FEDERAL COURT OF AUSTRALIA

Mohal v Australian Christian College (Strikeout and Dismissal) [2026] FCA 1388

ORDERS

THE COURT ORDERS THAT:

Defence

1.    The Defence filed on 16 January 2026 be struck out.

2.    Leave be granted to the Respondent to file and serve an Amended Defence consistent with the reasons for judgment published today.

3.    The Respondent file and serve its Amended Defence by 4:30pm on 23 October 2026.

Respondent’s Cross-Claim

4.    The Respondent’s Cross-Claim be dismissed.

5.    The Respondent not have leave to replead its Cross-Claim.

Removal of documents from the Court file

6.    Pursuant to r 2.28(1)(a)(i) of the Federal Court Rules 2011 (Cth), the Defence and Cross-Claim be removed from the Court file.

Costs

7.    The Respondent is to pay the costs of the Applicant and of Mrs Sampreet Mohal and Mr Mandeep Mohal of the Applicant’s interlocutory application filed on 6 March 2026.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    Miss Amreen Mohal, who is a minor and a school student, is the applicant in these proceedings through her mother, Mrs Sampreet Mohal, as litigation guardian. She made a complaint to the Australian Human Rights Commission (AHRC) on 2 May 2025. The substance of her complaint was that the school she had attended until earlier that year, the Australian Christian College at Marsden Park in New South Wales, operated by the respondent, had discriminated against her on the grounds of her race and ethnic origin.

2    The complaint was terminated after conciliation on 14 August 2025 by a delegate of the President of the AHRC and on 10 October 2025, Amreen commenced proceedings by way of Originating Application and Concise Statement. The proceedings were ordered to continue by pleadings and on 28 November 2025 she filed a Statement of Claim or SOC.

3    The respondent filed a document on 16 January 2026 entitled “Defence – Form 33 – Rule 16.32”, but which was internally headed “Defence and Cross-Claim”. The heading names Mrs Mohal and Mr Mandeep Mohal, Amreen’s mother and father respectively, as cross-respondents, although they are not parties to the Statement of Claim. I will refer to this document as the Defence or D. In addition, on 26 February 2026, the respondent filed a document entitled “Notice of Cross-Claim – Form 31 – Rule 15.02(1) (Human Rights Div 2.4 Exemption)”, which joined Amreen’s parents (including Mrs Mohal in her personal capacity) as cross-respondents. Amreen is not a named party to the Cross-Claim. I will refer to this document as the Cross-Claim or CC.

4    There is a lack of clarity about the role of each pleading. The Defence is divided into chapters. Chapter VI is entitled “Cross-Claim”. The Cross-Claim itself consists of the orders sought by the respondent and attaches the Defence, so as to incorporate its terms in the Cross-Claim, and so Chapter VI of the Cross-Claim is also entitled “Cross-Claim”.

5    Accordingly, from the terms of the respondent’s pleadings, it can be seen that the Defence includes elements of a cross-claim against Mr and Mrs Mohal in their personal capacities, and the Cross-Claim attaches the Defence pleading to the SOC notwithstanding that only Mr and Mrs Mohal are named as cross-respondents.

The pleadings

6    It is fair to say that the pleading in the Statement of Claim is fairly conventional and, apart from very minor notes about the use of the words “politely” (in relation to the manner in which Amreen declined to remove the Kara when first asked) and “insinuated” (as noted below), it complies with the rules of pleading as set out in r 16.02(1) of the Federal Court Rules 2011 (Cth). That rule provides:

16.02 Content of pleadings – general:

(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.

…

7    Rule 16.04 provides (relevantly to r 16.02(1)(d)):

16.04  References to documents or spoken words

(1) A pleading that refers to a document or spoken words need only state the effect of the document or words without including the terms of the document or the words themselves.

(2) However, if the words are material to the pleading, the pleading must include the words.

8    In contrast, and as is dealt with in more detail below, the Defence and Cross-Claim each transgress many of the sub-paragraphs of r 16.02(2) of the Rules. That sub-rule provides:

16.02 Content of pleadings – general:

…

(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.

9    I will outline the content of each of the pleadings below to illustrate these points.

The Statement of Claim

10    The SOC is 11 pages, and 50 paragraphs, long. It alleges that Amreen and her immediate family are Sikhs (SOC:3-4) and the particulars to that paragraph set out some of the culturally and socially distinct aspects of Sikhism, including that the Punjab region of northern India is their religious and national homeland, their distinctive community with a shared history and religion that are “defined by ethnic origins”, and, importantly in the context of Amreen’s complaint to the AHRC, that one of the “Five K” rules of conduct is the wearing of a Kara or steel bracelet.

11    Amreen alleges that she has worn a Kara since birth. She commenced at the College in Year 7 in 2022 and wore the Kara throughout her time there. The College’s uniform guide (Uniform Guide) “did not expressly prohibit or ban a student from wearing the Kara” (SOC:15), although it precluded the wearing of jewellery except for (in the case of female students) small studs or sleepers in their ears, and (for both sexes) medical alert bracelets, necklaces, and wristwatches (SOC:14).

12    On around 10 February 2023, when Amreen was in Year 8, Mrs Mohal contacted the College about the significance of the Kara and Amreen being permitted to wear it. The homeroom teacher advised that “religious items were not exempt from the Uniform Guide” and suggested that the Kara be covered (SOC:19). There the matter lay until November 2024, when Amreen’s Year 9 homeroom teacher took issue with the Kara and directed her to remove it, a request which was escalated to the Stage Coordinator and one which Amreen declined, she alleges, “politely” (SOC:21). She was issued with a detention. She received a second detention the next day (21 November 2024) for continuing to wear the Kara (SOC:22).

13    The issue was escalated further through correspondence and meetings, through which the Mohals requested an exemption for Amreen to wear the Kara, and in January 2025 (when Amreen was about to start Year 10), Mrs Mohal was notified that no exemption would be granted for her (SOC:30). There were further meetings and correspondence and on 5 February 2025 the principal of the College wrote to Mrs Mohal indicating (SOC:40 says “insinuated”) that Amreen should not attend school or the swimming carnival on 6 February 2025 until a meeting was able to be arranged. On 7 February 2025 Mr Mohal met with the principal and was told that the principal had determined to cancel Amreen’s enrolment at the College because “Amreen’s parents were not upholding the requirements of the Enrolment Contract” (SOC:42). This was formalised by an email cancelling her enrolment from 8 February 2025 (SOC:43).

14    The SOC pleads that the two detentions, the email suggesting that Amreen not attend school or the swimming carnival, and the cancellation of her enrolment at the College were each contraventions of s 9(1A) of the Racial Discrimination Act 1975 (Cth) (RDA) and that the requirement that she not wear the Kara was not reasonable (SOC:45 and 46). The SOC pleads a number of breaches of Amreen’s “human rights and fundamental freedoms” (SOC:48) including by reference to the College’s anti-discrimination, bullying, harassment and discrimination policy, the RDA, and international conventions, and seeks the relief in the Originating Application (being declarations, an apology, and damages).

The Defence and Cross-Claim

The Defence

15    The Defence is 167 paragraphs and 130 pages long. It includes the following chapters (as set out in the table of contents):

(1)    Chapter I: Construction of this Pleading. This chapter includes a dictionary including a dramatis personae. The dictionary refers to matters which may be thought of as self-evident (eg, “The College Website” is defined as “the College’s website with the URL https://www.acc.edu.au/marsdenpark/”), and others which pick up definitions in the SOC (eg, “Enrolment Contract”). The dictionary includes a section on “Electronic Communications”, which provides a definition for an email by date, then gives it an “assigned meaning” of sender and recipient and the paragraph to which it is referred in the body of the SOC. Other terms have an extensive internal definition (eg, “fetish” which is defined as:

(in accordance with the original, literal, and anthropological sense of the term) an inanimate object or charm – sometimes called a “talisman”, a “periapt”, a “juju”, an “amulet”, a “power object” or a “cult object” – which is usually handcrafted or artificially produced, and which is:

•    believed to have divine or spiritual powers or significance; or

•    believed to confer a supernatural protection upon the person who wears, displays or possesses it; or

•    otherwise regarded with awe, or with superstitious or extravagant trust or reverence,

but without conveying the implication (which may be present in certain ethnographic contexts) that the object or charm is thought to be the embodiment, manifestation, habitation or effigy of a divine, spiritual or supernatural being or force)”

(emphasis in original)

The SOC does not mention a “fetish”, but the Defence refers to the Kara as such in D:12(a)(i), “… five practices or fetishes of personal grooming, adornment or ornamentation”, and describes the Kara in D:12(c)(iii) in the following terms:

(iii) the kara, a bangle or bracelet, commonly made of a base metal such as steel or cast iron rather than a precious metal, taking its name from the Punjabi word, ਕੜਾ; …

and includes a footnote that the Punjabi word is “transliterated as kara or kada, literally meaning ‘hard’, ‘tough’ or ‘bracelet’”.

