Balbir Singh v Commonwealth of Australia (Department of Health and Aged Care)
[2025] FedCFamC2G 637
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balbir Singh v Commonwealth of Australia (Department of Health and Aged Care) [2025] FedCFamC2G 637
File number(s): PEG 73 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 2 May 2025 Catchwords: HUMAN RIGHTS – Discrimination and harassment – Australian Human Rights Commission claim limited to disability discrimination – claims of disability, race and sex discrimination and sexual harassment in proposed application.
PRACTICE AND PROCEDURE – Extension of time application – originating application filed out of time – factors for consideration – length of delay – explanation for delay – where multiple lodgment forms filed – whether affidavit required to be filed with application – whether address for service requirements met – whether medical evidence sufficient to explain delay prejudice – whether underlying claim has sufficient arguable merit.
PRACTICE AND PROCEDURE – Application for summary dismissal– factors for consideration – whether reasonable prospects of success.
WORDS AND PHRASES – “must not make”
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO
Disability Discrimination Act 1992 (Cth) ss 4, 15, 22, 25, 26, 27, 29
Fair Work Act 2009 (Cth) ss 723, 725, 729, 731
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Court of Australia Act1976 (Cth) s 32AA
Racial Discrimination Act 1975 (Cth) s 18, 18C, 18D
Sex Discrimination Act 1984 (Cth) ss 6, 7, 9, 14, 21, 22, 23, 26, 28A, 28H, 28L, 105, 106
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 26, rr 2.06, 4.01, 6.01, 13.13
Federal Magistrates Court Amendment Rules 2012 (No 1) (Cth)
Federal Magistrates Court Rules 2001(Cth) r 6.01
Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551
Applicant N v Respondent C [2006] FMCA 1936
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481
Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
Balbir Singh v Australian New Zealand College of Anaesthetists [2025] FedCFamC2G 563
Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50
Boumelhemv Commonwealth Bank of Australia [2008] FCA 1121
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
Carantinos v Magafas [2008] FCA 1107
Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd(No 2) [2019] FCA 2146; (2019) 292 IR 183
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Dowling v Commonwealth Bank of Australia [2008] FCA 59
Ghanem v Australian Research Council [2014] FCAFC 132
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185
KB v TC [2010] FMCAfam 1109
Kosovich v Mancini (1982) 31 SASR 272
Low v Commonwealth [2001] FCA 702
Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429
Myers v Alfred Hospital [2023] FCA 833
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
MZZZL v Minister for Immigration and Another [2014] FCCA 1309
Piefke v Workpac Pty Ltd [2021] FCCA 1166; (2021) 359 FLR 88
Pitrau v Barrick Minig Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (2012) 64 AILR 101-563
Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; (1946) 20 ALJR 444
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192
Quall v Native Title Registrar [2021] FCA 865
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Re Morton, Ex parte v Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497
Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680
Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121; (2012) 207 FCR 390
Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233
Stepien v Department of Human Services [2018] FCA 1062
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
Tang v AHG Services (NSW) Pty Ltd [2011] FCA 1532
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573
Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120
Walker v State of Victoria [2012] FCAFC 38
Wickham v Victoria Legal Aid [2019] FCA 1503
Division: Division 2 General Federal Law Number of paragraphs: 162 Date of last submission/s: 3 August 2023 Date of hearing: 31 July and 3 August 2023 Place: Perth Applicant: In person Counsel for the Respondent: Mr N Duggal Solicitor for the Respondent: Moray & Agnew Lawyers ORDERS
PEG 73 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASBIR KAUR BALBIR SINGH
Applicant
AND: COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF HEALTH AND AGED CARE)
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) for an extension of time in which to make an application under s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) be granted, and that time for making an application be extended to 7 April 2022.
2.Pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) dismisses the application, save as to the claims made under ss 22(2) and 29 of the Disability Discrimination Act 1992 (Cth).
3.The matter be adjourned to a directions hearing on a date to be advised.
4.Costs, if any, be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court are:
(a)an application by the applicant, Dr Jasbir Kaur Balbir Singh (“Dr Balbir Singh”) for an extension of time (“Extension of Time Application”) in which to file an originating application (“Proposed Application”) alleging discrimination in relation to the termination of training for Dr Balbir Singh in the Australian General Practice Training (“AGPT”) program run by Western Australian General Practice Education and Training Limited (“WAGPET”) under which Dr Balbir Singh was undertaking training and in relation to which she unsuccessfully appealed the termination of the training by WAGPET to the respondent, the Commonwealth of Australia (Department of Health and Aged Care) (“Department”); and
(b)an application by the Department which seeks summary dismissal (“Summary Dismissal Application”) of the Proposed Application, assuming the Extension of Time Application is granted, but not conceding and indeed opposing the Extension of Time Application.
The Extension of Time Application is, as indicated in the previous paragraph, opposed by the Department. The Summary Dismissal Application is opposed by Dr Balbir Singh.
The decision to remove Dr Balbir Singh from the AGPT program was made by WAGPET as the relevant training provider. That decision was confirmed by WAGPET following an internal review process. The confirmation decision was then appealed by Dr Balbir Singh to the Department on 4 February 2020. On 28 April 2020 the Department determined to uphold WAGPET’s decision to remove Dr Balbir Singh from the AGPT program on the basis that WAGPET had correctly applied the applicable policy.
ORDERS SOUGHT
Dr Balbir Singh seeks orders as follows:
1.Financial Compensation of AUD 9,500,000 due to a loss of income as a senior registrar and potential income as a specialist. The Department failed to assist in a timely manner for matters involving WAGPET and ANZCA.
2.Financial Compensation of AUD 8,500,000 for loss of time, loss of reputation and exacerbation of injuries. I am the victim and instead of receiving assistance, I have been persecuted. My personal/sensitive health information and private information has been used at my workplaces and social settings to cause me disadvantages and humiliation known to the Department. Also for the loss of fertility and time.
3.Reinstatement into my previous specialist training program and no further discrimination, bullying, hate crimes and sexual harassment against me anywhere. I do no want agencies to invade my private spaces and mess with my mind. Stop promoting torture.
The orders the Department seeks on the Summary Dismissal Application are as follows:
1.That in accordance with Rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the Application filed on 7 April 2022 be dismissed on the basis that the Applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.
2.Each party to the proceeding bear their own costs.
