Chi v Specialisterne Centre Australia Limited [2025] FCA 1353

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

1. The first respondent ('Specialisterne') is a corporation which assists enterprises in placing autistic and neurodivergent people in employment. Autistic and neurodivergent people are often qualified for a position but can perform awkwardly at interviews in comparison to the general population. Specialisterne seeks to overcome this problem by implementing alternate ways for this cohort to be selected into employment which do not rely so heavily on traditional recruitment processes and procedures.
2. When Specialisterne provides services of this kind to prospective employers it does so in return for a fee, but it is nevertheless operated on a not-for-profit basis. As this case shows, the services it provides are useful for employers seeking to implement diversity policies in the workplace. Two employers seeking to implement such policies in relation to neurodiverse persons are a bank, the second respondent ('Westpac'), and a professional services firm, the third respondent ('Deloitte').
3. Westpac engaged Specialisterne in February 2020 to conduct a targeted recruitment program for people with autism spectrum disorder. The program was envisaged to fill seven vacant roles across different parts of the bank's business. Deloitte, on the other hand, retained Specialisterne in March 2022 to conduct a targeted recruitment program for neurodiverse candidates including an assessment exercise known as the 'Assessment Day Centre' which took place on 4 August 2022. The aim of this program was the recruitment of five neurodivergent persons into roles within Deloitte as analysts or engineers.
4. The applicant, Mr Chi, is a man with autism. He obtained a Bachelor's degree in China in 2007. At some point after this, he appears to have emigrated to Australia. In 2010, Mr Chi graduated from the University of Sydney with a Master of Commerce and a Master of Professional Accounting. He has a good academic record. Since he has graduated Mr Chi has not had full-time work and, as his submissions record, he is understandably desperate to work.
5. Mr Chi attempted to procure employment with Westpac and Deloitte through the programs mentioned above conducted by Specialisterne but was unsuccessful.

1. By an originating application dated 12 August 2024, Mr Chi commenced a proceeding in this Court against Specialisterne, Westpac and Deloitte. He alleged disability discrimination contrary to the provisions of the Disability Discrimination Act 1992 (Cth) ('Disability Discrimination Act'). Recently, Mr Chi has indicated a desire to amend his originating application and, although that has not yet been formally perfected, he has propounded a draft amended originating application. In the circumstances, I think it best to proceed on the basis that Mr Chi's case is the one set out in the draft amended originating application. It contains only five paragraphs articulating his claims and is in the following terms:
   1. At all material times the Applicant suffered from a disability within the meaning of the Disability Discrimination Act 1992 ("the Act").

Particulars

(i) The Applicant suffers from autism;

(ii) The Applicant lacks interpersonal and communication skills not lacking in persons without autism and not lacking in all persons with autism.

1. At all material times the Respondents were persons liable not to discriminate against the Applicant by reason of the matters particularised in paragraph 2.

Particulars

The Respondents were employers, persons acting or purporting to act on behalf of employers or persons providing services as an employment agency or providing services of other character.

1. At all material times the Respondents were liable to not discriminate against the Applicant on the grounds of the Applicant's disability in:

(i) in the case of the Second and Third Respondents, arrangements made for the purpose of determining who should be offered employment;

(ii) in the case of the Second and Third Respondent's in determining who should be offered employment;

(iii) in the case of the First Respondent in the manner in which it would provide services to the Applicant

1. In breach of the matters alleged in paragraph 3 the Respondents discriminated against the Applicant on the grounds of the Applicant's disability:

(i) in arrangements made for the purpose of determining who should be offered employment;

(ii) in determining who should be offered employment;

(iii) in the case of the First Respondent, the manner in which it would provide services to the Applicant.

Particulars

(a) The Respondents organised or held job interviews for the Applicant requiring the Applicant to demonstrate the skills particularised in paragraph 1 hereof, which skills the Applicant lacked, and which skills were unrelated, or insufficiently related, to the tasks required to be performed for the particular jobs;

(b) The Respondents knew, or ought to have known, that the Applicant lacked the said skills and knew, or ought to have known, that the skills were unrelated, or insufficiently related, to the tasks required to be performed for the particular jobs.

