Lal v Royal Australasian College of Physicians [2025] FCA 348

1. The statements of Greenwood J appear equally applicable in the present case. It is clear that the RACP does not perform any national regulatory function under a Commonwealth law, nor did it make any "decision" that could enliven the Court's jurisdiction under the ADJR Act.
2. Further, I note that in the Statement of Claim Dr Lal relied on the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) in respect of allegations of fraud against the respondents. Section 145.4(1) of the Commonwealth Criminal Code, on which Dr Lal specifically relies, does not found jurisdiction in this Court in this matter in light of ss 39B(1A)(c) and 67G of the Judiciary Act.
3. To the extent that Dr Lal relies on the ADJR Act in respect of alleged fraudulent conduct of the respondents, I again note the decision of this Court in Broadbent. Dr Lal has not referenced any "decision" of the RACP for which he could seek relief under the ADJR Act.
4. For these reasons, I am satisfied that Dr Lal has no reasonable prospect of successfully prosecuting that part of the proceeding that is against the RACP. I am satisfied that the RACP Application ought be allowed, and summary judgment entered against Dr Lal insofar as his originating process relates to the RACP. It is unnecessary for me to further consider whether strike out of the proceedings pursuant to r 16.21(1) of the Federal Court Rules is warranted, or whether the proceedings should be set aside, pursuant to r 13.01(1)(a) of the Federal Court Rules.

AHPRA's Interlocutory Application for Summary Judgment

1. On 12 February 2025, AHPRA filed an interlocutory application seeking the following orders:
   1. Judgment be entered for the Second Respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(a) of the Federal Court Rules 2011 (Cth) or, alternatively, the Originating Application be set aside insofar as it relates to the Second Respondent pursuant to r 13.01(1)(a) of the Rules, on the basis that the Federal Court does not have jurisdiction to deal with the Originating Application as against the Second Respondent and, there is no reasonable prospect of the Applicant successfully prosecuting the Originating Application as against the Second Respondent.
   2. An order that the applicant pay the respondent's costs of and incidental to the proceeding.

1. Materially, AHPRA submitted as follows:
   • Dr Lal asserted that the Federal Court has jurisdiction to deal with the Originating Application, insofar as it relates to AHPRA, because AHPRA "functions under a national regulatory framework that includes significant federal components." Dr Lal also asserted in correspondence that the Court had jurisdiction under s 75(v) of the Constitution. However, neither 39B of the Judiciary Act nor s 75(v) of the Constitution are relevant sources of jurisdiction.
   • Section 75(v) of the Constitution grants original jurisdiction to the High Court of Australia only.
   • For s 39B(1) of the Judiciary Act to apply, the relevant writ must be "sought against an officer or officers of the Commonwealth". Neither AHPRA nor any of its employees are officers of the Commonwealth, accordingly jurisdiction does not arise under s 39B(1).
   • Sections 39B(1A)(a) and 39B(1A)(b) of the Judiciary Act do not apply.
   • For a matter to arise under a law made by the Commonwealth Parliament for the purposes of s 39B(1A)(c) there must be an "immediate right, duty or liability" in question that "owes its existence to Federal law or depends upon Federal law for its enforcement. Dr Lal relied only on the ADJR Act, the Criminal Code Act 1995 (Cth) and the Federal Court Act. None of these Acts provide a basis for jurisdiction to arise under s 39(1A)(c) of the Judiciary Act.
   • For a decision to be reviewable under the ADJR Act, s 5 provides that a person must be aggrieved by a "decision" to which the ADJR Act applies. Dr Lal does not identify in his Statement of Claim the decision, if any, of AHPRA on which he relies.
   • There is no reasonable prospect of Dr Lal successfully prosecuting his claims against AHPRA, and summary judgment should be entered against him.

