Federal Court of Australia

McAvoy v Adani Mining Pty Ltd T/A Bravus Mining and Resources [2026] FCA 675

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), the applicant’s claim for relief, brought by an amended originating application filed on 18 August 2025, on behalf of any person other than the applicant, Adrian Burragubba, Lyndell Turbane, Sharon Ford, Renay Baira, Jahshua McAvoy, Coedie McAvoy, Nathan Baira, Sharon Ford, Keliy-Ann McAvoy, Sharah McAvoy and Meisha McAvoy, be dismissed.

2.    The matter be listed for further hearing on a date to be advised administratively.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J

introduction

1    Mr Coedie McAvoy, who also uses his tribal name, Gurridyula, has commenced representative proceedings pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on his own behalf, and on behalf of all Group Members, who are members of Mr McAvoy’s family, claiming relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and damages, both aggravated and exemplary, pursuant to s 18C of the Racial Discrimination Act 1975 (Cth) (RDA) for alleged contraventions of s 18C.

2    Broadly, it is alleged that the respondent, Adani Mining Pty Ltd t/as Bravus Mining and Resources, published various statements on a publicly accessible Facebook page (the Facebook Posts) and a publicly accessible website (the Media Releases), being acts which were reasonably likely in all of the circumstances to offend, insult, humiliate or intimidate Mr McAvoy and the Group Members, and which were done because of the race, colour, national or ethnic origin of Mr McAvoy and the Group Members, thereby contravening s 18C of the RDA.

3    By an amended interlocutory application filed on 26 February 2026, Bravus seeks summary judgment, or alternatively the striking out of the whole, or parts, of the Statement of Claim filed on 23 December 2025, primarily on the ground that s 46PO(2A)(a)(ii) of the AHRC Act operates to prevent Mr McAvoy from making an application to this Court on behalf of purported Group Members who are not affected persons in relation to the terminated Complaint before the Australian Human Rights Commission.

4    In the alternative, Bravus seeks to strike out the claims advanced in the Statement of Claim at [5(b)] and [6]-[37] on the ground they are embarrassing, vague, fail to disclose a reasonable cause of action and are otherwise an abuse of process.

5    In the further alternative, if the proceedings should more properly be brought as a “representative application” within the meaning of the AHRC Act, Bravus seeks an order pursuant to s 33ZF of the FCA Act that the proceeding be discontinued in respect of Group Members who have not consented to the commencement of proceedings in accordance with s 46POA of the AHRC Act.

The relevant legislative framework

6    Part IIB of the AHRC Act makes provision for those seeking redress from unlawful discrimination, including racial discrimination.

7    Section 46P provides for a written complaint to be lodged with the Commission alleging that one or more acts, omissions or practices have occurred which amount to unlawful discrimination. Section 46P(1B) requires that the complaint “set out, as fully as practicable, the details of the alleged acts, omissions or practices.”

8    Section 46P(2) provides:

(2)    The complaint may be lodged:

(a)     by a person aggrieved by the alleged acts, omissions or practices:

(i)     on that person’s own behalf; or

(ii)     on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or

…

9    Section 46P(3) provides that a person who is a class member for a representative complaint is not entitled to lodge a separate complaint in respect of the same subject matter.

10    Section 46PB prescribes the conditions for lodging a representative complaint in the following terms:

(1)    A representative complaint may be lodged under section 46P only if:

(a)    the class members have complaints against the same person; and

(b)    all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    all the complaints give rise to a substantial common issue of law or fact.

(2)    A representative complaint under section 46P must:

(a)    describe or otherwise identify the class members; and

(b)    specify the nature of the complaints made on behalf of the class members; and    

(c)    specify the nature of the relief sought.

(3)    In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(4)    A representative complaint may be lodged without the consent of class members.

(Emphasis added.)

11    Section 46PD provides that if a complaint is made to the Commission under s 46P, it must be referred to the President. The President is then required to consider whether or not the complaint should be terminated or if an inquiry into the complaint should proceed (s 46PF(1)).