THE BASIS FOR THE PROPOSED APPLICATION
In the Proposed Application:
(a)when asked as to what discrimination is being complained of Dr Balbir Singh wrote:
Disability discrimination
Racial/Nationality Discrimination
Sex Discrimination
Sexual Harassment
I have been turned into a refugee nomad in two countries now, in both New Zealand and Australia. The Australian Department of Health allowed New Zealand to cause me harm and damages, did not penalise any other party or assist me to acquire adequate reparation/compensation and instead allowed more losses to happen to me, the victim, in Australia.
(b)when asked under what Act the discrimination complained of was alleged to be unlawful Dr Balbir Singh ticked the boxes for the Disability Discrimination Act 1992 (Cth) (“DD Act”), the Racial Discrimination Act 1975 (Cth) (“RD Act”), and the Sex Discrimination Act 1984 (Cth) (“SD Act”);
(c)in relation to the question as to her relationship to the organisation (the Department) against whom the Proposed Application is being brought, Dr Balbir Singh ticked the box indicating that she was an employee of the Department, and ticked the box for “Other”, specifying that she was a “Trainee Member”. It does not appear to be in dispute that Dr Balbir Singh was not in fact an employee of the Department, nor was she a trainee member of the Department. She was rather, during the period concerned, an employee of various hospitals and health networks in Australia and New Zealand and for some years a trainee member of the Australian and New Zealand College of Anaesthetists (“ANZCA”).
Documents required to be filed with the Proposed Application, namely:
(a)a copy of the original complaint to the Australian Human Rights Commission (“AHRC Complaint” and “AHRC” respectively); and
(b)the notice of termination of the AHRC Complaint (“Notice of Termination”) given by the President of the AHRC,
were both annexed to the Proposed Application.
THE EXTENSION OF TIME APPLICATION
Some procedural background
In the Proposed Application in relation to whether an extension of time was needed Dr Balbir Singh ticked “No”. It appears that at the time Dr Balbir Singh completed the Proposed Application on 28 December 2021 she did not need an extension of time, but after the filing of the Proposed Application was rejected by the Perth Registry of this Court on or about 7 and 9 January 2022, an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) has become necessary.
Pursuant to orders made by the Court on 21 April 2023 a document prepared by Dr Balbir Singh and entitled “Application for Extension of Time” was ordered by the Court to be treated as the application for extension of time by Dr Balbir Singh for the purposes of Order 1 of the Court’s Orders of 3 February 2023, and to be placed on the Court’s electronic court file for this matter as such an application. Order 1 of the Court’s Orders of 3 February 2023 was as follows:
By 17 March 2023, the Applicant file and serve any application for an extension of time supported by written submissions and any further affidavit evidence.
In the Extension of Time Application taken to be filed on 21 April 2023 (but dated 18 February 2023) Dr Balbir Singh requested as follows:
1. An extension of time to be granted for this matter which was lodged multiple times in the the Federal Circuit Court E-Lodgement System. The application was initially lodged on the 9th January 2022, but the Federal Circuit Court Registries had multiple administrative requests which was difficult to manage because the applicant was injured and unrepresented. One of the reasons there was an issue processing the application was because the registry was insisting on obtaining a physical office/home postal address to use, which the applicant did not have at that time . Evidence attached.
2. The applicant has mental and physical injuries which makes it difficult to type legal submissions. Evidence attached. The applicant has to hire a typist who is not always available.
3. The applicant is suffering ongoing human rights violations and thus has not been able to acquire any legal assistance, including pro-bono legal assistance, despite having that assistance approved by the Judge of the Federal Circuit Court. Evidence attached.
Relevant principles
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”) has been repeatedly cited by the Federal Court in a variety of contexts involving statutory discretions to extend time. Hunter Valley Developments has been described as the “classic authority” on the kinds of consideration which should be taken into account in determining how to exercise a discretion to extend time: Stepien v Department of Human Services [2018] FCA 1062 at [22] per Mortimer J; Myers v Alfred Hospital [2023] FCA 833 (“Myers”) at [31] per Wheelahan J. Hunter Valley Developments sets out the following as factors for consideration in relation to the exercise of a discretion to extend time:
(a)the length of the delay;
(b)any explanation for the delay;
(c)any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted; and
(d)the prospects of success if an extension of time were to be granted.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573 (“Katoa”), the majority plurality in the High Court observed that:
(a)in the absence of mandatory considerations it was proper to refer to the “non-exhaustive” but “well-established principles” in Hunter Vallery Developments: Katoa at [13] per Kiefel CJ, Gageler, Keane and Gleeson JJ (see too at [40] per Gordon, Edelman and Steward JJ identifying these principles or factors – and referring to Hunter Valley Developments – and describing them as “commonly regarded as relevant to the exercise of the Court’s discretion to grant an extension of time”); and
(b)there “will be circumstances in which it is appropriate … to engage in more than an impressionistic assessment of the merits”, and, for example:
(i)“if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”; and
(ii)it may be necessary to examine the case in some detail to arrive at the conclusion that the application is hopeless: Katoa at [20] per Kiefel CJ, Gageler, Keane and Gleeson JJ
In Wickham v Victoria Legal Aid [2019] FCA 1503 at [13]-[15] per Kenny J the Federal Court referred to the relevant principles in the context of an extension of time application under s 46PO(2) of the AHRC Act as follows:
13.The Court has a discretion under s 46PO(2) of the AHRC Act to extend the time in which an application can be made under s 46PO(1). The discretion is unconfined, save by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J).
14.I respectfully adopt the further observation of Mortimer J regarding s 46PO(2) as set forth in Stepian v Department of Human Services [2018] FCA 1062 at [21]-[23]. Here her Honour said that:
Discretionary powers such as the one in s 46PO(2) inevitably involve consideration of what is in the interests of the administration of justice, that being the Court’s core function.
In this sense, the discretion in s 46PO(2) is of the same character as that to be found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344. As I observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [41]-[42], Hunter Valley has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. In Hunter Valley at 348-350, Wilcox J reviewed the matters which had been treated as relevant by the authorities to that point. That list of factors has been endorsed repeatedly in this Court as providing guidance on how the exercise of such a discretion might be approached, and has been regularly endorsed and applied to similar discretions to extend time, including that in s 46PO(2): see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24]; Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 at [11]-[12].
The three principal matters Wilcox J found that a court takes into account are: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted. See also Ferrus v Qantas Airways Ltd [2006] FCA 812; 155 IR 88 at [19]-[20] (Collier J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24] (Weinberg J); and Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 (Ingram-Nader) at [11]-[12] (Cowdroy J).
