Chadwick v State of New South Wales [2025] FCA 773 | Case summary

Section 46PSA was put into this form by amendments to the AHRC Act effected by the Australian Human Rights Commission (Costs Protection) Act 2024 (Cth) (the AHRC Costs Act).
Clause 7(2) in Part 3 of Schedule 1 to the AHRC Costs Act provides that s 46PSA in its earlier form continues to apply in relation to any application made under s 46PO before the commencement of the AHRC Costs Act. It is therefore the earlier form of s 46PSA that applies to the 2020 proceeding. That earlier form of s 46PSA did not include any provisions of the kind now seen in subsections (2)-(4) as set out above.
It is therefore not necessary to consider whether the orders to be made in respect of the second interlocutory application amount to a circumstance in which "the applicant is successful in proceedings on one or more grounds" within the meaning of the current s 46PSA(2). That provision does not apply to the proceeding. Costs are therefore within the ordinary discretion of the Court under s 43 of the Federal Court of Australia Act 1976 (Cth).
The respondents, meanwhile, sought their costs of the consolidation application. The application has, to the extent that it was contested, been unsuccessful. While caution has been expressed concerning the making of costs orders at an early stage in human rights litigation (Low v Australian Tax Office [2000] FMCA 6 at 11 (Driver FM)), the present proceeding has been on foot for more than four years and the applicant has had opportunities to take advice. The proceeding is one in which monetary compensation is sought, and it is hard to see why the applicant should not have to make the same calculations concerning litigation risk as (for example) a plaintiff in a personal injury case. There will therefore be an order for costs in favour of the respondents. However, those costs will be payable only upon the determination of the proceeding.

It is apparent from the structure of r 30.11 that it envisages the steps in paras (c) to (e) being taken only if one or both of the circumstances referred to in paras (a) and (b) are present. However, the Court's implied power to control proceedings before it, and the express power in r 1.34 to dispense with compliance with the Rules, indicate that it is unproductive to devote significant energy to analysis of paras (a) and (b) as gateway provisions. For reasons mentioned below, it is not apparent that the two proceedings involve common questions of fact, and any commonality of legal issues goes no further than the need to apply the standards in Commonwealth anti-discrimination legislation to similar events. I accept, however, that the cases involve claims arising out of "the same transaction" or a "series of transactions" in the sense that both cases arise out of the applicant's relationship with the respondent in her capacity as a public housing tenant (and, it would seem, as tenant of the same property). The powers in r 30.11 are enlivened. What is probably more significant, however, is that the extent of any commonality of issues is a relevant factor in the exercise of discretion under r 30.11 (see eg Aiguille Pty Ltd v Caffissimo Holdings Pty Ltd as Trustee for the Caffissimo Franchising Unit Trust [2021] FCA 361 at [40] (Jackson J) (Caffissimo)).
In Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11] (Humphries), Besanko J identified the following factors as relevant in considering whether to make an order for proceedings to be heard together.
1. Are the proceedings broadly of a similar nature?
2. Are there issues of fact and law common to each proceeding?
3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
8. Is one proceeding further advanced in terms of preparation for trial than the others?
9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?
Although Humphries was decided by reference to a provision in the former Federal Court Rules (Cth) which was not identical to r 30.11, judges applying the current rule have found this list of issues helpful: see eg Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (in liq) v Commissioner of Taxation [2018] FCA 1739 at [18] (Greenwood J); Caffissimo at [39]; Yang v Wong, in the matter of Axis North Pty Ltd (receiver and manager appointed) (in liquidation) [2024] FCA 1017 at [22] (Collier J). That said, the factors that will be influential in each case will depend on the particular circumstances. For example, Humphries involved several proceedings brought by different applicants against the same group of respondents or subsets of that group (hence Besanko J's interest in the factors numbered 4, 8 and 9 in the extract above), while Caffissimo involved related cases with overlapping but not identical parties. Here, the 2020 proceeding and the 2023 proceeding involve a series of acts by the respondents through their officers which, the applicant contends, involved unlawful discrimination against her. (The respondents are obviously closely related entities and have been jointly represented throughout both proceedings.)
In the 2020 proceeding, the applicant filed an amended concise statement on 1 November 2022 and the respondents filed a concise statement in response on 15 June 2023. Although I was critical of the amended concise statement in an earlier interlocutory judgment (Chadwick v New South Wales (No 4) [2024] FCA 651 at [30]), I refused an application to strike parts of it out and I consider that it can and should be used to identify what the case is about. Although the applicant now expresses reservations about this document (having parted company with the lawyer who prepared it), it seems to me that the only fair way to move forward is to treat the amended concise statement - unless and until the Court is persuaded to allow some further amendment - as identifying the acts on which the applicant's claims are based and, at least in outline, the basis on which she alleges unlawful conduct.
In the 2023 proceeding the applicant filed a concise statement on 4 April 2024; however, there is not yet a concise statement in response and evidence has not been filed. The respondents' written submissions on the consolidation application include a detailed summary of the matters alleged in these respective concise statements, which I have found useful but will not repeat here.
The options to be considered are consolidating the proceedings, hearing them together or hearing the second proceeding immediately after the first. Consolidation would clearly be possible, given that the parties to the proceedings are the same, and would appear to be relatively simple in terms of trial management and procedure. However, the concise statements already filed in the 2020 proceeding would need to be extensively amended or possibly done again from scratch. There is potential for much of the effort that has gone into that process to be wasted.
As to all three of the possible approaches, the following points arise from a consideration of the (apparent) factual and legal issues in the two proceedings. It will be apparent that I have used the factors mentioned in Humphries (above) as a framework in identifying these points.

Chadwick v State of New South Wales

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