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[2021] FCA 1037
Federal Court of Australia
2021-08-30
Abraham J
Original judgment source is linked above.
Counsel for the Applicant: Applicant appeared in person
AND: MEDICAL BOARD OF AUSTRALIA First Respondent
AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY Second Respondent
JENNIFER YOUNG (and another named in the Schedule) Third Respondent
order made by: ABRAHAM J DATE OF ORDER: 30 August 2021
ABRAHAM J: 1 This matter has a lengthy history. On 10 August 2018, the applicant, a doctor, commenced proceedings seeking ex parte interlocutory and other relief to restrict the Medical Board of Australia (the Board) from imposing or changing conditions on his registration on 13 August 2018. On 13 August 2018, the Board (without knowledge of this proceeding) had already decided to take no action against the applicant, thereby prima facie rendering the proceeding inutile. Since that time the applicant has sought to amend his originating application on two occasions, with the latest dated 15 September 2020, being the originating application which he now wishes to prosecute. 2 Although it will be necessary to return to the chronology of proceedings, in summary, in April 2020 the respondents filed an application for summary dismissal of the proceedings, and in the alternative, orders to have the second, third and fourth respondents removed from the proceedings. This occurred before the amended originating applications had been filed. The respondents submitted that even if the amendments were made to the originating application, as reflected in the originating application dated 15 September 2020 (the further amended originating application), the matter should be summarily dismissed nonetheless. It was submitted that an extension of time was needed for the applicant to rely on the amended originating application, which was opposed. In the meantime, and in the course of filing written submissions, the applicant filed an interlocutory application on 18 November 2020, seeking, inter alia, default judgment against each of the respondents. The applicant sought further time to file written submissions in regard to that interlocutory application, which was granted. 3 The matter was listed on 24 June 2021 for oral hearing of the applicant's interlocutory application for default judgment and the respondents' application for summary dismissal, and the issues associated with each application. 4 For the reasons below: (1) The applicant's application for default judgment is dismissed. (2) In respect to the further amended originating application, in so far as it alleges a breach of the Disability Discrimination Act 1992 (Cth) (DD Act), on the basis that the respondents are a "qualifying body" within the meaning of the DD Act, for the reasons given below, I request further submissions. Orders will be made to facilitate this. (3) In that context I defer making orders in respect to the application for leave to amend until resolution of that issue. That said, these reasons reflect that in respect to all other bases of claims in the further amended originating application, leave to amend would not granted, and even if leave were to be granted, the respondents' application for summary dismissal would be granted.
Evidence 5 On these applications, the applicant read the following affidavits, which were not objected to by the respondents: (1) the affidavit of DJC21 dated 18 August 2018; and (2) the affidavit of DJC21 dated 16 September 2020. 6 The respondents read the following affidavits, which I admitted over objection from the applicant: (1) the affidavit of Sarah Krust dated 19 March 2020; (2) the affidavit of Gabriela McLean dated 8 April 2020; and (3) the affidavit of Alexandra Delaney dated 14 October 2020; 7 The affidavits were, in my view, admissible on these applications. They set out, inter alia, the operation of the Australian Health Practitioner Regulation Agency (Ahpra), the Health Practitioner Regulation National Law (National Law), as enacted in each State and Territory of Australia, and the interaction between Ahpra and the applicant. The applicant sought leave to cross-examine each of the deponents, but given the topics on which leave was sought, in my view, it would not assist in the resolution of these applications: see the principles discussed in National Mutual Life Association of Australasia Ltd v Tolfield Pty Ltd (No 2) [2011] FCA 1309 at [6]-[13]. Although there is a discretion to permit cross-examination, in interlocutory matters it would "normally [be] exercised somewhat sparingly": Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272, and see Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 17; Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 at [18]; Quach v Marks [2021] FCA 335 at [7]; Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 at [43].