15.Consistently with the analysis favoured in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 (Hunter Valley) I next consider, in the following order: (1) the delay and the explanation for it; (2) any prejudice to the respondent if the extension is allowed; (3) the prospects of the success if the extension of time were granted; and (4) any other relevant considerations. It is well-recognised that the first three considerations are not exhaustive in every case, and there may be other considerations that bear on the exercise of discretion.
Dr Balbir Singh bears the onus of establishing to the Court’s satisfaction that an extension of time should be granted under s 46PO(2) of the AHRC Act: she must persuade the Court that the indulgence should be granted: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276 at [66] per Kirby J.
Length of and explanation for delay
The length of the delay
The prima facie position remains that an application should be filed within time: Katoa at [52] per Gordon, Edelman and Steward JJ; Hunter Valley Developments, FCR at 348-349 per Wilcox J; Low v Commonwealth [2001] FCA 702 at [11] per Marshall J.
In considering the Extension of Time Application the Court has had regard to the judgments of the High Court in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
(a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority, CLR at 553 per McHugh J (with whom Dawson J, CLR at 544 agreed);
(b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority, CLR at 553 per McHugh J (cited with approval in Katoa at [34] per Gordon, Edelman and Steward JJ;
(c)where a significant period of time has elapsed, in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
(d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority, CLR at 553 per McHugh J.
The Notice of Termination was issued by the AHRC on 12 November 2021 under s 46PH(1B)(b) of the AHRC Act. In the AHRC’s Reasons for Decision attached to the Notice of Termination the AHRC advised Dr Balbir Singh that:
The AHRCA says that after a complaint is terminated, the person affected by the alleged discrimination may apply to the Federal Circuit and Family Court of Australia (FCFCOA) or the Federal Court of Australia (FCA) to have the allegations decided by the court. Any such application must be made within 60 days of the date on the Notice of Termination.
The Proposed Application was required to be made within 60 days after the date of issue of the Notice of Termination, or within such further time as the Court concerned allows: AHRC Act, s 46PO(2). To be made within 60 days of the issue of the Termination Notice the Proposed Applcation had to be made (that is filed) by 11 January 2022.
The Court’s records presently show the Proposed Application as being filed on 7 April 2022, some 86 days out of time. On the face of the record Dr Balbir Singh requires an extension of time within which to commence this proceeding.
An extension of time may not be granted even though the delay is not lengthy. In Tang v AHG Services (NSW) Pty Ltd [2011] FCA 1532 (“AHG Services”) the Federal Court considered an application for an extension of time under s 46PO(2) of the AHRC Act where the application was filed 17 days out of time. In AHG Services the applicant’s evidence was that:
(a)it took her some time to receive the notice of termination from the AHRC;
(b)there was a further extended period:
(i)to have the notice of termination from the AHRC explained to her due to her difficulties understanding English;
(ii)for her to understand that she had further legal avenues to pursue which would require her to seek legal representation;
(iii)during which she had a number of interviews with her newly appointed lawyer; and
(iv)before she was able to fully brief her lawyer and make a decision to pursue the proceeding; and
(c)she found the matters involved to be “psychologically traumatic”.
In AHG Services at [14] per Jagot J the Federal Court said that while it had power to grant an extension of time in which to make an application to the Court there had to be some material sufficient to persuade the Court to exercise the discretion to do so, and whilst the delay was not particularly long, it was also not a short delay. In light of the 60 day time limitation under s 46PO(2) of the AHRC Act, the Federal Court was not persuaded, in all of the circumstances, that the discretion should be exercised in favour of the applicant, and the extension of time application was dismissed.
An 86 day delay outside of the 60 day time limitation is generally a delay which is sufficiently lengthy to weigh against granting the Extension of Time Application absent a persuasive explanation for the delay: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185 at 195 per Lockhart, Sheppard and Burchett JJ (“Jess”); Tran v Minister for Immigration and Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J.
Explanation for the delay
Dr Balbir Singh seeks to explain any delay by submitting that:
(a)the Proposed Application was initially lodged on 9 January 2022, but the Perth Registry of the Court did not accept it as being made (or filed) and made multiple administrative requests in relation to the form of the Proposed Application which were difficult to manage because Dr Balbir Singh was injured and unrepresented;
(b)Dr Balbir Singh has mental and physical injuries which makes it difficult to type legal submissions; and
(c)Dr Balbir Singh is suffering ongoing human rights violations and thus has not been able to acquire any legal assistance.
In general, the longer the delay, the more persuasive the explanation needs to be: Jess at 195 per Lockhart, Sheppard and Burchett JJ; Tran at [38] per Wigney J. The factual matrix relevant to the delay in this matter is set out in detail below.
In her evidence Dr Balbir Singh referred to numerous e-lodgment forms, without necessarily identifying to what matter or matters those lodgment forms related. That is relevant, in part, because it is apparent from the documents filed in these proceedings that Dr Balbir Singh was simultaneously involved in other proceedings sought to be filed under the AHRC Act in this Court against ANZCA and WAGPET (see also Balbir Singh v Australian New Zealand College of Anaesthetists [2025] FedCFamC2G 563 (“ANZCA”) in which an application for extension of time to file human rights proceedings under the AHRC Act in this Court was dismissed on the basis that the proposed application was statutorily prohibited from being made because there had been previous proceedings in respect of a like matter under Victorin equal opportunity legislation).
On 7 January 2022 at 12.55 pm [email protected] (“ELodgment”) informed Dr Balbir Singh that her lodgement had been marked as pending because Dr Balbir Singh had not completed the address for service details at the bottom of the application form, and Dr Balbir Singh had incorrectly completed her financial hardship form.
Dr Balbir Singh responded to ELodgment on 7 January 2022 at 10.03 pm, 10.04 pm, and 10.36 pm by email. The 10.03 pm and 10.04 pm emails appear to be identical and Dr Balbir Singh explained that she:
(a)does not own a home;
(b)due to ongoing human rights violations and hate crimes against her she did not have permission from the owner to reveal the full address (presumably of wherever she was residing at that time);
(c)has suffered extensive privacy breaches;
(d)was “easily and reliably contactable via email and phone regardless of where I am”; and
(e)has requested an exemption of payment (of the filing fee) because she is on a government concession card.
Dr Balbir Singh’s email at 10.36 pm on 7 January 2022 requested guidance from the Court as to the most suitable jurisdiction for her to file the Proposed Application.
