Grant v East Metropolitan Health Service [2026] FedCFamC2G 530

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant seeks leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to commence a proceeding in this Court. The claim involves allegations of unlawful discrimination by the respondent under the Disability Discrimination Act 1992 (Cth) (DD Act). The respondent is the East Metropolitan Health Services in Western Australia.
2. The applicant alleges disability discrimination under the DD Act in connection with his employment and its termination based on his alleged disability, namely, the future possibility of contracting COVID-19, or of it being imputed to him, because he was unvaccinated.
3. On 22 August 2022, the applicant lodged a complaint with the Australian Human Rights Commission (AHRC).
4. On 24 April 2025, the AHRC terminated the complaint under ss 46PF(1)(b), 46PH(1B)(a) and 46PH(1)(a) and 46PH(1)(c) of the AHRC Act.
5. On 20 June 2025 the applicant filed an originating application together with a statement of claim in this Court. In order to bring his application for disability discrimination in this Court, the applicant must obtain leave under s 46PO(3A)(a) of the Act.
6. For the reasons that follow leave under s 46PO(3A)(a) of the Act is refused.

LEGAL PRINCIPLES FOR LEAVE UNDER S 46PO(3A) OF THE AHRC ACT

1. Sections 46PO(1) and 46PO(3A) of the AHRC Act relevantly provide as follows:

Application to court if complaint is terminated

Making an application

(1) If:

(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

...

(3A) The application must not be made unless:

(a) the court concerned grants leave to make the application; or

(b) the complaint was terminated under paragraph 46PH(1)(h); or

(c) the complaint was terminated under paragraph 46PH(1B)(b).

1. The source of the Court's power to grant leave in this matter is found in s 46PO(3A)(a).
2. In James v WorkPower Inc [2018] FCA 2083 (James), Mortimer J (as her Honour then was) considered the requirements of s 46PO(3A). Her Honour held at [37]-[38]:
   1. ...the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

38. There may be a range of other permissible considerations including:

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

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

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

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

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

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

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

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

1. This approach to s 46PO(3A) has now been followed by many subsequent decisions of the Federal Court including: Deam v Starlight Children's Foundation Australia [2023] FCA 259 (Deam); Praljak v Commonwealth [2022] FCA 1438 at [8] (per McEvoy J); Chircop v Technical and Further Education Commission [2022] FCA 1015 (Chircop) at [104] (per Katzmann J); Trotta v Northern Health [2021] FCA 668 at [43]- [45] (per Kerr J); and Owen v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2020] FCA 1826 at [20]- [23] (per McKerracher J).
2. Justice Mortimer in James at [39], held that the assessment of whether to grant leave does not require a "detailed consideration and determination of the merits of the applicant's underlying arguments". Similarly, in Chircop Katzmann J at [104], observed that this merely requires the Court to make "an impressionistic assessment" of the applicant's claims and the facts supporting them, to determine whether there is any factual or legal basis for the alleged claims.
3. More recently in Deam, Mortimer J affirmed that the correct approach to the granting of leave was set out in her judgment in James at [37]-[38] (set out above). Her Honour discussed the approach that must be taken under s 46PO(3A) at [41]-[42]:
   1. The Court must undertake an assessment of the merits of the claim in order to determine if it has sufficient prospects of success. In doing so, it is generally appropriate to proceed on the basis that an applicant will be able to prove the allegations of primary fact made in the claim, unless there is material before the Court which suggests they are unlikely to be proven - for example, because of what is contained in the responses of any respondents at the AHRC stage. It may be the case that the respondents have clearly identified inaccuracies or flaws in an applicant's case which should, even at this stage of a preliminary assessment, weigh against the grant of leave.
   2. I respectfully agree with the statement of Abraham J in that it would be contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit: Matthews v Markos [2019] FCA 1827 at [37].
4. In Maksacheff v Commissioner of Police (WA) [2023] FCA 406 Jackson J, by reference to James, set out requirements for obtaining leave under s 46PO(3A)(a) at [22]-[25] as follows:
   1. Mortimer J (as she then was) considered the requirement for leave under s 46PO(3A)(a) in James v WorkPower Inc [2018] FCA 2083. Her Honour's statement of the principles has been applied in numerous subsequent cases. In summary:

(1) Like other judicial discretions under which leave may be granted to take a step in a proceeding, the interests of the administration of justice are a governing consideration. The amendments to s 46PO in 2017 which introduced the leave requirement had a clear purpose, and any consideration as to where the interests of the administration of justice lie must give weight to that purpose (at [31]).

