Federal Court of Australia

Tutoveanu v State of New South Wales [2026] FCA 1624

ORDERS

THE COURT ORDERS THAT:

1.    Leave to bring this proceeding is refused under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth).

2.    The originating application filed on 31 March 2026 and accepted for filing on 7 April 2026 is dismissed.

3.    There be no order as to costs.

4.    If either party wishes to apply to vary Order 3 above that party should file submissions, not exceeding two pages in length, within 14 days of the making of these Orders and the other party should file submissions in response, not exceeding two pages in length, within 14 days thereafter. If that occurs, and unless either party indicates otherwise, any question as to the costs of the proceeding will be determined on the papers.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application by Anton Tutoveanu made after his complaint to the Australian Human Rights Commission (AHRC) was terminated pursuant to s 46PH of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The respondent to the application is the State of New South Wales. In his application Mr Tutoveanu claims that he was unlawfully discriminated against under ss 5B, 5C, 22, 28AA and 28G of the Sex Discrimination Act 1984 (Cth) (SD Act).

2    In summary Mr Tutoveanu makes two complaints against the State of New South Wales arising from the conduct of the New South Wales Police Force (represented by the Commissioner of Police). First, he says he was discriminated against by the Commissioner in the provision of goods and services on the basis of gender identity and intersex status (relying on s 5B and s 5C of the SD Act) in breach of s 22 of the SD Act (Discrimination Claim). Secondly, he submits he was harassed by the Commissioner on the ground of sex (relying on s 28AA of the SD Act) in the provision of goods and services in breach of s 28G of the SD Act (Harassment Claim).

Background

3    On 13 September 2024 Mr Tutoveanu lodged a complaint with the AHRC alleging discrimination arising from events which occurred on 9 January 2023 on the ground of gender identity and intersex status against the Commissioner. The complaint to the AHRC (Complaint) alleged breaches of the SD Act and the AHRC identified ss 5B, 5C, 7B, 22 and 106 of that Act as relevant.

4    In the Complaint Mr Tutoveanu alleged that he had been discriminated against on the basis of his gender identity because:

(1)    he had been described as “‘she’ in [a] police report despite knowing [his] transgender male status” and that the relevant police officer did not “acknowledge [him] by [his] current pronoun [being] ‘he/him’”;

(2)    a “false allegation” was included in the police report to “cover up crime and other false hearsay statements” that was not consistent with his statement which “may have been due to transgender status”; and

(3)    he was not afforded “fair justice and duty”.

5    Mr Tutoveanu also provided with the Complaint a letter from the Police to Mr Tutoveanu responding to an access application under the Government Information (Public Access) Act 2009 (NSW) dated 5 April 2023 under cover of which a Police Event Report was provided to Mr Tutoveanu.

6    On 19 November 2025 Mr Tutoveanu forwarded a copy of the Complaint to the Wollongong Police District.

7    On 26 November 2025 the District Commander of the Wollongong Police District wrote to Mr Tutoveanu and advised him that: (1) the matter had been reviewed and that any misgendering in the Police Report was an oversight and not intended to cause him harm or distress; (2) no police misconduct had been identified; and (3) the matter would not be taken further.

8    On 28 November 2025 the AHRC provided a copy of the Complaint to the Commissioner and thereafter, Mr Tutoveanu provided further information to the AHRC. On 6 February 2026 the Commissioner provided a response to the AHRC.

9    On 20 March 2026 the AHRC terminated the Complaint pursuant to s 46PH(1)(c) of the AHRC Act on the ground that the Australian Human Rights Commissioner was satisfied, having regard to all the circumstances, that the continuation of an enquiry into the Complaint was not warranted.

10    On 31 March 2026 Mr Tutoveanu commenced this proceeding. In his originating application at [4] Mr Tutoveanu identifies three matters referred to in the Police Report which I understand form the basis of the Complaint, and the Discrimination and Harassment Claims for the purposes of this proceeding. They are:

a.    The [Police Report] refers to the complainant as “she".

b.    The [Police Report] contained an entry of a non-existent allegation of sexual touching.

c.    There was no further investigation, charge or prosecution.

11    Mr Tutoveanu alleges in his originating application under the heading “Legislation” that “the discrimination complained of is unlawful under the [SD Act], section(s) 5B, 5C, 22, 28AA, 28G”.