Background 8 As noted above, the applicant is a medical doctor. His entitlement to practise in the medical profession is subject to regulation in accordance with the National Law, as enacted in each State and Territory of Australia. The object of the National Law is inter alia, to establish a national registration and accreditation scheme for the regulation of health practitioners (and students): s 3(1). Its objectives include protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered: s 3(2)(a). 9 In the Northern Territory, the National Law is given effect through the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT), which adopts the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). In Western Australia, this is achieved through the Health Practitioner Regulation National Law (WA) Act 2010 (WA). 10 The second respondent, Ahpra, is established by s 23 of the National Law. Its functions are to provide administrative assistance and support to national boards: s 23. That regulation is undertaken by the first respondent, the Board, through its State and Territory sub-boards and committees to which it delegates certain functions and responsibilities. This includes responsibilities under Parts 7 and 8 of the National Law, which can be delegated to State and Territory boards (such as the Northern Territory Board of the Board) and committees (such as the Western Australia Immediate Action Committee or the Western Australia Notifications Committee). 11 Part 7 of the National Law is concerned with the registration of health practitioners. It also gives health practitioners a right, subject to express conditions, to apply to change or remove conditions imposed on their registration: s 125. Part 8 is concerned with practitioners' health, performance and conduct. Part 8 enacts a process of mandatory and voluntary notifications, and the processes to be undertaken upon receipt of a notification. Section 160(1) of the National Law confers power on the Board to investigate a health practitioner, and the process thereof: for example, see ss 163, 166, 167. Relevantly, a person who has had conditions imposed on them as a result of a decision by the Board may appeal against that decision to "the appropriate tribunal": s 199. 12 Pursuant to s 236, an Ahpra staff member, or a consultant or contractor engaged by it to conduct an examination or assessment for the Board, is not personally liable for anything done or omitted to be done in good faith in the exercise of a function under the National Law, or in the reasonable belief that the act or omission was the exercise of a function under the National Law. 13 This proceeding relates to the Board's responses to notifications received by Ahpra, and the outcomes of those notifications.
Chronology 14 As noted above, the applicant filed his originating application in this Court on 10 August 2018. 15 I acknowledge that there was some delay between when the applicant's originating application was filed for ex parte relief, which was not granted, and the matter being docketed to a judge. Although it is unclear why this occurred, it has had no practical effect. The applicant did not during that time agitate that the proceeding advance. In many senses that is not surprising as the proceedings sought an injunction against the Board in a context where the Board had decided not to act. Therefore, on its face, it had no utility. The originating application also sought some relief in relation to a discrimination claim on a less urgent basis "after my submission of an amended application with appropriate particulars". I note that this Court does not have jurisdiction in relation to discrimination claims unless the matter has first been to the Australian Human Rights Commission (AHRC), and then only in certain circumstances. The AHRC did not terminate the applicant's claim until a time shortly before the matter was docketed. 16 The applicant appears to have emailed documents in relation to the AHRC complaint to the Federal Court Registry on 18 October 2019. This is discussed in more detail below. On 29 November 2019 the respondents communicated their intention to apply to have the proceedings struck out to the Court and the applicant, indicating that they were content for this to be addressed at the next case management hearing. 17 On 28 February 2020, a case management hearing was heard before me. As mentioned above, the respondents had flagged their intention to apply for summary dismissal prior to the hearing. At that hearing I ordered that, inter alia, the respondents file and serve any application for summary dismissal and that the applicant file and serve any response to that application, including his own application for leave to amend his originating application (which he indicated for the first time he wished to file). The respondents filed interlocutory applications for summary dismissal in accordance with those orders. 18 After various extensions to the orders, the applicant filed an amended originating application on 7 July 2020. The matter was called on for case management on 26 August 2020. At that case management hearing, counsel for the respondents indicated that they were "amenable to giving an opportunity for a fresh start". In those circumstances, I ordered that the applicant file and serve any affidavit and written submissions, including any application for a further amended originating application. I also ordered that the respondents file and serve any evidence and written submissions they wish to rely on in support of their application for summary dismissal. 19 On 15 September 2020, the applicant filed a further amended originating application with accompanying submissions. The respondents filed further submissions and the affidavit of Ms Alexandra Delany in support of their application for summary dismissal on 14 November 2020. 20 Amongst other documents, on 18 November 2020, the applicant filed an interlocutory application for, inter alia, a "default order" against the respondents under r 5.23 of the Federal Court Rules 2011 (Cth), or in the alternative, leave to amend his originating application under r 8.21. 21 On 12 February 2021, after a further case management hearing, I permitted the applicant to file and serve any evidence and written submissions in relation to his default argument, and gave the respondents an opportunity to respond to those submissions. 22 On 24 June 2021, I heard the applicant's application for default judgment and the respondents' application for summary dismissal, which necessarily involved a consideration of the applicant's application for leave to amend his originating application and an extension of time in which to file the further amended application (if leave was required).
