Federal Court of Australia

Li v Nursing and Midwifery Board of Australia [2026] FCA 733

ORDERS

THE COURT ORDERS THAT:

1.    Summary judgment is entered in favour of the Respondents pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), on the ground that the proceeding has no reasonable prospect of success.

2.    The Applicant pay the Respondents’ costs, fixed in the sum of $14,000.

3.    The Applicant’s application for a pseudonym order and suppression orders under ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) is refused.

4.    Pursuant to r 2.32(3) of the Federal Court Rules 2011 (Cth), Exhibit HL-5 to the Applicant’s affidavit of the Applicant dated 26 May 2026 is not available for inspection without the leave of the Court.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Applicant is a registered nurse, who seeks to challenge a decision made by the First Respondent (the Board) that required the Applicant to undergo a performance assessment. The Second Respondent (AHPRA) is the regulator responsible for medical practitioners, including registered nurses. As discussed below, both the Board and AHPRA are established by State legislation; relevantly here, the Health Practitioner Regulation National Law (Victoria) (the National Law (Vic)). The Board says it was exercising powers under Pt 8 of the National Law (although the Applicant says the Board and AHPRA did not identify any source of power).

2    The Respondents contend that this Court does not have jurisdiction, and have applied for summary judgment. The Applicant contends in her originating application and concise statement that this Court has jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth), on the basis that AHPRA is an “officer of the Commonwealth”. Her written submissions on jurisdiction raise further arguments.

3    For the reasons set out below, neither AHPRA, the Board, nor the officers who constitute AHPRA or the Board, are “officers of the Commonwealth”. There is no other applicable basis of jurisdiction. Accordingly, there is no arguable basis on which the Court has jurisdiction to determine the proceeding, and summary judgment must be given in favour of the Respondents. The Applicant must pay the Respondents’ costs, fixed in the sum of $14,000.

4    The Applicant has also applied for confidentiality orders; in particular, that she be identified by a pseudonym. She has not established that it is necessary to make those orders, so this application is refused. However, an order will be made that certain parts of her evidence (relating to her child’s medical condition and expenses) is not available for inspection without leave of the Court.

background

5    Application for judicial review (Dec 2025): The decision under review was made in October 2025. The Applicant lodged an originating application for judicial review and a concise statement, both dated 17 December 2025. The orders sought in the originating application were for an extension of time, as well as certiorari, prohibition and declarations. That application was supported by an affidavit of the Applicant dated 17 December 2025. These documents contended that the source of the Court’s jurisdiction is s 39B(1) of the Judiciary Act.

6    Application for urgent relief (Jan 2026): In January 2026 (it appears before the above documents were accepted for filing), the Applicant filed an urgent application for relief under r 7.01 of the Federal Court Rules 2011 (Cth), seeking an interim stay before the start of a proceeding. That application was supported by another affidavit of the Applicant dated 15 January 2026. The reason for seeking this urgent relief was that the performance assessment being challenged was scheduled for 20 January 2026.

7    Performance review postponed; urgent relief refused (Jan 2026): That urgent application was heard by Horan J, as duty judge, on 19 January 2026 (the day before the proposed date for the performance review). His Honour did not grant the urgent relief sought. AHPRA and the Board agreed to postpone the performance assessment. Horan J held that any application for interlocutory relief could be made to the docket judge, once the proceeding had been commenced. His Honour made the following comments on whether this Court had jurisdiction under s 39B(1) of the Judiciary Act:

(a)    There “remain[ed] doubts” about whether the proposed proceeding for judicial review of the Board’s decision is within the jurisdiction conferred on this Court under s 39B of the Judiciary Act. The National Law (Vic) is a State law, and therefore matters arising under the National Law (Vic) do not “arise under a law of the Commonwealth” within s 39B(1A)(c) of the Judiciary Act.

(b)    It was doubtful whether the Board, AHPRA, or their respective officers and employees can be regarded as officers of the Commonwealth for the purposes of s 39B of the Judiciary Act. While both AHPRA and the Board are national bodies, it appears that they are established by, and act under, laws enacted by participating States so as to create a national scheme. His Honour referred to Pardo v Australian Health Practitioner Regulation Authority [2013] FCA 91; (2013) 211 FCR 431 at [23]-[24], [28]-[35] (Kerr J); Broadbent v Medical Board of Queensland [2011] FCA 980; (2011) 195 FCR 438 at [108]-[130], [174]-[195] (Greenwood J); and, in a different context, DJC21 v Medical Board of Australia [2022] FCA 832 at [27]-[35] (Abraham J) and DJC21 v Medical Board of Australia [2022] FCA 1502 at [38]-[43] (Rares J).

(c)    Horan J stated that it was not appropriate to reach a concluded view on the question of jurisdiction for the purposes of the determination of the application made under r 7.01 of the Rules. Rather, his Honour decided to “proceed on the basis that it is at least arguable that the proposed proceeding can be commenced within the jurisdiction of this court”. Horan J stated that it would remain open to the Board and AHPRA to object to the competency of any proceeding on the ground that the Court lacks jurisdiction.

(d)    Justice Horan stated that, once the proceeding has been commenced, “any application for interlocutory relief can be managed by the docket Judge to whom the proceeding is allocated”. Any further regulatory action by the Board or AHPRA to which the Applicant objects “can be made the subject of an application for interlocutory relief, which may be heard either by the docket Judge or in the duty list”.