(2) That purpose was to provide a filter. The amendments removed what was previously an entitlement to bring a proceeding in this Court once a complaint was terminated (at [32]). Mortimer J reached that view after considering s 46PO in its statutory context. In particular, leave is not required where the complaint is of public importance (s 46PH(1)(h)) or where it was terminated because there was no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)(b)), which implicitly recognises that the complaint is reasonably arguable (at [33]‑[36]).

(3) Therefore it is appropriate for the Court to consider whether the claims made by an applicant are reasonably arguable and are, at least, not fanciful. That bar is not particularly high as the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources which would likely be consumed by dealing with the proceeding (at [37]).

(4) The Court should not embark on a detailed consideration and determination of the merits of an applicant's underlying arguments about unlawful discrimination. Questions of fact and law which are arguable should be determined at trial (at [39]).

1. No submissions were addressed to me on whether the decision of the High Court (in a different context) in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 impacts on this last point, and I will proceed on the basis that it remains good law.

1. In James at [38] Mortimer J also outlined a range of other factors that may be taken into account. But it is always necessary to satisfy the Court that a proposed application is reasonably arguable before leave will be granted: Matthews v Markos [2019] FCA 1827 at [37] (Abraham J).

25. In Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86], Abraham J said:

Properly read, James v WorkPower was not setting two different standards, with it necessarily being sufficient to simply determine whether the claim is fanciful or not, it being a lesser standard than reasonably arguable. Content is given to that term by the purpose of s 46PO(3A) as described in James v WorkPower, and as explained inter alia, at [43]. There must currently exist in the material relied on a factual basis to establish that the applicant's claim is reasonably arguable. Although questions of fact and law which are arguable are to be determined at the final hearing there must be a rational factual substratum for the allegations: James v WorkPower at [39], [43]. In other words, there must be some factual basis for the claims, even at a threshold level which is what is required for leave.

1. The AHRC terminated the applicant's complaint alleging disability discrimination arising from his dismissal for failing to comply with mandatory COVID‑19 vaccination requirements. The AHRC found that the requirement to be vaccinated applied to all hospital staff under binding Western Australian Public Health Directions (binding public health directions) and was not imposed because of any disability. The applicant's asserted "disability" - the future or imputed presence of COVID‑19 due to being unvaccinated - was not accepted as a basis for direct discrimination, as the potential presence of the virus is a characteristic shared by all persons, vaccinated or not, and was not the reason for the treatment he experienced.
2. The AHRC also rejected the claim of indirect discrimination, finding that the applicant had not shown an inability to comply with the vaccination requirement because of a disability, and that the requirement was reasonable in the context of a public health emergency and mandatory legal obligations. Further, the AHRC held that the applicant was unable to perform the inherent requirements of his role because he could not lawfully attend the hospital workplace, enlivening the inherent requirements exemption under the DD Act. On that basis, the complaint was found to be misconceived, lacking in substance, and not unlawful, and was terminated without further inquiry.

1. At the hearing on 9 February 2026 before me, the applicant was represented by Mr S. Hicks from Lawfield Legal Practice. The respondent was represented by Ms T. Omar from the Western Australia State Solicitors Office.
2. The applicant relied upon written submissions dated 26 November 2025, 30 January 2026 and supplementary post-hearing submissions 18 February 2026. The respondent relied upon written submissions dated 16 January 2026 and supplementary post-hearing submissions dated 16 February 2026.

1. The applicant relied upon two affidavits in support of the application sworn by the applicant. The first was dated 19 June 2025, the second dated 30 January 2026.
2. The first affidavit gave details of the applicant's employment as a hospital orderly since 2004, the disciplinary investigation in 2021 for the applicant's non-compliance with binding public health directions made by the Chief Health Officer in 2021 to get the COVID-19 vaccination, and the disciplinary and termination decision dated 14 January 2022 leading to the termination of the applicant's employment with the respondent from 22 February 2022.
3. The second affidavit responded to a number of issues in the respondent's affidavit sworn 16 January 2026.
4. The substance of the applicant's submissions made at the hearing were as follows.
5. Mr Hicks submitted the applicant's discrimination claim, as pleaded in the statement of claim, is proposed to be brought in this Court under s 5(1) and in the alternative s 5(2) of the DD Act, for direct discrimination. This is despite the originating application filed in this Court on 20 June 2025 referring to a claim under ss 5, 6 and 15 of the DD Act. I have taken what Mr Hicks told the Court to mean that the applicant does not propose to make any claim under s 6 or s 15 of the DD Act.
6. Mr Hicks submitted that under the Act there is a broad or extended definition of what a "disability" meant for the purpose of the applicant's claim for damages. He referred to particular parts of the broad statutory definition of "disability" in s 4 of the DD Act where it is defined to include, in relation to a person:

...