At 7.43 am on 8 January 2022 Dr Balbir Singh sent a further email to ELodgment stating that that all her cases “had been filed to comply with the timelines for the human rights act and commission.”
Lodgment ID 1055585 was lodged in the Perth Registry of the Court by Dr Balbir Singh on 9 January 2022 and was a further application against the Department. This application was lodged after Dr Balbir Singh had been informed by the Court of the deficiencies with the application she attempted to file on 7 January 2022. This application (Lodgment ID 1055585) was not accepted for filing. The reason the application was not accepted for filing appears to be similar administrative deficiencies to Lodgment ID 1055558, being the application attempted to be lodged on 7 January 2022.
At 2.31 pm on 10 January 2022 Dr Balbir Singh sent an email to the “SA Registry” (the Court’s South Australian Registry) referencing Lodgment ID 1055558 (the lodgment from 7 January 2022) stating that her application was in the format sent to the Department by the AHRC and confirming that she was unable to produce affidavits at that time due to injury. Dr Balbir Singh also expressly said that:
I would prefer my email address to be used at all times for service. The postal address is unreliable and it isn’t my address.
The evidence establishes that:
(a)Dr Balbir Singh attempted to file applications against the Department within time on 7 January 2022 in the South Australian Registry, and 9 January 2022 in the Perth Registry. These applications were, in the view of both Registries, deficient and were therefore not accepted for filing;
(b)insofar as an address for service was concerned no physical (or street) address for service had been included in the putative applications, but an email address had been provided by Dr Balbir Singh, and she had expressed her preference for the email address to be used for service; and
(c)Dr Balbir Singh understood that an affidavit needed to be filed but said she could not do so “due to injury” (the nature of which was not then explained).
Lodgment 1055429 was Dr Balbir Singh’s attempt to file yet a further application, and at 5.23 pm on 10 January 2022 a person (not a Registrar of the Court) from the Perth Registry of the Court emailed Dr Balbir Singh about Lodgment 1055429 as follows:
The Duty Registrar has reviewed your original application lodged on 7 January 2022.
In relation to you Lodgement 1055429 (81 pages), there are two matters that preclude filing at this stage:
1. Under r 6.01, there must be stated (on the approved form – ‘Application’) an address in Australia, a telephone number and an email address.
2. As leave of the Court is required under s 46PO(3A) of the Australian Human Rights Commission Act (separate to out of time leave), there must be a supporting affidavit (see the notation at the top of page 2 of the approved form: If leave of the Court is requested, an Affidavit is to be filed specifying the reasons the Applicant considers that leave ought to be granted).
The email at 5.23 pm on 10 January 2022 relates to Lodgment ID 1055429 which was an attempt by Dr Balbir Singh to lodge an application in the Perth Registry against ANZCA and not to Lodgment ID 1055585, the latter being a 9 January 2022 Lodgment in relation to an attempt to lodge an application against the Department.
On 10 January 2022 at 6.44 pm Dr Balbir Singh sent an email to the Perth Registry Email Account relating to Lodgment ID 1055429, which was the lodgment in relation to ANZCA.
On 11 January 2022 the 60 day time limitation under s 46PO(2) of the AHRC Act expired. At this point in time it is apparent that Lodgment ID 1055585, the 9 January 2022 Lodgment in relation to an attempt to lodge an application in this Court against the Department, had not been accepted for filing by the Perth Registry.
At this point it is appropriate to break into the narrative to make some observations with respect to the issues of an address for service and the filing of an affidavit with any proposed application in the Court’s Human Rights jurisdiction. It is convenient to deal with the affidavit issue first, and then the address for service issue.
The making of an application to this Court (or the Federal Court) if a complaint to the AHRC is terminated is relevantly dealt with in s 46PO(1)-(3A) of the AHRC Act which provides as follows:
(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.
(2)The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(2A) The application may be made:
(a) by an affected person in relation to the terminated complaint:
(i) on that person’s own behalf; or
(ii) on behalf of that person and one or more other affected persons in relation to the terminated complaint; or
(b)by 2 or more affected persons in relation to the terminated complaint:
(i) on their own behalf; or
(ii)on behalf of themselves and one or more other affected persons in relation to the terminated complaint; or
(c)by a person or trade union who lodged the terminated complaint, on behalf of one or more affected persons in relation to the terminated complaint.
Note:Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(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.
(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).
For present purposes s 46PO(3A) of the AHRC Act is particularly relevant insofar as it provides that an application “must not be made” unless one of the three specified criteria is met. The phrase “must not be made” is redolent of an absolute statutory prohibition on the making of an application absent one of the specified criteria being met. That is because:
(a)the use of “must” is indicative of an imperative command, either positive or negative, depending upon the word or words which follow it in the relevant statutory provision. It expresses necessity in the sense of an obligation or requirement: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”); Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 (“Posner”) at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 (“Kosovich”) at 275 per Millhouse J; Pitrau v Barrick Minig Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (20120 64 AILR 101-563 (“Pitrau”) at [23]-[28] per Lucev FM;
(b)the word “not” is an adverb of negation: Shorter Oxford English Dictionary, Volume II, page 1415.
The words “must not” appear in s.32AA(1) of the Federal Court of Australia Act1976 (Cth) (“FC Act”) where it is provided that proceedings in the Federal Court “must not be instituted” in the Federal Court in certain circumstances where this Court has jurisdiction in the matter.
In Boumelhemv Commonwealth Bank of Australia [2008] FCA 1121 (“Boumelhem”) there were bankruptcy proceedings before this Court (then the Federal Magistrates Court) that had been adjourned pending the completion of related proceedings in the District Court of New South Wales. An application to the Federal Court sought a stay of the bankruptcy proceedings until an appeal from the judgment of the District Court of New South Wales was heard, and an order that the operation of any sequestration order made in bankruptcy proceedings be similarly stayed. In dismissing the application for a stay the Federal Court, having set out s 32AA(1) of the FC Act, observed that the application to the Federal Court for a stay “appears statute barred”: Boumelhem at [9] per Buchanan J. In Carantinos v Magafas [2008] FCA 1107 (“Carantinos”) an order was sought from the Federal Court restraining a creditor from taking steps in then Federal Magistrates Court to obtain a sequestration order in circumstances where a creditor’s petition had earlier been presented to the Federal Magistrates Court Court. In dismissing the restraint application the Federal Court, citing s 32AA(1) of the FC Act, found that it was “beyond argument” that the restraint proceeding in the Federal Court was one that “must not be instituted”: Carantinos at [8] per Branson J. It is apparent from both Boumelhem and Carantinos that the Federal Court has interpreted the words “must not” in the phrase “proceedings must not be instituted” as imposing a statutory bar on the institution of other proceedings in the Federal Court where there are existing proceedings in this Court.
In Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd(No 2) [2019] FCA 2146; (2019) 292 IR 183 (“BM Alliance (No 2)”) at [22] per Collier J the Federal Court held that the use of the phrase “must not make” in s 725 of the Fair Work Act 2009 (Cth) (“FW Act”) specifically prevented a person who has been dismissed from bringing a second application in relation to their dismissal. Pitrau and BM Alliance (No 2) were cited by this Court (then the Federal Circuit Court) in Piefke v Workpac Pty Ltd [2021] FCCA 1166; (2021) 359 FLR 88 (“Piefke”) when determining that Mr Piefke was prohibited from making an unlawful termination application under s 731 of the FW Act when he had previously made an unfair dismissal application under s 729 of the FW Act: Piefke at [12(a)], [15(a)] and [18]-[19] per Judge Lucev.
In Pitrau at [43] per Lucev FM the then Federal Magistrates Court (“FM Court”) (having cited Posner, Kosovich, Boumelhem and Carantinos, amongst other cases) held that the use of the words “must not make” in s 723 of the FW Act imposed a personal prohibition on a person making an unlawful termination application in relation to conduct if the person was entitled to make a general protections court application in relation to the conduct.
The interpretation adopted by the federal courts in the various cases cited above in relation to phrases such as “must not be instituted” and “must not make” suggest that the words “must not be made” in s 46PO(3A) of the AHRC Act ought to be given a similar meaning, and effect, and the Court so finds. It follows therefore that s 46PO(3A) of the AHRC Act prohibits the making of an application unlawful discrimination unless one of the three specified criteria in s 46PO(3A) of the AHRC Act are met.
Before determining if one of the criteria were met, and importantly here which one, it is necessary to examine the form of an application initiating human rights proceedings in this Court.
Part 26 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) concerns proceedings alleging unlawful discrimination. Rule 26.03 of the GFL Rules deals with the form of an application initiating human rights proceedings in this Court, and provides as follows:
26.03 Form of application
(1) An application must be in accordance with the approved form.
(2) Rule 4.04 does not apply to an application in the approved form.
Subject to other applicable GFL Rules, r 26.03(1) of the GFL Rules makes it mandatory for a human rights application to be in accordance with the approved form.
The approved form as completed by Dr Balbir Singh at Part A point 1 provides that pursuant to s 46PO(3A) of the AHRC Act an application “can only be brought to the Court in certain circumstances” and requests that the applicant “select the most appropriate” circumstance from three choices. The first choice, which was not selected by Dr Balbir Singh, is a “request [for] leave of the Court to make this application”, and is followed by a note as follows:
If leave of the Court is requested, an Affidavit is to be filed specifying the reasons the Applicant considers that leave ought to be granted.
The second and third choices do not replicate the first choice requirement for an affidavit to be filed. Thus, it is only if the first choice is selected, or applicable, that the requirement to file an affidavit is made mandatory by r 26.03(1) of the GFL Rules.
In this case Dr Balbir Singh selected the third choice indicating that the delegate of the President of the AHRC had indicated that there was no reasonable prospect of the AHRC Complaint being settled by conciliation. That was the correct selection because:
(a)the Notice of Termination provides that the AHRC Complaint:
has been terminated under section 46PH(1B)(b) of the AHRCA [the AHRC Act] on the ground that I [the delegate of the President of the AHRC] am satisfied that there is no reasonable prospect of the matter being settled by conciliation”; and
(b)in the Reasons for Decision accompanying the Notice of Termination the delegate of the President of the AHRC wrote that:
I am satisfied that there is no reasonable prospect of this matter being settled by conciliation and have decided to terminate this complaint under section 46PH(1B)(b) of the AHCRCA [the AHRC Act]
It follows therefore that:
(a)the AHRC Complaint was terminated under section 46PH(1B)(b) of the AHRC Act;
(b)an application by Dr Balbir Singh was allowed to be made under s 46PO(3A)(c) of the AHRC Act (subject to any other relevant requirements); and
(c)because an application by Dr Balbir Singh was allowed to be made under s 46PO(3A)(c) of the AHRC Act there was no requirement for the Court to have to grant leave under s 46PO(3A)(a) of the AHRC Act.
The difficulty in this case is that Dr Balbir Singh has provided no evidence as to what the actual basis for rejecting the lodgments related to the Department (Lodgment IDs 1055558 and 1055585) was, and in particular whether those lodgments were rejected on the basis that there was a requirement for the Court to have to grant leave under s 46PO(3A)(a) of the AHRC Act, in which case they would have been wrongly rejected insofar as that basis is concerned. That lack of evidence means that the Court cannot conclude that those lodgments they were wrongly rejected on any basis related to 46PO(3A)(a) of the AHRC Act.
In relation to the address for service issue r 6.01 of the GFL Rules provides as follows:
6.01 Address for service
(1) A party to a proceeding must give an address for service.
(2) A party may give an address for service:
(a)by filing a relevant document that includes an address for service; or
(b)by filing a notice of address for service in accordance with the approved form.
(3) An address for service:
(a) must be an address in Australia; and
(b)must include a telephone number at which the party may be contacted during normal business hours; and
(c) must include a current email address for the party; and
(d) may include a fax number for the party.
(4)If the party is represented by a lawyer who has general authority to act for the party, the address for service for the party must be the address of the lawyer.
(5)If the party is represented by a lawyer and the notice for service provides the lawyer’s email address, the party agrees for the party’s lawyer to receive documents at the lawyer’s email address.
(6)If the party is not represented by a lawyer, the party agrees to receive documents at the party’s email address.
Note:The parties may agree on how service is to be carried out. For example, the parties may agree that service is to be by email.
The Court also notes that sub-rr (4), (5) and (6) of r 6.01 were inserted in 2012: Federal Magistrates Court Amendment Rules 2012 (No 1) (Cth), and that the Explanatory Statement thereto indicates that the insertion is “to facilitate the provision of an email address as the address for service of documents other than by hand”.