8    Case management hearing (Apr 2026): The proceeding was allocated to me in April 2026. The Applicant filed an interlocutory application dated 14 April 2026 seeking a stay and injunctions against the Respondents pending the determination of the proceeding (and separately orders seeking non-publication of her name). At the first case management hearing on 29 April 2026, the Respondents stated that they wished to challenge the jurisdiction of the Court to determine these proceedings. The Respondents have given an undertaking not to continue, implement or give effect to the Board’s decision of 16 October 2025, or to take steps related to AHPRA’s email to the Applicant dated 6 January 2026, until the Respondents’ summary dismissal/strike out application has been heard and determined. That undertaking made it unnecessary to determine the Applicant’s interlocutory application.

9    Application for strike out/summary dismissal (May 2026): On 13 May 2026, the Respondents brought an application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Rules, on the ground that the proceeding has no real prospect of success and/or is frivolous. The parties have each filed written submissions. As discussed at the case management hearing, I am satisfied that this issue can be determined without an oral hearing, because there is no real issue of fact to be determined and the legal arguments can be dealt with adequately by written submissions: see Federal Court Act s 20A(2)(c).

Consideration

A.    Summary judgment

10    Federal Court Act s 31A (no reasonable prospect of success): The Court may give judgment to a party defending a proceeding against another party in relation to the whole or part of the proceeding if “the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding” (Federal Court Act s 31A(2)(b)). For these purposes, a proceeding or part of a proceeding need not be hopeless, or bound to fail, for it to have no reasonable prospect of success (s 31A(3)).

11    Rules r 26.01: By r 26.01(1) of the Rules, a party may apply to the Court for an order that judgment be given against another party because (relevantly) (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or (b) the proceeding is frivolous or vexatious. A proceeding is “frivolous” if the cause of action lacks substance or is groundless or fanciful, or where a party is trifling with the court or wasting its time. A proceeding is “vexatious” if (relevantly to this case) it is without foundation or cannot succeed: see for example Scordo v Commonwealth Bank of Australia [2024] FCA 359 at [48] (Button J), and the cases cited. (I note that “vexatious” includes other situations that are not relevant here.)

12    Summary judgment – general principles: Section 31A of the Federal Court Act requires the Court to consider whether there is a “reasonable” prospect of prosecuting the proceeding, not whether a certain and concluded determination could be made that the proceeding would necessarily fail: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [52] (Hayne, Crennan, Kiefel and Bell JJ). Summary judgment is available (relevantly) when well-established propositions of law deny the prospect of success. On the other hand, summary dismissal is a “serious step taken only with great care” and if the Court is confident that there is no reasonable prospect of success: see Sop & Sop Pty Ltd v Commissioner of Taxation [2019] FCA 102 at [13]-[15] (Kenny J); National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; (2019) 377 ALR 627 at [122] (Allsop CJ); Scordo at [45].

13    Significantly for this case, if the Court does not have jurisdiction, then an applicant will not have any reasonable prospect of success: Broadbent at [199]; Nyoni v Chee Koon Hee (No 4) [2013] FCA 948 at [23] (Gilmour J); Lal v Royal Australasian College of Physicians [2025] FCA 348 at [47] (Collier J). It has long been established that it is the “very first duty” of a court to determine whether it has jurisdiction to determine a matter: see, for example, Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police (Victoria) [2026] FCAFC 47 at [8] (Snaden and Shariff JJ); Hazeldell Ltd v Commonwealth of Australia [1924] HCA 36; (1924) 34 CLR 442 at 446 (Isaacs ACJ). Further, as the Respondents submit, the jurisdiction of the Court (in the sense of its authority to determine the subject-matter of the proceeding) is not a matter of discretion. To illustrate that point, it is clear that the parties cannot by consent confer power on the Court to make orders which the Court lacks power to make: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 163 (the Court).

14    Duties to unrepresented litigants: In applying these principles, I am conscious that the Applicant does not have legal representation. The Court has an overriding duty to ensure a fair hearing for all parties, which means the Court will take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair hearing: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court).

15    However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court). In particular, a party who does not have legal representation is still responsible for pleading a case or (when relevant) stating the nature of a defence: Azad v Avant Insurance Limited (No 2) [2025] FCA 853 at [8] (Colvin J); Bilal v EML NSW Limited [2025] FCA 1190 at [8]-[9] (Shariff J).

16    In this case, it appears from materials received from the Applicant that the Respondents have, quite properly, attempted to explain to the Applicant that this Court does not have jurisdiction. And as noted, Horan J stated in his judgment in January 2026 that there remained doubts whether the Court has jurisdiction (although his Honour determined the urgent application on the basis that it was arguable that the Court had jurisdiction): see [7] above. At the first case management hearing before me, I tried to explain to the Applicant my concerns that the Court did not have jurisdiction.

B.    Sources of jurisdiction

17    The Court is created by the Federal Court Act, and has “such original jurisdiction as is vested in it by laws made by the Parliament” (s 19). “Parliament” means the Commonwealth Parliament: AZC20 v Commonwealth of Australia [2023] FCA 845; (2023) 182 ALD 241 at [26] (Banks-Smith J).

18    Judiciary Act s 39B(1): As noted, the Applicant contends in her originating application and her concise statement that the Court has jurisdiction under s 39B(1) of the Judiciary Act, which provides that this Court has jurisdiction “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”

    The major issue is whether either of the Respondents is an “officer of the Commonwealth” for these purposes. That issue is discussed next.