Statutory framework and legal principles

12    Section 46PO of the AHRC Act provides that if a complaint has been terminated by the President under, relevantly, s 46PH of the AHRC Act and notice has been given in relation to the termination, an application can be made to this Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Such an application must be made within 60 days after the date of issue of the notice under s 46PH(2) of the AHRC Act or within such further time as the Court allows: s 46PO(2) AHRC Act.

13    Section 46PO(3A) provides that an application may not be made unless, relevantly, the Court concerned grants leave to make the application.

14    In James v WorkPower Inc [2018] FCA 2083 Mortimer J (as her Honour then was) considered the principles governing the grant of leave under s 46PO(3A) of the AHRC Act. Her Honour considered that in exercising the power under s 46PO(3A) an assessment of the interests of the administration of justice is to be undertaken: James at [31]. Section 46PO(3A) does not set a particularly high bar. Its purpose is to act as a filter to preclude those complaints where the merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding: James at [31].

15    In determining whether to grant leave the Court considers whether the applicant’s claims are reasonably arguable and, at least, not fanciful: James at [37]. There may be other permissible considerations including, as her Honour set out in James at [38]:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

16    In James Mortimer J concluded at [39]:

As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

17    In Matthews v Markos [2019] FCA 1827 Abraham J set out the principles relating to a grant of leave under s 46PO(3A) of the AHRC Act by reference to James. Her Honour noted that there was a debate before her as to the proper approach to be taken by the Court in assessing the considerations set out in James. There, the applicant argued that if the Court concluded that a matter was reasonably arguable then other factors (such as, in that case, delay) would not substantially feature in the consideration as to whether to grant leave. Conversely, the respondent argued that having an arguable case was only one factor, of many, to be taken into account and weighed in the equation. In considering those submissions, among other things, Abraham J said at [37] that whether a matter is reasonably arguable is “a consideration, unlike others, which must necessarily be satisfied before leave will be granted”. Her Honour observed that it would be “perverse, and contrary to the legislative scheme to grant leave if the matter was considered by a Court without any merit” in the manner described in James. Her Honour also observed that if the matter is considered to be reasonably arguable, the other relevant considerations do not fall away.

18    The applicant bears the burden of establishing that leave should be granted and to prove that their case is reasonably arguable: see Chircop v Technical and Further Education Commission [2022] FCA 1015 at [156] (Katzmann J).

Mr Tutoveanu’s submissions

19    Mr Tutoveanu relies on his written submissions filed in accordance with the Court’s orders and on the oral submissions made before me.

20    He submits that it is only necessary to address the Harassment Claim at this stage and that if he succeeds in obtaining leave in relation to that claim, that is sufficient to permit the whole of his application to proceed.

21    As to the Harassment Claim, Mr Tutoveanu submits that it “claims jurisdiction from the statute” referring to s 28AA and s 28G of the SD Act. He submits that the Police Report misgendered him which is an act constituting harassment. He also submits that the Police provided a service and that the State of New South Wales is vicariously liable for its police officers. The relevant “service” was the writing of the police report for him as the alleged victim. Mr Tutoveanu contends that this is in contradistinction to the act of pursuing someone for arrest and charge, which he says is for the community at large. To support this submission, Mr Tutoveanu relies generally on Commissioner of Police v Mohamed [2009] NSWCA 432, to which I return below.

22    Mr Tutoveanu submits that there are positive elements in his favour and that leave should be granted. He explains that the Police refused to change the pronoun in the Police Report until a few months later but that, in the intervening period, he suffered some distress.

Disposition

23    The role of the Court on this application is to determine whether Mr Tutoveanu has a reasonably arguable case. Having regard to the material before me I am not satisfied that Mr Tutoveanu has established that to be so. I have reached that conclusion after considering both the Discrimination Claim and the Harassment Claim. My reasons follow.

The Discrimination Claim

24    There was no dispute that the Discrimination Claim is one of direct discrimination based on the use of the pronoun “she” in the Police Report when referring to Mr Tutoveanu.

25    The relevant sections of the SD Act for the purposes of this claim are ss 5B (discrimination on the ground of gender identity), 5C (discrimination on the ground of intersex status) and 22 (goods, services and facilities).