Default judgment 23 The applicant seeks default judgment be entered against the respondents on a number of bases. 24 The applicant relies on rr 5.22 and 5.23 of the Federal Court Rules. 5.22 When a party is in default A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 5.23 Orders on default (1) If an applicant is in default, a respondent may apply to the Court for an order that: (a) a step in the proceeding be taken within a specified time; or (b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant: (i) immediately; or (ii) on conditions specified in the order. (2) If a respondent is in default, an applicant may apply to the Court for: (a) an order that a step in the proceeding be taken within a specified time; or (b) if the claim against the respondent is for a debt or liquidated damages - an order giving judgment against the respondent for: (i) the debt or liquidated damages; and (ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or (c) if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings - an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or (d) an order giving judgment against the respondent for damages to be assessed, or any other order; or (e) an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order. Note 1: The Court may make any order that the Court considers appropriate in the interests of justice - see rule 1.32. Note 2: An order or judgment under this Division may be set aside or varied. 25 The power to grant the relief sought is discretionary. In Chamberlain Group, Inc v Giant Alarm System Co Ltd (No 2) [2019] FCA 1606, Yates J observed at [13]-[14], in respect to r 5.23: [13] The power to give judgment against a defaulting party is undoubtedly discretionary. The discretion must be exercised cautiously. Where the defaulting party is a respondent to a pleaded claim, the giving of judgment for final relief on the application will deliver complete success to the applicant without investigation of the merits of the pleaded claim: ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [27]. There is no requirement that the act or acts of default be intentional or amount to contumelious conduct. There is no requirement that the act or acts of default result in inordinate or inexcusable delay. That said, such features, if present, will be relevant to the exercise of the Court's discretion. So too will conduct that persuades the Court that the defaulting party is manifesting an inability or unwillingness to cooperate with the Court and the other party or parties to the proceeding. [14] Rule 5.23(2)(c) requires the Court to be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement has been interpreted as meaning that the Court must be satisfied that "on the face of the statement of claim" the applicant is entitled to the relief that is claimed. It is not a requirement that the applicant prove its claim by way of evidence. Put another way, the facts alleged in the statement of claim are taken to have been admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 at [42]. If, on inspection of the statement of claim, the Court is satisfied that the applicant would be entitled to the relief sought then this requirement of r 5.23(2)(c) will be met: CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 at [18] - [19]; Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [23]. The Court may permit further evidence to be adduced, but not evidence that would alter the pleaded case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 at [45], [48] - [50]; United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413 at [42] - [44]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; 195 FCR 1 at [62] - [63]. And see: Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [19]-[26].
Submissions 26 The applicant provided detailed written submissions. It is unnecessary to recite all his submissions. The applicant submitted, inter alia, that the respondents were "in default" as they had failed to file a defence within the appropriate time frame; failed to give notice of any objection to his application for judicial review; failed to defend the proceedings in a timely manner and were unwilling to cooperate; filed documents in breach of the Federal Court Rules (which include that they contained material which was vexatious, scandalous, oppressive or otherwise an abuse of process); filed their summary dismissal application which effectively shut the applicant out from amending his originating application; filed material in support that was lengthy, rambling, irrelevant, ambiguous, evasive, selective, took too many technical points, was frivolous, hopeless and an abuse of process designed to subdue him. 27 In oral submissions the applicant highlighted the following, which can be categorised into three areas of complaint being: issues taken with the respondents' filed material, alleged failures of the respondents to file certain material and the respondents' conduct in these proceedings. 28 First, in relation to the respondents' filed material, the applicant submitted the respondents' interlocutory application seeking summary judgment refers to "no real prospect of success", as opposed to "reasonable prospect", which he said amounted to a failure to prosecute or defend the proceedings with due diligence in breach of r 5.22(d). The applicant also relied on r 6.01, submitting that material can be struck from documents if it is oppressive, and this mistake is oppressive because it makes the application ambiguous. The affidavits relied on by the respondents, in particular that of Ms McLean, are oppressively voluminous and scandalous, and that has created prejudice, including losing the services of a lawyer, and that should result in a default judgment pursuant to r 29.02. He submitted that the affidavits were generally irrelevant. It was also submitted that the material was not in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The applicant also submitted that the respondents' written submissions were voluminous and used long and convoluted statements, with blanket assertions. The applicant submitted there were also deemed admissions by the respondents. 29 Second, it was submitted that there was a failure to file a defence in accordance with the Federal Court Rules. The applicant also submitted that the respondents failed to file further written submission in response to his default judgment submissions. 30 Third, in relation to the respondents' conduct, the applicant submitted that the respondents have demonstrated an unwillingness to cooperate with him, which has caused excessive delays. He highlighted the proceedings in the AHRC, and as an example, that they failed to conciliate in the AHRC. This was said to be a failure of due diligence under r 5.22(d). This was submitted in a context where the respondents are obliged to act as model litigants. The applicant complained about the respondents' communication not being in clear terms. The applicant submitted that the respondents have not engaged with his argument. The applicant emphasised the effect this had on him given his disability. 31 The applicant explained his disability and its effect (also described in his affidavit), the details of which are not required to be repeated here for the purpose of this judgment. Suffice to say, I have taken that into account including as to assessing his written and oral submissions, and the fact that he is unrepresented. 32 The respondents opposed the application and in doing so took issue with the applicant's characterisation of various events he alleges to have occurred.