1. Dr Lal's more general submissions in relation to the applications for summary judgment outlined at [42] above remain relevant to the AHPRA Application.
2. In his 11 March 2025 submissions, Dr Lal materially submitted in relation to AHPRA that:
   • AHPRA made contradictory statements to the Medical Council of Canada in relation to his medical credentials; and
   • any objections to the jurisdiction of the Court to hear the matter must be summarily dismissed because there were regulatory failures by AHPRA in credentialling and in respect of peer review obligations.
3. In his 27 March 2025 submissions, Dr Lal materially submitted in relation to AHPRA that:
   • the conduct of AHPRA affects rights under federal law including migration, employment and statutory recognition; and
   • the national registration and accreditation scheme is a federally co-ordinated regime with significant Commonwealth involvement.
4. Dr Lal's submissions dated 19 March 2025 made no specific reference to AHPRA.

1. Like the RACP, AHPRA submitted that the claims of Dr Lal against it were not within the jurisdiction of the Federal Court. Again, if that is the case, it follows that Dr Lal has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding against AHPRA.
2. Section 75(v) of the Constitution is plainly not a source of jurisdiction for this Court. For the same reasons as I explained earlier in this judgment, in respect of the RACP's Application, Dr Lal's submission that s 75(v) of the Constitution gives rise to jurisdiction is incorrect.
3. Dr Lal also asserts that s 39B(1) of the Judiciary Act is a relevant source of jurisdiction in respect of his claims against AHPRA. Clearly, ss 39B(1), (1A)(a) and (1A)(b) of the Judiciary Act cannot give rise to jurisdiction as the Commonwealth is not a party to the matter, no relief is sought against the Commonwealth, and the matter does not involve interpretation of the Constitution.
4. As was the case with the RACP Application, the only potential source of jurisdiction of the Federal Court is under s 39(1A)(c) of the Judiciary Act.
5. For reasons I have already explained in relation to the RACP Application, s 145.4(1) of the Commonwealth Criminal Code does not found jurisdiction in this Court in this matter in light of ss 39B(1A)(c) and 67G of the Judiciary Act.
6. To the extent that Dr Lal relies on the ADJR Act in respect of alleged conduct of AHPRA, I again note the decision of this Court in Broadbent. Dr Lal has not referenced any "decision" of AHPRA for which he could seek relief under the ADJR Act.
7. For these reasons, I am satisfied that Dr Lal has no reasonable prospect of successfully prosecuting that part of the proceeding that is against AHPRA. I am satisfied that the AHPRA Application ought be allowed, and summary judgment entered against Dr Lal insofar as his originating process relates to AHPRA. It is unnecessary for me to further consider whether the proceedings should be set aside, pursuant to r 13.01(1)(a) of the Federal Court Rules.

MHHS' Interlocutory Application For Summary Judgment

1. On 5 March 2025, MHHS filed an interlocutory application seeking the following orders:
   1. Leave be granted nunc pro tunc for the Third Respondent to make this application.
   2. A direction be made pursuant to Rule 5.04 of the Federal Court Rules 2011 (the Rules) that the name of the Third Respondent be corrected to Mackay Hospital and Health Service.
   3. Orders 4 and 5 of the orders of Collier J dated 6 February 2025 be varied so as to provide:
      1. By 4:30 pm on 5 March 2025, the Third Respondent is to file and serve an outline of submissions of not more than 10 pages in length and any affidavit material in support of its application for summary judgment.
      2. By 4:30 pm on 20 March 2025, the Applicant is to file and serve an outline of submissions of not more than 10 pages in length and any affidavit material in response to the applications for summary judgment.
      3. By 4:30 pm on 27 March 2025, the Respondents are to file and serve any submissions in reply of no more than 5 pages in length and any affidavit material in reply.
   4. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) or rule 26.01 of the Rules, the Court give judgment for the Third Respondent against the Applicant in relation to the whole of the proceeding.
   5. Alternatively, pursuant to rule 13.01(1)(a) of the Rules, the originating application be set aside.
   6. Alternatively, pursuant to rule 16.21(1) of the Rules or ss 23 and 37P of the FCA, or in the inherent jurisdiction of the Court, the originating application and statement of claim be struck out.
   7. The Applicant be ordered to pay the Third Respondent's costs of this application and the proceeding.