12    When an inquiry commences, the President (or his delegate) may require a person to provide information (s 46PI); grant leave to amend (s 46PA(1)) or allow the withdrawal of a complaint (s 46PG); replace a complainant (s 46PC(2)); add a respondent (s 46PF(3)); notify class members (s 46PC(3)) and cease an inquiry if the complainant does not wish to continue (s 46PF(5)). The President is required to terminate the complaint before any proceeding may be commenced in this Court: s 46PO(1). The President’s power and grounds for terminating a complaint are identified in s 46PH(1).

13    Section 46PO provides for the circumstances in which an application can be made to this Court after the Commission has terminated a complaint. Relevantly:

(1)     If:

(a)     a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)     the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)     The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

 (2A)     The application may be made:

(a)     by an affected person in relation to the terminated complaint:

 (i)     on that person’s own behalf; or

(ii)     on behalf of that person and one or more other affected persons in relation to the terminated complaint; or

 (b)     by 2 or more affected persons in relation to the terminated complaint:

(i)     on their own behalf; or

(ii)     on behalf of themselves and one or more other affected persons in relation to the terminated complaint; or

(c)     by a person or trade union who lodged the terminated complaint, on behalf of one or more affected persons in relation to the terminated complaint.

Note:     Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.

 (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.

…

(4)    [Sets out the types of orders the Court may make.]

(4A)     In the case of a representative application, subsection (4) applies as if a reference to an applicant included a reference to a person on whose behalf the application is made, other than one who has opted out under subsection 46POB(3).

(5)     In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).

…

(Emphasis added.)

14    It is important to recognise that there is a difference between a representative application within the terms of s 46PO(2A) of the AHRC Act and a representative proceeding under Pt IVA of the FCA Act. This difference is of some importance in the present application.

15    With respect to the former, s 46POA of the AHRC Act provides:

(1)    A representative application may not be made without the written consent of each person on whose behalf the application is made (other than the person making the application).

(2)    A representative application must:

(a)    describe or otherwise identify the persons on whose behalf the application is made; and

(b)    include a statement by the person making the application certifying that each person on whose behalf the application is made has consented, in writing, to the making of the application on the person’s behalf; and

(c)    specify the nature of the relief sought.

(Emphasis added.)

16    Relevantly, s 46POB provides:

Separate applications may not be made

(1)     A person on whose behalf a representative application is made is not entitled to make a separate application under subsection 46PO(1) in respect of the same subject matter unless the person opts out under subsection (3) of this section.

17    Section 46PR provides:

In proceedings under this Division, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

The proceedings in this court

18    Two proceedings were commenced in this Court following the termination of the Complaint. The first (QUD 541 of 2025) was filed on 11 August 2025 and is confined to allegations of race discrimination said to have occurred on 27 August 2023 pursuant to s 9 of the RDA. The applicants in that proceeding do not include Mr McAvoy.

19    The second is this proceeding.

20    The gravamen of Bravus’ application is its contention that Mr McAvoy does not have standing to commence this proceeding on behalf of persons who were not class members of, nor part of, the Complaint that was terminated by the Commission. Bravus submits that Mr McAvoy may not commence a proceeding on behalf of persons who were not “affected persons” (being persons on whose behalf the complaint was lodged: AHRC Act s 3) for whom, necessarily, no complaint was terminated in relation to them.

21    Mr McAvoy pleads that 33 unnamed people were “affected persons” being members of Custodians Ltd. These people are referred to as the “Additional Family Group Members”.

22    Before the Commission, Mr Burragubba brought the Complaint on his own behalf, on behalf of his nine family members (Jahshua McAvoy, Coedie McAvoy, Keliy-Ann McAvoy, Sharah McAvoy, Meisha McAvoy, Nathan Baira, Sharon Ford, Lyndell Turbane and Renay Baira), and, it is said by Mr McAvoy, the members of Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Limited (Custodians Ltd), who are said to be additional family members.