26    Relevantly, s 22 provides:

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)    in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

27    As the Commissioner submits, to establish a complaint of direct discrimination on the basis of gender identity or intersex status, an applicant must be able to establish:

(1)    the definitions of “gender identity” and “intersex status” in s 4 of the SD Act;

(2)    that they were subject to differential treatment which requires an applicant to show that treatment of them was less favourable than the treatment which was, or would have been, afforded to a person of different sex, where the treatment occurred in circumstances which are the same or not materially different;

(3)    that the reason, or one of the reasons, for the less favourable treatment, was because of their sex, a characteristic that generally appertains to, or is generally imputed to persons of their sex; and

(4)    that a comparator (that is, a person of a different sex to the applicant) would have been treated more favourably in the circumstances.

28    While the definition of “gender identity” is met by Mr Tutoveanu, the same cannot be said in relation to the definition of “intersex status”. That term is defined in s 4 of the SD Act to mean:

… the status of having physical, hormonal or genetic features that are:

(a)    neither wholly female nor wholly male; or

(b)    a combination of female and male; or

(c)    neither female nor male.

29    On 28 November 2025 Mr Tutoveanu sent an email to the AHRC in which he addressed the definition of “intersex status” including that he “believes he was born with a male sexed brain/central nervous system (CNS)” and that “[h]is genitals are gynecological (sic) and chromosomes are XX”. However, there was no evidence before the AHRC to substantiate Mr Tutoveanu’s assertions that he met the relevant definition. That deficiency in evidence continues before me. Ultimately, whether he does is a question of fact to be determined at a final hearing should leave be granted.

30    More fundamentally, assuming for the purposes of this application that Mr Tutoveanu has established that he met the definition of “intersex status”, it is not apparent how he alleges that the Police discriminated against him based on that status. That is, Mr Tutoveanu has failed to establish any connection between his alleged “intersex status” and the conduct complained of, either in the Complaint and as recorded in the AHRC’s letter to Mr Tutoveanu terminating the Complaint, or in the originating application filed in this Court.

31    That leaves the claim made by Mr Tutoveanu based on “gender identity”.

32    As set out at [4] above, Mr Tutoveanu identifies three matters which constitute the alleged discriminatory conduct. Those matters also form the basis of the Complaint. As to the second and third matters that the Police Report contained a non-existent allegation and that there was no further investigation, charge or prosecution or as framed before the AHRC a failure to provide “fair justice and duty”, Mr Tutoveanu has not demonstrated any connection between his “gender identity” and those matters. That is, there was nothing before the AHRC or before the Court which demonstrates that Mr Tutoveanu was treated less favourably by the Police than another person with a different gender identity, in circumstances that are the same or not materially different. As the Commissioner submits, Mr Tutoveanu has not identified any comparator or set out how a person without his protected attribute would have been treated differently.

33    As to the first matter, that Mr Tutoveanu was referred to as “she” in the Police Report, once again Mr Tutoveanu does not identify any differential treatment or the less favourable treatment to which he was subjected by reason of the misdescription of his gender identity. That Mr Tutoveanu was misgendered once in the four-page Police Report does not establish that a person without his gender identity would not also have been subject to such an error in a Police Report. In any event the Police’s response to the AHRC explained that the reference to Mr Tutoveanu as “she” in the Police Report was a typographical error. This is apparent from a review of the whole of that report which otherwise refers to Mr Tutoveanu in a gender-neutral way (i.e. as “PR”, an acronym for “person reporting”).

34    For those reasons Mr Tutoveanu has failed to establish that his Discrimination Claim is reasonably arguable.

The Harassment Claim

35    The Harassment Claim relies on ss 28AA and 28G of the SD Act. Section 28AA concerns the “meaning of harassment on the ground of sex” and s 28G concerns “goods, services and facilities” and relevantly provides:

(1)    It is unlawful for a person to sexually harass, or harass on the ground of sex, another person in the course of providing, or offering to provide, goods, services or facilities to that other person.