1. Materially, MHHS submitted as follows:
   • The submissions of Dr Lal dated 11 March 2025 are largely unresponsive to the issues currently before the Court.
   • MHHS is not required to indemnify Dr Lal and is not subject to any disclosure obligations at this stage in the proceedings, as no orders for discovery have been made or sought.
   • The MHHS Application is not dependent on, and can be resolved without determining, whether Dr Lal is entitled to the indemnity claimed under "HR Policy I2 (QH-POL-153)".
   • No matter in the substantive proceedings falls within the jurisdiction of the Court -neither alleged contraventions of statutory obligations imposed by State legislation nor "broader public law" issues.
   • The decision in Braun v St Vincent's Private Hospital Northside Ltd [2023] FCA 166 relied on by Dr Lal in his submissions is not relevant in the present circumstances as there was no dispute in that case that the applicant's existing pleadings sought relief in respect of alleged contraventions under federal statutes which attracted the Court's jurisdiction under s 39B(1A)(c) of the Judiciary Act.
   • The decision in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 relied on by Dr Lal in his submissions is not relevant in the present circumstances as that case concerned the operation of s 79 of the Judiciary Act, which is not relevant in the present circumstances.
   • The third respondent is not subject to any disclosure obligations in this proceeding, and Dr Lal has not identified any other basis on which the third respondent is required to disclose documents.
   • There is no relevant factual dispute in the substantive proceedings as none of the facts alleged by Dr Lal could establish that the Court has jurisdiction to grant the relief claimed.
   • The asserted obligation to indemnify Dr Lal under the "HR Policy I2 (QH-POL-153)" relied on by Dr Lal in submissions does not contemplate providing indemnity in circumstances where, as here, a former employee brings a claim against MHHS.
   • The submissions of Dr Lal dated 23 March 2025 largely restate his earlier submissions save for his reference to s 1317AE(1) of the Corporations Act 2001 (Cth) - Dr Lal has made no allegations referable to s 1317AE(1) and, in any event, MHHS is incapable of offending that provision as it does not fall within the categories of offenders identified in s 1317AE(1)(d).

1. Dr Lal's more general submissions in relation to the applications for summary judgment outlined at [42] above remain relevant to the MHHS Application.
2. In relation to MHHS, Dr Lal further submitted in his 19 March 2025 submissions, in summary, that:
   • MHHS cannot rely on "frustration of contract" under s 137 of the Public Service Act as Dr Lal's employment with MHHS was suspended after his protected disclosure to RACP and AHPRA, not due to any unforeseen possibility.
   • the Deed of Settlement entered into between MHHS and Dr Lal does not cover future regulatory misconduct or concealment of peer review failures;
   • the Deed of Settlement was executed under severe duress and visa-dependent coercion; and
   • MHHS cannot rely on limitations under s 310 of the Industrial Relations Act or s 38 of the Limitation of Actions Act 1974 (Qld) as the claim involves ongoing breaches and procedural suppression.

1. Any claims made by Dr Lal against MHHS in reliance on the Commonwealth Criminal Code are not within the jurisdiction of this Court for the same reasons outlined above in relation to the RACP Application and AHPRA Application.
2. Notwithstanding that the evidence indicates execution of the Deed of Settlement by Dr Lal while he was legally represented, Dr Lal submitted that the Court ought to set aside the Deed of Settlement on the basis that he executed it under duress. To the extent that this issue is relevant in the context of the present interlocutory proceedings, as Counsel for MHHS made clear at the hearing of 2 April 2025, MHHS did not rely on the Deed of Settlement as being the bar to proceedings to deny the Court's jurisdiction. Rather, Counsel for MHHS submitted that even if the bar was ineffective, Dr Lal's employment was subject to State law, namely the Public Service Act and the Industrial Relations Act. Any employment dispute by Dr Lal with MHHS in respect of his previous employment would be in the State jurisdiction, not the jurisdiction of this Court.
3. Dr Lal also sought to enliven the Court's jurisdiction by submitting that MHHS' actions concerned "corporate governance" and "potential conflicts between State and Federal laws". In the absence of particularisation of these claims, they are not matters giving rise to the Court's jurisdiction.
4. In the circumstances, I am satisfied that Dr Lal has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding against MHHS. I am satisfied that the MHHS Application ought be allowed, and summary judgment entered against Dr Lal insofar as his originating process relates to MHHS. It is unnecessary for me to further consider whether strike out of the proceedings pursuant to r 16.21(1)(d) of the Federal Court Rules is warranted, or whether the proceedings should be set aside, pursuant to r 13.01(1)(a) of the Federal Court Rules.