23    The second proceeding in this Court has been commenced on behalf of Group Members who are defined in [2] of the Statement of Claim as follows:

… each person who:

(a)    by a combination of descent, self-identification, and communal recognition is an Aboriginal person who belongs to the Aboriginal “race” and/or is of Aboriginal “ethnic origin” (as those terms are defined in the RDA);

(b)    is a family member of the Applicant, being part of the Applicant’s immediate or extended family with the same Moiety, including being a parent, sibling, uncle, aunt, grandparent, cousin, nephew, niece or grandchild (or any descendent thereof) of the Applicant and/or the Applicant’s father;

(c)    is a direct descendant of Charlie McAvoy of Logan Downs and/or Liz McEvoy of Alpha;

(d)    identifies as an Aboriginal person of the Wangan and Jagalingou Peoples whose cultural, spiritual, racial and ethnic identities are intrinsically connected to Wangan and Jagalingou Country;

(e)    has an essentially spiritual relationship with Wangan and Jagalingou Country;

(f)    is a custodian connected with, and has strict cultural obligations according to, traditional law and custom to care for Wangan and Jagalingou Country including most importantly the Springs;

(g)    holds, and over the past decade has held, significant concerns regarding the operations and impacts of the Respondent’s Carmichael Mine, particularly the existential threat the Respondent’s Carmichael Mine poses to Wangan and Jagalingou Country and Wangan and Jagalingou Culture particularly:

(i)    the Springs, a sacred site;

(ii)    the Dreaming and Creation Story of Wangan and Jagalingou Country;

(iii)    their Ancestral and cultural obligations to protect Wangan and Jagalingou Country; and,

(iv)    other culturally significant sites on Wangan and Jagalingou Country in the vicinity of the Bravus/Adani Mining Lease including:

(A)    artifact sites;

(B)    ochre caves;

(C)    bush food sites;

(D)    scar trees; and,

(E)    birthing trees.

(v)    since about August 2021, has consistently opposed the Carmichael Mine due to its threat to Wangan and Jagalingou Country and sacred sites, including the Springs, while continuing to peacefully and lawfully discharge cultural obligations to care for Country for cultural, spiritual, ceremonial and/or religious purposes, and for the purpose of protecting the Springs.

(vi)    at all material times:

(A)    had no objection to coal mining or the coal mining industry in general;

(B)    have never identified as:

(I)    an “activist”;

(II)    an “anti-coal activist”; or

(III)    an “anti-fossil fuel activist”.

24    Bravus submits that the definition of Group Members in this proceeding includes persons who are not confined to the individuals or the corporate entity identified in the terminated Complaint because: they were never identified in the Complaint in the manner required by s 46PB of the AHRC Act; they were not referred to in any part of the Complaint, they were not joined and did not become class members for the purposes of the Complaint; they were not part of the terminated Complaint; and they are not “affected persons” in relation to the terminated complaint.

25    It is necessary to examine the Complaint itself.

The Complaint before the Commission

26    On 18 December 2024, the Commission notified Bravus that Mr Adrian Burragubba had lodged a Complaint under s 46P of the AHRC Act. The Complaint was brought for himself and as a representative complaint on behalf of nine family members and Custodians Ltd (together described as Group Members). It was provided to Bravus with the names of the individual Group Members redacted.

27    The Complaint alleged contraventions of ss 9 and 18C of the RDA and was in two parts. The first part was confined to events on 27 August 2023. It was alleged that Bravus’ employees obstructed and prevented “Mr Burragubba and other Group Members from accessing the Doongmabulla Springs”. It was alleged the conduct contravened s 9 of the RDA. The second part of the Complaint alleged a “pattern of conduct” against “Mr Burragubba and the Group Members” claiming “adverse impacts affecting the Group Members from publications made by Bravus between 7 December 2022 and 22 September 2023 (Media Releases) and certain messages and comments made on Bravus’ Facebook page”. It was alleged the conduct contravened s 18C of the RDA.