(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;

...

and includes a disability that:

...

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

1. Mr Hicks submitted the applicant's alleged disability fell within the extended definition of disability. He submitted (at paragraph [11] of his written submissions dated 26 November 2025) the applicant has the following disability within the meaning of s 4:

Covid 19 caused by the presence of SARS-CoV-2 coronavirus existing in the future which is imputed to the Applicant due to being unvaccinated. This formulation relies on elements (c) and (d) and paragraphs (j) and (k) of the definition of 'disability' - that is the Covid 19 infection which may exist in the future, or is imputed to, an unvaccinated person.

1. In support of this submission, Mr Hicks referred the Court to Heerey J's judgment in Gordon v Commonwealth [2008] FCA 603 (Gordon). He submits Gordon supports the allegation that a disease like COVID-19 fell within the definition of s 4 (c) or (d), being an organism that may be present in the body in the future causing (or capable of causing) disease or illness, which because of the applicant's unvaccinated status, would be "imputed" to the applicant under the extended definition in subsections (j) and (k) of s 4.
2. The applicant submitted the claim under s 5(1) had the following factual basis:

(a) On the Ground of a Disability s.5(1): The Applicant was terminated for failing to be vaccinated - Affidavit [13] and MG7 which states "..Failure to comply with a lawful order issued to you by myself on 21 September 2021 to receive your first dose of a vaccine against COVID-19 by 1 November 2021... Consequently, your contract of employment will be terminated with notice... effect as at close of business 22 February 2022.";

(b) Because of the Disability the Respondent treats less favourably s.5(1): The less favourable treatment is the termination - Affidavit [13] and MG7;

(c) than Respondent would treat a person without the disability s.5(1): Under s.5 a comparator is required - see Purvis v NSW [2003] HCA 62 at [11] per Gleeson CJ and Gummow, Hayne and Hedyon JJ at [213-214]. The relevant comparator is employees who did not have the Covid Disability - that is, employees who were vaccinated. The vaccinated employees were no terminated or stood down Affidavit at [18].

1. The applicant submitted the alternative claim under s 5(2) had the following factual basis:

(a) On the Ground of a Disability s.5(2) chapeau: The Applicant was terminated for failing to be vaccinated - Affidavit [13] and MG7 which states "..Failure to comply with a lawful order issued to you by myself on 21 September 2021 to receive your first dose of a vaccine against COVID-19 by 1 November 2021... Consequently, your contract of employment will be terminated with notice... effect as at close of business 22 February 2022.";

(b) Respondent does not make reasonable adjustments s.5(2)(a): Reasonable Adjustments would be to allow the Applicant to work as a store person and deliveries, or to work from home at a range of tasks: assisting with Care Opinion, assisting with complaints handling process, and assisting with individualised home support services: Affidavit at [16-17] and MG10 at pp 122,123, 125, 156 and 160 (pp 44, 45, 47,78 and 82 of the Annual Report).

(c) Failure to make reasonable adjustments has effect that Applicant is, because of Covid Disability, treated less favourably ..... s.5(2)(b): The less favourable treatment of the Applicant is the termination - Affidavit [13] and MG7;

(d) treated less favourably ..... than a person without a disability - comparator s.5(2)(b): Under s.5 (2)(b), a comparator is required. The relevant comparator is employees who did not have the Covid Disability - that is, employees who were vaccinated. The vaccinated employees were not terminated or stood down Affidavit at [18].

1. The applicant also submits I should follow Judge Street in McNulty v Modular Training Pty Ltd [2024] FedCFamC2G 862 (McNulty), which granted leave in a similar matter. Mr Hicks submitted that although that decision was not binding on me, it is nevertheless desirable to avoid inconsistent judgments on this issue.