1. All respondents sought costs of and incidental to the proceedings. Section 43(2) of the Federal Court Act provides that the award of costs is in the discretion of the Court or Judge. As each respondent has been successful in their respective interlocutory applications for summary judgment, in the ordinary course costs follow the event: Oshlack v Richmond River Council [1998] HCA 11.
2. AHPRA and MHHS were content with an order to the effect that they be awarded costs, to be taxed if not otherwise agreed. In my view, an order in such terms in favour of those respondents is appropriate.
3. The RACP however sought an order that it be awarded costs in a lump sum, to be assessed by a Registrar of this Court. At the hearing, Counsel for the RACP submitted that a lump sum costs order promoted cost effectiveness and efficiency.
4. Section 37M of the Federal Court Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 40.02(b) of the Federal Court Rules allows a person who is entitled to costs to apply the Court for an order that costs be awarded in a lump sum instead of, or in addition to, any taxed costs. Further, Costs Practice Note (GPN-COSTS) para 4.1 provides that the Court's preference, wherever it is practicable and appropriate to do so, is for the making of a lump sum costs order, and also that the parties be given a fair opportunity to present their views as to the appropriateness of utilising a lump sum costs procedure (para 4.2). Paragraphs 4.10-4.14 of the Costs Practice Note provides for material to be filed referable to an assessment of a lump sum costs order, and paras 4.16-4.17 makes reference to timetabling orders.
5. The RACP applied for the amount of costs to be determined by a Registrar of this Court. There is authority for an order in such terms. As Katzmann J explained in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810:
   1. In Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 4) [2017] FCA 436 Perram J ordered that costs be paid in a lump sum and directed the Registrar, pursuant to r 1.37 of the Rules to determine the quantum of the applicant's costs in such manner as he or she deems fit including, "if thought appropriate", on the papers. There is no good reason why a similar order should not be made in the present case.
   2. Section 35A(1) of the FCA Act provides that, subject to subs (2), a number of powers of the Court may, if the Court or a judge so directs, be exercised by a registrar. One of those powers is the power to make an order as to costs: s 35A(1)(f). Another is a power of the Court prescribed by the Rules: s 35A(1)(h).
   3. Rule 3.01(1) prescribes, for the purposes of s 35A(l)(h), the relevant powers of the Court, including relevantly a power of the Court under a provision of the Rules mentioned in column 2 of an item in Schedule 2 to the Rules. Item 221 of Schedule 2 is the power under r 40.02 to make an order about the amount of costs.
   4. As the Ombudsman submitted, this means that, if the Court considers that the Ombudsman should be awarded costs, a Registrar of the Court has the delegated power to fix the costs amount in a lump sum, pursuant to r 40.02(b).
6. See also, Virag v Eastern Victoria GP Training Ltd [2024] FCA 1283.
7. In my view, the Court has power to direct a Registrar to determine the amount of costs in a lump sum in favour of the RACP. I will make an order in those terms.

1. For the reasons outlined above, the interlocutory applications of the three respondents should be allowed with costs, and summary judgment be entered against Dr Lal on the whole of the originating process.
2. Finally, I note that Dr Lal lodged two interlocutory applications on 28 and 29 November 2024, and that those interlocutory applications are currently sitting as "pending" in the Court's electronic lodgement system in light of my orders dated 3 December 2024. I note that those interlocutory applications related to Dr Lal's substantive claims. As I have ordered that Dr Lal's substantive application be summarily dismissed, there is no utility in me determining those interlocutory applications. Out of an abundance of caution, I also order that those interlocutory applications be dismissed.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.