A number of the definitions have substantial footnotes (eg, “a Christian icon” which has seven dot-points in the footnote). Paragraph 6 of the Defence specifies that:

Matter contained in a footnote set forth in this pleading:

(a) is furnished by way of particulars of the averments set forth in the numbered paragraph of this pleading to which the relevant footnote is appended; and

(b) serves no other purpose.

(2)    Chapter II: Contextual Matters (including “Part A: Sikhism” and “Part B: The Punjabi People” as well as commentary on Amreen’s enrolment and its termination, of which more below).

(3)    Chapter III: Pleading Issues (including “Part A: The Applicant’s Case as Pleaded” and “Part B: What is not Pleaded in the Statement of Claim”). The first part of this section sets out what is said to be the effect of the provisions of direct and indirect discrimination under the RDA (D:37-38), restates in different terms the contraventions alleged in the SOC (D:39), and quotes various parts of the SOC (D:40-41). No direct pleadings to the allegations in the Statement of Claim appear in Part A of Chapter III; it is essentially introductory. Part B of Chapter III complains of what the respondent says is lacking in the pleading (including that no contravention of s 9(1) of the RDA is pleaded and that the SOC does not plead the necessary elements of that section (D:41)). The balance of Part B of Chapter III sets out complaints such as (at D:43):

Despite the assertion of an ultimate conclusion in paragraph 47 of the Statement of Claim, it does not plead any material facts as to why the Applicant “could not comply with” the kara requirement (which is to say, the Applicant’s disability asseveration).

Again, despite references to particular paragraphs of the SOC, Part B of Chapter III does not appear to be a direct pleading to the allegations in the SOC.

(4)    Chapter IV: The Respondent’s Fundamental Defensive Propositions. These include Part A, that there was no “distinction, exclusion, restriction or preference” in that the College alleges that another student (“the germane comparator” who wore, and refused to remove, a “religious icon”) would be treated in a similar way to Amreen; “Part B: Not Based on Race, Colour, Descent or Origin” which raises a contention that “Sikhism is a religious faith or belief system, and not a race, colour, descent, or national or ethnic origin” and that Amreen and her family are “Punjabi People” (a term defined in Part B of Chapter II of the Defence, “The Punjabi People”) and that none of the acts complained of by Amreen was committed based on her race, skin pigmentation, colour, descent, national or ethnic origin “or that of any hypothetical homologue” (an hypothetical person of the same race, colour, descent or national or ethnic origin as the Applicant, as defined in the dictionary on page 11 of the Defence) (D:51). The chapter goes on to deny that the wearing of a Kara is a human right or a fundamental freedom, and that the requirement of removal of the Kara and the subsequent actions of the respondent did not nullify any of those rights or freedoms, or impair their recognition, enjoyment, or exercise. I deal with further aspects of the Fundamental Defensive Propositions below.

(5)    Chapter V: Response to Pleaded Averments (which commences at page 71 and has four parts: “Objections in Point of Law”, “Admissions”, “Traversals”, and “Responses other than Admissions and Traversals”). This part, along with further aspects of Chapter IV, is dealt with in detail below.

(6)    Chapter VI: Cross-Claim. This section pleads against the “Cross-Respondents” (ie, Amreen’s parents) under the headings: “A. Falsity”, “B. Breach of Contract”, “C. Breach of Duty of Care” and “D. Loss and Damage”. The cross-respondents are not parties to the original application (other than Mrs Mohal as litigation guardian) and there has been no application to join them as parties.

(7)    Chapter VII: Prayer for Relief. In the Defence, this seeks orders against Mr and Mrs Mohal by way of damages, indemnity, and contribution (which relief is dealt with further in relation to the Cross-Claim).

Chapters IV and V of the Defence

16    The substance of the Defence appears in Chapters IV and V.

17    Chapter IV provides in D:78 what can be thought of as the respondent’s case theory: it pleads that, given that there is no indication in the SOC of a physical incapacity to “comply with the kara requirement, there are two, and only two, logical or rational explanations for the Applicant’s disability asseveration”. The definition of the “Applicant’s disability asseveration” is found on page 12 of the Defence, and refers to two statements in the SOC that Amreen “could not comply” with the requirement that she remove the Kara when attending the College. The two explanations for the “Applicant’s disability asseveration” are then defined in the dictionary as “the penitent explanation” (cross-referenced to D:79-80) and the “renitent explanation” (cross-referenced to D:81-84).

(a)    The penitent explanation is that she could not so remove it because of her “faith and conscience”, “considerations fundamental to [her] own identity”, or “considerations fundamental to [her] connection with others who meet the definition of an hypothetical homologue”.

(b)    The renitent explanation is declared to be “the only sustainable explanation for [her] disability asseveration” (D:82) and is one not based on the factors given for the penitent explanation. The renitent explanation is set out in D:83-84 and includes that, despite having a physical ability to comply, she refused in defiance of the College and its Uniform Guide, “in repudiation, abnegation and betrayal of the promises, undertakings, assurances and representations” made by her parents on enrolment, and because she had “persuaded herself” that the Kara requirement was illegal or otherwise unenforceable, and then reacted with “displeasure, annoyance, irritation, indignation, petulance, resentment, anger or pique” to the detentions.

18    Of the entire Defence, only Chapter V approaches the generally recognised form of a defence in that it responds to particular paragraphs of the SOC (see 16.02(1)(a) of the Rules). It does not, however, go through the paragraphs of the SOC in order and set out whether the respondent admits, denies, does not admit, does not know, or provides additional material facts in the traditional way. Instead, the Response to Pleaded Averments commences with an objection to paragraph 3 of the SOC “in point of law” and contends at D:85 that:

The Respondent objects to paragraph 3 of the Statement of Claim, in point of law, on the grounds that:

(a) paragraph 3 alleges that “[the Applicant] and her immediate family are Sikhs”;

(b) the word “Sikh” is used within the Statement of Claim in a way which elides two discrete concepts; namely:-

(i) on the one hand, a person who is a member of or adherent to the religious faith or belief system known as Sikhism (being the sole sense in which that term is used in this pleading); and

(ii) on the other hand, a person who identifies as a Sikh by reason of the person’s race, colour, descent or national or ethnic origin;

    …

19    The Defence claims that the pleading that “Amreen and her immediate family are Sikhs” breaches a number of elements of r 16.02 of the Rules and is thereby likely to be struck out. However, no application to achieve that outcome has been made.

20    Similar contentions were made in Chapter V as to paragraph 4 of the SOC (that Sikhs are recognised to have certain characteristics) and there follow objections to the “soi-disant ‘Particulars’ set forth subjacent to paragraph 4” in the SOC (D:87); to the definition in paragraph 6 of the SOC of “the College” as either a place or a legal entity (D:88); to the allegation that various named persons were authorised to act for and on behalf of the respondent as being both unnecessary in the context of the provisions of the RDA but also in that it was conclusory and did not plead the details of any specific authority given to them (D:89). In paragraphs D:90 to D:92 there are objections that the SOC does not set out the entirety of documents (something that the Defence later does) such as Amreen’s enrolment contract (the Enrolment Contract) because the College contended that the “words … are obviously material to the pleading” (see r 16.04(2) of the Rules). I will not set out all the objections in Part A from paragraphs D:93-104 but they are in a similar vein to those summarised here.