1. The respondent relied upon an affidavit sworn by Mr Gregory, a project director at Perth Hospital on 15 January 2026. It gave detailed evidence about the applicant's employment, the response by the respondent to the COVID-19 pandemic including the policies and directions implemented, and dealings with the applicant in 2021 regarding compliance with public health policies and binding public health directions.
2. The respondent submitted that the discrimination claim being made was one based on the applicant's COVID-19 vaccination status, not on the basis that COVID-19 would be imputed to the applicant as he was unvaccinated. It was submitted by Ms Omar that a person's vaccination status is not, in itself, a protected attribute under the DD Act. The respondent submitted that, as the AHRC delegate correctly observed, the reason for differential treatment between those who are vaccinated and those who are not vaccinated is not the presence or potential presence in the body of organisms capable of causing disease, as this is a characteristic shared by people whether or not they are vaccinated.
3. The respondent submitted that, as observed by the AHRC delegate, observations regarding lower rates of serious illness, hospitalisation and death caused by COVID-19 occurring in vaccinated people, do not support the applicant's claim that vaccinated people cannot get COVID-19 or that because the applicant was not vaccinated, he was imputed with future COVID-19 and this imputation is what led to his employment ultimately being terminated, rather that the applicant was subjected to disciplinary proceedings and had his employment terminated because he had not complied with the respondent's vaccination policy, which applied to all employees, not because he had been imputed with developing COVID-19 in the future.
4. The respondent submitted that the applicant had not disclosed a reasonably arguable claim that the respondent discriminated against him 'on the ground of' or 'because' of his alleged disability. The applicant has not identified a rational factual basis to support his claim that the respondent discriminated against him "on the ground of" his alleged disability.
5. The respondent submitted that the applicant has not made out a reasonably arguable claim for direct discrimination for three key reasons:

(a) Firstly, it is arguably not possible to identify a comparator in this case given that the presence or potential presence in the body of organisms capable of causing COVID-19 is a characteristic shared by all people;

(b) Secondly, the workplace policies of the respondent incorporated reasonable adjustments for people with disabilities by allowing a person to be considered exempt from requirements where they had obtained a medical exemption, which the applicant did not obtain; and

(c) Thirdly, if the actions of the respondent are found to amount to less favourable treatment because of the applicant's identified disability, and the less favourable treatment occurred in circumstances not materially different from a person without the applicant's identified disability, the exemption in section 48 of the DD Act would apply in any event to render the alleged discriminatory conduct not unlawful.

1. It was submitted by Ms Omar that the applicant's claim was not reasonably arguable because the applicant did not have a "disability" under the Act. This issue, it was submitted, was a threshold issue which the applicant would not satisfy.
2. It was submitted the Court should not follow McNulty, as it lacked adequate reasoning for its conclusion in paragraph [67].
3. The respondent also submitted that there were other factors to be taken into account in refusing the application for leave (by reference to the factors discussed in James). First, COVID-19 created an extraordinary emergency in Western Australia, and the Access Directions which provided for a staged mandatory vaccination policy for health care facilities, as well as the process for obtaining an exemption, were a key pillar in the State's response to the threat posed by COVID-19. Second, leave of the Court should not be granted in circumstances where the AHRC has thoroughly dealt with the merits of the Complaint, answered the alleged merits and made it clear that the Complaint lacks substance and is not reasonably arguable.

1. The question before me is whether there currently exists in the material relied on a factual basis to establish that the applicant's claim is reasonably arguable. I have assumed when applying this test the applicant would be able to prove all the material facts pleaded in the applicant's statement of claim at a final hearing.
2. I consider the question of the grant of leave below on that basis.

1. The claim for disability discrimination proposed to be made in this Court is substantially the same as that which was made in the AHRC. The only difference, now he does not claim indirect discrimination.
2. The applicant alleges that he was discriminated against on the basis of his alleged disability. He claims the acts of discrimination were:

(a) Failing to make reasonable adjustments for the applicant from 1 November 2021;

(b) Commencing disciplinary processes against the applicant; and

(c) Terminating the applicant's employment on 22 February 2022.

1. The applicant claims at all material times the applicant suffered from the following "disability" within the meaning of s 4 of the DD Act:

COVID-19 caused by the presence of SARS-CoV-2 coronavirus existing in the future which is imputed to the applicant due to being unvaccinated (the COVID disability).

1. It was submitted by the applicant that it was at least reasonably arguable that the applicant had a claim against the respondent for discrimination under s5(1) based on this pleaded disability, or, alternatively, under s5(2) on the basis that the respondent failed to make the reasonable adjustments which had the effect that applicant was, because of this pleaded disability, treated less favourably than a vaccinated person in circumstances that were not materially different. In this regard, at the hearing, Mr Hicks took the Court to policies that provided vaccinated employees with alternative work arrangements which were offered to vaccinated employees, but not to the applicant, whose employment was terminated.
2. Based on this submission, it is clear that the applicant's claims under both sub-sections fundamentally relies upon the Court finding that it is at least reasonably arguable that the disability claimed is a "disability" within the meaning s 4 of the DD Act.
3. This is a threshold issue which I will deal with first.

Is the claimed disability a reasonably arguable "disability" within s 4 of the DD Act?