28    The Complaint was sent to the Commission on 20 November 2024 under cover of an email from Ms Alison Rose of NinoxLaw on behalf of Mr Burragubba. It indicated that the Complaint was “of A Burragubba and family with Attachment 1”. Attachment 1 comprised the Media Releases and the Facebook Posts the subject of the Complaint. Five imputations were said to arise from the Media Releases, being imputations in respect of Gurridyula, Mr Burrugubba and the Group Members. Custodians Ltd was not mentioned in any of the posts. The Facebook Posts were said to contain three imputations in respect of all First Nations People, which included the complainants and Group Members.

Are the purported Group Members “affected persons”?

29    Part A of the Complaint Form identified Mr Burragubba as the complainant. Mr Burragubba provided the listed details of the nine individuals previously mentioned under the heading:

If you are complaining on behalf of someone else, please provide the following details about this person.

Title:

First Name:

Last Name

Email:

Mobile:

What is their relationship to you?

30    No other persons were mentioned on the Complaint Form as being persons on whose behalf the Complaint was being made. Nevertheless, in its Submissions in support of the Complaint, which were attached to the Complaint Form, NinoxLaw identified the complainants as:

Complainants: Adrian Burragubba, Lyndell Turbane, Sharon Ford, Renay Baira, Jahshua McAvoy, Coedie McAvoy, Nathan Baira, Sharon Ford, Keliy-Ann McAvoy, Sharah McAvoy and Meisha McAvoy and Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd

(Underlining added.)

31    Mr McAvoy submitted that “great weight” should be given to the reference to Custodians Ltd in the Submissions. He sought to rely on an affidavit of Ms Rose filed on 13 March 2026 (Rose Affidavit) to explain the role and function of Custodians Ltd. Senior Counsel for Bravus objected to certain paragraphs of that affidavit on the basis that they raise new allegations of fact concerning Custodians Ltd which were not before the Commission. She nevertheless submitted that the objection would not be pressed in the event that the Court found the material helpful. I have taken the view that the explanation given by Ms Rose is of some assistance in understanding precisely who was within the description of Group Members before the Commission and I have admitted the affidavit into evidence.

32    Ms Rose deposes that the “Additional Family Members did not individually lodge complaints with the AHRC in relation to the matters the subject of this proceeding”. She says, at [28]:

The AHRC Complaint was lodged on behalf of certain identified individuals (named in the AHRC Complaint) together with the Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd as a representative body for the Applicant’s family members.

33    Ms Rose deposes further, at [21], that as at the date of the Complaint, Adrian Burragubba, Coedie McAvoy, Lyndell Turbane, Meisha McAvoy, Jahshua McAvoy, Keliy-Ann McAvoy, and Sharah McAvoy were “formal members” of Custodians Ltd.

34    The introductory paragraph to the Submissions was in the following terms:

1.    This representative complaint is made pursuant to s.46P of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) by Mr Adrian Burragubba (Mr Burragubba) on behalf of:

(a)    some 10 members of Mr Burragubba’s family, including:

(i)    Mr Burragubba’s nieces Lyndell Turbane, Renay Baira and Sharon Ford;

(ii)    Mr Burragubba’s sons Mr Jahshua McAvoy, Mr Coedie McAvoy (also publicly known by his tribal name “Gurridyula”) (Gurridyula);

(iii)    Mr Burragubba’s grandson Nathan Baira (also known by his tribal name as “Gundalu”) (Gundalu);

(iv)    Mr Burragubba’s daughters, Ms Keliy-Ann McAvoy, Ms Sharah McAvoy and Ms Meisha McAvoy, and,

(b)    Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Limited CAN 668 011 872 (Custodians Ltd)

(c)    (collectively referred to as “the Complainants” and/or “Group Members”).