The Court also notes that r 6.01(3) uses “must” in paragraphs (a), (b) and (c), which are joined by “and” making mandatory the provision of each of an address in Australia, a telephone number and an email address as part of the address for service. As to the meaning of “must” see the authorities cited at [39] above, and as to the joining of paragraphs in legislation (or as here a legislative instrument) by “and” see Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481 (“Adams”) where the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular, a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must” and the linking of each of the five objectives with the word “and” meant that each objective must be pursued by the Minister and by the Authority: Adams at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed).
It is also relevant to observe that r 4.01(1) of the GFL Rules provides as follows:
4.01 Application
(1)Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the approved form.
(2)An application for final orders may include an application for interim or procedural orders.
(3)A person must not file an application for an interim or procedural order unless:
(a)an application for a final order has been made in the proceeding; or
(b) the application includes an application for a final order.
(4)If a person makes an application in a proceeding before final orders have been made in a proceeding, the application must be made in accordance with rule 4.06.
The approved form for an application in the Court’s human rights jurisdiction provides for an “Address for service in Australia” to be provided.
Further, r 2.06 of the GFL Rules prescribes the limited circumstances in which a Registrar of this Court “may refuse to accept a document for filing”, and those circumstances are as follows:
(a)the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
(b)the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
(c)the rules relating to the electronic filing of documents have not been complied with.
In KB v TC [2010] FMCAfam 1109 (“KB”) at [11] per Scarlett FM the FM Court exercising family law jurisdiction had before it a contravention application and an application in a case in which the applicant’s address for service was given as (emphasis in original):
No fixed address and a mobile telephone number and an email
address.
In KB the FM Court said at [12] per Scarlett FM that “[t]hat is not an acceptable address for service” citing r 6.01(1)-(3) of the then Federal Magistrates Court Rules 2001(Cth) (identical to the current r 6.01(1)-(3) of the GFL Rules), before going on at [13]-[14] per Scarlett FM to say:
13.The Applicant has complied with subparagraphs (3)(b) and (c) by providing a telephone number and an email address, but she has not provided an address in Australia for service of documents on her. If she is in fact without a current residence in Australia, that address for service could be the address of a solicitor authorised to accept service of documents on her behalf, or the address of a friend or relative.
14.However, the Applicant cannot give her address for service as “no fixed address”, because that is not an address at which documents can be served.
On the face of it the GFL Rules therefore appear to require that an electronically filed application in a human rights proceeding must provide an address for service and must comply with the relevant form, and which whilst facilitating the provision of an email address for service by email, nevertheless still requires the giving of a physical address for service in Australia.
Returning then to the factual narrative, an email was sent from the Perth Registry to Dr Balbir Singh at 8:29am on 14 January 2022 requesting that Dr Balbir Singh confirm by 17 January 2022 which of five listed lodgments she wished to proceed with. Only one of the listed lodgements, Lodgment ID 1055585 (being a 9 January 2022 lodgment), concerns the Department.
In an email addressed to the “Registry” and emailed to the Perth Registry by Dr Balbir Singh at 1.40 pm on 17 January 2022 Dr Balbir Singh confirmed that she wished to proceed with Lodgment ID 1055585 (amongst others). Lodgment ID 1055585 was a 9 January 2022 lodgment relevant to the Department.
A further email was sent to the Perth Registry by Dr Balbir Singh at 6.57 pm on 19 January 2022. This email was addressed by first name to two Registry officers (neither of whom was a Registrar). In this email Dr Balbir Singh:
(a)explained that she was unable to attend the Registry due to her “health conditions”, but she did not explain the nature those health conditions;
(b)said that “most of the problems you have picked on have been solved” (but the nature of those problems is not specifically set out);
(c)requested the officers to “delete other submissions for the Perth Registry”, but to “keep 1055585 & 1055561 & 1056017 to be used”. (The Court notes that only “1055585”, being Lodgment ID 1055585, is relevant to the Proposed Application).
Dr Balbir Singh sent three emails to the Perth Registry on 22 February 2022 at 7.28 pm, 7.36 pm and 7.40 pm respectively.
In the email sent by Dr Balbir Singh at 7.28 pm on 22 February 2022 Dr Balbir Singh states (after almost two lines of redaction):
With regards to my pension card, I have ticked the correct box for it now.
With regards to the documents, they are all correct and I have already filed the relevant affidavits and the relevant documents. Please stop finding excuses not to process my documents as it is aggravating my injuries.
In the email sent by Dr Balbir Singh at 7.36 pm on 22 February 2022 Dr Balbir Singh appears to annex her fee exemption form and a “relevant card” and says that “[t]hese are the files to be processes [sic] timely”.
In the email sent by Dr Balbir Singh at 7.40 pm on 22 February 2022 Dr Balbir Singh states that:
I have today emailed to you the exemption of the fee document again …. Unfortunately, I cannot help it if I am unemployed and homeless due to my circumstances.
It is not clear whether the 22 February 2022 emails refer to Lodgment ID 1055585: it is, however, clear that:
(a)the lodgment relevant to Dr Balbir Singh’s 22 February 2022 emails had not been accepted for filing; and
(b)Lodgment ID 1055585 had not been accepted for filing by the Perth Registry as at 22 February 2022.
On 7 April 2022 what is now the Proposed Application, and was until then Lodgment ID 1055585, was accepted for filing by the Perth Registry.
In relation to the email correspondence between Dr Balbir Singh and the Perth Registry and the “SA Registry” prior to the acceptance on 7 April 2022 for filing of what is now the Proposed Application some further points must be made.
First, in relation to an application (the Extension of Time Application), on which Dr Balbir Singh bears the onus of proof: see [14] above, there are plainly significant gaps in the documentary evidence as to what occurred in relation to Lodgment ID 1055585 between 7 January 2022 and 7 April 2022, and if there was relevant non-documentary evidence (such as the detail of conversations with registry officers) then the affidavits filed by Dr Balbir Singh (which are voluminous but to a significant extent irrelevant) are almost devoid of such evidence. For example:
(a)it is not apparent that the 7.28 pm 22 February 2022 email, or the other 22 February 2022 emails, actually relate to Lodgment ID 1055585 and there is no evidence of any contemporaneous discussions which might have clarified whether the 22 February 2022 emails refer to Lodgment ID 1055585;
(b)the alleged “excuses not to process my documents” referred to in the 7.28pm 22 February 2022 email is not the subject of any specific explanation by way of affidavit evidence from Dr Balbir Singh;
(c)of the actual documents which were rejected for filing, or which caused the delay in filing, there is no evidence, which makes it difficult to determine with any degree of sufficiency what actually occurred or what their content was, and whether they might have been wrongly rejected by the Perth Registry;
(d)nor is there any evidence of the “already filed … relevant affidavits and … relevant documents” referred to in the email sent by Dr Balbir Singh at 7:28 pm on 22 February 2022 (which documents were not filed because it was not until 7 April 2022 that the Proposed Application was accepted for filing); and
(e)there is no evidence, including documentary evidence, in relation to what occurred, if anything, between 22 February 2022 and 7 April 2022 which ultimately led to the acceptance for filing of what is now the Proposed Application.