…

36    Two threshold issues arise in relation to the Harassment Claim.

37    First, the Complaint does not refer to or rely on s 28AA or s 28G.

38    In their letter dated 6 February 2026 to the AHRC responding to the Complaint, the Police noted that the AHRC had “identified ss 5B, 7B, 22 and 106 of the [SD Act] as appearing relevant to the Complaint” and that in the AHRC’s email dated 3 December 2025 it had “confirmed that Mr Tutoveanu's complaint had been reassessed to include a claim of intersex status discrimination”. The Harassment Claim was not identified.

39    Mr Tutoveanu submits that he raised the Harassment Claim before the AHRC. He relies on his email dated 28 November 2025 to the AHRC in which he stated, among other things, that “[t]here are reasonable grounds for claims pursuant to ss 5B, 5C and 28AA of” the SD Act. However, the Complaint was not amended to include a reference to s 28AA of the SD Act and accordingly, no allegation based on s 28AA of the SD Act was before the AHRC.

40    Secondly, the Harassment Claim must meet the requirements of s 46PO(3) of the AHRC Act which requires that the unlawful discrimination alleged in the originating application filed in this Court must be the same, or the same in substance, as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.

41    While it is clear that the Harassment Claim is not the same in substance or otherwise as the unlawful discrimination that was the subject of the Complaint, I am satisfied that it does arise out of the same or substantially the same acts that were the subject of the Complaint. That is, it arises out of use of the pronoun “she” in the Police Report when referring to Mr Tutoveanu.

42    Notwithstanding that, Mr Tutoveanu still bears the onus of establishing that the Harassment Claim gives rise to a reasonably arguable case.

43    The conduct complained of is the use of the pronoun “she” rather than “he” or “PR” when referring to Mr Tutoveanu in the Police Report. The question that arises is whether there is a reasonably arguable case that this conduct amounts to harassment on the ground of sex. That is whether, because of Mr Tutoveanu’s sex, the Police engaged in “unwelcome conduct of a demeaning nature in relation to the person harassed” and did so “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated”: s 28AA SD Act.

44    Taking account of all of the circumstances, including those set out in s 28AA(2) of the SD Act, I am not satisfied that Mr Tutoveanu has an arguable case based on the Harassment Claim. Mr Tutoveanu has not established that a reasonable person would have anticipated the possibility that he would be offended, humiliated or intimidated by the single instance of misgendering in the Police Report. As I have already observed the Police Report otherwise refers to Mr Tutoveanu in a neutral fashion. The evidence before me establishes that the single use of “she”, which was subsequently corrected, was unintentional and, I infer, was likely an error.

45    That conclusion is sufficient for me to decline to grant leave in relation to the Harassment Claim.

46    For completeness I note that the other issue that arises concerns the question of whether the respondent was providing a “service” to Mr Tutoveanu at the time of the alleged conduct constituting the Harassment Claim or, indeed, the Discrimination Claim.

47    In Bickle v State of Victoria (Victoria Police) [2020] FCA 168 Snaden J considered whether, in investigating the applicant’s complaint in that case, Victoria Police was providing or declining to provide a service to the applicant for the purposes of s 24 of the Disability Discrimination Act 1992 (Cth). His Honour relevantly concluded that conduct engaged in by police while investigating alleged criminal wrongdoing is not conduct that amounts to the provision of a service, whether at large or to those who claim to have been the victims of the particular wrongdoing, nor are decisions made about how or if those investigations should proceed to the laying of charges or prosecuting offenders: Bickle at [22].

48    In reaching that conclusion his Honour referred to a number of authorities, including Mohamed, noting at [18]-[21]:

18    There are authorities that recognise that certain aspects of police work might amount to the provision of services. The New South Wales Court of Appeal, for example, has held that “…the initial investigation of complaints of violence and the protection of the victims of violence provide services to the victims”: Commissioner of Police v Mohamed (2009) 262 ALR 519 (“Mohamed”), 536 [87] (Handley AJA, with whom, on that point, Spiegelman CJ and Basten JA agreed). There is English authority to like effect: Farah v Commissioner of Police of the Metropolis [1998] QB 65 (“Farah”), 78 (Hutchison LJ, with whom Otton and Peter Gibson LJJ agreed). With respect, such reasoning might readily be understood: in responding (by way of “initial investigation”) to a call for assistance—and, thereby, delivering would-be victims of criminal offending from harm’s way—police act in a manner that confers benefits uniquely upon those would-be victims in their capacities as such.