Consideration 33 I do not accept the applicant's submission that the respondents have been in default such as to enliven rr 5.22 and 5.23. Moreover, the grant of such relief is discretionary, and the applicant has not established any matter which would warrant the exercise of discretion to grant the relief sought. 34 The applicant's submission reflects a misunderstanding of the effect of rr 5.22 and 5.23, and some of the concepts contained therein. Moreover, the applicant has made a number of factual assertions, including as to the respondents' motive in the conduct of these proceedings, which in relation to the proceedings in this Court, are not established. The submission is also in many respects artificial, because much of the purported defaulting conduct occurred before the applicant filed his further amended originating application (with issues of an extension of time, if necessary, not yet being granted), and therefore could not apply to claims he now seeks to advance. That is a fundamental problem with the applicant's submission, given the state of the August 2018 originating application (even as explained in his accompanying affidavit). As noted above, in so far as it relates to a claim for discrimination, the Court did not have jurisdiction, as his claim before the AHRC had not been terminated. I could not be satisfied that on the face of the originating application that the applicant would be entitled to the relief sought. 35 I address some of the matters specifically raised by the applicant as examples of the flawed nature of the application. The following is not intended to be exhaustive. 36 The applicant complains that the respondents have failed to file a defence. However, that stage of proceedings has not yet been reached, as there is an extant application for summary dismissal. The applicant also complains that the respondent did not file written submissions in response to his written submissions seeking default judgment. As noted above, the order permitting him to file written submissions on his application was made at his request. This was in circumstances where he had already made allegations of default such as to justify judgment in his favour in his written submissions filed in response to the application for summary dismissal. In that context, although the orders provided for a response by the respondents, I said at the time of making the order "you might want to provide a brief reply. You might not need to: it will depend on the circumstances". It was open to the respondents to rely on the submissions it had already filed, and they chose to do so. 37 As to the submission that the respondents used the word "real" and not "reasonable' in their interlocutory application for summary dismissal, the mistake is unfortunate. I note however, that in the first paragraph of the respondents' written submission it refers to "reasonable". I also note the applicant's written submission opposing the application addresses the argument on the basis that "no reasonable prospect of success" is the operative test. In any event, such a mistake is not of a type that would engage r 5.22(d), which is directed to the conduct of a party that reflects a disinclination to prosecute or defend the proceeding, or act in a dilatory manner in that regard. 38 As to the voluminous materials, including affidavits said to be "oppressive" and "scandalous", these affidavits were admitted in the proceedings. The material, while lengthy, is not properly characterised as voluminous, oppressive and scandalous. Whilst some documents were lengthy, they set out the regulatory structure and explain its operation and the interactions between the respondents and the applicant. The applicant was clearly concerned during the hearing at the reference in the affidavits to the investigations the respondents had conducted, stating that aspects of the material were "painful" for him. However, that is the context in which these proceedings arise and the respondents are entitled to defend the case he brings against them. The applicant seeks to limit the material which is before the Court to that which he wants. That is not a proper basis to exclude otherwise relevant evidence. Contrary to the applicant's contention, there is no proper basis to suggest the material was filed with malicious or improper intent. There is no basis to suggest it was filed other than for bona fide reasons, in the genuine and proper conduct of its case. 39 The applicant asserted that his lawyer said he could no longer assist him as a result of the amount of work involved given the material filed. However, even if that be the case, that does not render the material inappropriate such as to justify some type of relief in the form of a default judgment. Further, I note that the applicant has had the material for over 12 months. Assessing the material in that context, it cannot be properly characterised as oppressive. 40 There is no proper basis to criticise the respondents' written submission in terms of volume. The applicant had expressed that he was more comfortable being given notice of, and addressing, material in writing. This is what the respondents understood and endeavoured to do. 41 As to the question of delay, the applicant's reliance on conduct said to have occurred in the proceeding before the AHRC, is misplaced. Such conduct can have no relevance to an application pursuant to rr 5.22 and 5.23. There is nothing in the conduct of the proceeding in this Court by the respondents which could be characterised as either an unwillingness to cooperate or causing delay. I note at the first case management hearing the applicant sought an adjournment to file an amended originating application, with orders being made for the filing of the submissions in respect to the summary dismissal and the filing of an amended originating application. At the second case management hearing the applicant informed the Court that the person who was to be his lawyer could no longer do so because of the volume of material and time the work would take. The applicant had filed his amended originating application (out of time) but not any submissions in reply to the summary dismissal (as required by the orders). The applicant explained they had been prepared but had difficulties filing them, he thought probably because of its size. He filed an interlocutory application and ultimately sought time to put on further material. Given my intimation that I was going to provide such time, the respondents took the approach the applicant could start afresh in respect to filing his documents. At the next case management hearing, at which stage it was anticipated a date for the hearing of the application would be set, the applicant made a request to file further written submissions on his default application. This is not said as criticism of the applicant but rather to illustrate that any delay, in part, was at his request and the respondents' approach was to accommodate his request, not to hinder it. 42 The above is also relevant to the applicant's submission that the respondents have not acted as a model litigant. Moreover, contrary to the applicant's submission, the respondents making a summary dismissal application is not contrary to the role of a model litigant. As the respondents submitted, where a party forms that view it is proper and expedient to bring a summary dismissal application, it does neither the parties or the court any kindness, nor does it advance the interests of justice to allow a proceeding that lacks utility to continue. 43 Finally, the applicant's submission as to what were purported to be deemed admissions is incorrect. The applicant approached the written submissions such that if the respondent did not expressly challenge a submission it was deemed to be admitted. As explained to the applicant, the submissions are not pleadings. 44 Having considered the applicant's written and oral submissions, in light of the material in relation to the conduct of these proceedings, the applicant has not satisfied me there is a proper basis for his default judgment application.