35    Paragraph [3] of the Submissions said:

The Complainants and/or Group Members culturally define themselves by birthright as “First Nations persons who are self-determined Nagana Yarrbayn Wangan Jagalingou Cultural Custodians of the Wangan & Jagalingou First Nation and carry authority under the laws and customs of their people and Country”.

36    Paragraph [4] of the Submissions said:

The Complainants and/or Group Members constitute persons who are Aboriginal, who belong to the Aboriginal “race” and/or are of Aboriginal “ethnic origin”.

37    Custodians Ltd was described in [5] as follows:

Custodians Ltd is a representative organisation established to enable Mr Burragubba and other Wangan and Jagalingou cultural custodians for their clan estates to undertake activities including on-Country spiritual and cultural practices, monitoring and caring for Country, and fulfilling their role under law and custom as cultural custodians. Those laws and customs are not limited to statutory rights and interests but entail obligations consistent with Aboriginal Australians being the original custodians of the land and waters.

38    Plainly, nothing in that description indicated that it included other individual persons beyond those who had already been named in the Complaint Form. It did not convey the information about Custodians Ltd contained in the Rose Affidavit, notably at [20(c)], that it “represented members of the Applicant’s family, including the Applicant, the other named complainant and the Additional Family Group Members … when the complaint … was before the [Commission]” (emphasis added). To the contrary, the information conveyed in [3] is that the named persons in [1] are the “self-determined … Cultural Custodians”. Nothing in [5] suggests that Custodians Ltd comprises a wider group than Mr Burragubba and the self-determined Cultural Custodians, being those named in [1].

39    Further, although the introductory paragraph purported to include Custodians Ltd within the collective definition of “the Complainants and/or Group Members”, Custodians Ltd cannot sensibly be construed as defining itself by birthright as a “First Nations Person[]”, as described in [3], nor as a person who belongs to the Aboriginal race or is of Aboriginal ethnic origin, as referred to in [4].

40    Custodians Ltd is not otherwise mentioned in the Submissions. Rather, Mr Burragubba and members of his family are identified as “true custodians of the Water Dreaming” (at [10]). Mr Burragubba is said to carry cultural authority “through kinship ties to Country, under the laws and customs of his People, being the Wangan and Jagalingou People” (at [14]). It is then said that the “Wangan & Jagalingou Custodians are the Traditional Knowledge Holders of Doongmabulla Water, Spirit Dreaming, Creation Story” and that “Mr Burragubba, his family and extended family are through their kinship ties, defined as distinct People that exercise Traditional Cultural Practices …” (at [15]).

41    The imputations said to have arisen from the Media Releases and the Facebook Posts cannot, read sensibly, arise in respect of Custodians Ltd. They are said to have been made “because of the race, colour or ethnic origin of Mr Burrugubba’s family, including Gurridyula and/or the Complainants or of some or all of the Group Members” and that they “were reasonably likely to offend, insult, harass or intimidate Mr Burrugubba and/or Gurridyula and/or the Complainants and/or Group Members” ([35]-[36]; [42], [44]). A corporate entity does not have a race, colour or ethnic origin, nor can it be offended, insulted, harassed or humiliated (at least usually; but see Executive Council of Australian Jewry v Scully (1988) 79 FCR 537).

42    On 10 June 2025, the President’s delegate terminated the Complaint pursuant to s 46PH(1B)(b), being satisfied there were no reasonable prospect of the matter being settled by conciliation.

43    The Notice of Termination identified the following people as members of the class on whose behalf the Complaint brought by Adrain Burrugubba had been “accepted and progressed”: Jahshua McAvoy, Coedie McAvoy, Keliy-Ann McAvoy, Sharah McAvoy, Meisha McAvoy, Nathan Baira, Sharon Ford, Lyndell Turbane, Renay Baira and Custodians Ltd.

44    Bravus points to the purpose of the statutory scheme established by the AHRC Act as explained by the Full Court of the Federal Court (Emmett, Lander and Tracey JJ) in Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450 at [19]:

The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).

(Emphasis added.)

