Smith v A High School [2025] FCA 1432

(a) judicial officers and necessary court staff (including transcription service providers) of this Court and of any court hearing an appeal from these proceedings;

(b) the parties, and their insurers, legal representatives instructed in these proceedings (including in-house counsel) and professional support personnel (including medical practitioners);

(c) the parties' potential or confirmed witnesses (including expert witnesses); and

(d) any other person with the consent of the parties or leave of the Court.

1. By 30 November, the parties are to file an amended version of the documents on the court file as at 19 November 2025 which replace the parties' names with the pseudonyms referred to in Order 3.
2. Costs be reserved.

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

1. The question is whether this Court should grant interim relief to restrain the respondent school from terminating the enrolment of a boy enrolled in year 8 at the school. By a letter dated Friday 14 November 2025 the school intimated to the boy's father that it had come to the considered preliminary view that the boy's enrolment was no longer tenable. The school sought the input of the boy's parents into the decision either in writing or by way of a meeting to be held before 2 pm on Monday 17 November 2025. Over the weekend, the school agreed to move the meeting to 10 am on Tuesday 18 November 2025. However, before the meeting could occur the boy's father sought interim injunctive relief against the school in this Court. The application was heard on Tuesday 18 November 2025 at 4 pm at a hearing at which the school was also represented.
2. The urgent injunction is sought to preserve the status quo pending the resolution of a complaint which is before the Australian Human Rights Commission (the 'Commission'). The complaint was lodged by the boy's father on 16 September 2025. The substance of the complaint is that the school is discriminating, or is proposing to discriminate, against the boy on the basis of his disability. There is no dispute that the boy has attention deficit hyperactivity disorder. The father has sought on behalf of the boy to have the complex issues which arise in relation to the boy's behaviour dealt with by the President of the Commission by way of conciliation. There is no dispute that the President has the power to conduct such a conciliation.
3. Whilst a complaint is pending before the Commission this Court is empowered to grant interim injunctive relief by s 46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) for two purposes. First, to maintain the status quo as it was before the complaint was lodged; or, secondly, to maintain the rights of an affected person. It is not the case that the usual principles governing interlocutory injunctions apply to s 46PP. Rather, what is germane to the exercise of the discretion it confers are those considerations which bear upon whether either of the stated objectives in s 46PP(1) would be achieved if an interim injunction were granted: Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331 at [17] per Colvin J.
4. In that circumstance, I do not think that the school's invocation of the High Court's decision in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92 is decisive. Whilst that case may suggest that there may be difficulties in the path of the boy in establishing disability discrimination in the present circumstance, that does not mean that a conciliation may not be effective.
5. Against this, the school submitted that it had notified the Commission on 4 November 2025 that it would not participate in the proposed conciliation. The evidence does not disclose a response by the Commission to this notice. As such, the complaint remains on foot. Despite the fact that the school has indicated that it does not propose to attend the conciliation, the President of the Commission has the power to compel the school to do so under s 46PJ(3) of the Australian Human Rights Commission Act 1986 (Cth). The evidence does not therefore permit me to draw an inference one way or the other as to what course the President of the Commission will now take. As such, I do not accept the school's submission that I should proceed on the basis that the President will terminate the complaint.
6. Any conciliation about how the boy's behavioural issues are to be managed by the school will be rendered practically irrelevant if the boy is now expelled. Whilst it may be possible to undo any such expulsion, the realities are that this will take time. It would be much tidier to work out what the answer should be at this point rather than to unscramble the omelette of the boy's education at some later time.
7. Consequently, the maintenance of the status quo makes appropriate the grant of some injunctive relief.
8. On the other hand, the evidence before the Court suggests that the boy's behavioural issues have caused distress to staff and other students. One of his teachers has been forced to take stress leave. A review of the boy's inclusive learning plans between 21 March 2024 and 7 November 2025 indicates the presence of significant behavioural issues from the school's perspective.
9. In that circumstance, it is appropriate to restrain the boy's expulsion from the school but to condition that relief on his doing his schooling from home. In that regard, I note that there are only two weeks of term left.
10. The parties may approach the duty judge in the event that the President terminates the complaint. If either party desires to take that course they should notify the other party that they are going to do so 24 hours before seeking a listing.
11. Given the health information involved is that of a minor it would be inappropriate to allow the boy's name to be published. Likewise, for practical reasons disclosure of the name of the father or of the school is likely to lead to the disclosure of the boy's name. If that were the consequence of seeking to protect private proceedings before the Commission, this would have the effect of deterring parties from seeking legal redress. The administration of justice therefore requires the anonymisation of these proceedings. I will make suitable orders under s‍ 37AF of the Federal Court of Australia Act 1976 (Cth).
12. The Court orders that:

(1) Until further order, the respondent be restrained from suspending, terminating or otherwise altering the enrolment of Peter Smith at the school.

(2) Peter Smith's schooling take place from home and he not attend the school's premises.

(3) Pursuant to s 37AF, on the ground in s 37AG(1)(a), of the Federal Court of Australia Act 1976 (Cth), the names of the parties and the title to the proceedings be anonymised to John Smith (as litigation representative for his minor son Peter Smith) v A High School.

(4) If the complaint to the Australian Human Rights Commission is terminated, either party may approach the duty judge on 24 hours' notice to the other party.

(5) The documents which have been filed in proceeding ACD101/2025 stand in satisfaction of the requirement in subrule 7.01(3) of the Federal Court Rules 2011 (Cth) to commence a proceeding within 14 days of the determination of an urgent application before the start of a proceeding and the applicant is relieved of the obligation to file any further documents.

(6) Pursuant to s 37AF, on the ground in s 37AG(1)(a), of the Federal Court of Australia Act 1976 (Cth), publication and disclosure of the documents currently on the court file that contain the names of the parties be prohibited.

(7) Order 6 does not prevent disclosure to and between the following:

(a) judicial officers and necessary court staff (including transcription service providers) of this Court and of any court hearing an appeal from these proceedings;

(b) the parties, and their insurers, legal representatives instructed in these proceedings (including in-house counsel) and professional support personnel (including medical practitioners);

(c) the parties' potential or confirmed witnesses (including expert witnesses); and

(d) any other person with the consent of the parties or leave of the court.

(8) By 30 November, the parties are to file an amended version of the documents on the court file as at 19 November 2025 which replace the parties' names with the pseudonyms referred to in Order 3.

(9) Costs be reserved.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.