    The other requirements of s 39B(1) are met: the originating application seeks a writ of prohibition, as well as other remedies. If there is a good faith application for a remedy that brings the matter within the Court’s jurisdiction, the Court may grant whatever remedy is appropriate: see for example R v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15 at 26 (Gibbs J, with Barwick CJ, Stephen, Mason and Wilson JJ agreeing); Re IBM Global Services Australia Ltd [2005] FCAFC 66; (2005) 144 IR 389 at [10]-[13] (Gray J, with Whitlam J agreeing and Moore J agreeing on this point); Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32; (2007) 157 FCR 260 at [47] (the Court).

19    “Officer of the Commonwealth”: An “officer of the Commonwealth” is a person appointed by the Commonwealth to an identifiable office who is paid by the Commonwealth for the performance of their functions under the office and who is responsible to and removable by the Commonwealth concerning the office: Broadbent at [100]; see also R v Murray & Cormie; Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 452-453 (Isaacs J); Luck v University of Southern Queensland [2014] FCAFC 135; (2014) 145 ALD 1 at [58] (the Court). Persons who hold office under State law are not “officers of the Commonwealth”, even when performing functions under Commonwealth law, such as State judges exercising federal jurisdiction (Murray & Cormie; R v Anderson, Ex parte Bateman (1978) 53 ALJR 165 at 165 (Gibbs ACJ, with Stephen, Jacobs, Murphy and Aickin JJ agreeing)), and State judges performing administrative functions under Commonwealth legislation in a personal capacity (Trimbole v Dugan [1984] FCA 367; (1984) 3 FCR 324 at 327-328 (Woodward J); Sayer-Jones v Detective Senior Constable Bell [2015] FCA 765 at [33]-[34] (Foster J); cf Vasiljkovic v Commonwealth [2006] HCA 40; (2006) 227 CLR 614 at [102] (Gummow and Hayne JJ), who left this question open). Self-evidently, State officers are not “officers of the Commonwealth” when performing functions under State law.

20    On decided cases, a body corporate is not an “officer”, and therefore cannot be an officer of the Commonwealth: Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499 at 500 (Gummow J); Post Office Agents Association Ltd v Australian Postal Commission [1988] FCA 434; (1988) 84 ALR 563 at 575 (Davies J); New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission [1995] FCA 672; (1995) 59 FCR 369 at 382 (Hill J); Vietnam Veterans’ Affairs Association of Australia New South Wales Branch Inc v Cohen [1996] FCA 981; (1996) 70 FCR 419 at 432 (Tamberlin J); McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118 at [26] (Branson J); Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230 at [96] (Finn J); Australasian College of Cosmetic Surgery Limited v Australian Medical Council Limited [2015] FCA 468; (2015) 232 FCR 225 at [42] (Katzmann J); see also Luck at [59]; Palmer v Australian Securities and Investments Commission [2025] FCAFC 151; (2025) 312 FCR 151 at [348] (the Court). This position has been subject to some academic criticism, but I consider that the cases cited above establish that a body corporate is not an officer of the Commonwealth: see Australian Medical Council at [42]-[43].

21    Other sources of jurisdiction: I mention two other sources of jurisdiction of this Court, only to explain why they do not apply here.

22    Judiciary Act s 39B(1A)(c): First, this Court also has jurisdiction under s 39B(1A)(c) of the Judiciary Act over matters “arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. This provision refers to matters arising under laws made by the Commonwealth Parliament. However, there is no Commonwealth law that confers powers on AHPRA or the Board: see section C below. The Respondents’ powers derive from the National Law (here, the National Law (Vic)), which is a State law. (I note the Applicant says that the decisions under challenge were not actually supported by the National Law (Vic), but that does not affect this analysis: the point is that there is no Commonwealth law.)

23    ADJR Act: Second, the Court also has jurisdiction to determine judicial review proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). However, review under the ADJR Act is only available if a decision comes within the definition of “decision to which this Act applies” in s 3(1). One element of that definition is that the decision is made under an enactment (see paras (a) and (b) of the definition). A challenge to a decision made under the National Law does not satisfy that element: Broadbent at [178]-[180], followed in Pardo at [29].

    The ADJR Act applies to a decision made under “an Act” (apart from specified Acts) or under an instrument made under such an Act (see definition of “enactment” in s 3(1), paras (a) and (c)). However, an “Act” means a Commonwealth Act (see Acts Interpretation Act 1901 (Cth) s 38(1)), whereas the National Law (Vic) is a State Act.

    The ADJR Act also applies to a decision by a Commonwealth authority or Commonwealth officer made under a State Act described in Sch 3 to the ADJR Act, or under instrument made under such a State Act (see definition of “enactment”, paras (ca) and (cb)). However, the National Law (Vic) (or the National Law of any jurisdiction) is not described in Sch 3 of the ADJR Act, nor in regulations made under s 19B.

C.    National Law, the Board and AHPRA

24    The test for “officer of the Commonwealth” looks to how a person is appointed to, paid for, and removed from, an office: see [19] above. The following sets out those matters in relation to the Board and AHPRA under the National Law.

25    National Law: The Health Practitioner Regulation National Law is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). The Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (the Victorian Act) applies the National Law as a law of Victoria (Victorian Act s 4(a)). There is a similar application Act in each State, and the Northern Territory and the Australian Capital Territory. The National Law is not applied by any Commonwealth Act.

