Wilson v Commonwealth of Australia

Cumaiyi v Northern Territory of Australia [2020] FCA 1299

Deemah Marble & Granite Pty Ltd (in liq) v Sutherland [2001] NSWSC 829

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450

Maghiar v Western Australia [2002] FCA 262

McMahon Services Australia Pty Ltd v Howmet Systems Australia Pty Ltd, formerly Alcoa Australia Rolled Products Pty Ltd [2022] FCA 31

Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293

Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395

Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 3) [2011] FCA 539

RNB Equities Pty Ltd v Credit Suisse Investment Services (Australia) Limited (No 2) [2019] FCA 1385

Tameeka Group Pty Limited v Landan Pty Limited [2015] FCA 1218

Tox Free Solutions Limited v Kumarasamy [2020] FCA 762

Yang v Zhao, in the matter of KQ International Trading Pty Ltd [2020] FCA 553

Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64; (2020) 276 FCR 53

Administrative and Constitutional Law and Human Rights

1. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), the following parts of the Applicants' Statement of Claim dated 22 July 2025 are struck out:

(a) Paragraph 1(a): "... or for the purpose of donating an egg to another person to assist that other person to personally conceive a child...";

(b) Paragraph 1(c): "... or the person to whom they were seeking to donate an egg...".

1. The Respondent's interlocutory application dated 21 January 2026 seeking further particulars under r 16.45 of the Rules is dismissed.
2. There is no order for costs.
3. The case management hearing is adjourned to a date to be fixed.

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

1. The Respondent (Commonwealth) has filed two interlocutory applications:
   • an application dated 14 November 2025 seeking to have certain paragraphs of the statement of claim dealing with egg donors struck out under r 16.21 of the Federal Court Rules 2011 (Cth); and
   • an application dated 21 January 2026 seeking further and better particulars under r 16.45 of the Rules.
2. For the following reasons, the strike-out application is allowed in part, in relation to the inclusion of egg donors in the definition of group members. The application for further and better particulars is refused. As each party has had a measure of success, there will be no order as to costs.
3. Evidence: The Commonwealth relies on affidavits of Clare Besemeres, sworn on 14 November 2025, 21 January 2026 and 11 February 2026.
4. The Applicants rely on an affidavit of Tristan Gaven sworn on 28 November 2025, and an affidavit of Tobias Dinh sworn on 10 February 2026.

1. Representative proceeding alleging sex discrimination: This is a representative proceeding, in which the Applicants contend that the Commonwealth engaged in discrimination contrary to the Sex Discrimination Act 1984 (Cth) between June 2013 and September 2024 (the Relevant Period), by having a publicised policy that Medicare benefits were only available for assisted reproductive technology medical services (ART services) in cases where the patient seeking to conceive a child was medically infertile. This policy is said to have resulted in the denial of Medicare benefits for ART services to women who were not "medically infertile"; such as single women (in the case of the First Applicant), or women in a lesbian relationship (in the case of the Second Applicant).
2. The Applicants have filed a Statement of Claim (or SOC) dated 18 July 2025 and a Reply dated 17 October 2025. The Commonwealth has filed a Defence dated 29 September 2025.
3. The key parts of the Statement of Claim can be summarised as follows:
4. Parties (SOC Pt A): The Group Members are defined in SOC [1] as persons who:

(a) sought ART services from a registered provider of ART services (ART Service Provider) during the relevant period for the purpose of them personally conceiving a child or for the purpose of donating an egg to another person to assist that other person to personally conceive a child;

(b) at this time had the martial status of single, or a sexual orientation towards persons of the same sex;

(c) were informed by the ART Service Provider that they were ineligible (or were deemed ineligible by the Provider) to receive Medicare benefits for the ART services, on the basis that they were not "medically infertile";

(d) were generally entitled to receive Medicare benefits;

(e) received and paid for ART services and did not receive Medicare benefits in respect of those services;

(f) have suffered loss and damage by reason of the Commonwealth's conduct.