1. The full definition of "disability" is s4 of the DD Act 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;

and includes a disability that:

(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. The applicant does not allege that he was discriminated against because he had contracted COVID-19. Nor is there any factual basis for such a claim in the material before me. In my view, this distinguishes the applicant's case from Gordon which is relied upon by the applicant. In Gordon, the applicant had been diagnosed with hypertension when he was discriminated against: he had his employment offer withdrawn by the ATO because the applicant had that disease imputed to him. Hypertension is a disease which falls squarely within the definition of "disability" under s 4 of the DD Act (see subsection (c)).
2. The Federal Court in Gordon held that the imputation of disease to the applicant for the purpose of s 4 was based on a medical report about the applicant's hypertension that had been provided to the ATO. For this reason, I do not consider that Gordon supports the applicant's argument in the present case. If the applicant does not claim (and cannot claim) he had COVID-19 at any relevant time, it is not reasonably arguable, in my view, to claim it was a disease that could be imputed (or attributed) to the applicant, as found in Gordon.
3. Nor does the applicant allege that the respondent "imputed" the applicant as being infected with COVID-19 even if though he had not contracted it. Such a claim may have constituted a reasonably arguable disability within the meaning of s 4, on the basis that the respondent imputed the illness to the applicant within the meaning subsection (k) of s 4 of the DD Act, even though it was imagined. However, besides no such claim being pleaded, there is no factual basis for it on the material before. There is no evidence the respondent imputed COVID-19 to the applicant at any relevant time on the basis he had COVID-19 even though he had not contracted it.
4. Neither does the applicant claim he had any medical condition or illness preventing him from being vaccinated. If he had such a medical condition or illness then this may have, in my view, constituted a reasonably arguable disability within the meaning s 4. There is no factual basis for such a claim on the material before me.
5. Rather, the claimed disability is framed as a possible COVID-19 infection in the future imputed to him because he is unvaccinated.
6. In my view, a possible future COVID-19 infection based on vaccination status is not a reasonably arguable disability within the meaning of s 4 of the DD Act. There are a number of reasons for this.
7. First, as framed, the operative characteristic or attribute of the alleged disability was not because of a disease or illness as per subsection (a)-(g) of s 4 of DD Act, rather, it was because the applicant was unvaccinated. I do not consider the inclusion of the words "by the presence of SARS-CoV-2 coronavirus" before the words, "Covid 19 caused...", in the definition of disability pleaded by the applicant in the present case, makes any difference to this conclusion. Being unvaccinated is not a disease, illness, malfunction or disorder within the meaning of any of the definitions of "disability" in s 4 of the DD Act. Nor can it fall within subsection (k) of s 4, "imputed to a person". Properly construed, the imputation referred to in subsection (k) of s 4 must relate to one of the disabilities referred to in subsections (a)-(g) of s 4. As being unvaccinated does not fall within subsections (a)-(g) of s 4, it cannot be imputed to the applicant as a disability.
8. Second, the applicant pleads at paragraphs 7, 9, 10 and 11 of his statement of claim that the respondent terminated the applicant's employment because the applicant failed to comply with a vaccination requirement contained in binding public health directions and was thereby unable to attend the respondent's workplace. The applicant also acknowledges this in paragraph 34 of his submissions dated 26 November 2025 as the factual basis for the applicant's claim under s 5(1) as follows:

The Applicant was terminated for failing to be vaccinated - Affidavit [13] and MG7 which states "..Failure to comply with a lawful order issued to you by myself on 21 September 2021 to receive your first dose of a vaccine against COVID-19 by 1 November 2021... Consequently, your contract of employment will be terminated with notice... effect as at close of business 22 February 2022."

1. This submission identifies the operative characteristic for the alleged discrimination in the applicant's case, namely, a failure to be vaccinated (or being unvaccinated). As the respondent submitted, and I accept, the applicant does not identify a rational or arguable factual basis to support his claim that the respondent discriminated against him "on the ground of" a disability within s 4. The person's disability must be the real reason for the discrimination: see Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 [13] (Gleeson CJ), [166] (McHugh and Kirby JJ) and Munday v Commonwealth (No 2) [2014] FCA 1123; (2014) 226 FCR 199 [59]. On the evidence said to support a claim under s 5(1), the applicant was not discriminated against because he had any illness or disease within s 4 of the DD Act. He alleges discrimination because he was unvaccinated.
2. In my view, in the applicant's case the essential element of a claim under s 5 of the DD Act - the existence of a disability within s 4 - is absent. I do not accept the applicant's submission that his claimed or pleaded disability is a reasonably arguable "disability" within the meaning of s 4 of the DD Act. In my view there does not exist in the material relied on any factual basis to establish that the applicant's claim is reasonably arguable.