26    The Board: National Boards are established under Part 5 of the National Law, with each National Board overseeing a particular health profession. The “Nursing and Midwifery Board of Australia” (that is, the Board) is continued under reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (Vic) (and corresponding regulations in the other States and Territories), read with s 31(1)-(2) of the National Law.

27    The relevant features of a National Board, such as the Board, are as follows:

    A National Board is a body corporate, and represents the State (National Law s 31A(1)(a), (2)).

    The members of a National Board are appointed in writing by the Ministerial Council (s 33(1)). The Ministerial Council consists of the Ministers responsible for matters relating to health from each “participating jurisdiction” (that is, the States and Territories) and the Commonwealth (see the definition in National Law s 5).

    Members of a National Board are entitled to such remuneration as determined by the Ministerial Council from time to time (National Law Sch 4 item 3).

    A member of a National Board may be removed from office by the Chairperson of the Ministerial Council under National Law Sch 4 item 4, on the grounds set out in item 4(2).

28    AHPRA: AHPRA is established by Pt 4 of the National Law (see s 23(1)). AHPRA is a body corporate, and represents the State (s 23(2)(a) and (3)).

    There is an Agency Board, which consists of members appointed by the Ministerial Council (s 29(2)). Members of the Agency Board are entitled to such remuneration as determined by the Ministerial Council from time to time (National Law Sch 2 item 3). A member of the Agency Board may be removed from office by the Chairperson of the Ministerial Council under National Law Sch 2 item 4, on the grounds set out in item 4(2).

    AHPRA consists of a Chief Executive Officer (see National Law Sch 3, Pt 1), and staff, consultants and contractors (Sch 3, Pt 2). Staff (including the Chief Executive Officer) are employed, and consultants and contractors are engaged, on terms and conditions determined by AHPRA (Sch 3, items 5(2) and 7(2)).

D.    Does the Court have jurisdiction?

29    Respondents are not “officers of the Commonwealth”: Applying the matters set out in sections B and C above, the Court plainly does not have jurisdiction to determine these proceedings. In particular, the Respondents are not “officers of the Commonwealth” within s 39B(1) of the Judiciary Act, and neither are officers of the Board or of AHPRA. That is for two reasons.

    First, in the case of the Board and AHPRA, they are both bodies corporate. A body corporate is not an “officer”, and therefore not an officer of the Commonwealth: see [20] above. By itself, this point might not be conclusive, if the officers of the Board or AHPRA involved in the challenged decision were officers of the Commonwealth who could be joined as respondents: see the approach in Mercantile Mutual Life Insurance Co v Australian Securities Commission [1993] FCA 61; (1993) 40 FCR 409 at 430 (Gummow J).

    Second, and more importantly, the Board and AHPRA, and their officers, are all creatures of State law. They are not officers “of the Commonwealth”: see Broadbent at [104]-[105]. The Board and AHPRA represent the State. These bodies are established by State law, and their officers are appointed, remunerated and removed under State law. No-one in this statutory scheme is appointed, remunerated or removed by the Commonwealth: the extent of any Commonwealth involvement is limited to the Commonwealth Health Minister being one member of the Ministerial Council.

30    A “national law” does not alter the analysis: It is true that the Board, and AHPRA are described as national bodies: the Board is the Nursing and Midwifery Board of Australia, and AHPRA’s title is the Australian Health Practitioner Regulation Agency. Further, the Queensland law applied by s 4 of the Victorian Act is titled the Health Practitioner Regulation National Law. In practice, these bodies and the governing law do operate nationally. However, that result is achieved through the enactment of identical (or near identical) State and Territory legislation, with each Act in this scheme expressed to operate both within and outside the enacting jurisdiction: see National Law ss 7 (“Single national entity”) and 8 (“Extraterritorial operation of Law”). The enactment and adoption of the National Law does not involve any transfer in a constitutional sense to the Commonwealth of jurisdiction in respect of the establishment, powers or functions of the bodies in the national scheme (such as the Board and AHPRA): Broadbent at [128].

31    This Court has consistently recognised that the National Law is not a Commonwealth law: see Broadbent at [181]; Pardo at [23]-[24]; see also DJC21 [2022] FCA 1502 at [35] (the National Law is not a “Commonwealth law” within the meaning of the Disability Discrimination Act 1992 (Cth)).

32    It follows that officers who are appointed under the National Law (such as the officers of the Board and AHPRA) are not officers of the Commonwealth: Broadbent at [18]. Crucially, s 39B(1) of the Judiciary Act (like s 75(v) of the Constitution, on which it is modelled) is referring to officers of the Commonwealth government, not officers of “the Commonwealth” in some geographical sense. The conferral of this category of federal jurisdiction (that is, authority to decide deriving from Commonwealth law) is required, because State courts do not have authority under State law to compel officers appointed by the Commonwealth government to perform duties imposed by Commonwealth law: see MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601 at [27]-[30] (Gleeson CJ, Gummow and Hayne JJ). The fact that AHPRA can be considered the national regulator, performing functions under a “national” law, does not convert it into a Commonwealth body, nor convert its officers into Commonwealth officers. The same is true of the Board and its officers.

33    Applicant’s arguments: The Applicant has filed written submissions on jurisdiction. Her arguments are considered below.