45    In Mathews v State of Queensland [2014] FCA 1280 at [13], Collier J said:

This Court has previously found that the effect of s 46PO of the Act is that the Court has no jurisdiction to permit inclusion of a person as a party in discrimination proceedings if the person was not a party to the original complaint to the Commission: Bahonko v Sterjov [2007] FCA 359 at [36]; Ioannou v Hellenic Community Aged Care [2012] FCA 1227 at [17]; O’Donoghue v State of Western Australia [2013] FCA 903 at [22]-[24].

(Emphasis added.)

46    Nothing in the Complaint nor in the Submissions can be construed as including extended family members who had not been specifically named in the Complaint Form.

Is the alleged unlawful discrimination the same?

47    Contrary to the mandate in s 46PO(3), the allegations pleaded in the Statement of Claim extend beyond the substantive limits traversed in the Complaint: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46], [48]. The Complaint was not based on being an “associate” of Mr McAvoy, nor on any “implication” that the matters complained of extended to those now sought to be included in the proceedings in this Court. Bravus submits that the allegations pleaded in the Statement of Claim also extend beyond the temporal limits of the Complaint: Travers v New South Wales [2000] FCA 1565 at [8]. It points to the fact that the Submissions, at [6(b)], referred to publications between 7 December 2022 and 22 September 2023, whereas the Statement of Claim at [4(f)] identifies alleged offending publications between “approximately 7 December 2022 to approximately October 2024”. Attachment 1 to the Complaint indicated a slightly broader timeframe of between 7 December 2022 and 1 May 2024. Mr McAvoy points to the allegation in the Complaint at [6(b)] alleging the continuation of “a pattern of conduct over a decade” as supporting the temporal breadth of the allegations in the Statement of Claim. The Complaint was nonetheless clear that what was before the Commission was the culmination of “adverse impacts affecting the Group Members … from publications made by Bravus between 7 December 2022 and 22 September 2023 … and certain messages and comments made on Bravus’ Facebook page”, none of which post date 1 May 2024. I accept that the temporal allegations in the Statement of Claim are wider than those in the Complaint.

48    Bravus submits the facts of this matter are similar to those considered by Hill J in Wilson v Commonwealth of Australia (Strike-out and Further Particulars) [2026] FCA 91, which concerned a terminated complaint of sex discrimination brought against the Commonwealth for having a publicised policy that Medicare benefits were only available where the patient seeking assisted reproductive technology (ART) services was medically infertile. Before the Commission, the complaint alleged unlawful discrimination against single women and lesbians. In Wilson, the statement of claim included within the definition of Group Members, persons who sought ART services for the purpose of donating an egg to another person to assist that person to conceive a child. Justice Hill found (at [36]) that the complaint did not in substance raise any discrimination against egg donors and so was not properly brought in the proceedings before the Court.

49    His Honour found further (at [43]) that the interpretation of s 46PO(3) of the AHRC Act is not guided by ss 33C and 33D of the FCA Act, which sections provide:

33C     Commencement of proceeding

(1)     Subject to this Part, where:

(a)    7 or more persons have claims against the same person; and

(b)    the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2)     A representative proceeding may be commenced:

(a)    whether or not the relief sought:

(i)    is, or includes, equitable relief; or

(ii)    consists of, or includes, damages; or

(iii)    includes claims for damages that would require individual assessment; or

(iv)    is the same for each person represented; and

(b)    whether or not the proceeding:

(i)    is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or

(ii)    involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

33D     Standing

(1)    A person referred to in paragraph 33C(1)(a) who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that other person on behalf of other persons referred to in that paragraph.

(2)    Where a person has commenced a representative proceeding, the person retains a sufficient interest:

(a)    to continue that proceeding; and

(b)    to bring an appeal from a judgment in that proceeding;

even though the person ceases to have a claim against the respondent.