1. In McNulty Judge Street granted leave under s 46(PO)(3A) of the AHRC Act where a similar argument regarding the same alleged disability was made.
2. The applicant submitted while I was not bound to follow McNulty, it was nevertheless desirable to avoid inconsistent judgment on this issue.
3. The respondent submitted I should not follow McNulty.
4. In Abbey Laboratories Pty Ltd (No 3) [2025] FCA 1179 (Abbey Laboratories) Jackman J made the following observations about whether single judges of the Federal Court should depart from earlier judgments of that Court:
   1. Single judges of the Federal Court are not bound by decisions of previous single judges sitting at first instance. It is often said that a single judge of first instance will usually follow the decision of another judge of first instance of the same jurisdiction as a matter of "judicial comity" unless "convinced" the earlier decision is wrong, or "clearly" or "plainly" wrong. Many of the cases stemming from Burchett J's decision in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 were helpfully collected by Wheelahan J in CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 at [256]-[262].
   2. In my view there are two difficulties with such statements. First, the issue whether to follow a previous single judge of first instance on a question of law should not be regarded as one based on "judicial comity". That expression creates the unfortunate (and no doubt unintended) impression that judges should give priority to questions of courtesy and politeness to each other over their duty to apply the law as properly understood. That would wrongly elevate concerns pertaining to internal relations between judges over their fundamental duties to the public. In any event, I do not think that firm but respectful disagreement on questions of law involves a breach of proper standards of judicial etiquette. The question of following a decision of a previous judge should instead be seen as one relating to the rule of law, in that the question concerns the desiderata of the rule of law that the law should generally be consistent and predictable, rather than the question being viewed as one of "judicial comity". However, the desiderata of the rule of law also include that those people who have authority to apply the law in an official capacity do actually apply it in accordance with its tenor. The question whether to depart from a judicial decision made in the same jurisdiction involves a tension between these desiderata, in that maintaining consistency and predictability in decision-making may amount to the perpetuation of an erroneous understanding of the law. The way in which that tension is resolved depends on the particular nature and circumstances of the legal issue in question, and there cannot be an inflexible or rigid approach.
   3. Second, it is neither necessary nor desirable to add vituperative epithets, such as "plainly" or "clearly" wrong. The term "plainly wrong" has been subject to much criticism in the context of intermediate appellate courts departing from decisions of the same intermediate appellate court, and it has been recognised in that context that a more constructive articulation of the principle is whether there is a compelling reason to depart from the earlier decision: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631 at [126] (Lee J, with whom Allsop CJ and Jagot J agreed); Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 at [114] (Beach, Rofe and Jackman JJ); Pallas v Lendlease Corporation Ltd [2024] NSWCA 83; (2024) 114 NSWLR 81 at [140] (Leeming JA). As Leeming JA observed in the last of those cases, it is generally better to speak to the quality and cogency of the case made out for departure from the earlier decision, rather than the egregiousness of the Court's error. That approach was endorsed by Edelman J in Lendlease Corporation Ltd v Pallas [2025] HCA 19; (2025) 423 ALR 23 at [118]. The same approach strikes me as being appropriate for the question whether a single judge of first instance should depart from an earlier decision of another single judge in the same jurisdiction. For the reasons given above, there are compelling reasons to depart from Du Pont.
5. These observations would apply equally to this Court, in my view.
6. I note McNulty was a discretionary interlocutory judgment to grant leave under s 46PO(3A). For this reason I do not consider the conclusions in McNulty (or my judgment for that matter) are binding on another judge of this Court. I also accept the first respondent's submission that in McNulty the Court did not provide any detailed analysis as to why the disability claimed in that case was reasonably arguable within the meaning of s 4 of the DD Act as I have done above.
7. I also note in Wolfraad v Serco Australia Pty Ltd [2022] FedCFamC2G 1063 (Wolfraad), Judge Cameron considered the meaning of "disability" in a different statutory context. Wolfraad concerned a claim for unfair dismissal under s 351 of the Fair Work Act (2009) (Cth) (FW Act). The applicant claimed in that case he was terminated because he was unvaccinated, or perceived to be unvaccinated, against COVID-19. In Wolfraad, Judge Cameron found that not being vaccinated against COVID-19 was not a disability under the FW Act, albeit in that case his Honour observed the definition of "disability" in the FW Act did not include imputed or perceived disability as it did in the DD Act. Despite that, I consider what Judge Cameron said in Wolfraad to be instructive in this matter.
8. For completeness, I note the Court's decision in Wolfraad was cited with approval by Kennett J in Tredders Investments Pty Ltd as trustee for Warren Tredrea Trust v Channel 9 South Australia (No 3) [2024] FCA 233 (Tredders) at [106], albeit a case also concerned with a different statutory context.
9. For the reasons discussed above regarding whether the applicant's claimed disability in this case under the DD Act has any merit, respectfully, I consider there are compelling reasons not to follow or adopt the conclusions in McNulty based on my analysis as detailed above of the particular claim being made in this case and the essential elements of s 4 of the DD Act.