34    Horan J did not find that jurisdiction was arguable: First, the Applicant contends that the proceedings should not be summarily dismissed under s 31A of the Federal Court Act, because Horan J has determined that there is an arguable case that this Court has jurisdiction. However, his Honour held only that he would proceed on the basis that it was arguable that this Court had jurisdiction; that is, he would assume this matter in the Applicant’s favour for the purposes of dealing with an urgent interlocutory application without making a decision on the point. His Honour expressly contemplated that the Respondents could file an objection to competency: see [7](b)-(d) above. As already explained, there is no arguable basis of jurisdiction under any of s 39B(1) or 39B(1A)(c) of the Judiciary Act, or the ADJR Act.

35    Irrelevant to jurisdiction whether the Board or AHPRA have not identified the source of power: Second, the Applicant contends that Broadbent and Pardo are distinguishable, because the decision-makers in those cases had explicitly identified the powers they were exercising (whereas here, she contends, the Board and AHPRA have not identified any source of power). I do not need to decide whether it is correct that the Board and AHPRA have not identified the power on which they rely: even assuming that to be correct, it does not undermine the relevance of Broadbent and Pardo. Those cases establish that no part of the National Law is a Commonwealth law, which means that this Court does not have jurisdiction under s 39B(1A)(c) of the Judiciary Act, and further that officers appointed under that Law are not “officers of the Commonwealth”. As already noted, the key point for jurisdictional purposes is that there is no Commonwealth law in this legislative scheme. That absence of any relevant Commonwealth law means that any failure to identify the source of power would at most go to whether the decisions were lawfully made, not to whether this Court has jurisdiction.

36    This Court only has supervisory jurisdiction over Commonwealth officers and Commonwealth decisions: Third, the Applicant contends that she relies on the supervisory jurisdiction of the Court under s 39B of the Judiciary Act, “together with the constitutional principles identified in Plaintiff S157[/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476] and Craig [v South Australia [1995] HCA 58; (1995) 184 CLR 163]”. But neither Plaintiff S157 nor Craig was dealing with the issue of jurisdiction (in the sense of authority to determine the subject-matter of the proceeding): in each case, the High Court was discussing the scope of judicial review in matters where it was plain that the relevant court had jurisdiction. The same is true of Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41: (2010) 243 CLR 319, to which the Applicant also refers.

37    Specifically, Plaintiff S157 concerned the effect of a “privative clause”, which purported to restrict the grounds of challenge to decisions made under the Migration Act 1958 (Cth). The High Court held that, for constitutional reasons, the privative clause should not be interpreted as preventing judicial review on the grounds of jurisdictional error. However, there was no issue that the decision-maker in that case, the Refugee Review Tribunal, was constituted by an “officer of the Commonwealth”, and that the High Court had jurisdiction to determine the application. The High Court stated that the guaranteed jurisdiction s 75(v) of the Constitution “is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them”: Plaintiff S157 at [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), emphasis added. That is, s 75(v) of the Constitution (and s 39B(1) of the Judiciary Act) only ensure a minimum provision of judicial review in relation to decisions by officers of the Commonwealth, not decisions by State officers. And s 39B(1A)(c) of the Judiciary Act confers jurisdiction on this Court to review the legality of administrative decisions made under Commonwealth law, not decisions made under State law (subject to issues of accrued jurisdiction which do not arise here).

38    Judiciary Act, s 39B(1A)(b) is not engaged: Fourth, the Applicant contends in her written submissions (contrary to her originating application and concise statement) that she relies on s 39B(1A)(b) of the Judiciary Act, which confers jurisdiction on this Court with respect to matters arising under the Commonwealth Constitution or involving its interpretation. However, the Applicant does not identify (and there is not) any arguable right or defence at issue in this proceeding that owes its existence to the Constitution or depends on the Constitution for its enforcement. Therefore there is no “matter arising” under the Constitution. Nor does the Applicant identify any part of the Constitution that arguably requires interpretation. Rather, the argument appears to be that Plaintiff S157 establishes that the legality of public power should be determined by a court according to law. Even accepting that to be true, an essential part of determining a matter according to law is that the court in question has jurisdiction. Section 39B(1A)(b) does not confer the necessary jurisdiction on this Court.

39    No accountability gap: Fifth, the Applicant contends that the Court should ensure that there is no “accountability gap”. But there is no accountability gap: the legality of decisions made by the Board and AHPRA made in Victoria can be determined by the Supreme Court of Victoria.

40    Any “interstate character” is irrelevant: Sixth, the Applicant contends that the interstate character of the dispute is a substantial issue requiring determination rather than summary dismissal. Strictly, any decisions made in Victoria would derive their authority from Victorian law, noting that the National Law applies in Victoria as a law of Victoria. In any event, the nature of the national scheme has been considered in Broadbent and Pardo, and the jurisdictional issues here involve the application of settled principles (particularly relating to “officers of the Commonwealth”). The Applicant has not been able to identify any arguable basis on which this Court would have jurisdiction: indeed, her arguments are contrary to well-established propositions of law.

41    No power to transfer proceedings: Finally, the Applicant seeks as an alternative that the proceeding be transferred to the Supreme Court of Victoria under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the correct provision is actually s 5(4)). However, on decided cases, the transfer power only exists if this Court has jurisdiction over the matter, because the power to transfer is itself an exercise of jurisdiction: see McIntosh v National Australia Bank Ltd [1988] FCA 72; (1988) 17 FCR 482 at 483-484 (Gummow J); Bell Group Ltd v Westpac Banking Corp [2000] FCA 439; (2000) 104 FCR 305 at [173] (Carr J). The transfer provision in s 5(4) cannot validly apply to the transfer of a matter in State jurisdiction from this Court to a State Supreme Court, given the holding in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 that neither Commonwealth nor State law can confer State jurisdiction on this Court.