21    The substantive response to the SOC comes at D:105, in “Part B: Admissions”. Notably, there are admissions that the College is operated by the respondent (D:106(c)), and that the persons to whom objection was taken as to their authorisation in Part A are pleaded as having “authority to act for and on behalf of the Respondent” in accordance with their employment and the College’s various policies and guides (D:107). At D:111, the College admits that there was no communication between the College on the one hand, and Amreen and her parents on the other, until November 2024, about the Kara (or “bangle”).

22    Part C of the Defence deals with “Traversals” in the form of non-admissions and denials. Many of these are hedged in a way which requires cross-referencing to other matters. See, for example, D:115:

Save as expressly admitted in paragraph 106 of this pleading, the Respondent denies the averments set forth in paragraph 6 of the Statement of Claim, on the grounds that:

(a) it elides the difference and distinction between:

(i) the College, which is one educational institution conducted and operated by the Respondent at one specific educational campus; and

(ii) the Respondent, which conducts and operates multiple educational institutions at multiple educational campus; and

(b) subparagraphs a and b thereof are wrong in and contrary to law.

23    In D:124 the “averments set forth in paragraph 42 of the Statement of Claim” were denied as “untrue”. Then follows a long sub-paragraphed version of the events of 7 February 2025. Some of the matters are relevant to Amreen’s complaints (what was said at the meeting about whether she could attend school and wear the Kara, which commences in sub-paragraph (j)) and some are not (eg, that the principal noted during the meeting that “Mr Mohal had clearly demonstrated flexibility in his own time, when he felt quite at liberty the previous Friday to attend the College unannounced and without appointment, demanding a meeting with [him]” in sub-paragraph (j)(ix)). Sub-paragraph (u) sets out the entire terms of a letter, including Mr and Mrs Mohal’s (and presumably Amreen’s) full home address.

24    Part D of Chapter V is entitled “Responses other than Admissions and Traversals”. This returns at D:128 to the questions of the identity of Sikhs already dealt with in D:86 in Part A, and refers to the discreteness of the concepts of Sikhism as a religious faith, or as a racial and cultural identification, as pleaded in D:85(c). There is then a long discourse from D:128 into whether Sikhs are recognised to have a common ethnic identity and ethnic origin and at D:128(e) provides by way of example:

numerous judicial decisions in the British Raj and (on appeal) the Judicial Committee of the Privy Council, and subsequently in the Republic of India, have emphasised the lack of “common religious beliefs [and] social and personal customs” between different Sikh sampradaya; …

25    Paragraph D:128(e) does not stand alone. The term “British Raj” appears in the dictionary, the term sampradaya is defined in paragraph 10 of the Defence as a “sect or denomination (sometimes called a “tradition”, “sub-tradition”, “movement”, “spiritual lineage” or “religious system”)” and then in sub-paragraph 10(a)(ii) the Defence notes that term’s linguistic derivation from the Punjabi or Sanskrit, which are both further elucidated by a footnote noting that the root words have “no literal translation in English”. The “numerous judicial decisions” are referenced in a footnote commencing “for instance” and then listing nine bullet-pointed references. As a footnote, it must presumably be read in the light of the disclaimer as to footnotes in D:6 (noted above) so that they are particulars of the claim but “[serve] no other purpose”.

26    The balance of Part D of Chapter V contains material in response to the allegations in the SOC which are not purely admitted or traversed; the pleading notes with specificity the averments which are admitted or denied in each paragraph, with a close focus on what was said and who was present, including the setting out of correspondence in full, and characterisations of each piece of correspondence as reflecting or not reflecting its effect as pleaded in the SOC.

The justification for the pleading of the Defence

27    In its written submissions, the respondent alleged that the SOC was pleaded in the way it was because:

the SoC pleads no essential material facts; it merely recites legal conclusions. Elements inadequately pleaded include facts to establish that:

(a) being a “Sikh” amounts to a relevant category of persons for the purposes of the Racial Discrimination Act 1975 (Cth.) (“the RD Act”) by reason of race, colour, descent, or national or ethnic origin;

(b) the Applicant is a “Sikh” in the sense just mentioned …

and describes the respondent’s case on whether Amreen is a Sikh “with utmost precision and particularity”. This takes the form as noted above of setting out the two “discrete concepts” described at [17] above and asking, in relation to paragraph 3’s allegation that “Amreen and her immediate family are Sikhs”, “What does this even mean?” The respondent contended that the question of whether Sikhs

constitute a “race” or have an “ethnic identity” for the purpose of the RD Act is not a question of law, to be determined by reference to judicial precedent … It is a question of fact and … must be heard and determined afresh on whatever evidence is tendered.

28    In support of this, the respondent relied on a number of paragraphs of the SOC, and the contents of the complaint to the AHRC, which dealt with what are contended to be Amreen’s “religious obligations as a Sikh”.

29    Further, the Defence raises the penitent and the renitent explanations as “properly triable” issues; whether, as Amreen contended, that “wearing the Kara is mandated by ‘the rules of conduct of every Sikh’”, and whether she and her family are in fact Sikhs.

The Cross-Claim

30    The Cross-Claim incorporates the Defence by annexation and so is in the same terms. As noted above, Amreen is not a party; only her parents are in their personal capacities. Chapters II, III, IV, and V, while pleaded as a Defence to the Statement of Claim, are presumably incorporated into the Cross-Claim by attaching the Defence.

31    Chapter VI: Cross-Claim alleges, under the “A. Falsity” heading, that Mr and Mrs Mohal, in signing the Enrolment Contract, in particular in agreeing with a statement that Amreen would be “bound by all rules, regulations and Policies authorised by the [College]”, were misrepresenting the “true position” and did so in a knowingly false way (CC:151). It further alleges knowing falsehoods and misrepresentation in that the parents made a statement that they had “no main religion” (CC:152), failed to disclose that Amreen was a Sikh (and as part of that allegation, failed to disclose matters such as that she “was habituated in wearing the kara … from birth”: CC:153), and ticked boxes to say that the information was correct and that they believed that Amreen understood the policies and expectations of the College (CC.154). Had her parents not made those “representations and warranties” in CC:151-154, the College said that it would not have enrolled Amreen. I have not summarised the other three grounds here but will refer to them as relevant in the consideration below. The College contended that Amreen’s parents should be held liable for those representations. The Cross-Claim pleads both in the orders sought in the Cross-Claim and in the pleading in Chapter VII: Prayer for Relief of the attached Defence an entitlement to damages from the parents, or an indemnification of or contribution for any damages and costs awarded to Amreen against the College.

32    The College, in its written submissions, acknowledged, “candidly and unapologetically, that the Defence is complex and lengthy.” This complexity and length was said to be on the basis that the College’s pleadings reflected the complexity of the legal and factual issues to be considered by the Court, and were responsive to “the simplistic way the Applicant’s case is pleaded.” The reference to “complex and lengthy” brings to mind the description of the pleadings in Kirby v Centro Properties Limited (No 2) [2012] FCA 70; 87 ACSR 229 where, at [4], Bromberg J referred to the pleadings as “voluminous and complicated”; however, that matter involved five class actions with numerous cross-claims and was not, as is this case, a claim of racial discrimination arising out of the matters raised in the complaint to the AHRC.

The interlocutory application

33    In lieu of pleading to the Defence and Cross-Claim, Amreen, Mr, and Mrs Mohal (together, the applicants) filed an interlocutory application seeking orders:

(a)    striking out the Defence (including the aspects of the Defence included in the Cross-Claim) in whole or in part (r 16.21 of the Rules);

(b)    for summary judgment for the applicants with respect to the Cross-Claim (including elements of the Cross-Claim including Chapter VI of the Defence) (s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act);

(c)    for, alternatively, dismissal under r 26.01 of the Rules or striking out of the Cross-Claim (including Chapter VI of the Defence) (r 16.21(1) of the Rules); and

(d)    that the Cross-Claimant is not granted leave to replead.

34    The interlocutory application was supported by an affidavit of the applicants’ solicitor, Mr Shivchand Jhinkhu, of 5 March 2026. Mr Jhinkhu set out the correspondence sent prior to the AHRC complaint (to which there was no response), the progress of that complaint, and the filing history.