1. The Statement of Claim's description of the Respondent refers particularly to the Minister for Health and Ageing and his Department (SOC [6]-[7]), and the Chief Executive Officer of Services Australia (SOC [8]).
2. Medicare benefits and ART (SOC Pt B): The Statement of Claim describes how Medicare benefits were calculated during the relevant period by reference to the fees and items in the "general medical services table" set out in regulations made under the Health Insurance Act 1973 (Cth). This table prescribed the fees applicable to items of medical services relating to ART services (SOC [13]-[14]).
3. The Applicants contend that, during the Relevant Period, the Commonwealth had a policy of not paying Medicare benefits for ART services unless the person receiving the ART services, or the person seeking to physically conceive a child by way of the ART services provided to another person, was "medically infertile" or suffered from "medical infertility" (the Policy) (SOC [15]). The Applicants contend further that the Policy was not based on any generally accepted medical view that ART services were only a medically appropriate treatment in cases of medical infertility, and that the Policy caused ART Service Providers to express the view to their patients that a person would not be eligible for Medicare benefits unless they were "medically infertile" (SOC [16]-[17]).
4. The Applicants contend that the Policy treated Group Members less favourably (or was likely to have the effect of disadvantaging Group Members) on the ground of their marital status and/or their sexual orientation, contrary to the Sex Discrimination Act; and caused Group Members economic and non-economic loss or damage (SOC [18]).
5. The Applicants contend that the Commonwealth ceased to apply the Policy in or about April 2025, and that this change of position reflects a change in policy by the Commonwealth for the purposes of s 26 of the Sex Discrimination Act (SOC [20], [22]).
6. Applicants' claims (SOC Pts C and D): The First Applicant alleges that she was informed that she was ineligible to receive Medicare benefits for ART services, because as a single woman seeking to have a child she was not medically infertile. She alleges that this constituted either direct or indirect discrimination on the ground of her marital or relationship status (SOC [23]-[29]).
7. The Second Applicant alleges that she was informed that she was ineligible to receive Medicare benefits for ART services, because as a lesbian in a same-sex relationship she was socially infertile and not medically infertile. She alleges that this constituted either direct or indirect discrimination on the ground of her sexual orientation (SOC [31]-[37]).
8. Both Applicants allege that this conduct caused them to suffer economic and non-economic loss or damage (SOC [30], [38]).
9. Termination of complaint in AHRC (SOC Pt E): The First Applicant lodged a complaint of unlawful discrimination in the Australian Human Rights Commission in September 2024. That complaint was amended in January 2025 to include the Second Applicant (SOC [39]-[40]). The President of the Commission terminated the complaint on 11 June 2025 (SOC [41]). The Applicants contend that they may make an application to this Court, by reason of s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), and the matters alleged in the AHRC complaint and in the Statement of Claim arising under the Sex Discrimination Act (SOC [42]).

1. The Commonwealth's strike-out application seeks to have struck out those parts of the Statement of Claim that refer to a person donating an egg to another person.
2. Rules r 16.21: Rule 16.21(1)(e) of the Rules provides that a party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading fails to disclose a reasonable cause of action. This power should only be exercised in a plain and obvious case: see Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [10] (Kenny J).
3. Parts sought to be struck out: The relevant parts of the Statement of Claim are as follows (with the parts sought to be struck out marked in bold).
4. Paragraph 1 of the Statement of Claim defines Group Members as persons who:
   1. during the [Relevant Period], sought [ART Services] from [an ART Services Provider] for the purpose of them personally conceiving a child, or for the purpose of donating an egg to another person to assist that other person to personally conceive a child;

...

1. were:

   1. informed by the ART Services Provider that they were ineligible to receive Medicare benefits for the ART Services; and/or

   2. deemed by the ART Services Provider to be ineligible to receive Medicare benefits for the ART Services,

on the basis that they, or the person to whom they were seeking to donate an egg, were not medically infertile ... [.]

1. Paragraph 17 of the Statement of Claim contends that, at all material times, the Policy:

...

1. caused ART Service Providers to hold and/or express the view that unless a person could demonstrate that they were medically infertile, or that another person to whom they were donating an egg was medically infertile, then the person would not, or was unlikely to, meet the eligibility criteria for payment of Medicare Benefits for ART Services.

1. It is convenient to refer to a person who is an egg donor and who comes within the definition of Group Member in SOC [1] as "Donating Group Member".
2. Are egg donor claims precluded by AHRC Act s 46PO(3)? The Commonwealth contends, first, that s 46PO(3) of the AHRC Act precludes the claims of Donating Group Members being made in this Court, because the AHRC complaint did not contain any allegation of unlawful discrimination against egg donors.
3. AHRC Act ss 46P, 46PH (complaints to the Commission): Part IIB of the AHRC Act deals with redress for unlawful discrimination. By s 46P, a person or persons aggrieved can lodge a written complaint with the Commission alleging unlawful discrimination. Complaints can also be lodged as representative complaints (see ss 46P(2)(b), 46PB, 46PC). The President of the Commission must terminate a complaint if satisfied that "there is no reasonable prospect of the matter being settled by conciliation" (s 46PH(1B)(b)), as occurred here.
4. AHRC Act s 46PO (court applications): Section 46PO sets out when a court application may be made in respect of alleged unlawful discrimination.