E.    Application for confidentiality orders

42    Separately, the Applicant seeks an order under s 37AF of the Federal Court Act that her name be replaced with a pseudonym in all Court documents, and that the file be suppressed and not be available for inspection without the leave of the Court. She has not filed an interlocutory application for this order (cf r 17.01 of the Rules), but her submissions set out with sufficient clarity the basis on which she seeks these orders, and the evidence on which she relies. In this situation, I will not insist on strict compliance by a self-represented litigant with the Rules. The Respondents do not take a position on whether these confidentiality orders should be made.

43    Power to make pseudonym orders: Generally the Court is required to exercise its jurisdiction in open court (Federal Court Act s 17(1)). The Court’s power to make non-publication orders derives from ss 37AF and 37AG of the Federal Court Act.

    The Court has power to make a suppression order or non-publication order on the grounds permitted by Pt VAA of the Federal Court Act, which prohibits or restricts the publication or other disclosure of information tending to reveal the identity of or otherwise concerning any party to a proceeding before the Court (s 37AF(1)(a)).

    The grounds on which the Court may make a suppression order or non-publication order are set out in s 37AG(1). Relevantly, those grounds include “the order is necessary to prevent prejudice to the proper administration of justice” and “the order is necessary to protect the safety of any person” (s 37AG(1)(a) and (c)).

44    Suppression or non-publication orders are only made in exceptional circumstances: s 37AG(1) requires that the order be “necessary”, and the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: see for example Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8] (the Court).

45    Considerations of embarrassment, convenience or personal sensitivity do not in themselves justify making a pseudonym order. Rather, a pseudonym order will only be made if justice cannot be done if the proceeding is heard in open court or without the use of a pseudonym or other derogation from open justice: Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160; (2022) 294 FCR 221 at [27]-[28] (the Court).

46    Administration of justice and privacy (s 37AG(1)(a)): Starting with the proper administration of justice, the Applicant contends that identification of the Applicant at this stage would expose her to significant and irreversible reputational damage before the lawfulness of the investigation has been determined. She contends that fairness requires the protection of her professional reputation at this stage, and notes that AHRPA and the Board are subject to the obligations of the Privacy Act 1988 (Cth) (applied as State law by s 213 of the National Law), and that s 216 of the National Law restricts the disclosure of “protected information” (defined in s 214 to mean information that comes to a person’s knowledge in the course of, or because of, a person exercising functions under the National Law).

47    These matters referred to by the Applicant do not justify making a pseudonym order under s 37AG(1)(a). I would accept that the Respondents’ practice is to keep investigations of registered health practitioners private. However, the fact that administrative investigative processes are held in private does not, itself, justify making a pseudonym order in court proceedings challenging those administrative processes: see Keyzer v La Trobe University [2019] FCA 646; (2019) 165 ALD 93 at [31]-[35], [47] (Anastassiou J); SRGF v Comcare [2025] FCA 637 at [8] (Kennett J); Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435 at [30]-[33] (Merkel J, with Finn and Stone JJ agreeing). This is not a case where there is a statutory prohibition on disclosing the fact that a person is the subject of an investigative process, which may provide a proper basis for a pseudonym order (see, for example, LHRC v Deputy Commissioner of Taxation (No 4) [2015] FCA 70; (2015) 326 ALR 150 at [19]-[20] (Perry J)).

48    The Privacy Act (as applied by s 213 of the National Law) and s 216 of the National Law do not take the position any further: those laws apply to disclosure by the Board or AHPRA, and do not address whether information contained in an application to this Court should be kept confidential. And s 216 authorises a disclosure that is permitted or required by law (s 216(2)(c)).

49    Protecting the safety of a person (s 37AG(1)(c)): The principles relating to s 37AG(1)(c) of the Federal Court Act (protecting the safety of a person) were summarised by Vandongen J in Leigh v National Disability Insurance Agency [2025] FCA 623 at [14], [29] as follows:

    The overall test is whether upon the evidence, the Court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

    The need for a suppression order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. But there must at least be a demonstrable or real risk to the safety of an applicant for a suppression order (or another person) if the order is not made.

    Cogent evidence is needed, and it is not sufficient that an applicant believes that the orders are necessary. That is not a matter of mere form but is for the purpose of ensuring that suppression orders are kept for exceptional cases.

50    The Applicant contends that she has submitted medical evidence indicating that the investigative process to which she has been subject (which has been ongoing for some years) has caused her significant psychological distress, and that identifying her publicly would materially increase the risk of psychological harm and impair her capacity to continue the proceedings.

51    These proceedings are of course brought by the Applicant herself, so this is not a case where a person’s reputation has been exposed to public scrutiny without their consent. That said, I would accept that a pseudonym order should be made, if it is necessary to protect the safety of a person, even if that person is the applicant: see SRGF at [14], [18] (noting that Kennett J stated that the relevant basis for confidentiality in this situation was s 37AG(1)(a)).

