DJC21 v Medical Board of Australia

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 45

Date of hearing: 21 November 2022

Counsel for the appellant: The appellant was self-represented

Counsel for the first, second and third respondents: Ms E Latif

Solicitor for the first, second and third Respondents: MinterEllison

AND: MEDICAL BOARD OF AUSTRALIA First Respondent

AUSTRALIAN HEALTH PRACTIONERS REGULATION AGENCY Second Respondent

JENNIFER YOUNG (and another named in the Schedule) Third Respondent

order made by: RARES J DATE OF ORDER: 21 NOVEMBER 2022

1. The appeal be dismissed as incompetent.
2. The application for an extension of time and leave to appeal and the application for leave to appeal each be dismissed.
3. The appellant pay the costs of the first, second and third respondents. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 On 19 July 2022, the primary judge dismissed the appellant's proceeding seeking relief under the Disability Discrimination Act 1992 (Cth) summarily under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), on the ground that her Honour was satisfied that the appellant had no reasonable prospect of successfully prosecuting the proceeding.

Background 2 The appellant is a medical practitioner, but appears to have restrictions or conditions on his ability to practice, imposed by the first respondent, the Medical Board of Australia. The Board was established under regulations made under the Health Practitioner Regulation National Law Act 2009 (Qld), as it was adopted in, apparently, the Northern Territory at the time the appellant practiced there (the National Law) although this is not particularly clear on the material before me. 3 After the primary judge dismissed the proceeding, the appellant filed a notice of appeal. The appellant was unrepresented. I accept that he was not aware that s 24(1D)(b) of the Federal Court Act provided that an order for summary judgment under s 31A is taken to be an interlocutory judgment, for the purposes of which s 24(1A) required him to seek leave to appeal. When the Court drew this to his attention, he initially filed an application for an extension of time and leave to appeal, and subsequently also filed, separately, an application for leave to appeal. It is clear that, had he been aware, he would have sought leave to appeal within time. The appellant made detailed written and oral submissions as to the grounds supporting his being granted leave to appeal. 4 The respondents did not argue in oral submissions that there was any prejudice to them in treating this as a substantive application for leave to appeal from an interlocutory decision. On this application, the fourth respondent filed a submitting appearance. 5 The principles that govern the grant of leave to appeal are well established. As McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29], an applicant for leave to appeal must establish that, first, the decision in question is attended with sufficient doubt to warrant the grant of leave, and secondly, substantial injustice will result from a refusal of leave to appeal.

Proceedings at first instance 6 The primary judge gave two substantive judgments in the course of the proceeding below, the first on 30 August 2021 (DJC21 v Medical Board of Australia [2021] FCA 1037) and the second on 19 July 2022 (DJC21 v Medical Board of Australia [2022] FCA 832). 7 The appellant commenced the proceeding below with an originating application filed on 10 August 2018. He sought interlocutory relief against an apprehended adverse decision by the four named respondents, being the Medical Board, the Australian Health Practitioner Regulation Agency (AHPRA), and the third and fourth respondents who were public servants in the Governments of, respectively, Western Australia and the Northern Territory. Unbeknown to the appellant, three days after he commenced the proceeding below, the Medical Board decided not to take any action against him, thereby rendering his proceeding inutile, as her Honour found in both sets of reasons. 8 On 19 August 2019, the President of the Australian Human Rights Commission (AHRC) decided, under s 46PH of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), to terminate the appellant's complaint (the AHRC complaint) to the AHRC. Pursuant to s 46PO(2) of that Act, an application to this Court (or the Federal Circuit and Family Court) must be made within 60 days after the date of issue of a notice of termination under s 46PH or within such further time as, relevantly, the court allows. 9 The appellant did not seek to rely upon the matters the subject of the AHRC complaint until he filed his amended originating application on about 7 July 2020. Subsequently, the appellant filed another document, which the primary judge described as the further amended originating application, on 15 September 2020. Both of those documents relied on causes of action the subject of the AHRC complaint in respect of alleged discrimination against him under the Disability Discrimination Act. It followed that the appellant needed to obtain an extension of time from her Honour if he wished to raise those matters the subject of the AHRC complaint. 10 Relevantly, the Disability Discrimination Act provides: 4 Interpretation (1) In this Act, unless the contrary intention appears: … Commonwealth law means: (a) an Act, or a regulation, rule, by‑law or determination made under an Act; or (b) an ordinance of a Territory, or a regulation, rule, by‑law or determination made under an ordinance of a Territory; or (c) an order or award made under a law referred to in paragraph (a) or (b). 12 Application of Act … (6) Section 19 has effect in relation to discrimination by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification. … 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. (emphasis added)