35    The basis of the interlocutory application may be summarised as follows:

(a)    The matters raised in defence of the claim are based on the contention that the RDA does not apply to Amreen because Sikhism is a religion, and the Sikhs do not have a race or ethnic origin which engages the protection of the RDA. This is, the applicants submitted, contrary to longstanding judicial authority and has no reasonable prospects of success. Additionally, they submitted that the “Defence in both form and substance fails to meet the requirements of [r 16.21 of the Rules] and so should be struck out.

(b)    The matters raised by way of cross-claim (both in the Defence and in the Cross-Claim) against Amreen’s parents are not based on a proper cause of action, and should be dismissed summarily (s 31A of the FCA Act) or struck out (r 16.21 of the Rules).

36    Rule 16.21 of the Rules provides:

16.21  Application to strike out pleadings

 (1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

 (a) contains scandalous material; or

 (b) contains frivolous or vexatious material; or

 (c) is evasive or ambiguous; or

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

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

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

 (2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

37    Section 31A(1)-(3) of the FCA Act provides:

31A  Summary judgment

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

Pleading requirements in AHRC proceedings in the Federal Court

38    While s 46PR of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) provides that this Court is not “bound by technicalities or legal forms”, the Federal Court rules as to pleading still apply. Those rules include r 16 (including those parts set out above) and this approach is confirmed by paragraph 4.1 of the Court’s Practice Note ACLHR-1 (Administrative and Constitutional Law and Human Rights Practice Note) which provides:

The Federal Court Rules and forms apply to the commencement of proceedings in this [National Practice Area].

39    The Rules provide that an application arising out of a complaint to the AHRC must be accompanied by the complaint and the termination notice (r 34.163(2)). This was complied with.

40    Ms Eastman SC, who appeared with Ms Geddes for Amreen, submitted that the reason for the requirement that the AHRC complaint accompany the application to this Court is that the Court’s jurisdiction is to determine matters raised before the AHRC arising out of unlawful discrimination (see s 46PO(1) of the AHRC Act). Section 46PO(3) of that Act requires that the application to this Court not go outside the boundaries of the claim before the AHRC.

The nature of a claim under the RDA

41    In any application as to the sufficiency of pleadings, it is important to have regard to the foundations of the claim.

42    Amreen’s claim is made pursuant to the protections of the RDA. Section 9 of that Act provides:

9 Racial discrimination to be unlawful

(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A) Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

…

43    The “Convention” referred to in s 9(2) is the International Convention on the Elimination of All Forms of Racial Discrimination (1965), which has been ratified by Australia (see s 7 of the RDA).

44    Section 9(1) of the RDA has several elements. These are:

(a)    the doing of an act;

(b)    the act:

(i)    being intended to restrict, or

(ii)    having the effect of restricting,

the claimant’s enjoyment of a human right or fundamental freedom;

(c)    the restriction being selective and based on “race”, in the sense of national or ethnic origin; and

(d)    the human right or fundamental freedom being of a kind covered by the Convention.

(see Hamzy v Commissioner of Corrective Services (NSW) [2022] NSWCA 16; 107 NSWLR 544 at [50] per Basten JA).

45    In Wotton v State of Queensland (No 5) [2016] FCA 1457; 352 ALR 146, Mortimer J said (at [530]):

It is critical, as Allsop J observed in Baird v Queensland [2006] FCAFC 162; 156 FCR 451 at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of “elements”, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.

46    Here, the acts pleaded are the four matters set out at [14] above. The conduct-based limb is pleaded to be the “distinction, exclusion, restriction or preference” based on Amreen’s race, colour, descent, or national or ethnic origin. The outcome-based limb is that it had the purpose or effect of nullifying or impairing the enjoyment by Amreen of her human rights on the basis of her race.

47    The claim is one of indirect discrimination. That is, Amreen alleges that there was a requirement imposed by the College with which she could not comply, and that that requirement or condition had the effect of impairing her enjoyment or exercise of her human rights on an equal footing with other students, and that the requirement or condition was not reasonable having regard to the circumstances of the case.

48    There is no requirement that an applicant be physically unable to comply with the requirement (see, eg, Australian Medical Council v Wilson (1996) 68 FCR 46 at 53-54; Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987; 123 FCR 561 at [51]).

49    The legislation is beneficial in nature and should be interpreted consistently with the Convention and in accordance with its purpose: ratification of the Convention (s 7 of the RDA) and the improvement of the rights to equality before the law regardless of race, colour, or national or ethnic origin (s 10 of the RDA).

Does the Defence transgress Part 16 of the Rules?

50    For Amreen, Ms Eastman submitted that the Defence failed to meet the requirements of r 16.21 in “both form and substance”. That is, it contains scandalous, frivolous or vexatious material; it is evasive or ambiguous; is likely to cause prejudice, embarrassment, and delay; fails to disclose a reasonable cause of defence; and is an abuse of process of the Court.

51    Rule 16.21 reflects the requirements of r 16.02, the general requirements for the contents of a pleading: Winters v Fogarty [2017] FCA 51 at [15]-[16]; Australian Competition and Consumer Commission v NQCranes Pty Ltd [2021] FCA 1270 at [6]. A failure to comply with these rules results in a striking out, which is a remedy given on the basis of the pleading itself; see Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at [17].

Should that part of the Defence which contends it is a Cross-Claim be struck out?

52    Starting with this aspect, the elements of a Cross-Claim which are included in the Defence should be struck out as an abuse of process. That is because the SOC is a proceeding which arises out of the terminated complaint before the AHRC, and is bounded by that claim. As a result, Mr and Mrs Mohal are not parties to that claim (bar Mrs Mohal acting as litigation guardian for Amreen).

53    It is not appropriate under the Rules to weave a cross-claim into a Defence by purporting to join persons who are not a party to the Statement of Claim. Order 5 r 5(3) of the previous Federal Court Rules (Statutory Rule 140 of 1978), which were repealed by the current Rules in 2011, allowed for cross-claims to be added to a defence (but only where a cross-claimant cross-claimed solely against the party who making claims against them). That is no longer the case. Part 15 of the current Rules deals with cross-claims and requires that a cross-claim be in accordance with Form 31: see r 15.02(1). A statement of cross-claim is a “pleading” under the Rules and must comply with rr 16.01 and 16.02. If the pleading is a cross-claim, it must comply with r 15.02. As Gleeson J said in GFIN Pty Limited v Gooden, in the matter of GFIN Pty Limited [2019] FCA 1313 (at [10]):

These are not just technical rules. A compliant statement of cross-claim permits both the claimant to demonstrate the existence of an arguable claim and the person against whom the claim is made to understand the case against them.

54    That part of the Defence which purports to be a cross-claim (paragraphs 150-166) should be struck out as not complying with the Rules and as an abuse of process of the Court.

55    I note that in addition, elements which appear to be relevant only to the respondent’s Cross-Claim are included in the pleading of the Defence. For example, Chapter II: Contextual Matters has a Part C: The Applicant’s Enrolment at the College. That part pleads that Amreen’s parents enrolled her by signing an enrolment application (parts of which are set out at length), of which various breaches are pleaded in D:23 and D:26. The Defence then sets out alleged deficiencies in the information provided by the Mohals at the enrolment interview (D:25). Paragraph 31 sets out the “full knowledge and awareness” by the parents of various alleged factual circumstances (including (iii), that “the College explicitly offered a Christian education based on Biblical values”) and alleges various failures of honesty on their part. Sections such as these, while under the heading “Contextual Matters”, are not relevant to a proper defence of the claim under the RDA and should also be struck out of the Defence. These parts are identified by the applicants as being paragraphs D:23-26, 28-31, and 33-35.

Does the Defence comply with the requirements of r 16.02?

56    Rule 16.02 contains positive and negative requirements. Sub-rule (1) sets out what a pleading must do or contain; sub-rule (2) what a pleading must not do or contain.