52    Here, the evidence provided by the Applicant does not support making a pseudonym order.

    The Applicant’s first affidavit attaches a medical certificate dated 28 June 2022, which states (in full) that the Applicant “has a medical condition and will be unfit for work from 27/06/2022 to 01/07/2022 inclusive”. This affidavit also attaches an email from the Applicant to AHPRA dated 9 July 2024, where the Applicant states that she has “a medical condition affecting on my limbs functioning and daily routine at the moment and am receiving urgent treatment”. The email states that a medical certificate is attached, but this certificate is not included in the first affidavit.

    The Applicant’s supplementary affidavit attaches a medical certificate dated 4 December 2025. The operative parts state, in full, the Applicant “has been suffering from aggravation of anxiety depression on treatments”, and “[i]t would be appreciated if some support could be provided”. This affidavit also attaches a Centrelink medical certificate provided by the same doctor, also dated 4 December 2025, states that the Applicant’s symptoms are “extremely distress, depressed, anxious, insom[n]ia”, and states that in the doctor’s opinion the person is unfit for work/study from 1 December 2025 until 1 March 2026.

53    This evidence is expressed in the most general of terms, and the material in the first affidavit is also out of date. The Applicant has not established that the making of a pseudonym order or any other confidentiality order is necessary to protect her safety under s 37AG(1)(b) of the Federal Court Act.

54    Evidence of child’s medical condition and treatment: A separate matter is that the Applicant’s affidavit on the issue of costs (discussed below) attaches information about her child’s medical condition and treatment of this condition. This evidence is provided in support of a submission about financial hardship. There is no entitlement under the Rules for anyone to inspect this affidavit (see Rules r 2.32(2) and (2A)). However, I am prepared to make an order that this evidence concerning the child’s medical condition and treatment is not available for inspection without the leave of the Court.

F.    Costs

55    The final issue is costs. The Court has a broad discretionary power to award costs, under s 43 of the Federal Court Act. The general approach is that the successful party should be compensated for their costs of a proceeding to a level that is fair and just in the circumstances: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172 at [23] (the Court); Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25] and [27] (the Court). The successful party is ordinarily entitled to an award of costs in their favour unless good reason is shown to the contrary: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL (Costs) [2021] FCAFC 75 at [14] (the Court).

56    It is convenient to consider first whether the Applicant should be liable to pay any costs and, if so, then to consider the proper amount of those costs.

57    Liability for costs: The Applicant contends that there should not be any order for costs, and relies on an affidavit dated 26 May 2026 and written submissions for these purposes. That affidavit summarises her arguments as to why there should not be any order for costs as follows (which reflects the arguments in her written submissions):

a)    the Applicant acted in good faith throughout the proceeding for standing her rights after the Court registrar informed her on 21 Oct. 2025 that the [Federal Court] could exercise judicial power to review the Respondents’ investigative decision.

b)    the amended Application under s39B was accepted and filed by the Court on 13 Jan. 2026.

c)    On 19 Jan, 2026, the Duty Judge concluded that jurisdiction was reasonably arguable and then the case was managed by the Court.

d)    the Respondent’s conduct to cause the urgent hearing occurred and was dismissed.

e)    the Applicant sought to protect her professional registration, rights, and reputation through lawful court processes; and

f)    the Applicant is an individual of limited financial means, whereas the Respondents are national regulatory bodies represented by a large commercial law firm and supported by substantial public resources.

58    The matters raised by the Applicant do not, either separately or cumulatively, provide a reason for departing from the usual position that the unsuccessful party should pay the costs of the successful party.

59    First, bringing litigation in good faith is the bare minimum expected of parties (cf factor (a)), and does not excuse unsuccessful applicants from having to pay costs. I would be surprised if the Applicant had been advised by Registry in October 2025 that this Court had jurisdiction, because it is not the role of Registry to offer legal advice on substantive legal issues, as distinct from the procedures of the Court. I would be prepared to accept the Applicant might have misunderstood the effect of advice she was given by Registry. But in any event, she was advised by Horan J of the jurisdictional difficulties in January 2026, and by me at the case management hearing in April 2026. She has continued with these proceedings, contrary to this advice.

60    Second, the fact that a document is accepted for filing says nothing about its merits (cf factor (b)), but only whether it meets the formal requirements for filing.

61    Third, the Applicant has misunderstood the reasoning of Horan J (cf factor (c) above). His Honour (correctly) expressed doubts about whether this Court had jurisdiction, and dealt with the urgent applicant on the basis that (that is, making an assumption favourable to the Applicant) it was arguable that this Court had jurisdiction: see [34] above. It is not accurate to say (as the Applicant does in her submissions) that Horan J advised her to file an interlocutory application, if that is meant to suggest that his Honour encouraged her to continue with this proceeding. His Honour was instead explaining that his dismissal of her urgent interlocutory application did not prevent her from raising these issues again, if she commenced proceedings (despite the doubts his Honour expressed as to this Court’s jurisdiction): see [7](d) above.

62    Fourth, the reasons for the Applicant’s urgent interlocutory application and the dismissal of that application would at most be reasons for not awarding the costs of that application. These matters say nothing about whether the Respondents should receive their costs of defending the proceeding since then (cf factor (d) above). As explained below, the Respondents’ costs of defending that urgent application are properly recoverable.

63    Fifth, the fact that the Applicant brought these proceedings to defend her reputation is not a reason for not awarding costs, when that application is dismissed (cf factor (e) above). Again, bringing litigation for a proper purpose is the bare minimum expected of parties.