Second, the Department was not involved in, or copied into, the email exchanges between Dr Balbir Singh and the Court’s Registries. Indeed, as noted at [109]-[110] below, the Department was not aware of these proceedings until Dr Balbir Singh served the Proposed Application (and other materials) on it sometime on or before 22 December 2022 pursuant to an order for service made by the Court on 2 December 2022.
Third, although it is not for the Court to fill the evidentiary gaps in Dr Balbir Singh’s case, the Court record would not permit it to do so as that record does not commence until 7 April 2022 (the date the Proposed Application was accepted for filing), and therefore any attempts to file “relevant affidavits and … relevant documents” referred to in the email sent by Dr Balbir Singh at 7:28 pm on 22 February 2022, or other documents referred to in email exchanges between Dr Balbir Singh and the Court’s Registries do not constitute part of the Court record.
With her submissions, Dr Balbir Singh provides a copy of the Proposed Application Form where she has inserted the following comment at the top of page 2:
The Perth Registry has messed up these forms and elodgement is forcing me to file an extension of time document despite all these documents were filed on time. An extension of time letter has been filed with this document explaining what the FCC registries have been doing. I have injuries and I cannot keep typing.
Effectively, this is an allegation of “maladministration” by the Perth Registry, which Dr Balbir Singh relies upon, in part, to explain the delay.
Dr Balbir Singh was on notice as of 12 November 2021 that she had 60 days to file any application with this Court. The fact that in relation to the Department Dr Balbir Singh subsequently submitted Lodgment ID 1055558 on 7 January 2022 in the South Australian Registry and Lodgment ID 1055585 on 9 January 2022 in the Perth Registry would also indicate, or it can reasonably be inferred therefrom, that Dr Balbir Singh was aware of the 60 day time limitation (which expired on 11 January 2022).
Whilst Dr Balbir Singh was communicating with the Court between 7 January 2022 and 7 April 2022 in respect of deficiencies in her various lodgments it is not apparent, apart from her email confirmations on 17 and 19 January 2022 that she wished to proceed with Lodgment ID 1055585, that any of the other email communications both before and after those dates were specifically, or even generally, about her claims against the Department. As noted at [25] above it is apparent from the documents filed in these proceedings that Dr Balbir Singh was simultaneously involved in proceedings in this Court (and before that in the AHRC) against ANZCA and WAGPET. Significant parts of the materials filed in these proceedings appear to relate to those matters and there has been a lack of distinguishment on the part of Dr Balbir Singh between the various proceedings, including when she was communicating with the Court between 7 January 2022 and 7 April 2022 in respect of deficiencies in her various lodgments. There are also unexplained gaps where nothing appears to have happened between 19 January 2022 and 22 February 2022 and then after 22 February 2022 until the Proposed Application was accepted for filing on 7 April 2022. Further, it is evident from the email communication between Dr Balbir Singh and the South Australian and Perth Registries that there was communication (presumably by telephone, but perhaps also by emails not in evidence) during the relevant periods, but there was no affidavit evidence from Dr Balbir Singh as to the content of any actual discussions between her and any Registry officers (whether in Perth or South Australia) which went in any tangible way to explain the delay. There is no evidence supporting Dr Balbir Singh’s assertions that the Registry “messed up” the lodgments, and in particular Lodgment ID 1055558 or Lodgment ID 1055585.
In relation to the interaction between Dr Balbir Singh and the South Australian and Perth Registries the net result of the lack of distinguishment, the unexplained gaps, and the lack of evidence concerning other communications, is that there is a lack of evidence from Dr Balbir Singh to explain the alleged maladministration. Thus, to the extent that the explanation for delay proffered by Dr Balbir Singh is one of maladministration by either the South Australian Registry, and more particularly the Perth Registry, that explanation fails.
Dr Balbir Singh has filed evidence in support of her Extension of Time Application to suggest that she may have suffered various medical issues during the 60 day period and the period of delay after the 60 day period. She seeks to explain the delay on the basis of those medical issues. The evidence includes:
(a)a letter of support dated 9 August 2018 prepared by a psychologist;
(b)a radiological report prepared in 2019 and a radiological report with a service date of 16 May 2022;
(c)correspondence from a second psychologist prepared on 30 September 2019;
(d)further correspondence from the second psychologist prepared on 26 November 2019 and a medical certificate dated 27 November 2019;
(e)a Mental Health 3 Step Process plan dated 11 February 2020; and
(f)two letters of support (first letter redacted) prepared by an organisational psychologist) dated 22 August 2021 and 9 November 2021.
Also in evidence is a Centrelink Medical Certificate dated 4 January 2022 concerning Dr Balbir Singh.
The 9 August 2018 letter from a psychologist is addressed, not to the Department, but to ANZCA. It offers no actual assessment of Dr Balbir Singh’s psychological condition, save that it asserts that Dr Balbir Singh’s “psychological state would not prevent her in undertaking this type of work and I would support her getting back into the anaesthetics training program” and further asserts that Dr Balbir Singh had “been through a protracted process with ANZCA and this has affected her health and her finances with her work prospects being affected”. The 9 August 2018 letter:
(a)does not indicate any incapacity on Dr Balbir Singh’s part to prepare or lodge documents in legal proceedings, and indeed insofar as it suggests she has capacity to undertake work might suggest the contrary ; and
(b)is too remote in any event from the time of relevant events (November 2021 to April 2022) to be of any relevance or any assistance otherwise to the Court.
The radiologist’s report of 27 September 2019 indicates that Dr Balbir Singh has “disc degeneration” and “[d]isc degeneration at C5/6 but no evidence of canal stenosis or neural impairment. No other abnormality in the cervical spine”. The report does not indicate any incapacity on Dr Balbir Singh’s part to prepare or lodge documents in legal proceedings arising from the disc degeneration, and there is no other evidence indicating why disc degeneration might give rise to such incapacity.