57    The applicants’ submission as to r 16.02 is that the Defence fails to comply with “the most basic requirements” and is “gallimaufry”. The applicants contended that the Defence:

(a)    is not divided into separate paragraphs, each dealing with a separate matter as far as possible (r 16.02(1)(a)). It contains tables, footnotes, dot points, and extracts of documents. Paragraph 48 of the Defence has 20 sub-paragraphs and further sub-paragraphs within three of those, covering some three pages of the Defence;

(b)    is not brief (r 16.02(1)(b)). It is some 130 pages long;

(c)    does not identify the issues that the party wants the Court to resolve (r 16.02(1)(c)). It does not provide the applicants with fair notice of the case to be made against them. It includes commentary about how the Defence should be read, includes footnotes which are not clearly part of the pleading, and makes submissions (see D:9-19 and D:36-45). Paragraphs D:85-104 are described as “objections” to the SOC, but it is not clear what the basis of those objections are, nor the response that the Court should have to those objections; and

(d)    states the evidence to be relied upon rather than the material facts (r 16.02(1)(d)). As noted at various passages above, the Defence sets out a significant portion of the Enrolment Contract and merely not the effect of that document. It is not a case in which the actual words of the Enrolment Contract are required to be included in the pleading; the respondent could easily plead the effect of the terms of the Enrolment Contract. Likewise, the full content of letters between the parties is not required to be set out but can instead be referred to by an appropriately worded pleading.

58    In oral submissions, Ms Eastman took me through the provisions of the RDA, the relevant Rules, and the paragraphs of the Defence which she said fail to comply with r 16.02(1).

59    The respondent raised a number of what it said were difficulties in the way the interlocutory application was brought. First, it was submitted that the applicants provided “only broadbrush references to supposed breaches of rules 16.21 and 26.01, without identifying specific subrules allegedly breached …”. It is not for the Court, it was submitted, to make out the applicants’ case.

60    Second, the respondent contended that Mr Jhinkhu “does not depose to the truth of any of the asseverations which [his letter of 17 February 2026] contains”. Without that, it submitted, the Court cannot assume his belief as to the matters raised in that letter (that is, that “[t]he Defence fails to comply with the Court’s pleading requirements” and “[t]he Cross-Claim advances a claim with no prospect of success”).

61    The respondent dealt with the r 16.02(1) points by contending that there is no rule of pleading that disallows complexity. It is “technically compliant” and is not incomprehensible. To that end, the respondent submitted that “tables, footnotes and ‘bullet points’, while perhaps not yet considered orthodox in all parts of Australia, are not prohibited by Division 16.1”. Far from being barriers to readability, it was submitted that including the content of the various tables and footnotes in the text of the Defence would have “the opposite effect”.

62    Nor, it was submitted, is the length of the Defence a contravention of the Rules. The respondent relied on the wording of r 16.02(1)(b), which requires as much brevity “as the nature of the case permits”.

63    The respondent contended that the Enrolment Contract was required to be included in terms, not because Amreen would be taken by surprise by its contents, but so “[she] will know our reasons for saying that … [Amreen’s interpretation is] not the correct interpretation”.

64    The respondent relied on the lack of any requirement that a pleading should respond sequentially to the first pleading. It submitted that “counsel for the College have taken the view that the approach they have adopted is the most logical and efficient form of response”. It denied that the format is difficult to follow, and contended that the requirement for consecutively numbered paragraphs only requires that each paragraph deals with “a separate matter”.

65    In resisting the relief sought, the respondent relied on rr 16.02(3) (a pleading may raise a point of law), 16.08(a) (a party must expressly plead issues not arising out of the previous pleading) and 16.08(b) (a party must expressly plead a matter which, if not expressly pleaded, might take another party by surprise if later pleaded).

Does the Defence contain matters proscribed by r 16.02(2)?

66    The applicants submitted that the Defence contains material that is scandalous, and pointed to the paragraphs set out at [55] above in relation to the allegations against Mr and Mrs Mohal. They further contended that the allegations are vexatious and contrary to the requirements of s 46PO(3) of the AHRC Act. The applicants relied on Snaden J’s formulation of the requirements of pleading in Weddall v Rasier Pacific Pty Ltd [2023] FCA 59 at [69]-[71], where his Honour set out the following general principles (summarised in paragraph 31 of the applicants’ written submissions as follows):

(a) a ‘material fact’ is one the proof of which is essential to the existence of a cause of action or defence that a party seeks to advance;

(b) a pleading is ‘embarrassing’ to the extent that it is ‘unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it’;

(c) a pleading that baldly alleges a statutory contravention by simply repeating the language employed by a relevant provision is liable to be struck out; and

(d) where extensive passages within a pleading are liable to be struck out, it is within the court’s discretion to strike out the whole of the pleading and to require that the party who authored it begin afresh

(citations omitted).

67    It was submitted that the Defence is evasive, ambiguous, likely to cause prejudice, embarrassment or delay, and is otherwise an abuse of process of the Court. In Shelton v National Roads and Motorists Association Ltd (NRMA Ltd) [2004] FCA 1393; 51 ACSR 278, Tamberlin J said (at [18]) that the term “embarrassment” refers to a pleading that is:

susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense”.

68    The applicants submitted that the fact that the Defence does not use plain English, is not framed precisely as an answer to the SOC, and because the reader must hunt through it to find a response to a particular pleaded paragraph, sometimes to be found in a number of different places, means that the Defence is embarrassing and prejudicial.

69    The respondent’s submissions were similar to those in relation to r 16.02(1); the Defence is pleaded as clearly and carefully as it could be given that it “traverses complex concepts” including whether Sikhism is a religion, or a race or ethnic origin, or whether Amreen was “able” to remove the Kara.

70    I raised with the respondent during oral argument why the depth of detail in the Defence was required. For example, when the SOC pleaded that Amreen was a Sikh, and was not able to comply with a direction to remove her Kara for cultural reasons, those facts could not be merely admitted (or, consistently with the current Defence, not admitted or denied), or, if the basis of the allegations was not understood, particulars could not have been sought, or, if as floated in the Defence, the offending pleading could have been sought to be struck out.

71    Mr Morris KC, who appeared for the respondent with Mr Morrison, resisted this approach, saying:

But when they plead a case that people are Sikhs and that Sikhs are recognised – Sikhs, in the sense in which that term is used in this pleading, are recognised to have those common ethnic identity – ethnic origins based on religious beliefs and so forth, then that’s what they’re talking about. And if they want to talk about something else, then they can do so. It’s not for us to knock their pleading into shape by saying, “But what do you mean when you talk about Sikh? Are you talking about people who are culturally Sikhs, people who are racially Sikhs, people who are religiously Sikhs, when the particulars you’ve provided, so far as they go, just mix that all up in a – into a stirring pot?

Determination on strikeout

72    I have read the Defence carefully and agree with the applicants that the Defence should be struck out for failing to comply with the rules of pleading as set out in Part 16 of the Rules. In particular, I consider that the format of the pleading is inconsistent with the requirement of materiality and brevity, and is embarrassing and prejudicial. I have reached this view because of the complexity of the structure, as well as the tortured nature of the arguments; in particular, the “two discrete concepts” and the choice posed by the Defence between the “penitent” and the “renitent” explanations. There is no place in a pleading for a paragraph which makes an assumption about which of “two, and only two, logical or rational explanations for the Applicant’s disability asseveration” (D:78) is the relevant one “if, on the occasion of each of the Four alleged Contraventions, it were pleaded in the [SOC] and proved …” (and here follows a range of religious steps which would make it “mandatory rather than optional” for Amreen to wear the Kara – D:80(a)). Paragraph 82 of the Defence declares that the “renitent explanation is the only sustainable explanation for the Applicant’s disability asseveration …”. Such a declaration is neither a matter listed in r 16.07, nor a point of law (r 16.02(3)), nor a fact which may take another party by surprise (r 16.03(b)).

73    The Defence uses recondite terms which are not necessary for the pleading. I have noted some above. The use of conversational (rather than Law) French in “soi-disant”, the use of “penitent” and “renitent” and the persistent use of “asseveration” rather than, say, “assertion” do not assist in achieving the goals of clarity and brevity. There are many unnecessary discursions; there is no need to specify that various words have a Punjabi origin, or that the principal of the College took the view that Mr Mohal lacked respect in a meeting (D:124(j)(x)). These are not material facts.

74    It is trite to say that a defence should respond to the statement of claim in terms which make it possible for an applicant to discern its grounds. It is not appropriate to make assumptions as to what the statement of claim says; the defence should plead to the allegations therein by way of admission, denial, non-admission, or lack of knowledge (r 16.07). The requirement that a pleading be divided into consecutively numbered paragraphs (r 16.02(1)(a)) does not of course require that the numbering of the statement of claim be followed; however, in conjunction with the requirement in r 16.07 to plead an admission, denial, non-admission, or lack of knowledge, it does require that each allegation in the statement of claim be dealt with separately.