• If (relevantly) a complaint has been terminated by the President of the Commission under s 46PH and the necessary notice has been given under s 46PH(2), then an application may be made to this Court (among others), alleging unlawful discrimination by one or more respondents to the terminated complaint (s 46PO(1)).
  • However, by s 46PO(3), the unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or > > (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

5. The purpose of s 46PO is to define and filter the cause of action it creates so that it will correspond, within the limits set in ss 46PO(1) and (3), with the complaint terminated by the President of the Commission: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43] (the Court); see also Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [19] (the Court). The terms of s 46PO(3)(a) and (b) contemplate some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. Further, a complaint should not be construed with the same strictness as a pleading. The ambit of the complaint is assessed for the purposes of s 46PO at the time of its termination: Dye (No 2) at [46]-[47].
6. Scope of AHRC complaint: Here, the complaint to the Commission was made by the First Applicant on 4 September 2024, and amended with the leave of the Commission on 29 January 2025 and 5 June 2025 (the Complaint). The relevant parts of the Complaint, as amended, are as follows:

(1) The class members were defined as individuals who experienced less favourable treatment (as set out in section C of the Complaint) in the claim period while accessing the relevant services, by reason of their being (a) a single woman; or (b) a lesbian woman (in both cases, not being in an intimate personal relationship with, or otherwise engaging in sexual relations with, a biological male) (Complaint [2]).

(2) Section C.2 of the Complaint describes the role of Services Australia, and sets out public guidance from Services Australia's website. That public guidance includes statements that Medicare benefits are paid for "clinically relevant services", and that ART services are clinically relevant "when accepted by the medical profession as necessary to appropriately treat a patient's medical infertility" (Complaint [10](b)). The public guidance on Services Australia's website also included the following guidance for ART Service Providers (Complaint [11]):

You must bill services for donated ova against the donor and not the recipient. You can only perform ART services on a donor if you've identified a medically infertile recipient. This is because under Medicare a medically infertile recipient is a precondition for getting ART services.

(3) Section C.6 of the Complaint sets out the alleged unlawful discrimination experienced by the named individuals (that is, the First and Second Applicant). The Complaint states that they were both told that they were ineligible to receive Medicare benefits, because they were "socially infertile" (Ms Wilson because she was a single woman, and Ms Meyers because she was in a lesbian relationship) (Complaint [22], [31]).

(4) The Complaint stated that, by reason of the general circumstances in Sections C.1 to C.5, and the specific circumstances in Section C.6, "it may be reasonably inferred that there are one or more persons who relevantly meet the description of one of two groups", who were deemed ineligible for the payment of Medicare benefits in contravention of the Sex Discrimination Act "for the same or similar reasons" (Complaint [36]). The "Two Complainant Groups" identified were:

(a) single women who, at the time they sought access to ART-related services from a registered ART-service provider, were either not in an intimate personal relationship with, or otherwise did not engage in sexual relations with, a biological male; and

(b) lesbian women and/or members of the LGBTIQ+ community who, at the time they sought access to ART-related services from a registered ART-service provider, were either not in an intimate personal relationship with, or otherwise did not engage in sexual relations with, a biological male[.]

1. Does discrimination against egg donors arise out of the Complaint? The question is whether this claim of discrimination against Donating Group Members (egg donors) can be said to be "the same as (or the same in substance as) the unlawful discrimination that was the subject of the [Complaint]", or to "arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the [Complaint]", within s 46PO(3)(a) and (b).
2. Applicants' arguments: The Applicant's written submissions resisting strike-out make the following points:

(a) It is said that it is unlikely that any Donating Group Members would have a marital or relationship status of single. That is because the reason that a single person would be donating an egg to another person to enable that other person to conceive is because either the donating single person or the egg recipient has a medical condition rendering them "medically infertile" within the meaning of the Policy. Accordingly, the Applicants contend that, in practice, a Donating Group Member will come within para (b) of the definition of "Group Member" on the basis of being a lesbian woman and/or a member of the LGBTIQ+ community.

(b) Although the Statement of Claim does not plead specific facts about a Donating Group Member seeking ART services and being told they were ineligible for Medicare benefits, it is said to be a matter of common knowledge that partners in a same-sex female relationship can engage in "reciprocal IVF", so that both partners can be biologically connected to the baby. It is said that the Commonwealth cannot say that there will not be any Donating Group Members who sought ART services for the purpose of their spouse or de facto partner conceiving a child.

(c) It is said that the Complaint expressly and impliedly referred to facts concerning discrimination against egg donors who were a lesbian woman and/or members of the LGBTIQ+ community. The Complaint expressly raised at [36]-[37] discrimination against lesbian women and/or members of the LGBTIQ+ community, and thereby raised (it is said) discrimination against egg donors who are lesbian women and/or members of the LGBTIQ+ community.