Alternative applications 45 In the alternative to default judgment, the applicant relevantly sought leave to amend his originating application pursuant to r 8.21 of the Federal Court Rules and, if necessary an extension of time pursuant to r 1.39 of the Federal Court Rules and s 46PO(2) of the AHRC Act. I note also that the applicant seeks to join additional parties to the proceedings. 46 In so far as the applicant also sought "disallowance of the amendments" by the respondents to the summary judgment application, pursuant to r 16.52 of the Federal Court Rules, the application is misconceived. Rule 16.52 relates to disallowing an amendment of a pleading. The respondents have made no such amendments. Rather, the applicant appears to be complaining that after he filed his amended originating application and submission opposing the summary dismissal application, the respondents replied, as they were entitled to. 47 As previously explained, the respondents seek summary judgment. The respondents oppose leave being granted to amend the originating application and for an extension of time, and submit that even if granted, the proceedings should be summarily dismissed. To that end, the respondents' submission on its summary dismissal application addressed both the August 2018 originating application and the further amended originating application. Alternatively, if the summary dismissal application is refused, the respondents then seek that the second, third and fourth respondents should be removed from the proceedings. 48 It is appropriate at this stage to refer to the principles relevant to each of the applicant's applications. However, given that the submissions are interconnected with the application for summary dismissal, it is appropriate to then consider that application.
Application to amend 49 The applicant seeks leave pursuant to r 8.21, which is as follows: 8.21 Amendment generally (1) An applicant may apply to the Court for leave to amend an originating application for any reason, including: (a) to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or (b) to avoid the multiplicity of proceedings; or (c) to correct a mistake in the name of a party to the proceeding; or (d) to correct the identity of a party to the proceeding; or (e) to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding started, or has acquired since that time; or (f) to substitute a person for a party to the proceeding; or (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. Note: For paragraph (1)(b) and the avoidance of multiplicity of proceedings, see section 22 of the Act. (2) An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1)(c), (d), (e) or subparagraph (g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. (3) However, an applicant must not apply to amend an originating application in accordance with subparagraph (1)(g)(ii) after the time within which any statute that limits the time within which a proceeding may be started has expired. Note 1: Applicant, claim and originating application are defined in the Dictionary. Note 2: For the Court's power to make rules amending a document, see section 59(2B) of the Act. Note 3: Rule 9.05 deals with joinder of parties by court order. 50 It appears that the applicant relies on all bases except (c) and (d). 51 The onus is on the party seeking leave to amend to persuade the court that such leave should be given: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 (Dye) at [17]. 52 The question of whether leave to amend should be granted is a matter for the court's discretion. The powers of the court are broad and consideration of the question must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act 1976 (Cth): Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 at [125]; Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 (Caason) at [19]-[21]. The court's power to grant leave to amend has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [14]. Leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs: Caason at [21].
Extension of time 53 It is also appropriate at this stage to refer to the issue of an extension of time. The primary claims which the applicant seeks to advance in his further amended originating application allege a breach of the DD Act. Once the notice of termination of a claim before the AHRC is issued, the applicant has 60 days to make an application to this Court, or such other time as the court allows: s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The discretion is unconfined, save by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40, and Stepien v Department of Human Services [2018] FCA 1062 (Stepien) at [20]. 54 It has been observed that the discretion in s 46PO(2) is of the same character as that found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344; Stepien at [22]. Wilcox J identified a number of factors which are often cited in this regard. The matters the court will usually have regard to, identified in that judgment, are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantive application; and (7) the interests of justice more generally.
Summary judgment 55 Section 31A of the FCA Act relevantly 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. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 56 The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [60] and see [24], although it does not require that the proceedings be seen as "frivolous", "untenable" or "groundless": Spencer at [24], [53]-[60]. The critical question is whether the moving party has persuaded the court that the opposing party has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17]. 57 The meaning of reasonable prospect of success in this provision was considered in Spencer with the plurality, Hayne, Crennan, Kiefel and Bell JJ observing at [59]-[60]: [59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. [60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success… 58 The inquiry required under s 31A is "not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail": Spencer at [52]. 59 The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28]. 60 Rule 26.01 provides for circumstances in which a party can make an application to the Court for summary judgment which relevantly includes, where the applicant has no reasonable prospects of successfully prosecuting the proceeding: r 26.01(a); where proceedings are vexatious or an abuse of process: r 26.01(b); and where no reasonable cause of action is disclosed: r 26.01(c).