75    The following example of the failure of the Defence to respond appropriately to the Statement of Claim is but one of many. The pleading that “Amreen and her immediate family are Sikhs” in SOC:3 requires the reader, in order for the Defence to be understood, to do the following.

(a)    First, they must go to page 6 and find the heading “(g) The Sikh Faith” in Chapter I: Construction of this Pleading, which includes on page 7 a definition of “Sikh” as “a person who is a member of or adherent to the religious faith or belief system known as Sikhism” (including a definition in Punjabi script and transliterated).

(b)    From page 15, Chapter II: Contextual Matters devotes some seven pages to “Sikhism”; on page 23, there is a paragraph on how “[e]thnically and culturally, Punjabi People collectively … have never embraced Sikhism, or its culture, as representing their collective ethno-cultural identity or community”.

(c)    On page 28, there is a complaint that the Mohals did not convey to the College (through the principal) whether Amreen had undergone particular elements of initiation into the Sikh culture or religious elements, before one gets to D:26 on pages 29-30, which says:

In truth and in fact:

(a) if (which is not admitted) the following averments set forth in the Statement of Claim are true; that is to say:-

(i) the averment in paragraph 3 of the Statement of Claim that the Applicant “and her immediate family are Sikhs”; and

(ii) the averment in paragraph 5 of the Statement of Claim that the Applicant “has been wearing a Kara since her birth”,

the statement that the Applicant’s family had “no main religion”, set forth in subparagraph 25(b)(iii) of this pleading, was false; …

(d)    Sub-paragraph (b) of D:26 also notes that “[i]f (which is not admitted) at the time of the pre-enrolment interview the Applicant: (i) was a Sikh …”. This sub-paragraph is the first indication that the pleading in SOC:3 – that Amreen and her immediate family are Sikhs – was not admitted.

(e)    Paragraph D:50 on page 49 raises the contention that “Sikhism is a religious faith or belief system, and not a race, colour, descent, or national or ethnic origin”, a contention clearly relevant to the pleading in SOC:3 but not referred to in that context.

(f)    Paragraph D:66 on page 56 refers to SOC:3 as a “conclusion”, and D:85 on page 71 objects to SOC:3 “in point of law” (and here the “two discrete concepts” are raised).

(g)    Sub-paragraph (d) of D:85 contends that the pleading in SOC:3 breaches a number of provisions of r 16.02 and “is therefore liable to be struck out pursuant to FCR rule 16.21, subrules 1(b), (c), (d), and (f)”.

(h)    Finally in D:113, on page 86, SOC:3 is not admitted, but not admitted “on the grounds that” Mrs Mohal had informed the College that the Mohal family had no main religion, that it included members of both the Sikh and Hindu faiths, and that she had attended “a (Roman) Catholic school”.

76    This is merely one example of how, in order to get a picture of the pleading to one paragraph of the Statement of Claim, the reader must take the whole document, including definitions and hypotheticals, and coalesce the various paragraphs into a response. SOC:3 is not admitted. But that non-admission is hedged with uncertainties, as demonstrated by the “two discrete concepts” – the one that the respondent accepted (that a Sikh is an adherent to a religious faith) and one it did not (that there are ethnic identity and origin aspects of being a Sikh, without the religious aspect – see D:85). The basis of the non-admission is woven in with what are said to be misrepresentations or knowing falsehoods by Amreen’s parents. The failure to comply with the requirements of the Rules that allegations be pleaded to in the ways set out by rr 16.02 and 16.07 makes this Defence untenable. If Amreen were to seek to file a Reply, the task of pleading to this Defence would be insuperable.

77    This aspect of the pleading renders it prejudicial and embarrassing. One example of the Defence’s un-pleadability is the use of the term “a germane comparator”. This is defined in the dictionary as “a student who: is not a person of the same race, colour, descent or national or ethnic origin as the Applicant; and [who] wishes to display a religious icon when attending the College or a College event”. This definition, which is used in relation to whether there was a “distinction, exclusion, restriction or preference” in Part A of Chapter IV, is reflected in the references in paragraphs 46 ff to “a religious icon” (which is itself is defined under the heading “(k) Analogues” of the dictionary). This selective definition of “a germane comparator” when Amreen’s case does not frame the Kara as a “religious icon” is not responsive to the Statement of Claim.

78    In another example, set out above at [25], the Defence’s definition of Sikh in D:128(e) refers to “numerous judicial decisions” from the time of the British Raj which, it says, are by way of example of establishing the lack of “common religious beliefs [and] social and personal customs” between various Sikh sampradaya (at page 99). It is unclear how Amreen could deal with this assertion. The reference to the “numerous judicial proceedings” is part of the pleadings. As the decisions themselves are footnoted, they are apparently only particulars. Ms Eastman said that those representing Amreen have read those cases, and that they include cases concerning family, property, and succession within Sikh families. However, to include them in a pleading (along with footnotes) is, she said, “extraordinary”. I agree. It is unreasonably burdensome to a party to expect them to plead to matters which are included “by way of example” but which form part of the substantive case made in defence of the SOC.

79    The assumptions and hypotheticals raised by the respondent place Amreen in an impossible position when it comes to meeting the respondent’s case. It is not for the respondent to seek to define what Amreen may have seen as her options when given a detention to remove the Kara. The respondent cannot know whether she was being penitent, or renitent, and should make no declarations in the Defence about it. What the respondent can, and should, do, is look at each allegation in the Statement of Claim and either deny, admit, not admit, or say that it has no knowledge of, each one. The current Defence is “unintelligible, ambiguous, [and] vague … so as to embarrass the opposite party who does not know what is alleged against it” (Weddall at [70]).

80    My finding that the Defence is prejudicial and embarrassing is sufficient to ground an order to strike out the pleading. I will, however, also review the summary judgment application, as it has relevance to whether the respondent should have leave to replead.

Should judgment be given on the Defence under s 31A for failing to disclose a cause of action?

81    The parties are agreed that the relevant principles are those in Spencer v the Commonwealth [2010] HCA 28; 241 CLR 118, in which the High Court noted that the applicant here has the onus, and that that onus is a heavy one under which the Court should proceed with caution (at [24]). As noted in the respondent’s written submissions:

Section 31A is “concerned with the bringing and defending of proceedings, not just with pleadings; with substance and not just with form”. Matters outside the pleadings may be considered

(citations omitted).

82    The respondent, citing Energy Australia Yallourn Pty Ltd v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [151], noted that “[a]buses of process fall generally into three categories”, being:

(a)    where the court’s process is invoked for a collateral, improper, or illegitimate purpose;

(b)    where use of the court’s process is unjustifiably oppressive to one of the parties; or

(c)    where use of the court’s process brings the administration of justice into disrepute.

83    However, the applicants were clear that the basis of their application was that the proceedings had no reasonable prospect of success. The test is whether the matters of law raised in the Defence are sufficiently strong to go to trial; see Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257; 78 IPR 586 at [28] (quoted with approval in SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [52] per Gleeson J).

84    The applicants contended that the Defence to the claim brought by Amreen under s 9(1A) of the RDA misapprehends the law in two relevant ways. The first is whether “Sikh” is a “race” or “ethnic origin”. The applicants relied on the House of Lords decision in Mandla v Dowell Lee [1983] 2 AC 548, where, in passages at 562 (Lord Fraser of Tullybelton) and 569 (Lord Templeman), it was held that “ethnic origin” has a wider meaning than “race” and that a common ethnic origin had elements of a “distinct community by virtue of certain characteristics” including a “long shared history”, a “cultural tradition of its own, including family and social customs and manners” which are, relevantly, “often but not necessarily associated with religious observance” (Lord Fraser at 562).

85    The applicants submitted that “Mandla has been followed and applied consistently for 40 years” and cited Faruqi v Hanson [2024] FCA 1264 (Stewart J) at [263] and [269]-[274]; Hamzy at [58] and [62]; and numerous other Australian, United Kingdom, and Canadian authority, and that “[a]ny argument that Sikhs are not a ‘race’ or do not have an ethnic origin should be rejected”. Ms Eastman submitted that there was no basis on which the Court was required to have the element of race or ethnic origin proved anew on the facts of each case.