1. By reason of the matters alleged in paragraph 4 hereof, the Applicant failed to procure employment in circumstances where, but for the said discrimination, the Applicant would, or would be likely to have, procured employment.

1. Paragraph 1 alleges that Mr Chi has a disability. The disability is alleged to be twofold consisting of the fact that Mr Chi has autism as well as a lack of interpersonal and communication skills. In s1, this lack of interpersonal and communication skills is put forward as a manifestation or symptom of Mr Chi's autism.
2. It is then alleged that Mr Chi's lack of interpersonal and communication skills is not matched by a similar deficit in members of the general population who do not have autism. But - and this is at the heart of the issue shortly to be considered - Mr Chi also alleges that his particular lack of interpersonal and communications skills is also not suffered by every person who has autism. Put in practical terms, Mr Chi alleges a form of autism (with a corresponding lack of interpersonal and communication skills) which some other persons with autism do not have to the same degree.
3. Mr Chi's draft amended originating process thus makes two points. The first is that the respondents have discriminated against him by treating him differently to those who do not have autism. The second is that the respondents have discriminated against him by treating him differently to other persons with autism who happen to have better interpersonal and communications skills than he does.

1. Mr Chi's first argument has, I think, no prospects of succeeding. Specialisterne, Westpac and Deloitte conducted recruitment programs specifically tailored to the needs of autistic persons and in which only autistic persons were eligible to participate. It is difficult to see how programs of this kind could conceivably constitute discrimination against the autistic persons for whose very benefit they are conducted.
2. As it happens, this was also the view of the Australian Human Rights Commission ('the Commission') when it examined Mr Chi's case. It came to be examining his case because at an earlier juncture he had lodged a complaint with the Commission which, after some amendments, eventually alleged several forms of discrimination against Specialisterne, Westpac and Deloitte including disability discrimination. In relation to the allegation of disability discrimination, the Commission was not persuaded that there was any merit in Mr‍ Chi's allegation that these three respondents had discriminated against him because of his autism merely by conducting recruitment programs for autistic persons. I respectfully agree with the Commission on this aspect of the matter.

1. However, that conclusion is not, on its own, an answer to Mr Chi's second argument. This is because that argument turns not on discrimination against Mr Chi by comparison with how the non-autistic population is treated but, rather, on discrimination against Mr Chi by comparison with how those members of the autistic population who have superior communication and interpersonal skills to Mr Chi are treated. In that regard, it is at least theoretically possible as a matter of ordinary experience that the respondents could discriminate against autistic persons with greater deficits in communication and interpersonal skills than other autistic persons whose neurodivergence may not be quite so pronounced in this regard.
2. However, it is not legally sufficient for Mr Chi's case to be theoretically possible as a matter of ordinary experience. Rather, it must be legally viable under the provisions of the Disability Discrimination Act. As it is pleaded, I would read Mr Chi as alleging direct discrimination within the meaning of s 5. Section 5 provides:

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

1. It will be observed that both ss 5(1) and 5(2) require a comparison between the position of the aggrieved person (here Mr Chi) and a person without the disability in circumstances that are not materially different. If the disability is Mr Chi's autism, then s 5(1) requires his position at the hands of the respondents to be compared to the position of persons without autism in circumstances that are not materially different to those of Mr Chi. As I have already indicated, it is impossible to accept that there could be discrimination in that sense by Specialisterne, Westpac and Deloitte operating recruitment programs specifically formulated to meet the needs of the autistic and the neurodiverse.
2. However, as noted before, Mr Chi's alleged disability has two limbs the second of which is a lack of interpersonal and communication skills not lacking in other people with autism. Section‍ 5 requires a comparison between Mr Chi's treatment at the hands of the respondents and the treatment of a person 'without the disability in circumstances that are not materially different'. Mr Chi's case depends for its efficacy on the proposition that a person without his disability for the purposes of ss 5(1) or 5(2) would be a person with autism who has better interpersonal and communication skills than he does.
3. This submission is incorrect for two reasons.
4. First, I do not accept that ss 5(1) or 5(2) requires Mr Chi's situation to be compared with such a person. Mr Chi's alleged disability is his autism. His lack of interpersonal and communications skills is a manifestation of his autism. A person without his disability is therefore a person without autism. It is not other persons with autism (some of whom may have superior interpersonal and communication skills to Mr Chi).
5. Secondly, even if s 5(1) did authorise a comparison between Mr Chi and other persons with autism, the provision requires not just a comparison between Mr Chi and those persons but rather such a comparison 'in circumstances that are not materially different'. Thus, the person without the disability is to be placed in circumstances that are not materially different to those of Mr Chi.
6. Those circumstances will include Mr Chi's interpersonal and communication skills. Why this is so is, to a degree, reasonably complex and some digression is required. Mr Chi's lack of interpersonal and communication skills is alleged at s1 of the draft amended originating application to be a symptom of his autism. The concept of a symptom then brings one to the definition of a disability contained in s 4(1) of the Disability Discrimination Act. It is as follows:

disability, in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future (including because of a genetic predisposition to that disability); or

(k) is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

1. It is possible for a disability to fall within more than one of these paragraphs. For present purposes, however, attention may be confined to paragraph (g). The reference to 'disturbed behaviour' shows that where disabilities which affect processes of thought (or perceptions of reality) are concerned, the behavioural consequences of disability are statutorily included in the very disability itself.
2. That aspect of paragraph (g) has received judicial consideration. The leading authority on paragraph (g) is the High Court's decision in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92 ('Purvis'). In that case, Mr and Mrs Purvis were the foster parents of a teenage boy who suffered a severe brain injury resulting from encephalopathic illness as a young child. As a result, he suffered from intellectual and visual disabilities and also epilepsy. His disabilities were sometimes manifested by disinhibited and uninhibited aggressive behaviour such as hitting and kicking. However, this behaviour was not planned and was not motivated by ill intent. The boy was enrolled at a high school conducted by the State. After being suspended several times for acts of violence towards staff and other pupils, he was eventually excluded from the school by the school principal. Mr Purvis then lodged a complaint with the Commission alleging disability discrimination. The Commission found that the boy had indeed been discriminated against by the State on the basis of his disability (contrary to the Disability Discrimination Act). This conclusion was set aside by the Federal Court. Appeals to the Full Federal Court and the High Court both failed.
3. Mr Purvis's submission in the High Court was that since the boy's disability was a disorder that resulted in disturbed behaviour then the definition in paragraph (g) applied. Under it, the disturbed behaviour was itself part of the disability. Since s 5 required a comparison with the circumstances of a person without the disability it followed that such a person would not exhibit the disturbed behaviours (because under paragraph (g) the disturbed behaviours were part of the disability). Once that position was reached, a finding of discrimination was inevitable. The boy had been expelled for violent behaviour when a person without his disability who, ex hypothesi, would not hit and kick other pupils and members of staff, would not have been expelled.
4. A majority of the High Court (Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ) rejected this contention. For Gleeson CJ (at 100-101 [11]), the boy's propensity to violence stemmed from his disability but that propensity could exist in pupils without the disability ('What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour'). Consequently, the comparison required by s 5 was with a pupil without the disability; not a pupil without the violence. A pupil without the disability who behaved violently towards pupils and members of staff would be excluded from the school. There was, therefore, no discrimination.
5. For Gummow, Hayne and Heydon JJ what was important was the requirement of s 5(1) that the comparison be conducted with a person without the disability 'in circumstances that are ... not materially different'. Whilst the boy's violent behaviour towards others was part of his disability, it was also part of the circumstances in which it was said he had been treated less favourably: at 161 [225]. The requirement that the comparison be with a person without the disability did not entail that the violent behaviour be removed from the circumstances '[r‍]ather, it requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person': at 162 [229].
6. Callinan J agreed with the reasoning of Gummow, Hayne and Heydon JJ (at 175 [273]) but also gave prominence to a point mentioned by Gleeson CJ that one should be slow to read the legislation as operating on conduct which was criminal (at 172 [266]).
7. Purvis shows in this case that Mr Chi's lack of interpersonal and communication skills must form part of the circumstances that are referred to in s 5(1). Thus, even if one accepts that the relevant comparator is other autistic persons (and I do not accept that), these autistic persons would have to be taken to have the same lack of interpersonal and communication skills as Mr Chi does.
8. Once that position is reached, it becomes apparent that Mr Chi's case under s 5(1) cannot succeed under its second limb either.
9. The submissions made on Mr Chi's behalf did not distinguish in any detail the claims under s 5(1) from those under s 5(2). In any event, the above reasoning is equally applicable to s 5(2).