The first judgment 11 In the first judgment, her Honour described the history of the proceeding. She noted that there were two interlocutory applications before her at the hearing on 24 June 2021, namely, first, the appellant's application for default judgment against the respondents and secondly, the respondents' application for summary dismissal under s 31A of the Federal Court Act. 12 Her Honour dealt with each of the applications. She dismissed the appellant's application for default judgment. She found that, having considered his written and oral submissions and in light of the material in relation to the conduct of the proceeding, he had not satisfied her that there was a proper basis to grant his default judgment application under rules 5.22 and 5.23 of the Federal Court Rules. Her Honour noted that such a grant is discretionary. 13 Her Honour then turned to consider the issue of whether the appellant should be granted leave to amend to rely upon the further amended originating application and the causes of action it specified, which included ones the subject of the AHRC complaint and others that relied on a variety of other Federal legislation. 14 Her Honour held that, under s 46PO(2) of the AHRC Act, the onus was on the party seeking leave to amend to persuade the Court that it should grant leave to add a cause of action based on matters the subject of a complaint terminated under s 46PH more than 60 days earlier, in accordance with the decision of Marshall, Rares and Flick JJ in Dye v Commonwealth Securities (No 2) [2010] FCAFC 118 at [17]. Her Honour found that the appellant needed an extension of time under s 46PO(2) but had not satisfied her that it was appropriate to grant it. 15 Her Honour then identified the principles that applied to an order dismissing a proceeding summarily under s 31A of the Federal Court Act. She referred to the reasoning of Hayne, Crennan, Kiefel and Bell JJ in Spencer v Commonwealth (2010) 241 CLR 118 at 139 [52] that the Court was not concerned with "an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail". Her Honour noted that the assessment of whether a proceeding had no reasonable prospects of success required the making of a value judgment in the absence of a full and complete factual matrix and argument which had the character of a discretionary judgment. 16 The primary judge recorded the parties' submissions. Her Honour identified the issue on the summary judgment application to be whether the appellant could rely on the further amended originating application to secure the relief he sought, in the context that, as she had already found, shortly after he commenced the proceeding, the Medical Board had resolved not to do that which he sought an injunction to prevent it doing. She found that the Medical Board's decision appeared to render the proceeding inutile, as it was then framed. 17 Her Honour recognised that the appellant had made many new claims in the further originating application, including under the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth), the Australian Securities and Investments Commission Act 2011 (Cth) and the Corporations Act 2001 (Cth). She found that those claims were misconceived and that there was no reasonable prospect of them succeeding. She came to the same conclusion in respect of the appellant's claim that the respondents had committed the tort of conspiracy. Her Honour refused him leave to amend to bring those claims, but noted that, had she granted such leave, they would also have been summarily dismissed. 18 In oral argument today, the appellant did not address those other claims, although, based on references in his written submissions to various sources of misleading conduct, he still sought to advance them. 19 Her Honour found, in respect of the appellant's claims that he had been the subject of unlawful discrimination under the Disability Discrimination Act, as he propounded in the further amended statement of claim under ss 5, 6, 15, 19, 20, 22, 23, 24, 27, 29, 30, 35, 37, 39, 42, 44, 122 and 131, that it was plain from the nature of the allegations that some of those provisions could not apply. The primary judge gave examples as to why she found them to be misconceived. She found that s 15 applied in relation to discrimination in employment, but because the appellant was not employed by the respondents, he could not make a claim under s 15. Likewise, his claim under s 20 failed because the respondents were not registered organisations under the Fair Work Registered Organisations Act 2009 (Cth) and so could not have contravened s 20 of the Disability Discrimination Act which only applied to such entities. Her Honour found that other allegations of discrimination in the further amended originating application could not succeed, including because the respondents' conduct did not relate to access to premises under s 23 of the Disability Discrimination Act, the supply of goods or services under s 24 or conduct by a club under s 27. She added that it was apparent that those types of claims were not within the appellant's AHRC complaint. 20 Her Honour applied what the Full Court had held in Dye [2010] FCAFC 118 at [46]-[47], namely that s 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint that he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court "should not be used to launch an application … effectively bypassing the procedures provided by the legislation": Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Branson J held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act). 21 As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39]. 22 Accepting that usually complaints to the AHRC are not carefully drawn by a lawyer, but by laypeople seeking to raise matters of concern to them in an informal way, some latitude is given to the construction of a complaint to see the ambit of what was before the AHRC. There is no reason to think that her Honour erred in the way she approached the consideration of the new claims in the further amended originating application to which I have referred. 23 Her Honour noted that the respondents accepted that, for some purposes, they could have fallen within the description of an educational authority, to which s 22 of the Disability Discrimination Act applied, because of the functions of the Medical Board under s 35D of the National Law. However, she found that the appellant's claims did not relate to that aspect of the Disability Discrimination Act. 24 She identified that the nub of the appellant's AHRC complaint related to the conditions imposed on his registration and the circumstances in which that occurred, including the investigation process. She identified s 19 as the most likely provision that the appellant might be able to call in aid to support the Court having jurisdiction to deal with the issues in the terminated AHRC complaint. Her Honour was concerned that there had not been full argument on that issue and adjourned the further hearing of it, which ultimately occurred on 6 May 2022. Her Honour appointed an amicus curiae to put arguments as to the proper construction of s 19 and the related provisions of the Disability Discrimination Act. However, her Honour dismissed the application for default judgment on 30 August 2021, but made no other relevant order on the summary dismissal claim.