(d) The Complaint was lodged on behalf of lesbian women and/or members of the LGBTIQ+ community (among others) who were deemed ineligible for Medicare benefits for ART services, and (the Applicants submit) on any reasonable interpretation this "extends to lesbian women and/or members of the LGBTIQ+ community who sought ART Services for the purpose of donating an egg to their spouse/partner, as well as those who sought ART Services for the purposes of being implanted with the egg of their spouse/partner". The Applicants here cite s 46PR of the AHRC Act.

(e) The Applicants contend (relying on Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199) that the de facto spouse or partner of a group member is a "person aggrieved" and an "affected person" within ss 46P(2)(a) and 46PO(2A), particularly if the de facto spouse or partner "sought ART Services for the purposes of donating an egg to their spouse/partner who is a group member, and who was informed that unless they could demonstrate that they or their partner were medically infertile they would not or were unlikely to meet the eligibility criteria for the payment of Medicare benefits". The Applicants contend that the Donating Group Members, and the intended recipients of their donated eggs, are "two sides of the one coin", and that accordingly the unlawful discrimination alleged on behalf of the Donating Group Members comes within s 46PO(3).

1. In oral submissions, the Applicants contended that s 46PO(3) of the AHRC Act should be interpreted harmoniously with the requirements for bringing a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth); in particular, the expanded standing provided for by s 33D, and the requirements for group members in s 33C. It is said that s 46PO could not be intended to narrow the circumstances in which a representative proceeding could be brought under Pt IVA.
2. Did the Complaint raise issue of discrimination against egg donors in substance? In my view, the Complaint did not raise the issue of discrimination against egg donors in substance.
3. It is true that the Complaint mentioned egg donors, but it did not raise the issue of discrimination against egg donors who were single women, or lesbians and/or members of the LGBTIQ+ community. Rather, the position of egg donors was mentioned in connection with the alleged non-payment of Medicare benefits to persons who were not "medically infertile" who were seeking ART services for the purposes of conceiving a child.
   • This appears most clearly in the public guidance of Services Australia quoted in Complaint [11] (set out in [28](2) above) that ART Service Providers "can only perform ART services on a donor if [they have] identified a medically infertile recipient", because "under Medicare a medically infertile recipient is a precondition for getting ART services".
   • Nothing in this statement suggests any difference in the treatment of donors, depending on whether or not the donor was a single woman or a lesbian and/or member of the LGBTIQ+ community. The statement does not mention the characteristics of the egg donor at all, but rather the characteristics of the recipient of the ART services. Indeed, the Applicants' analysis of the position of single women seems rather to accept this point: see [30](a) above.
4. The Applicants contend that the position of egg donors is sufficiently raised by [36]-[37] of the Complaint, which identifies the two "Complainant Groups". It is true that one element of the second Complainant Group is "lesbian women and/or members of the LGBTIQ+ community who, at the time they sought access to ART-related services from a registered ART-service provider, were either not in an intimate personal relationship with, or otherwise did not engage in sexual relations with, a biological male". That element, by itself, is broad enough to include egg donors. However, another element of the description in [36] of these Complainant Groups is that they were deemed ineligible for Medicare benefits "for the same or similar reasons" as identified in Section C.6 of the Complaint, which set out the circumstances of the two named Applicants. For the reasons just given, any claims of an egg donor cannot be considered the same or relevantly similar to the claims of the two named Applicants, as set out in Section C.6 of the Complaint and understood in the light of the circumstances in Sections C.1 to C.5.
5. I note that there are statements that s 46PO(3) was intended to permit an applicant to change the claimed basis of discrimination: for example, an Asian woman who claimed in the Commission that certain conduct amounted to discrimination on the basis of her sex may claim in a court application that this conduct also amounted to discrimination on the basis of her race: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at [40] (Katz J). However, in that situation s 46PO(3) permits an applicant to change the legal character of conduct which has always been alleged to amount to discrimination against that person. That is different from the situation here, where the Applicants' argument is that their claim in the Commission that conduct discriminated against them and certain groups (single women and lesbian women seeking to conceive a child) also in substance included a claim that this conduct discriminated against a different group of people (persons who were egg donors for the first groups).
6. In summary, although a complaint to the Commission is not expected to have the same precision as a pleading, the Complaint made here does not in substance raise any claim of discrimination against egg donors.
7. Do the claims made necessarily include the position of egg donors? The Applicants contend that the claims of egg donors, and the claims of spouses seeking to conceive a child, are simply "two sides of the one coin". However, I do not accept that the discrimination claims of an egg donor are so inextricably linked with the claims of a person seeking to conceive a child that the claims of egg donors necessarily arise from the claims actually made in the Complaint.
8. The Applicants submit that it is a matter of common knowledge that partners in a same-sex female relationship can engage in "reciprocal IVF", whereby one partner donates an egg to the other, so that both partners can be biologically connected to the baby. Accepting that this is something that can happen, I would not accept (at least as a matter of common knowledge) that this practice is such a necessary or obvious part of having a baby within a female same-sex relationship that it does not require separate articulation in the Complaint.
9. Munday (No 2) is distinguishable: This case is quite different from Munday (No 2), on which the Applicants rely.
   • In that case, Mr Munday had lodged a complaint in the Commission alleging that a government decision which denied granting Mr Munday's wife early access to her superannuation benefits to pay for ART services was contrary to disability discrimination legislation. The Commonwealth contended that Mr Munday did not have standing to bring a court application in relation to that alleged discrimination, because he was not "an affected person" within s 46PO of the AHRC Act (that is, a person on whose behalf the complaint to the Commission was lodged).
   • Katzmann J rejected the Commonwealth's argument, and held that Mr Munday was an "affected person" who could bring a court application under s 46PO(2)(a) on his own behalf and on behalf of his wife. That is because both he and his wife were aggrieved by the alleged discrimination, meaning that each of them was an "aggrieved person" for the purposes of the complaint, within s 46P(2). Her Honour stated (Munday (No 2) at [81]):