1. Even if the claimed disability was capable of engaging s 4 of the DD Act, I consider the factual material before the Court demonstrates very clearly that the treatment complained of occurred because the applicant did not comply with a vaccination requirement arising from the binding public health directions. Paragraphs 8 to 10 of the statement of claim makes this clear. See also the affidavit of Mr Gregory and the first affidavit of the applicant.
2. Under s 5(1) of the DD Act, a person (the discriminator) discriminates against another (the aggrieved person) if, because of the aggrieved person's disability, they treat them less favourably than they would treat a person without the disability in circumstances that are not materially different. Under s 5(2), a person (the discriminator) discriminates against another (the aggrieved person) if, because of the aggrieved person's disability, the discriminator does not make, or proposes not to make, reasonable adjustments for the person, and for that reason, they treat them less favourably than they would treat a person without the disability in circumstances that are not materially different.
3. The causal nexus that must be established under both limbs is between the acts of discrimination (the failure to make reasonable adjustments, the disciplinary process, and the termination) and the disability. The less favourable treatment must be referrable to the claimed disability for a claim under s 5(1) or s 5(2).
4. On the applicant's own case, vaccinated employees were permitted to attend work because they complied with vaccination requirements arising from binding public health directions. The differential treatment, which is required to establish a claim under s 5, was therefore directly referable to vaccination policy compliance status, not to any disability as alleged, in my view. As the respondent submitted at paragraph [9.19] of its 16 January 2026 written submissions, and I accept,

...There is no causal connection between the presence or potential presence of the SARS-CoV-2 virus in the Applicant's body and the steps taken by the Respondent. Further, the Applicant has failed to establish how 'because of' his alleged medical disabilities, he was unable to comply with the requirements enforced by the Respondent. Without evidence of the causal connection between the alleged disabilities and the conduct of the Respondent, the Applicant does not have a reasonably arguable claim for direct discrimination.

1. The causal nexus required by s 5 of the DD Act is completely absent based on factual material said to support the proposed claim for disability discrimination.

1. Another difficulty with the applicant's claim is the absence of a relevant comparator, to assess differential treatment, which is required under s 5 in order to make out a claim of direct disability discrimination.
2. In Fahda v Bupa HI Pty Ltd [2025] FedCFamC2G 1316 (Fahda), Judge Manousaridis held at [144]:
   1. An essential element of s 5(1) of the DD Act is that the person with a disability (that is, "the aggrieved person") has been treated "less favourably". Whether a person has been treated less favourably requires the construction of a "notional person" against which the treatment of the aggrieved person can be compared. Such notional person is often referred to as the "comparator". How the appropriate comparator is to be constructed was one of the issues the High Court considered in Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis) (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ).
3. To establish a reasonably arguable claim under s 5 of the DD Act, the applicant must establish a "comparator" or a notional person against which the treatment of the aggrieved person can be compared, to assess whether there was differential treatment under s 5. The applicant in his written submissions identifies the relevant comparator or notional person to be 'employees of the respondent who were vaccinated and who were not terminated or stood down': see applicant's written submissions dated 26 November 2025 at paragraphs 33(c) and 34(e). It is submitted by the applicant that this comparator group is the relevant comparator because they did not have the alleged "COVID disability" (a reference to the statement of claim).
4. In my view however this conception of a comparator is flawed. This comparator or notional person assumes that an employee's vaccination status is the operative characteristic or attribute of the alleged disability. For the reasons already given, merely being unvaccinated is not a disability under the DD Act.
5. It would not be possible, in my view, based on the claimed disability, as framed by the applicant, to identify a comparator group or notional person as submitted by the applicant, to assess whether there was differential treatment for the purpose of s 5, given that being unvaccinated is not a disability. It may be different if the applicant alleged he was discriminated against for having contracted COVID-19 or if he was imputed as having the COVID-19 disease even if he had not contracted it or he had a medical condition which prevented him from receiving the vaccination. Hypothetically based on either of those putative claims for discrimination there would be an available comparator or notional person. In the first and second hypothetical case the comparator would be 'a person who did not have or was not imputed to have COVID-19', in the third case it would be 'a person who did not have any medical condition preventing him or her from receiving a vaccination'. In either of those cases, there would be a reasonably arguable disability within the meaning of s 4.
6. There is no reasonably arguable comparator group based on the claimed disability, as framed by the applicant, as required by the High Court in Purvis. This is because there is no factual basis relying on a disability within the meaning of s 4 of the DD Act for establishing a relevant comparator. This is a further reason why the claims made by the applicant under s 5 are not reasonably arguable.