1. Although in his submissions Mr Chi referred to a case of indirect discrimination under s 6 as being in the alternative, this case was not developed in his written submissions and is not expressly referred to in the draft amended originating process.
2. Section 6 is in these terms:

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

1. Mr Rogers of counsel, who appeared for Mr Chi, did elaborate on the indirect discrimination case in his address. He submitted that there had been a failure to provide reasonable adjustments which I take to be an invocation of the kind of indirect discrimination in s 6(2). Mr Rogers identified the reasonable adjustment for the purposes of s 6(2)(b) as being that Mr‍ Chi should not have been required to participate in any kind of interview process or group process.
2. I take this to mean that the respondents imposed a requirement or condition upon Mr Chi (cf.‍ s‍ 6(2)(a)) that he participate in interviews and group processes; that Mr Chi would only be able to comply with that requirement or condition if reasonable adjustments were made for him (cf.‍ s‍ 6(2)(b)); that those reasonable adjustments would involve Mr Chi not having to participate in interviews or group processes; and that the failure of the respondents to make the reasonable adjustments had the effect or likely effect of disadvantaging 'persons with the disability' (cf.‍ s‍ 6(2)(c)).
3. With respect, I do not think that this case makes sense. The reasons for this are related to those which explain why the direct discrimination case should be rejected. The only persons who were exposed to the suggested requirement or condition were persons with autism for it was only they who were eligible to participate in the programs run by Specialisterne for Westpac and Deloitte. To be clear, this entails that there were no persons in the programs who were not autistic or otherwise neurodivergent. In terms of s 6(2)(c) it is difficult to see how the suggested requirement or condition of participating in interviews or group processes can be said to have the effect, or likely effect, of disadvantaging persons with autism when the only persons in the program were persons with autism.
4. The only way around this conclusion would be to reimagine Mr Chi's disability as being a form of autism involving a more pronounced lack of interpersonal and communication skills than other autistic persons. However, as I have explained above, Mr Chi's disability is autism and the correct comparator is persons without autism.

1. Mr Chi made prior complaints of discrimination to the Commission (including a complaint of disability discrimination). A delegate of the President of the Commission terminated the complaints under s 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) ('AHRC Act'). The delegate did so because she was satisfied 'having regard to all the circumstances, that the continuation of an inquiry into the complaint is not warranted'. In light of the termination under s 46PH(1)(c), the effect of s 46PO(3A) was that Mr Chi was not permitted to commence a proceeding in this Court in respect of his complaint without first obtaining the Court's leave to do so. He did not obtain such a grant of leave prior to commencing his proceeding.
2. He was also required to commence any such case within 60 days of the date upon which his complaint to the Commission was terminated 'or within such further time as the court concerned allows': s 46PO(2). The complaint was terminated on 13 June 2024. Mr Chi was therefore required to commence the current proceeding within 60 days of that date, that is to say, by 12 August 2024.
3. Mr Chi lodged his case with this Court at 11.55 pm on 12 August 2024 but since this was after 4.30 pm the effect of r 2.25(3)(b) of the Federal Court Rules 2011 (Cth) ('FCR') was that it was taken to have been filed the following day. Consequently, Mr Chi did not comply with the time limit specified in s 46PO(2).
4. Mr Chi therefore needs two grants of leave: first, a retrospective grant of leave under s‍ 46PO(3A) to commence his proceeding in this Court; and, secondly, an order under s‍ 46PO(2) extending the time in which to bring that proceeding to 13 August 2024 (being the day upon which his claim is taken to have been filed).