The second judgment 25 In the second judgment her Honour identified the issues under s 19 then remaining for decision, She held that the reference to "a Commonwealth law" in s 12(6) of the Disability Discrimination Act was a reference to a law made by the Parliament of the Commonwealth and that as the National Law was made by the separate Parliaments of relevant States and Territories participating in the national scheme, it was not applicable to an authority or body referred to in s 19 of the Disability Discrimination Act. She found that because the National Law was State and Territory legislation and that agencies under the National Law acted pursuant to the legislation of those jurisdictions and not of the Parliament of the Commonwealth, s 19 of the Disability Discrimination Act did not apply to the respondents. 26 Her Honour noted that there were review processes for decisions under the National Law available to the appellant in relevant State administrative tribunals in Western Australia, Victoria, New South Wales and the Northern Territory. Her Honour was not satisfied that the appellant had a reasonably arguable case such as to warrant the grant of an extension of time or leave to file a further amended originating application. For completeness, her Honour also found that the appellant had not explained adequately the delay between the decision of the President of the AHRC to terminate the AHRC complaint on 19 August 2019 and the appellant's filing, nearly 11 months later, of the amended originating application and, nearly 13 months later, of the further amended originating application. 27 Her Honour noted that those attempts to amend the originating application occurred only after the respondents had filed their application for summary dismissal. 28 The primary judge found that the relief that the appellant originally sought in the originating application filed on 10 August 2018 was of no utility and futile because it sought to prevent the respondents from acting in a particular manner which they no longer sought to pursue and that, in effect, their decision not to proceed reflected any relief to which the appellant might have obtained had he succeeded on the originating application as originally framed. 29 Her Honour found that the appellant could not have brought a proceeding under the Disability Discrimination Act until the AHRC complaint was terminated, nearly a year after he commenced the proceeding before her, because of s 46PO(1), which is the source of jurisdiction of this Court to consider matters in a terminated complaint. Her Honour found that the further amended originating application was far removed from anything that could have been claimed at the time of the filing of the originating application on 10 August 2018. The primary judge found that the further amended originating application sought to bring many new claims to broaden the scope of the proceeding and overcome arguments that the respondents had made in respect of the appellant's discrimination claims without regard to the limitations that s 46PO imposed on that occurring. 30 She found that, pursuant to s 31A(2) of the Federal Court Act, the respondents had established that there were no reasonable prospects of the appellant successfully prosecuting both the further amended originating application and the originating application that commenced the proceeding filed on 10 August 2018. Her Honour noted that the appellant had sought to add the Northern Territory of Australia and Western Australia as further respondents to the proceeding but found that that would not have overcome the flaws that she had identified. Accordingly, she refused to grant an extension of time to file the further amended originating application and ordered that the proceeding be summarily dismissed.