Submissions 61 The submissions on the various applications, given their nature, necessarily overlap. 62 In summary, the respondents' submissions as to why proceedings should be summarily dismissed were as follows. First, the proceeding initiated by the originating application filed in August 2018 lacks utility. To the extent that the proceeding is an application for interlocutory relief unconnected to an underlying "matter", it is procedurally flawed. Second, by 13 August 2018 the applicant had already obtained the interlocutory outcome sought in this proceeding, as the Board independently decided to take no action against him. Third, to the extent the proceeding is intended to be an application for judicial review of the Board's decision to impose conditions on the applicant's registration as a medical practitioner, this Court does not have jurisdiction to conduct a review in so far as the proceeding is brought against officers and agencies acting pursuant to the legislation of a State or Territory, not the Commonwealth. The applicant cannot overcome this by joining the state of Western Australia and the Northern Territory. Fourth, to the extent the proceeding is intended to be a complaint of unlawful discrimination, procedural and substantive obstacles to the complaint being prosecuted via this proceeding remain. Namely, that this Court does not have jurisdiction as the proceeding was not filed in accordance with the mandatory requirements set out in s 46PO of the AHRC Act; the applicant is now out of time to bring his discrimination complaint before the Court; and the complaint lacks substantive merit as it fails to disclose a complaint of discrimination in an area of public life protected by the DD Act. 63 The respondents submitted to the extent the applicant seeks to overcome any or all of the issues identified above by amending the originating application to include new claims under the consumer protection legislation, the corporations legislation and at common law, or to expand the scope of his discrimination complaint, the proposed amendments are misconceived, lack merit and the applicant should be refused leave to amend accordingly. 64 The respondents submitted that in the alternative, the second, third and fourth respondents should be removed from the proceeding. First, to the extent the proceeding is about the imposition of conditions, these respondents have no decision-making power in respect of the imposition of conditions on a health practitioner's registration. Second, the third respondent is not personally liable for anything done or omitted to be done in good faith in the exercise of a function under the National Law. Third, the fourth respondent is protected in the course of her employment from liability in civil proceedings under the laws of the Northern Territory, pursuant to s 64A of the Public Sector Employment and Management Act 1993 (NT). 65 The respondents submitted further or alternatively, there is no basis for joining Western Australia and the Northern Territory as parties to the proceeding. First, no application for joinder has been made. Second, no basis on which these parties should be joined is identified. 66 It is appropriate to expand on the submission in relation to the applicant's discrimination claim. 67 The respondents submitted that in respect to the claim of unlawful discrimination, the present proceeding has been filed outside the process set by s 46PO of the AHRC Act. Although the material indicates the applicant has applied to the AHRC in relation to the same or similar conduct, no application to this Court in relation to that complaint has been lodged. The applicant received express written notice that he would need to lodge such an application with the Court, and would need to do so within 60 days of the date of the notice, being 19 August 2019. It was submitted that the applicant may have intended to bring an application in relation to the terminated complaint, but he has not done so. The applicant's email to the Federal Court Registry on 18 October 2019 is not sufficient to constitute the making of an application under s 46PO of the AHRC Act. 68 In order to make such an application, the applicant would require an extension of time, which it appears he seeks. The respondents addressed the relevant factors. As to the length of delay, the applicant appears perhaps to have attempted to file an application with the Court on 18 October 2019. Alternatively, the Court may consider that the delay persisted until around July 2020, when the applicant filed material in response to the summary judgment application. Another alternative date is September 2020, when the applicant filed material including affidavit evidence that he attempted to initiate a proceeding in respect of the terminated complaint, or subjectively believed he had done so on 18 October 2019. On balance, the length of delay is difficult to measure. As to the reason for the delay, the respondents submitted that the applicant should be taken to know he was required to lodge his application within 60 days of the notice of termination of the AHRC complaint, or risk being unable to bring the application at all. The respondents accepted that they will not suffer prejudice that cannot be remedied by an appropriate order as to costs, but given the applicant is impecunious, a cost order is unlikely to remedy any prejudice to the respondent in a practical sense. It submitted that this factor is a neutral consideration. 69 As to whether the applicant has an arguable case, the respondent submitted that the discrimination complaint lacks substantive merit. To have any reasonable prospect of success, the applicant's complaint must relate to discrimination in an area of public life protected by the DD Act. No area of protected public life is disclosed on the material before the Court, nor is any area of protected public life reasonably arguable. The respondent addressed each aspect (as the applicant claimed each applied), being work, goods and services, premises and facilities, laws and programs, qualifying bodies, education and training, advertisements, and requests for information. 