Conclusion on whether the claims under s5(1) or s5(2) are arguable

1. As was outlined above, the applicant's claim is proposed to be made under s 5(1), and in the alternative, under s5(2) of the DD Act. Fundamental to both those claims is whether the disability claimed is a "disability" within the meaning of s 4 of the DD Act.
2. For the reasons given above, the applicant's claim that he had a disability within the meaning of "disability" in s 4 of the DD Act is not reasonably arguable and has no merit. There is no factual basis in my view for establishing the applicant had a disability within the meaning of the DD Act.
3. As the applicant does not claim a reasonably arguable "disability" within the meaning s 4 of the DD Act, the applicant's proposed claims under s 5(1) or s 5(2) are not reasonably arguable and are without merit.

1. As well as considering whether the claims are reasonably arguable, or have any merit, I am required to consider the range of permissible considerations referred to in paragraph [38] of James which might be relevant to the exercise of my discretion under s 46PO(3A). Both parties relied upon their written submissions as to these factors. I set out my consideration of the James factors below.

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

1. The subject matter of the complaint was equally important to both parties. I consider this factor to be neutral consideration in relation to the grant of leave.

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

1. The allegation relates to the termination of the applicant's employment, which is a significant matter to the applicant according to the evidence. However, my conclusion above that his claims made to this Court have no merit outweighs this factor in the exercise of my discretion.

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

1. The delegate of the AHRC set out extensive reasons why the applicant's claim under the DD Act lacked apparent merit. Critically, the AHRC also considered and concluded that being unvaccinated against COVID-19 was not a "disability" within the meaning of the DD Act.
2. Upon my review of its decision, I consider that the delegate of the AHRC assessed the complaint of the applicant thoroughly, summarised the evidence and claims of the applicant, and the response of the respondent accurately and correctly, reviewed the claim as made and gave cogent reasons as to why the applicant's claim lacked merit. This factor weighs against the grant of leave.

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

1. There was no delay (or alleged delay) in this case. I consider this factor to be neutral consideration in relation to the grant of leave.

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

1. There was no evidence on this consideration. I consider this factor to be neutral consideration in relation to the grant of leave.

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

1. The application does not, in my view, raise matters of factual complexity, nor particular legal complexity beyond that which ordinarily applies to matters of alleged discrimination. Further, I consider there is sufficient material before the Court to enable it to form an informed view as to the merits of the Application and whether the allegations of discrimination are reasonably arguable. I consider this factor to be neutral consideration in relation to the grant of leave.

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

1. The allegations do not raise issues of public importance, or of general application. I consider this factor to be neutral consideration in relation to the grant of leave.

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

1. There was no argument put by the parties of any relevant prejudice.
2. The respondent raised one other factor, not specifically referred to above. The respondent submitted that the COVID-19 pandemic created an extraordinary emergency to the State of Western Australia. The State took extraordinary measures to prevent the spread of COVID-19 to protect the members of the community. The Access Directions were a key pillar in the State's response to the threat posed by COVID-19. It was submitted that this factor weighed against the grant of leave. I agree this was a relevant factor weighing against the grant of leave.
3. I do not consider any other matters (besides the ones I have referred to above) are relevant to the exercise of my discretion in this matter under s 46PO(3A)(a) of the AHRC Act.

1. Taking into account all the above matters, I refuse to grant leave to the applicant under s 46PO(3A)(a) of the AHRC Act to make his application in this Court.
2. Accordingly, the application is otherwise dismissed.
3. On the question of costs, I note under s 46PSA(5) the AHRC Act where the respondent is successful the applicant must not be ordered by the court to pay costs, unless one of the exceptions in s 46PSA(6) applies.
4. I will allow the respondent to have liberty to apply for an order for costs, if costs are to be sought against the applicant, such liberty to be exercised within 14 days of the orders made dismissing the application. If no such application is made then no order for costs will be made in this matter.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.