86    The second ground relied on by the applicants was whether Amreen “could” have complied with the uniform requirements, if they did (as alleged by the respondent) prohibit the wearing of a Kara. Again relying on Mandla, the “ability” to comply with a requirement was “intended by Parliament to be read not as meaning ‘can physically’, so as to indicate a theoretical possibility, but as meaning ‘can in practice’ or ‘can consistently with the customs and cultural conditions of the racial group’” (at 565-6 per Lord Fraser). This interpretation has been adopted into Australian law; see Sluggett at [51]; Hamzy at [58] per Basten JA).

87    As will be clear from the analysis above of the way in which the respondent pleaded its Defence, it relied on the Court accepting the “discrete concept” that Sikhs are a religious, and not an ethnic, racial or national origin group, and the “only sustainable explanation” (D:82) was that Amreen could physically have removed her Kara but chose not to for the reasons in D:81 and following. The applicants said that those two contentions are not available in the light of the acceptance of the Mandla approach in Australian law.

88    In response, the respondent relied on what it said is a pleading of a conclusion in the Statement of Claim. Mr Morris said that there was no unanimity of recognition of Sikhs as having a common religious beliefs, social and personal customs, language and descent – even in Mandla, which he noted was a decision overturning “conclusions reached both at the first instance and by the Court of Appeal”. The respondent said that the pleading “Amreen and her immediate family are Sikhs” is not a pleading of material facts; it is instead a pleading of conclusions, and instead, the Statement of Claim should have gone through the “rules of conduct” which includes the wearing of the Kara as a religious duty. Mr Morris said that:

… we say that unless [Amreen] pleads a case that brings her within the category of people who are required, according to the religion, to wear the kara, then her case of inability to remove it is not made out.

89    Despite the applicants pleading that Amreen and her family are Sikhs, and providing by way of particulars to SOC:4 the elements of their “common ethnic identity and ethnic origin based on common religious beliefs … social and personal customs, language and descent”, the respondent asserted that the basis of the pleading in SOC:3 and SOC:4 is not able to be pleaded to other than by “articulat[ing] a case and defence which answers every possible basis on which the statement of claim as presently formulated advances the applicants’ case”.

Determination on summary judgment

90    Summary judgment, as the parties agreed, is not lightly ordered. The approach taken by the respondent – of contesting whether a Sikh is a person of an identifiable race or of a particular ethnic or national origin – goes against many years of judicial authority, from Mandla onwards as dealt with above. In fact, the Explanatory Memorandum (EM) to the Racial Hatred Bill 1994 (Cth), which led to the inclusion of Part IIA in the RDA explained as follows:

The terms “ethnic origin” and “race” are complementary and are intended to be given a broad meaning.

The term “ethnic origin” has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord Fraser at p.562). It is intended that Australian courts would follow the prevailing definition of “ethnic origin” as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.

91    See Faruqi v Hanson at [263], where this part of the EM was quoted, and at [270] where Stewart J said, after citing Mandla and King-Ansell v Police [1979] 2 NZLR 531 with approval:

Sikhs have a distinctive and self-conscious community; they have a written language which a small proportion of Sikhs can read but which can be read by a much higher proportion of Sikhs than Hindus; and they were at one time politically supreme in the Punjab.

92    At [274] his Honour said:

The RDA does not seek to protect people on the basis of their religious beliefs per se – religious rights and protections lie outside the RDA – but, common religious beliefs, customs, practices or rituals may form an important component of ethnic identity arising from common ethnic origins. That much is clear from the cases on Jewish ethnic origin already referred to, and it is perhaps even clearer in Regina (E) v Governing Body of JFS [2009] UKSC 15; [2010] 2 AC 728. It is also clear in the case of Sikhs as discussed in Mandla v Dowell-Lee.

93    The first instance decision in Faruqi v Hanson was upheld by the Full Court in Hanson v Faruqi [2026] FCAFC 96 (Perry, Kennett and Bennett JJ). The passages above cited were considered by the Full Court at [45] and upheld in their consideration of ground 6(b) of the Appeal (commencing at [367], under the heading 12.2 Ground 6(b): the intersectional analysis).

94    Accordingly, there is little merit in the College’s contention that each time a racial discrimination complaint is made, the Court must re-examine from first principles the question whether a particular racial, or ethnic or national origin falls within the protections of the RDA. The question of whether an act is done because of that status is a different question, and the Court may consider whether the behaviour was taken on religious grounds or because of a person’s race, colour, national or ethnic origin, or whether both be a reason for the behaviour (see Hanson v Faruqi at [368]).

95    The question of Amreen’s ability to comply with the condition is also based on a misunderstanding of the provisions of s 9(1A) of the RDA in that there is no need for the inability to be a physical one, nor is there a need to set up two “explanations” and accept only one of them. The young person in Mandla was physically able to remove his turban. Amreen did not plead that she was physically unable to remove the Kara. The point remains, however, that the weight of authority finds itself on the side of a Sikh being a person whose rights are protected by the RDA, and that compliance with a condition means more than a mere physical inability to comply.

96    For these reasons, I see little merit in the respondent’s penitent and renitent explanations for Amreen’s “disability asseveration” in the light of the authorities on this point.

97    I am not convinced, however, that I should give summary judgment on the Defence. There may be a ground upon which the respondent can establish that, in the circumstances, the requirement that Amreen remove the Kara was not in breach of the provisions of the RDA. It is not particularly easily gleaned from the current Defence. But, as I am giving the respondent a limited right to replead, it is appropriate to see if the next iteration brings a more arguable defence to the SOC.

Is the Cross-Claim liable to be struck out or summarily dismissed?

98    The comments made above as to the pleading of Chapters I-V of the Defence as incorporated into the Cross-Claim by attachment are repeated in relation to the Cross-Claim. In relation to Chapter VI, as noted above, Amreen’s parents are said to have engaged in knowingly false representations about their religious background, breached a contract with the respondent, breached a duty of care arising out of the “penitent explanation for the Applicant’s disability asseveration” and the respondent seeks damages, indemnity, and contribution (were any damages ordered against it in favour of Amreen).

99    The applicants contended that the basis of the respondent’s claim, that it would not have enrolled Amreen had it known inter alia that she was a Sikh (see CC:151-155), amounts to an admission by the respondent to prospective race discrimination.

100    The respondent did not shy away from this characterisation, although Mr Morris noted it “depend[ed] entirely on the attitude that was expressed [by the parents] at the time, and … that would depend on the extent of disclosure and the facts that were disclosed”. Mr Morris contended that if a Sikh boy were being enrolled, and the parents indicated that they expected that he would be wearing the Kirpan (or dagger), then “that’s the sort of discrimination which is permitted because there’s a good reason for excluding daggers”. This submission does not take into account the fact that the RDA does not provide exceptions (as noted by Ms Eastman in reply).

101    The Cross-Claim, like the Defence, is untenable. First, the duty of care pleaded is a novel one and no basis for its creation is apparent from the pleading. Here, the respondent said that by failing to give chapter and verse as to Amreen’s status in the Sikh community, her parents breached a duty of care that they owed to the College. In Surtees v. Kingston-Upon-Thames Borough Council [1991] 2 F.L.R. 559, 583F, Browne-Wilkinson V-C discussed a court’s reluctance to hold parents in breach of a duty of care in relation to their children, given the public policy considerations of not placing legal constraints on family relationships.

102    As an example of some of the matters alleged to give rise to a tortious claim, the Cross-Claim includes a pleading (CC.161) that, should the Court “accept the renitent explanation”, Amreen’s parents knew that she allegedly had:

[a] propensity for or predisposition towards wilfulness, obstinacy, stubbornness, or truculence when:

(i) rebuked, admonished or reprimanded; or

(ii) punished for an infraction or breach of discipline;

and that their failure to warn the College of this was a breach of their duty of care.

103    Persuading a court of the existence of a novel duty of care is not without difficulty. It is a question of law: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [62] per Gummow J. As has been observed previously, it involves a “multi-faceted inquiry”: see Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [146]-[149] per Gummow and Hayne JJ and one that is “fact rich and fact intensive”: see Smith v State of Victoria [2018] VSC 475 at [171]. In Pabai v Commonwealth of Australia (No 2) [2025] FCA 796, Wigney J said (at [90]):

There is no “particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content”: Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [102] (Allsop P, with whom Simpson J agreed). 