70 The respondents submitted that the further amended originating application purports to include an application for remedies under the Australian Competition and Consumer Act 2010 (Cth) or the Corporations Act 2001 (Cth) and purports to include a claim at common law for damages, presumably "under the tort of civil conspiracy" which is addressed in the applicant's written submissions. 71 It is submitted that the claims to those remedies are without merit. First, it submitted that applicant is not a "consumer" within the meaning of the Competition and Consumer Act 2010 (Cth) (ACL) with respect to his interactions with any of the respondents or their legal representatives, referring to the definition of "consumer" included in Sch 2. Second, the respondents submitted that "trade or commerce" in the context of the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act), means transactions between corporations and consumers, or the provision or acquiring of goods and services. The interactions between the applicant and respondents (three of whom are individuals, not corporations) occurred in a regulatory context and involved the exercise of regulatory force against the applicant as a registered medical practitioner. The interactions did not occur in trade or commerce, and therefore the applicant has no real prospect of obtaining remedies for misleading or deceptive conduct under the ASIC Act. Third, in respect to the Corporations Act, the ability to obtain damages for misleading and deceptive conduct is limited to conduct in relation to a "financial product" or "financial services". The interactions between the parties are related to the exercise of regulatory force against the applicant as a registered medical practitioner and consequently have no connection with "financial products" or "financial services". Finally, as to the tort of conspiracy, the respondents again submitted the interactions between the parties were regulatory in nature and referable to the respondents' functions and powers under the National Law. Further, there is no proper basis to assert that the respondents have engaged in the tort of conspiracy by defending the current proceeding. There is no basis for alleging, and no real prospect of proving, conspiracy. 72 Alternatively, the respondents submitted that the Court should not allow an application for amendment, attended by unexplained delay, to enable the applicant to raise new and speculative statutory and common law claims merely to maintain the proceeding in this Court. 73 The applicant relied on detailed written submissions in support of his claims, and expanded upon orally, as to why he contended that they ought to not be dismissed. The applicant submitted that leave ought to be given to amend his originating application, and although he did not need an extension of time, he submitted one ought to be granted. In particular, the applicant responded to submissions by the respondents as to whether the DD Act applied to them.
Consideration 74 In my view, the original claims as drafted in August 2018, as the respondents contended, have no utility. Indeed, in the further amended originating application, they do not seem to be referred to, and therefore not pressed (despite the applicant's written submission in opposition to the respondents' characterisation of those proceedings). That said, the applicant's affidavit supporting the original claims does refer to the claims being in breach of "Australian Human Rights legislation". 75 The issue is whether the applicant can rely on the further amended originating application. 76 It is appropriate to address the last group of claims first, which were made for the first time in the further amended originating application. These are new claims, not made in the original application. 77 For the reasons given by the respondents, the claims under the ACL, the ASIC Act, and the Corporations Act are misconceived. There is no reasonable prospect of such claims succeeding. Similarly, the claim of conspiracy also has no reasonable prospect of success. The applicant's written submissions in reply state the allegations he makes but do not address, or at least do not do so in any substantive way, the issues raised by the respondents in their submission as to the application of that legislation to his allegations. Leave to amend is refused in respect to these claims. To ensure no ambiguity, that relates to all claims under the heading "other remedy sought" in the further amended originating application filed 15 September 2020. If leave had been granted, the claims would have been summarily dismissed. 78 Turning to the claims under the DD Act. 79 It appears that the applicant provided documents from the AHRC to the Registry of this Court on 18 October 2019, within the time limit. However, simply providing documents from the AHRC plainly does not comply with the requirements of making a proper application. No such application was made until at least July 2020 (the first amended originating application). The applicant requires an extension of time to file the claims under the DD Act which appear in the further amended originating application. The respondent does not contend that they are prejudiced by the delay. Nonetheless, in my view leave should not be granted if there is no merit in the application. There are significant issues with the applicant's further amended application in this regard, even when read with the accompanying affidavit. 80 The further amended originating application claims "that the discrimination aggrieved of is unlawful" under the DD Act, with the sections relevant to the claim being ss 5, 6, 15, 19, 20, 22, 23, 24, 27, 29, 30, 35, 37, 39, 42, 44, 122, and 131. These were addressed by the applicant in his submissions. 