50    As was the case in Wilson, the applicant in this proceeding argued that nothing in Pt IIB, Div 2 of the AHRC Act, including s 46PO(2A), expressly excludes representative proceedings being brought under Pt IVA of the FCA Act. In aid of that argument, they pointed to the note to s 46PO(2A) alerting readers to the fact that representative proceedings may be commenced in the Federal Court in certain circumstances. The note does not assist. Part IVA of the FCA Act is a procedural scheme; it does not grant substantive rights. If a claim is incompetent in this Court because it is wider than that considered and terminated by the Commission (contrary to s 46PO(3)), Pt IVA cannot circumvent the incompetence.

51    As Hill J said in Wilson at [45]:

Crucially, the preconditions for representative proceedings under Pt IVA are expressed in quite different terms from s 46PO(3); in particular, s 33C of the Federal Court Act requires that the claims of group members “are in respect of, or arise out of, the same, similar or related circumstances”, and give rise to a “substantial common issue of law or fact” (s 33C(1)(b) and (c), emphasis added). Section 46PO(3) and Pt IVA may sometimes overlap in their operation, but not every proceeding under s 46PO is a representative proceeding, and not every representative proceeding alleges discrimination. That is, the provisions have their distinct fields of operation. Even if one looks at the “shape” and “substance” of the Complaint made to the Commission (cf Dye (No 2) at [47]), I do not think the Complaint includes discrimination against a different class of people (egg donors cf persons seeking to conceive a child), when the description of the Policy in the Complaint does not suggest that egg donors are discriminated against in their own right.

52    Although the applicants insisted that the “shape” and “substance” of their Complaint to the Commission included the Additional Family Members, for the reasons I have already articulated, that was not so. Indeed, the Statement of Claim goes much further than the Complaint by attempting to include within the Group Members persons who do not bring a claim because of anything that happened to them or because of any mention of them in the impugned material, but who claim to have been included in racially hateful matters “by association” with Mr McAvoy or by “implication” arising from what has been said about Mr McAvoy (Statement of Claim at [7]-[34]).

53    The applicant sought to draw comfort and support from s 46PR of the AHRC Act, in respect of which Hill J observed in Wilson at [41]:

Nor are the Applicants assisted by s 46PR of the AHRC Act, which provides that the Court is “not bound by technicalities or legal forms” in proceedings under Pt IIB, Div 2. The substantive directions given by s 46PO(3) must still be respected, notwithstanding s 46PR: Dye (No 2) at [48], citing Maghiar v Western Australia [2002] FCA 262 at [18] (French J). That is because provisions such as s 46PR only give the Court this flexibility when dealing with matters within its jurisdiction: see Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [105] (White J), citing Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64; (2020) 276 FCR 53 at [104]-[105] (the Court).

54    As I have concluded that this Court does not have jurisdiction to entertain the claim sought to be brought by Mr McAvoy on behalf of persons who were not included in the Complaint, s 46PR does not assist. It does not operate to permit the assumption of jurisdiction where none exists.

disposition

55    For these reasons, the proceeding must be dismissed with respect to any person who is not an “affected person” with respect to the terminated Complaint. It is therefore unnecessary for me to deal with Bravus’ alternative submissions as to the definition of the class under Pt IVA of the FCA Act.

56    Bravus submits that the proceeding should more properly have been commenced as a representative application within the meaning of the AHRC Act. I agree. Bravus therefore submits that the proceeding should be discontinued in respect of Group Members who have not consented to the commencement of the proceeding. I do not agree with this submission. Conscious of the provisions of s 37M of the FCA Act, I consider the more appropriate course in the circumstances is to order, pursuant to s 33ZF, that the class be closed and that it be defined as comprising those individuals who were named in the Complaint. Nothing prevents any one or more of those named individuals from opting out of the proceeding should they so choose.

57    I will hear the parties further as to whether, once necessary amendments are made to the Statement of Claim to reflect these reasons, Bravus continues to press its complaints about the claims advanced in the Statement of Claim at [5(b)] and [6]-[37]. I will also hear the parties on the question of costs.

Associate:

Dated:    1 June 2026