And at [94]:

What ultimately is required is a consideration of the totality of the relationship between the parties “to determine whether there exist[s] in the relationship the requisite closeness, control and vulnerability for that relationship to warrant the imposition of a duty of care by reference to the legal conception of neighbourhood and whether the relationship was suitable for the imposition of a duty capable of founding liability judged by reference to judicial or curial determination”: Minister for the Environment v Sharma [2022] FCAFC 35; 291 FCR 311 at [211] (Allsop CJ).

104    Here, the question of the totality of the relationship between the parents of a child and that child’s school, in relation to whether the child’s conduct would be such that the school may be found to have discriminated against her on racial grounds, tends against the imposition of a duty of care on the part of the parents. The applicants took me to the non-delegable duty of care owed by schools as enunciated by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66; [2014] 1 AC 537, and submitted that in that context, the pleading of the parents’ knowledge of Amreen’s state of mind about wearing the Kara is not a maintainable pleading. The College had a non-delegable duty of care while she was at school. There is no basis for creating a novel duty of care owed by the parents in relation to whether Amreen had particular views about her Sikh background, her alleged propensity for truculence and other synonyms, or her likely actions in being directed to remove the Kara. While the respondent disavowed that it had made “any allegation that [its] non-delegable duty is somehow transferred to the parents”, the Cross-Claim clearly seeks to burden parents with liability in tort for matters said in enrolment interviews as to their family’s religious or cultural beliefs. There can be no duty of care owed by parents to a school which would result in their being liable to indemnify that school for breaches of the discrimination law; certainly none which is immediately apparent on the fact of this case.

105    As for the misrepresentation claim, it is closely related to the contractual claim. Both relate to the agreement by the parents that they believed that Amreen understood the policies and expectations of the College. Had those boxes not been ticked, the College said that “the school would not have accepted the enrolment”. The pleading relies on the parents signing the enrolment application knowing that “such stipulations and acknowledgments were false”.

106    That pleading sets a very high bar. Paragraph 23 of the Defence (as incorporated in the Cross-Claim) provides:

In truth and in fact, at the time when the Enrolment Application was signed by the Applicant’s parents and submitted by them to the College, they (and each of them):

(a) did not “understand that during [the Applicant’s] enrolment at ACC, [the Applicant] will be bound by all rules, regulations and Policies authorised by the school” as set forth in subparagraph 22(e) of this pleading;

(b) did not and could not “warrant that all information provided by [them] to ACC during the enrolment process is honest and correct and that full disclosure has been made” as set forth in subparagraph 22(h) of this pleading; and

(c) did not “believe [the Applicant] understands these policies and expectations of ACC such that [the Applicant] can abide by the responsibilities, expectations and school rules” as set forth in subparagraph 22(h) of this pleading.

107    The pleading assumes that it is necessary for a person who is a member of a racial, ethnic, or national group to disclose that fact to a school, failing which they are liable for false or misleading representations. Rule 16.42 of the Rules requires that allegations of “fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence” must state in the pleading the particulars of such a breach. Here there are none. The Cross-Claim relies on the fact that, ironically, Amreen and her immediate family are Sikhs in order to make out the anterior state of mind that, in saying merely that they have “both Hindus and Sikhs in [their] family”, the Mohals were knowingly misleading the College.

108    As for the breach of contract claim, the pleading relies on the terms of the Enrolment Contract. That contract, however, specifically provides that “I/We as far as is practical will ensure that the student complies with [the College’s] policies and rules …” (emphasis added). It is not clear to me that in seeking that their daughter comply with what is agreed by the respondent to be one of the five rules of Sikhism – the wearing of the Kara – the parents would necessarily be in breach of the Enrolment Contract. Nor, if the College were found to have unlawfully discriminated against Amreen under the RDA, is it clear to me how the parents could be found to be liable to indemnify the College for those acts on the basis of that failure to ensure that Amreen complied with the Uniform Guide.

109    While the Cross-Claim suffers from the same pleading infelicities as the Defence (and additionally in that it pleads to the SOC in a manner which is not really consistent with it being a separate action), I consider that it is more appropriate to dismiss the Cross-Claim summarily for failing to disclose a cause of action. It is embarrassing and prejudicial, and vexatious in that it pleads a duty of care which does not exist in law. The same applies to the Cross-Claim portion of the Defence, but I note that I have struck that out in any event as the Cross-Claim parts of the Defence are not brought in accordance with the Rules.

Should there be leave to replead?

110    The applicants submitted that there should be no leave to replead the Cross-Claim. I agree. The causes of action sought to be raised are either not reflected in the law or are inconsistent with the RDA. I am not confident that any repleading of the matters raised in the Cross-Claim will result in matters which are properly triable and which would bring the parents into this dispute in a proper way.

111    As for the Defence, while I have significant criticisms relating to how it has been pleaded and the approach taken (particularly the way the respondent has included the “discrete concepts” and the two explanations for the non-removal of the Kara, and pleaded to those rather than to the Statement of Claim), it seems to me that the respondent may be able to plead a coherent defence to this claim under the RDA. As set out by Katzmann J in Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339 (at [135]):

Although I have grave doubts about whether the applicants can mount a reasonably arguable case, the difficulty in seeing the wood for the trees in the current pleading means that I cannot rule out the possibility that there is such a case at least against one of the respondents. Also, although the 3FASOC is the fifth iteration of the applicants’ pleading, this is the only time the Court has been troubled by it. Consequently, and notwithstanding my misgivings, I have decided to give the applicants one further opportunity to fix their pleading. It seems to me that that will require fresh eyes and a fresh start in a “root and branch review”, as Lee J urged the parties to do in the Hendra class action: see Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462; 369 ALR 512 at [21].

112    The “wood” in the Defence appears to be that the direction to remove the Kara was not based on Amreen’s race, ethnic or national origin, and that it was a reasonable requirement in the circumstances. I would not expect the reappearance of the “trees”, being the restriction of Sikhism to a religious belief, the “two discrete concepts”, and penitence or renitence, in the light of the significant body of law which deals with Sikhs coming within the RDA, and an ability to comply being more than merely physical. I would urge, as did Lee J as cited by Katzmann J above, a “root and branch review” of the basis of any Amended Defence, to take the forestry metaphor further.

Orders for removal of pleadings

113    I am concerned that the respondent’s pleadings make allegations about Amreen which will be struck out but which are included in an unrestricted document (see r 2.32(2) of the Rules and the Court’s Practice Note GPN-ACCS (Access to Documents and Transcripts Practice Note). Her home address is included in the respondent’s pleadings.

114    There is no evidence before me that Amreen in fact displayed the propensities which were attributed to her. Indeed the letter from Mr Jhinku serving the complaint to the AHRC contended that until this dispute, she “had a very positive experience at the College. She had numerous friends, she had good relationships with her teachers, and she was enjoying her studies”). Similarly, there is no evidence before me that Mr and Mrs Mohal were engaged in knowing falsehoods or misrepresentations.

115     I note of course that the time for filing of evidence has not yet been reached.

116    These reasons will be published, and Amreen is a minor. I have had to deal with these pleaded allegations because they were necessary to consider the propriety and adequacy of the pleadings. However, given that they arise in the context of the Cross-Claim which will not be repleaded, and there is no evidence before the Court as to their basis, it is not appropriate to have those pleaded allegations freely available to third parties as unrestricted documents. I am particularly concerned for Amreen as a minor and the pleadings as to her attitudes and reasons for her non-removal of the Kara which are attributed to her by the respondent.

117    Accordingly, I consider that it is in the interests of justice that the Defence and Cross-Claim be removed from the Court file pursuant to r 2.28(1)(a)(i), and will make such an order on the Court’s initiative.

Costs

118    I am satisfied, given the nature of the pleading and the determination to which I have come, that this is an appropriate case for an order for costs against the respondent pursuant to s 46PSA(2) of the AHRC Act and Part 40 of the Rules. The respondent should pay the applicants’ costs of the interlocutory application.

Associate:

Dated:    22 September 2026

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