that she was indirectly discriminated against in employment. In my view, this paragraph must also be struck out because it is ambiguous, it is likely to cause prejudice, embarrassment or delay and because it fails to disclose any reasonable cause of action. Once again, this paragraph inappropriately pleads a mere conclusion. There is no way of knowing whether Ms Williams relies on the form of indirect disability discrimination in s 6(1) or s 6(2). If Ms Williams relies on s 6(1) to establish that she was discriminated against on the ground of a disability, the statement of claim is completely silent insofar as the material facts relied upon to establish each of the matters enumerated in paras (a) to (c) of that subsection. The same observation can be made if Ms Williams relies on s 6(2). Based on the current formulation of the statement of claim, WAPOL, and the Court, are left to guess about an essential element of Ms Williams' claim that she was discriminated against her on the ground of a disability, contrary to s 15(2) of the Discrimination Act.

101    I am of the view that para 31 must also be struck out. When para 31 of the statement of claim is read with paras 27 to 30, it appears Ms Williams pleads that WAPOL engaged in conduct that amounted to discrimination in the provision of accommodation, contrary to s 25 of the Discrimination Act. Although several particulars of the statement of claim are concerned with this claim, consistently with the approach taken by Ms Williams' in relation to her claims of discrimination in employment, the pleadings fail to identify whether she relies on s 5(1) or s 5(2). If s 5(1) is relied upon, no attempt has been made yet again to plead material facts that would, if proved, establish that because of Ms Williams' alleged disability, WAPOL treated, or proposed to treat her less favourably than it would have treated a person without the alleged disability in circumstances that are not materially different. Further, if s 5(2) is relied upon, there are no material facts pleaded concerning the matters that are the subject of paras (a) and (b) of that subsection.

102    Paragraph 33 alleges that WAPOL 'discriminated against the Applicant when it failed to acknowledge [she] suffered a genuine disability and continued the s23 examination'. To the extent this pleading is relied on to raise a distinct claim of unlawful discrimination it is plainly inadequate and it must also be struck out.

103    By para 51 of the statement of claim, Ms Williams contends that:

polices which coerce employees to undergo such medical procedures expose them to the risk of acquiring a disability within the meaning of s 4 of the DDA, and give rise to discrimination contrary to sections 5, 6 and 15 of the DDA.

104    This pleading suffers from several difficulties, not least of which is that it purports to claim that Ms Williams was the subject of both direct and indirect disability discrimination based on the same facts. This paragraph of the statement of claim must also be struck out.

105    In KTC at [124], Wigney J observed, citing Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323, that if substantial parts of a pleading are to be struck out, the Court may strike out the entire pleading on the basis that the 'residue would be confusing'. The paragraphs of Ms Williams' statement of claim that I have to this point decided should be struck out essentially comprise all the claims of unlawful discrimination that she currently seeks to make against WAPOL. In those circumstances, not only would the residue of the statement of claim be confusing, but the balance of any remaining pleas would be incapable of supporting any claim of unlawful discrimination in respect of which the Court could make orders under s 46PO(4) of the AHRC Act. Accordingly, I am of the view that the whole of the statement of claim should be struck out.

106    In those circumstances, it is unnecessary to decide whether, as WAPOL contends, the statement of claim impermissibly pleads overlapping claims of direct and indirect disability discrimination, whether it pleads irrelevant breaches of the Australian Immunisation Register Act and whether it impermissibly pleads responses to anticipated defences.

Conclusion

107    The statement of claim must be struck out in its entirety.

108    As I have already said, leave to replead, including leave to file an entire substituted pleading, will ordinarily be granted unless no reasonable amendment can cure the defect and if there is no reasonable question to be tried. However, I will hear the parties further on those issues as I have not had the benefit of submissions regarding the question of whether and to what extent leave to replead should be granted in a manner that is consistent with these reasons, and whether any conditions should be placed on any such grant of leave.

109    I will also hear the parties on the question of costs, having regard to subss (5) and (6) of s 46PSA of the AHRC Act.

Associate:

Dated:    8 May 2026