The Appellant's submissions 31 The appellant argued that, because the National Law was so described, that is, it appeared to be a law operating throughout Australia, it fell within the meaning of "a Commonwealth law" in s 12(6) of the Disability Discrimination Act. He also argued that s 19 operated quite independently of s 12 to make it unlawful for any authority or body with the relevant powers to impose any restrictions on his ability to practice in the way of which he seeks to complain. He contended that the source of the respondents' powers under National Law was an intergovernmental agreement and that that, in some way, created or elevated its status to being a Commonwealth law as defined. 32 He argued that the discrimination to which he claimed to have been subjected was a failure on the part of the Medical Board and or the other respondents to make reasonable adjustments to deal with his difficulties in establishing relationships with a mentor or other person to assist him in being able to work in private practice. He noted, correctly, that the restrictions on his registration and his registration itself had Australia-wide application, that is, in each of the States and Territories that had enacted the National Law. 33 He contended that he did not understand properly all of the issues that arose during the course of argument before the primary judge, although he said, fairly, that he understood that her Honour had given him reasonable assistance and taken care to ensure that he had a fair hearing. This appears to have been a very fair recognition by the appellant that his own difficulties in comprehension are not always evident to those with whom he is communicating so that it may not be obvious whether or not he is actually contemporaneously understanding what is being said or done. As he pointed out, much of the legal argument in this case is complex and the legal provisions are not always easy for lay persons to understand. 34 He contended that the respondents had not given him assistance or implemented a program to assist him to comply with the restrictions that they sought to impose so that their conduct amounted to discrimination. He contended that he had a right to an injunction under s 46PO of the AHRC Act, that the respondents had failed to adapt their communications to enable him to achieve his full potential as a medical practitioner and that they had not created educational programs to assist him. 35 He contended that s 131 of the Disability Discrimination Act gave this Court jurisdiction to deal with his claim. That section provides that if the application of any provision of that Act would result in an acquisition of property from any person having been made otherwise than on just terms, that person is entitled to such compensation from the Commonwealth as is necessary to ensure that the acquisition is made on just terms. He claimed that under s 122, the personal respondents were liable as persons who caused, instructed, induced, aided or permitted another person to do an act that was unlawful under various provisions in Pt 2 of the Act, including ss 19 and 22. He claimed that his right of action under s 131 arose by force of her Honour's dismissal of his application, because he lost his chose in action to have a right to access justice. He claimed that he was not equal before the law, since it was not accessible to him and the dismissal of his claim denied him procedural fairness because of his disability. As I have noted, he did not suggest that this was through any conduct of her Honour other than applying the law as she understood it to determining his claim. He said that he did not wish to seek review under provisions such as s 175 of the Health Practitioner Regulation National Law 2009 (NSW) and its analogues in the relevant State and Territory administrative tribunals, but rather, sought to bring the proceeding below under the Disability Discrimination Act to ensure that he and others were not affected by such conduct.