64    Sixth, the fact that the Applicant is of limited financial means is not relevant to whether a costs order should be made (cf factor (f) above). This point was made by the High Court in Sangare at [27], where the Court stated:

The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.

65    That said, it is a question for the Respondents as to how they would accept payment of costs. If the Respondents were to bring an application to enforce the costs order, the Applicant would then have an opportunity to apply for a variation of the time in which costs are able to be paid: see Webb v Australian Information Commissioner [2026] FCA 678 at [24] (Needham J).

66    Quantification of Respondents’ costs: In addition, the Applicant contends that she should not have to pay the entire amount sought by the Respondents.

    The Respondents seek costs in a lump sum of $14,442.06 (including GST) for the period up to 13 May 2026, which is approximately 80% of the Respondents’ costs of defending the proceeding to that point. This application is supported by an affidavit of Jialing Chen affirmed 13 May 2026 (the 1st Chen affidavit). The Respondents seek costs in a further sum of $5,446.85 (including GST) for costs incurred between 14 May and 5 June 2026. This application is supported by a second affidavit of Jialing Chen affirmed 5 June 2026 (the 2nd Chen affidavit).

    The Applicant contends that there are material errors and inconsistencies in the 1st Chen affidavit. These apparent errors and inconsistencies are explained and corrected in the 2nd Chen affidavit. I have considered all of the Applicant’s arguments, but it is only necessary to address two matters raised by her. (To be clear, the other matters raised by the Applicant are not a reason for reducing the costs payable to the Respondents.)

67    Costs of January 2026 hearing? The first matter is the costs of the urgent hearing before Horan J in January 2026. The 1st Chen affidavit states that these costs amount to approximately 19% of the solicitors’ fees up to 13 May 2026. I understand that to be approximately $2,970 (including GST).

68    As noted, Horan J dismissed the urgent application in January 2026, because the Respondents agreed to postpone the planned performance assessment. Contrary to the Applicant’s arguments, this agreement by the Respondents to postpone the performance assessment is not any admission of wrongdoing or error by them, but rather was a practical means of resolving the urgent interlocutory application without needing to incur the expense at that stage of making arguments on this Court’s jurisdiction. The application was dismissed, in circumstances where Horan J expressed doubts about this Court’s jurisdiction, and his Honour reserved costs. That is, his Honour left these costs to be determined as part of any application brought by the Applicant. In my view, these costs are recoverable by the Respondents.

69    Unnecessary duplication of costs? The Applicant contends that there is unnecessary duplication in the costs incurred by the Respondents in the period until 13 May 2026. I mention two matters in this respect of the Respondents’ costs incurred in this period.

70    First, the 1st Chen affidavit shows that a partner has done 11 hours work on this matter (which amounts to roughly half of the solicitors’ costs), a senior associate has done 8.7 hours, a lawyer less than 1 hour, and a graduate has done 8 hours. It is not for this Court to second guess how work is allocated within a firm of solicitors, but this evidence runs counter to the statement in the Chen affidavit that most of the work was done by a less experienced junior solicitor, under appropriate supervision.

71    Second, the Chen affidavit indicates that preparing for and attending the case management hearing in April 2026, and attendances afterwards to finalise procedural orders, amounted to approximately 37% of the solicitors’ fees. I understand that to be approximately $5,784 (including GST). This is more than the cost of briefing counsel, preparing the Respondents’ interlocutory application and written submissions, and counsel’s fees, combined. I would accept that communications with the other party are appropriately done by more senior lawyers. However, the Chen affidavit does not provide information on how much of this overall figure represents internal work (which would attract the comment in [69] above), and how much represents work in communicating with the Applicant.

72    The 2nd Chen affidavit explains the costs incurred between 14 May and 5 June 2026. The costs actually incurred were $6,808.56 (including GST), of which the solicitors’ fees were $4,608.56 and counsel’s fees were $2,200. Around 70% of the solicitors’ fees were incurred in preparing the 3-page submissions in reply. The amount sought is approximately 80% of the Respondents’ total costs for this period.

73    More appropriate benchmark is 60% of costs: Taking these matters together, I consider that a more appropriate benchmark is 60% of the Respondents’ total costs. A considerable amount of the analysis of the jurisdictional issue is contained in the ex tempore judgment of Horan J. The Respondents’ reply submissions raise the question whether one of the cases referred to in the Applicant’s submissions on jurisdiction is a hallucination produced by generative Artificial Intelligence. That matter is not important here because the Applicant’s underlying proposition (that the lawfulness of an administrative decision is determined as at the time of the decision) is clearly correct. As I have understood the Respondents’ calculations, 60% of their total costs for the initial period until 13 May 2026 would be around $10,700, and for the period from 14 May to 5 June 2026 would be around $4,000. Using that as a benchmark, I consider that the appropriate amount of costs is $14,000. The Respondents have foreshadowed making an application for further costs incurred after 5 June 2026, but I would not make any further orders for costs.

orders

74    For these reasons, summary judgment should be given in favour of the Respondents under s 31A of the Federal Court Act, on the basis that the proceeding has no reasonable prospect of success because this Court does not have jurisdiction. The Applicant must pay the Respondents’ costs, fixed in the sum of $14,000. The Applicant’s application for pseudonym and suppression orders is dismissed. However, an order will be made that Exhibit HL-5 to the Applicant’s affidavit of the Applicant dated 26 May 2026 is not available for inspection without the leave of the Court.

Associate:

Dated:    10 June 2026