1. For the following reasons, Mr Chi should not be granted leave to proceed under s 46PO(3A)(a) and he should not be given an extension of time under s 46PO(2).
2. I would assume in Mr Chi's favour that a grant of leave under s 46PO(3A)(a) may be made retrospective to the day upon which the proceeding was commenced. However, I do not think that leave should be granted in this case. The delegate of President of the Commission examined the merits of Mr Chi's complaint and expressed the view that the claims of disability discrimination were 'ill-conceived' and that 'the apparent merits of your complaint are not strong'. The delegate therefore concluded that there were 'very limited prospects' of Mr Chi achieving the outcomes he was seeking through the Commission's processes which is why it terminated its inquiry into the complaint. For the reasons I have given, I respectfully agree with the Commission's views about Mr Chi's claims. For the reasons I have given, I conclude that Mr Chi's claims of disability discrimination have no reasonable prospects of success. Whilst the bar set by s 46PO(3A) is not especially high, it would not be appropriate to grant leave to proceed to a case which, as here, is not reasonably arguable: James v WorkPower Inc [2018] FCA 2083 at [37]- [38] per Mortimer J.
3. As to the question of the extension of time, had I thought that Mr Chi should be granted leave to proceed under s 46PO(3A) then I would have granted him an extension of time to 13 August 2024 under s 46PO(2). He was only one day out of time and, in his favour, he did in fact attempt to file his proceeding on 12 August 2024 being thwarted only by FCR r 2.25. He is not the first person to have made that mistake. However, since I am not willing to grant leave to proceed, there would be no utility in granting an extension of time.

1. I would therefore dismiss Mr Chi's interlocutory application seeking leave to proceed and the extension of time to 13 August 2024. That application also sought leave to amend his originating process. Since leave to proceed will not be granted there would be little utility in permitting him to amend his originating process. I will therefore dismiss Mr Chi's interlocutory application dated 29 November 2024.
2. Deloitte suggested in its written submissions that Mr Chi's substantive case should now be dismissed. Without expressing a concluded view, that may well be correct since, without a grant of leave, this Court appears to have no jurisdiction to entertain the proceeding. However, none of the respondents have formally sought the dismissal of the proceeding and I do not think it would be fair to Mr Chi to do so without giving him an opportunity to address submissions on the point should he be so advised. I will list the matter for a case management hearing on Tuesday, 25 November 2025, at which time he should show cause why his proceeding should not be dismissed on the basis that the Court has no jurisdiction.
3. Finally, there is the question of costs. Specialisterne seeks its costs and Deloitte asks that it be heard. I will reserve on this question and hear from the parties in the form of short written submissions and any affidavit material. One matter that will need to be considered is the limitation on the Court's broad discretion to award costs imposed by s‍ 46PSA of the AHRC Act. The question of costs will be decided on the papers under FCR rr 36.41(1)(ea) and 1.40.
4. I make the following orders:

(1) The applicant's interlocutory application dated 29 November 2024 be dismissed.

(2) The matter be listed for a case management hearing on 25 November 2025 for the applicant to show cause why his proceeding should not be dismissed for want of jurisdiction.

(3) The question of costs be reserved.

(4) On the question of costs:

(a) The respondents file and serve any affidavit material and written submissions (of no more than 5 pages) by 13 November 2025.

(b) The applicant file and serve any responsive affidavit material and written submissions (of no more than 5 pages) by 20 November 2025.

(c) The respondents file and serve any submissions in reply (of no more than 2 pages) by 27 November 2025.

(5) The question of costs be dealt with on the papers.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.