81 It is plain from the nature of the allegations some of those provisions could not apply. For example, the applicant's reliance on s 15, which applies in relation to discrimination in employment, is misconceived. Contrary to his submission, it is not reasonably arguable that the respondents are his employer. Similarly the respondents are not a registered organisation under the Fair Work (Registered Organisation) Act 2009 (Cth), referred to in s 20. The allegations of discrimination do not relate to access to premises under s 23, or the supply of goods and services in s 24. The respondent is not a club within the meaning of s 27. These examples are not exhaustive. It is also apparent that these types of claims are not those which were advanced before the AHRC. Section 46PO of the AHRC Act operates as a constraint on the relief a complainant to the AHRC can later seek through the Court: Dye at [46]. The intention of s 46PO is to limit the complaint which is brought before the Court to the same complaint that was made to the AHRC, to ensure that the AHRC is always the filter for claims of unlawful discrimination before they are brought to the courts: see the discussion in Wilson (No 2) v Britten-Jones [2020] FCA 1290 at [102]-[106]. 82 As referred to above, in my view a number of the claims are misconceived, and leave would not be granted to extend time in respect to those matters. 83 I note during the hearing, in response to a question I raised, the respondents accepted that the Board fell within the definition in the DD Act of an "education provider" (although it had submitted the contrary in its written submission): s 35(d) of the National Law. It appears to follow, for that purpose, the DD Act applies to some of the respondents in some capacity. Nonetheless, as the respondents correctly submitted, the applicant's complaints do not relate to that aspect of the DD Act. 84 The nub of the applicant's complaints to the AHRC appear to be related to conditions imposed on his registration, and the circumstances in which they were imposed, including the investigation process. 85 If that is the case, the provision which, on its face, appears the most likely to apply is s 19 of the DD Act, relating to "qualifying bodies". Section 19 is in the following terms: 19 Qualifying bodies It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's disability: (a) by refusing or failing to confer, renew or extend the authorisation or qualification; or (b) in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or (c) by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held. 86 The AHRC interpreted the applicant's complaints as identifying s 19 as appearing relevant to his complaint. In responding to the complaints, the respondents submitted that the DD Act did not apply to them. The AHRC terminated the complaint on the basis that there was no reasonable prospect of the matter being settled by conciliation: s 46PH(1B)(b) of the AHRC Act, notifying the applicant, in standard terms, that he may apply to this Court (or the Federal Circuit Court) to have the claims determined. 87 However, the respondents submitted in that context the DD Act does not apply to them, as the National Law is enacted pursuant to legislation in each State and Territory, and is not a Commonwealth law, relying on s 12(6) of the DD Act . In so far as it was submitted that the applicant did not bring a claim in respect to a qualifying body in the AHRC, as noted above, that is the manner in which the complaint was interpreted. Moreover, in the respondents' first written submissions, they appeared to accept that the material before the Court reflected that the applicant had applied to the AHRC in relation to the same or similar conduct. 88 The applicant contended, not being a lawyer, he was not in a position to respond to the legal argument as to the application of the DD Act, and expressed concern that the conclusion might have ramifications in a context where he could not properly present an argument. He submitted that the DD Act did apply to the respondents. He pointed out, inter alia, that there are differing definitions of "Commonwealth law" in the AHRC Act and the DD Act. 89 The application of s 19 of the DD Act does not appear to have been judicially considered. The applicant referred to no authority. That said I note that in Sklavos v Australasian College of Dermatologists, the respondent accepted that it was a qualifying body for the purposes of s 19 of the DD Act (and an education provider) with the consequence that the primary judge did not need to address the issue: [2016] FCA 179 at [42], and on appeal: [2017] FCAFC 128; (2017) 256 FCR 247 at [45]. 90 As the applicant is unrepresented, I consider that, given the breadth and consequence of the assertion that the DD Act does not apply to the respondent, and that there was no contradictor, I require further submissions to be made. This is a discrete legal argument. To that end, I defer consideration of this aspect of the applicant's claim for an extension of time (and the respondents' application for summary dismissal of that aspect).
Conclusion 91 The applicant's application for default judgment is dismissed. 92 At this stage, consideration of the applicant's further amended originating application, in so far as it alleges a breach of the DD Act on the basis that the respondents are a "qualifying body" within the meaning of the DD Act, is deferred until further submissions on the basis of the claim is made. That said, my conclusions on the other aspects are evident from these reasons. However, no orders will be made until resolution of the outstanding issue. 93 The application by the respondents to remove respondents, and the applicant's application to add respondents are deferred until the decision on the further amended originating application is made. 94 The steps to be taken to advance the further submissions will be discussed with the parties. To advance the outstanding legal issue, at this stage, subject to any submissions by the parties, I am minded that legal assistance in the form of amicus curie be appointed. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.
SCHEDULE OF PARTIES NSD 1438 of 2018 Respondents Fourth Respondent: TASMIN COCKAYNE
DJC21
Medical Board of Australia
(2009) 239 CLR 175
(2015) 236 FCR 322
(1996) 69 FCR 1
(2009) 178 FCR 401
(2011) 203 FCR 293
(2010) 241 CLR 118
(2017) 256 FCR 247