Mr Munday's interest in the proceedings is greater than that of an ordinary member of the public. ... The denials of Ms Day's applications affected Mr Munday in a deeply personal way, by depriving him as well as his wife of a source of funds to assist in conceiving their child. (original emphasis)

1. Munday (No 2) establishes that a person may have a sufficient interest in discrimination against his or her spouse to make the person an "aggrieved person" who may lodge a complaint to the Commission on their own behalf and on behalf of the spouse in relation to that discrimination; that is, the discrimination against the spouse. But the Applicants' argument here is different: that the person (who is an egg donor) is separately and additionally subjected to discrimination, as well as the discrimination faced by their spouse who is seeking to conceive a child. Munday (No 2) does not suggest that a complaint made to the Commission about discrimination against a person necessarily includes any separate and additional discrimination against the person's spouse that arises out of the same conduct. For example, in Munday (No 2) there was no suggestion that Mr Munday had his own disability that was the subject of discriminatory conduct.
2. AHRC Act s 46PR does not assist Applicants: Nor are the Applicants assisted by s 46PR of the AHRC Act, which provides that the Court is "not bound by technicalities or legal forms" in proceedings under Pt IIB, Div 2. The substantive directions given by s 46PO(3) must still be respected, notwithstanding s 46PR: Dye (No 2) at [48], citing Maghiar v Western Australia [2002] FCA 262 at [18] (French J). That is because provisions such as s 46PR only give the Court this flexibility when dealing with matters within its jurisdiction: see Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [105] (White J), citing Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64; (2020) 276 FCR 53 at [104]- [105] (the Court).
3. The Applicants observe that this jurisdictional objection can be overcome by lodging a separate complaint with the Commission dealing with the position of egg donors, and seeking to have the resulting court application in relation to that complaint heard together with this matter. However, that potential resolution does not demonstrate that the current difficulty is a mere technicality, because the hypothetical further complaint to the Commission would articulate the separate and independent discrimination that was faced by egg donors to single persons, and lesbian women and/or members of the LGBTIQ+ community.
4. Part IVA preconditions do not influence interpretation of s 46PO(3): Finally, I do not think that the interpretation of s 46PO(3) of the AHRC Act is guided by the preconditions in ss 33C and 33D of the Federal Court Act.
5. I accept that s 46PO contemplates that a complaint, and proceedings based on it, may be made by a representative party on behalf of persons entitled to proceed, after the complaint has been terminated by the President, in representative proceedings under Pt IVA. Consequently, I accept that a complaint to the Commission cannot be expected to describe every instance of unlawful discrimination that may have occurred to group members, given that some group members will only be informed of the existence of Pt IVA proceedings after their commencement: Dye (No 2) at [43], [45], relied on by the Applicants. Notably, however, Dye (No 2) at [45] cautioned against expecting that a complaint to the Commission could set out the "dates, times, places and precise circumstances" or "exact detail" of each group members' claims.
6. Crucially, the preconditions for representative proceedings under Pt IVA are expressed in quite different terms from s 46PO(3); in particular, s 33C of the Federal Court Act requires that the claims of group members "are in respect of, or arise out of, the same, similar or related circumstances", and give rise to a "substantial common issue of law or fact" (s 33C(1)(b) and (c), emphasis added). Section 46PO(3) and Pt IVA may sometimes overlap in their operation, but not every proceeding under s 46PO is a representative proceeding, and not every representative proceeding alleges discrimination. That is, the provisions have their distinct fields of operation. Even if one looks at the "shape" and "substance" of the Complaint made to the Commission (cf Dye (No 2) at [47]), I do not think the Complaint includes discrimination against a different class of people (egg donors cf persons seeking to conceive a child), when the description of the Policy in the Complaint does not suggest that egg donors are discriminated against in their own right.
7. Conclusions - references to egg donors in SOC [1](a) and (c) should be struck out: For the reasons set out above, the Commonwealth's first argument for strike-out should be accepted in relation to the inclusion of egg donors in the definition of Group Members in SOC [1](a) and (c). The claims in the Statement of Claim as they relate to egg donors are not substantially the same as the unlawful discrimination that was the subject of the Complaint, and do not arise out of the same or substantially the same acts, omissions or practices that were the subject of the Complaint, within s 46PO(3) of the AHRC Act.
8. SOC [17](b) not precluded by s 46PO(3): The position is different with the inclusion of egg donors in SOC [17](b), in describing the views held by ART Service Providers as a result of the Policy. This description of their views corresponds to the earlier description of the Policy in SOC [15] (to which no objection is taken); namely a policy:

of not paying Medicare Benefits for ART Services unless the person receiving the ART Services, or the person seeking to physically conceive a child by way of the ART Services provided to another person, was "medically infertile" or suffered from "medical infertility"[.] (emphasis added)

1. The allegation that the Policy required doctors to identify a medically infertile recipient before providing ART services to the donor does appear in the Complaint: see [28](2) above. As appears explained, that statement does not support claims of discrimination against the donor, but it does form part of the context of the claimed discrimination against the recipient. So, the statement in SOC [17](b) is relevant to the Applicants' case, and follows (at least as a matter of internal logic) from the statement in SOC [15]. The inclusion of this statement in [17](b) is not precluded by s 46PO(3) of the AHRC Act.
2. Not necessary to deal with the alternative strike-out argument: It is not necessary to deal with the Commonwealth's alternative argument, that these statements should be struck out because the Statement of Claim does not plead any discrimination claim in respect of the Donating Group Members, such that the Commonwealth does not know the case against it in relation to those members.

1. The Commonwealth's other application is that the Court should order further and better particulars of certain parts of the Reply (and the related paragraphs of the Statement of Claim). In outline, the Commonwealth seeks further particulars of two allegations made by the Applicants:
   • The Commonwealth's guidance about the meaning of clinical relevance influenced the position taken by medical practitioners providing ART services, thus affecting the proper administration of the Health Insurance Act.
   • There was no consensus among the medical profession as to what was clinically relevant.
2. Allegations about Commonwealth policy: The allegations just identified relate to the Applicants' claims that the Commonwealth's Policy sought to restrict the payment of Medicare benefits for ART services to cases of "medical infertility". The Applicants claim that the Policy was based in what the Commonwealth said was required by the relevant laws, and was not based on a medical consensus as to when treatment was appropriate. The Applicants claim further that the Policy caused ART Service Providers to state to patients who were said to be "socially infertile", such as the named Applicants, that they were ineligible for Medicare benefits (SOC [15]-[17], summarised in [11] above).
3. Commonwealth response: The Commonwealth's response to these allegations in para 15 of the Defence includes the following:
   • The Commonwealth says that the Department of Health or Services Australia provide information or guidance to medical practitioners or to the public, from time to time, as to what is required to meet the mandatory statutory requirement for obtaining Medicare benefits (a "clinically relevant service") (the Department's Guidance) (Defence [15](b));
   • The Commonwealth says that the Department's Guidance was and is based on the positions communicated, from time to time, by the medical profession, including relevant professional or specialist bodies, representatives from the fertility sector, and formal and informal consultation processes (Defence [15](c)); and
   • The Commonwealth says that the Department's Guidance does not alter as a matter of law whether the statutory requirement for obtaining Medicare benefits was or was not met (Defence [15](d)).
4. Matters over which particulars sought: The specific matters over which further particulars are sought, and the particulars sought by the Commonwealth, are as follows.
5. Reply [3](a); SOC [17](b): First, particulars are sought of para 3(a) of the Reply, and para 17(b) of the Statement of Claim.
6. Paragraph 3(a) of the Reply states that the Applicants say that during the Relevant Period:
   1. the Policy and the Department's Guidance (referred to in the Defence at [15(c)]) had a substantial and operative effect or influence upon any position that the medical profession:

i. either as a whole or in part;

ii. took or most likely took from time-to-time;

as to whether the definition of "infertility" should be limited to the circumstance of "medical infertility", and not be inclusive of the circumstance of "social infertility" for the purposes of determining the eligibility for any "clinically relevant service" within the meaning of the Health Insurance Act[.]