Consideration 36 The power to dismiss an action summarily, including under s 31A of the Federal Court Act, is not lightly to be exercised. As Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said in Trkulja v Google LLC (2018) 263 CLR 149 at 157-158 [22]: Subsequently, in Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28, this Court considered whether the test for summary judgment prescribed by s 31A of the Federal Court of Australia Act 1976 (Cth), namely, that the court is satisfied that the other party has "no reasonable prospect of successfully prosecuting the proceeding or … part of [it]", differs from the test espoused in Dey and General Steel. All members of the Court except Heydon J emphasised that the power to dismiss an action summarily should not be exercised lightly ((2010) 241 CLR 118 at 131 [24] per French CJ and Gummow J; at 141 [60] per Hayne, Crennan, Kiefel and Bell JJ) but Hayne, Crennan, Kiefel and Bell JJ added that the evident legislative purpose revealed by the text of s 31A would be defeated if its application were read as confined to cases of a kind falling within the test in Dey and General Steel ((2010) 241 CLR 118 at 140 [56], 141 [60]). 37 In Spencer 241 CLR at 141 [58]-[60] Hayne, Crennan, Kiefel and Bell JJ explained that the expression "no reasonable prospect" in s 31A of the Federal Court Act had to be understood in its natural and ordinary meaning. They held that the expression included, but extended beyond, proceedings that were frivolous, untenable, groundless or faulty, saying that the word "reasonable" in the expression "no reasonable prospect" involved the evaluative purpose to which her Honour similarly referred. They had noted (at 140 [56]) that s 31A(3) did not require the party seeking relief under the section to demonstrate that there was no prospect of success or that the result was certain. French CJ and Gummow J said (at 131 [23]) that, in applying what Lindgren J had held in White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 309 [47], a failure, after ample opportunity, to plead a reasonable cause of action may suggest that none exists, and therefore the applicant has no reasonable prospect of success, but the existence and the pleading of a reasonable cause of action remain distinct concepts. They said (at 132 [25]) that s 31A required a practical judgment by the court as to whether the applicant had more than a fanciful prospect of success, and that eventuation may involve judgments of law or of fact or mixed law and fact. 38 Here, the issue is whether the appellant has established that her Honour's decision summarily to dismiss his proceeding is attended with sufficient doubt to warrant the grant of leave to appeal. In my opinion, it is not. Her Honour's construction of the Disability Discrimination Act appears to be irrefragable. 39 Relevantly, the definition of "Commonwealth law" in s 4(1) of the Disability Discrimination Act refers to an Act. As provided in s 38(1) of the Acts Interpretation Act 1901 (Cth), such a reference in a Commonwealth statute, unless a contrary intention appears, is a reference to an Act passed by the Parliament of the Commonwealth. In addition, s 2H of the Acts Interpretation Act provides that, in any Act, a reference to the law of the Commonwealth or a law of the Commonwealth does not include and is taken never to have included a reference to a law in force in a Territory so far as it is in force because of an Act providing for the acceptance, administration or government of that Territory. Moreover, s 13 of the Disability Discrimination Act provides for the operation of State and Territory laws and s 13(3) makes clear that the Disability Discrimination Act was not intended to exclude or limit the operation of a law of a State or Territory that was capable of operating concurrently with the Act so far as the Act has effect under a provision of s 12. Importantly, s 12(6) is concerned to define and limit the circumstances in which the Disability Discrimination Act applies under, relevantly, Divs 1 and 2 that contain ss 19 and 22, namely as the limited application provisions. 40 Nor did the appellant's argument that s 131 of the Disability Discrimination Act created any cause of action have any prospect of success. The appellant did not identify anything that could have amounted to an acquisition of property arising as a consequence of the enactment of the Disability Discrimination Act or its application. The primary judge's dismissal of his proceeding, as having no reasonable prospect of success, did not amount to an acquisition of property. It simply determined that the appellant's ability to bring a proceeding in the Court had not been established to have any reasonable prospect of success. That is not a loss of property. It simply is a recognition of the weakness or absence of a cause of action in itself. 41 I asked the appellant on numerous occasions to identify the power under a Commonwealth law to which s 12(6) may have applied. His answer was to point only to the provisions of the National Law on the basis of his submissions that I have summarised above. In my opinion, that is not the correct construction of s 12(6) for the reasons that her Honour lucidly explained. 42 In the first and second judgments, her Honour dealt with the exercise of her discretion to dismiss the proceeding under s 31A(2) of the Federal Court Act. The appellant did not identify any error in the exercise of that discretion in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. 43 I am not able to discern any error, let alone one to create sufficient doubt to warrant the grant of leave to appeal, in her Honour's decisions to refuse the appellant, first, leave to amend and, secondly, an extension of time under s 46PO(2) of the AHRC Act in which to bring the proceeding based on the termination of the AHRC complaint. Nor am I satisfied that any substantial injustice will result from the refusal of leave to appeal because of the weakness of the appellant's case. 44 While it is clear that the appellant feels aggrieved by what he understands is, and what may be, a lack of assistance from the Medical Board, AHPRA or others in the Governments of States or Territories to enable him to have assistance or mentoring so that he can put himself into the position of being able to comply with conditions imposed on his ability to practice, he has not shown that to be reasonably arguably capable of being found to be unlawful discrimination under the Disability Discrimination Act.

Conclusion 45 For these reasons, I am of opinion that the application for an extension of time and the application for leave to appeal should be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

SCHEDULE OF PARTIES NSD 663 of 2022 Respondents Fourth Respondent: TAMSIN COCKAYNE