19    The same is not true in respect of subsequent investigation processes and the decisions that arise therefrom as to what, if any, action should be taken against those accused of criminal conduct. The investigation of alleged wrongdoing and the prosecution (or otherwise) of alleged wrongdoers are not functions that the police undertake so as to benefit alleged victims. They are undertaken because orderly civil society and the proper administration of criminal justice requires that they be undertaken. Plainly, that is of benefit to the community as a collective, as well as individually to those who might be the victims of particular wrongdoing. But those functions are discharged in satisfaction of a duty with which the police are entrusted; not so as to confer a benefit upon any particular individual (including those claiming to be the victims of the conduct under investigation).

20    In Djime v Kearnes [2019] VSC 117 (Cavanough J) (“Djime”), the Supreme Court of Victoria referred with apparent approval (at [130] and following) to reasoning adopted by an administrative tribunal that: Services are not provided when police investigate an alleged offence, question an alleged offender, arrest an alleged offender, deal with a bail application, decide whether or not to lay charges, decide whether or not to prosecute charges and decide how a matter will proceed in court…

21    In Mohamed, Handley AJA, in obiter (at [87]), distinguished requests for police assistance from “…the later stages of an investigation and decisions whether or not to prosecute or arrest… alleged perpetrators”. The latter, he said, would generally not qualify as the provision of a service. …

49    The respondent submits that Mr Tutoveanu would need to establish that each of the creation of the Police Report, the reference to a crime of sexual touching (rather than the crime Mr Tutoveanu says he was reporting) and that investigation or otherwise of Mr Tutoveanu’s allegations, amounted to a “service” provided to him.

50    The authorities establish that conduct engaged in by police in the process of investigating alleged criminal wrongdoing is not conduct that amounts to the provision of a service, whether at large or to those who claim to have been victims of particular wrongdoing. The AHRC recognised that to be the case in its letter dated 20 March 2026 to Mr Tutoveanu notifying its termination of the Complaint. The same is the case in relation to decisions made about how or if investigations should proceed to the laying of charges or the prosecution of offenders: see Bickle at [22].

51    In my view Mr Tutoveanu’s allegations about the content of the Police Report, the entry of false allegations and the failure to investigate, charge or prosecute are not “services” for the purpose of s 22 or s 28G of the SD Act. They are either conduct engaged in while investigating an alleged crime (such as, the preparation of the Police Report and its content) or decisions made about whether to investigate, lay charges or prosecute (such as the failure to investigate, charge or prosecute). For that reason, Mr Tutoveanu’s reliance on Mohamed does not advance his case.

52    For that additional reason, I am not satisfied that either the Discrimination Claim or the Harassment Claim is reasonably arguable.

53    For completeness, the respondent submits there was an unexplained delay by Mr Tutoveanu in lodging the Complaint with the AHRC. Mr Tutoveanu received a copy of the Police Report on 5 April 2023 but did not lodge the Complaint until 13 September 2024. While no explanation is provided for this delay, I note that Mr Tutoveanu is not legally represented. In the circumstances the delay in lodging the Complaint is not a factor weighing against a grant of leave.

Conclusion

54    It follows from the above that I will not grant leave to Mr Tutoveanu to make the application as required by s 46PO(3A) of the AHRC Act. Mr Tutoveanu has failed to establish that he has a reasonably arguable case in relation to either the Discrimination Claim or the Harassment Claim. In the circumstances it would not be in the interests of the administration of justice to grant leave to proceed. As the Commissioner submits the merits of the claim (or lack of them) are disproportionate to the time and resources that it would be required to commit to defending the application.

55    Accordingly, I will make orders refusing leave under s 46PO(3A)(a) of the AHRC Act and dismissing the originating application. Neither party addressed me on costs and, given the nature of the proceeding, there will be no order as to costs: see s 46PSA(5) of the AHRC Act. If either party wishes to apply to vary that order, that party should file submissions, not exceeding two pages in length, within 14 days of the making of orders and the other party should file submissions in response, again not exceeding two pages in length, within 14 days thereafter. If that occurs, and unless either party indicates otherwise, any question as to the costs of the proceeding will be determined on the papers.

Associate:

Dated:    2 November 2026