1. Paragraph 17(b) of the Statement of Claim states that at all material times during the Relevant Period, the Policy:
   1. caused ART Service Providers to hold and/or express the view that unless a person could demonstrate that they were medically infertile, or that another person to whom they were donating an egg was medically infertile, then the person would not, or was unlikely to, meet the eligibility criteria for payment of Medicare Benefits for ART Services.
2. The particulars sought in respect of Reply [3](a) (and SOC [17](b)) are:
   1. What is the alleged effect or influence?
   2. When did the alleged effect or influence occur?
   3. Who within the medical profession is said to have taken a position as a result of this effect or influence?
   4. When was that position taken by the medical profession? (If different positions are alleged to [have been] taken by the medical profession over time, when were those positions taken?)
3. Reply [3](d): Second, particulars are sought of para 3(d) of the Reply, which states that during the Relevant Period the Policy:
   1. in so far as the Commonwealth says that the Department's Guidance was irrelevant to the administration of the Health Insurance Act in respect of the Mandatory Statutory Requirement (in the Defence at [15(d)]), the Policy and the Department's Guidance were extraneous considerations or factors which impacted the proper and lawful administration of the Health Services Act in relation to what constitutes a "clinically relevant service" apropos "infertility"[.]
4. The particulars sought of Reply [3](d) are:
   1. What is the Commonwealth alleged to have done which impacted the administration of the Health Insurance Act?

ii. When did the Commonwealth's actions have that impact?

1. Reply [3](e) (SOC [16](a)): Third, particulars are sought of para 3(e) of the Reply, and para 16(a) of the Statement of Claim.
2. Paragraph 3(e) of the Reply states that the Applicants say that during the Relevant Period:
   1. further or in the alternative to the matters referred to above at [3(a)-(d)], there was no consensus amongst the medical profession as to what constituted "infertility" for the purposes of a "clinically relevant service" under the Health Services Act.
3. Paragraph 16(a) of the Statement of Claim states that the Policy "was not adopted on the basis of a general acceptance within the Australian medical profession that a person had to be 'medically infertile' in order for ART Services to be necessary for the appropriate treatment of that person for the purpose of them conceiving a child".
4. The particulars sought of Reply [3](e) (and SOC [16](a)) are:
   1. What were the alleged differing views which is said to mean there was no consensus?
   2. Who within the medical profession held any such differing views?
   3. When were any such differing views held?
5. Rules r 16.45: Rule 16.45(1) provides that a party may apply to the Court for an order for (relevantly) particulars of the claim stated in a pleading if "a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party's case". By r 16.45(2), such an application may be made only if:

(a) the particulars in the pleading are inadequate; and

(b) the party seeking the order could not conduct the party's case without further particulars.

1. Several decisions of this Court have adopted the following principles about the giving of particulars set out in Deemah Marble & Granite Pty Ltd (in liq) v Sutherland [2001] NSWSC 829 at [6] (Young CJ in Eq) (citations omitted, principles (2), (3) and (7) summarised):

(1) The basal function of particulars is to reduce costs by alerting the opponent to the scope of the real case being made so the opponent is not caught by surprise, nor does the opponent waste time and money in preparing to meet issues that the other party does not intend to raise;

(2) While the defendant is entitled to know the case it is called upon to meet, it is not entitled to be told the evidence that will be called to prove the case;

(3) However, if some of the evidence must be disclosed to achieve the aim in (1), it is no answer that the giving of particulars will disclose evidence;

(4) The party's obligation is only to supply the best particulars he or she can supply, provided that after discovery those particulars are supplemented, if possible;

(5) When one party has the means of knowing the real facts, ordinarily the opponent will not be ordered to supply particulars until after discovery;

(6) The degree of particularity depends upon the nature of the case;

(7) When evidence is filed by affidavit, the Court is less likely to order particulars and will not permit parties to slow down proceedings unjustifiably in their preparation for trial; and

(8) The order for particulars is discretionary, the object being to ensure the efficient process of the Court. [See, in this Court, Federal Court Act s 37M.]

See Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 3) [2011] FCA 539 at [10] (Katzmann J); Tameeka Group Pty Limited v Landan Pty Limited [2015] FCA 1218 at [64] (Markovic J); McMahon Services Australia Pty Ltd v Howmet Systems Australia Pty Ltd, formerly Alcoa Australia Rolled Products Pty Ltd [2022] FCA 31 at [25] (Besanko J); BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Amendment and Strikeout) [2025] FCA 1030 at [14] (Needham J).

1. Other cases indicate that further particulars are not ordered lightly. In Australian Securities and Investments Commission v Kobelt [2014] FCA 737 at [8], White J stated that r 16.45:

is, in effect, a discouragement of disputes concerning the adequacy of pleadings, particularly before any defence has been filed. Experience indicates that often interlocutory activity of this kind, with the associated incurring by the parties of costs, does not advance the progress of the matter.

See also Tox Free Solutions Limited v Kumarasamy [2020] FCA 762 at [11] (Jackson J).

1. Similar statements have been made about whether further particulars are "necessary" for the purposes of r 16.45(3) (which provides for ordering particulars before a respondent files a defence):

The underlying principle is that the case of each of the parties is adequately exposed to the other. It is important to maintain a sense of balance in the detail of particulars sought and ordered. The provision of particulars should not be allowed unduly to increase the cost and delay associated with litigation. In contemporary commercial litigation where, frequently, the court will direct the filing of witness statements or affidavits on either side subject to the right to cross examination, the necessity for elaborate particulars and lengthy debates about them is even more questionable.

Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395 at [17] (French J), quoted in RNB Equities Pty Ltd v Credit Suisse Investment Services (Australia) Limited (No 2) [2019] FCA 1385 at [20] (Anderson J); Yang v Zhao, in the matter of KQ International Trading Pty Ltd [2020] FCA 553 at [16] (O'Callaghan J); BCI Media at [14].

1. These statements about r 16.45(3) can also be applied here, when particulars are sought after a Defence is filed: ultimately, the Court is concerned to ensure that one side is not prejudiced in its preparation for trial, but without unduly increasing the cost and delay of the proceeding.
2. Can the Commonwealth conduct its case without further particulars? The key issue on this application is whether I am satisfied that the Commonwealth could not conduct its case without the provision of the further particulars sought (r 16.45(2)(b)).
3. There has been an exchange of correspondence between the parties on the topic between October and December 2025, and in February 2026. In a letter dated 11 November 2025, the Applicants' solicitors set out in summary form their understanding of Defence [15] and the effect of Reply [3], and state that their lay and expert witnesses will address the interconnection between the Department's Guidance, the position of the medical profession in Australia, and the administration of Medicare benefits pursuant to the Health Insurance Act. The Applicants' solicitors sent a letter to similar effect on 4 February 2026.
4. In my view, the Applicants have sufficiently put the Commonwealth on notice of their claims at this stage of the proceedings. There is perhaps some inherent elasticity in the concepts of consensus within the medical profession, and the effect of the Department's Guidance on what ART Service Providers told their patients. However, that elasticity is not so much at the conceptual level (which could be clarified by particulars), but at the evidentiary level. And at times, the Commonwealth's apparent lack of understanding seems to be no more than a vigorous disagreement on the substance. For example, the Commonwealth is plainly correct that its guidance could not affect what the legal position was (in the sense that the issue remains to be determined by this Court), but that leaves open the possibility that (as I understand the Applicants' arguments) the reason in fact for the views on eligibility for Medicare benefits expressed by ART Service Providers to their patients was the Department's Guidance, not those Service Providers' independent assessment of the correct legal position; and that the Department's Guidance did not in fact reflect a consensus of medical opinion. The provision of further particulars could not bridge this gap between the parties.
5. No doubt the matters raised by the Commonwealth will need to be answered or at least addressed by the Applicants in making their case. But that does not mean that these matters have to set out, in the level of detail sought, at this stage. The Commonwealth has been able to set out its claims on the issue in Defence [15].
6. The next stage is for each party to file its evidence. At most, the sorts of matters raised by the Commonwealth seem to be reasons why the Commonwealth might ask for more time to prepare its evidence going to this issue, having seen the Applicants' evidence. I am not satisfied that the provision of further and better particulars is necessary to enable the Commonwealth to conduct its case.

1. For these reasons, the Commonwealth's strike-out application is allowed in relation to the inclusion of egg donors in para 1(a) and (c) of the Statement of Claim, but not in relation to the statement in para 17(b). The Commonwealth's application for further and better particulars under r 16.45 is refused.
2. Costs: Each party has therefore had a measure of success, with the Commonwealth substantially successful in its strike-out application, but the Applicants successful in resisting the application for further and better particulars. In the circumstances, rather than insisting on a precise quantification of costs in respect of each application, it is appropriate to make no order as to costs.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.