The letter from a second psychologist to a doctor dated 30 September 2019 notes that Dr Balbir Singh had been referred under a “Mental Health Care Plan” dated 12 July 2019 citing depression and anxiety as the reason for the referral, and which goes on to indicate that:
(a)Dr Balbir Singh had attended five sessions with the psychologist between 19 July 2019 and 26 September 2019; and
(b)on presentation on 19 July 2019 assessment had “revealed severe indicators for depression, mild indicators for anxiety and mild indicators for stress”.
A further letter from the second psychologist dated 26 November 2019 indicates that:
(a)Dr Balbir Singh had been referred to the psychologist by a doctor under a “Mental Health Care Plan” dated 12 July 2019;
(b)Dr Balbir Singh had attended eight sessions between 19 July 2019 and 22 November 2019; and
(c)following some text redacted by Dr Balbir Singh notes that Dr Balbir Singh “had reported a number of factors that impact upon her capacity to undertake the typing required and submitting the submissions needed, including homelessness and stress”.
The letters from the second psychologist are again remote from the time of relevant events, but they do reveal that Dr Balbir Singh was assessed as having indicators of depression, stress, and anxiety. There is, however, no indication of what the effects of such an assessment are, or of:
(a)any medication or other treatment (save for the “sessions” with the psychologist) to deal with those issues; or
(b)Dr Balbir Singh’s prognosis.
The letters from the organisational psychologist dated 22 August 2021 and 9 November 2021 following four and two counselling sessions respectively report that “based on information provided by … [Dr] Balbir Singh” that she was sexually abused and sexually harassed at her workplace and home in New Zealand in 2014 and that she had workplace relationship conflict in New Zealand and subsequently in Australia and had suffered from anxiety, stress, depressive moods and overwhelmed psychological reactions and pain. Each letter describes itself as being a “letter of support” for Dr Balbir Singh, and each letter rises no higher than that. Neither letter from the organisational psychologist:
(a)gives any assessment or diagnosis of any psychological issues (save for Dr Balbir Singh’s self-reporting);
(b)indicates what, if any, medication or other treatment (save for the “sessions” with the organisational psychologist) was being undertaken by Dr Balbir Singh to deal with any psychological issues; or
(c)indicates Dr Balbir Singh’s prognosis.
The letters from the second and third pychologists are largely unhelpful, save that the letter from the second psychologist indicates that Dr Balbir Singh was assessed, in 2019, as having indicators of depression, anxiety and stress.
The Mental Health 3 Step Process plan dated 11 February 2020 is a brief one page pro-forma mental health plan and review document signed by a general practitioner which under the heading “Problem/Diagnosis” says:
1. Depressed
2. PTSD
but no more than that.
The February 2020 Mental Health Plan did provide a “Problem/Diagnosis”. But, again, there was no indication of any actual incapacity, or the extent thereof, on Dr Balbir Singh’s part to prepare or lodge documents in legal proceedings, or why the “Problem/Diagnosis” might give rise to such incapacity, and for how long, bearing in mind that the February 2020 Mental Health Plan preceded the issuance of the Termination Notice by 21 months.
The Centrelink Medical Certificate was completed by a doctor on 4 January 2022, a week before the time limit for filing of proceedings in this Court expired. It lists Dr Balbir Singh’s symptoms as follows:
Feel very low, depressed, anxious, stressed, going through PTSD, not coping, poor concentration, impaired thinking, disturbed sleep
The Centrelink Medical Certificate also provides that:
(a)these symptoms would continue to affect Dr Balbir Singh for the next “3-12 months”; and
(b)Dr Dalbir Singh was “unfit for work/study” for a period of 4 January 2022 to 4 April 2022.
It is evident that none of the medical evidence was written for the purposes of explaining Dr Balbir Singh’s capacity to engage with the litigation process. Nor is there any assessment, apart from Dr Balbir Singh’s self-reporting, of Dr Balbir Singh’s capacity to prepare documentation, and specifically to type, for the purposes of this litigation. Nevertheless, Dr Balbir Singh’s medical evidence shows that she may have suffered from a number of medical conditions in the years preceding, and up to the time of, the making of the Proposed Application. There is no evidence from any of the health practitioners concerned that Dr Balbir Singh, at or about the relevant time (November 2021 to April 2022), was not capable of preparing and making an application under the AHRC Act to this Court, either electronically or by attending in person at the Registry, however, the Centrelink Medical Certificate does indicate that Dr Balbir Singh was not fit for work or study during a critical period, 4 January 2022 to 4 April 2022, because of a variety of mental conditions which left her “not coping, [with] poor concentration, [and] impaired thinking”. Having regard to all of the evidence, and in particular the psychological assessment by the second psychologist in 2019 which indicated that Dr Balbir Singh was assessed as having indicators of depression, anxiety and stress: see [84] above, it can reasonably be inferred that the mental health conditions referred to in the Centrelink Medical Certificate did not suddenly manifest themselves on Dr Balbir Singh’s presentation to the doctor on 4 January 2022, but may have been present for some time prior to that date.
The fact that Dr Balbir Singh may have been affected by a number of medical conditions in the years preceding, and up to the time of, the making of the Proposed Application, and that a week before the time limit for filing she was certified unfit, albeit for work or study, by reason of a variety of mental conditions which left her “not coping, [with] poor concentration, [and] impaired thinking” might provide some explanation for the delay and the length of the delay, and in particular the seemingly intermittent nature of her engagement with the Perth Registry after the expiry of the limitation period on 11 January 2022. In the Court’s view Dr Balbir Singh’s continued engagement with the Perth Registry during a period in which she was certified unfit, albeit for work or study, but was “not coping, [and had] poor concentration, [and] impaired thinking” must weigh in her favour when considering the length of and explanation for the delay.
In the particular circumstances of this case, and notwithstanding a somewhat lengthy delay, the Court considers that Dr Balbir Singh’s medical conditions when viewed cumulatively, and her mental conditions as at a critical time (January to April 2022), do explain the length of the delay.
Dr Balbir Singh also relies upon her status as a self-represented litigant to explain the delay. Although Dr Balbir Singh self-represented the Court notes that she is Australian, English speaking, articulate, university educated and a qualified medical practitioner, but one suffering at the relevant time from the mental conditions referred to in the preceding paragraphs, and their effects.
Dr Balbir Singh seeks to justify the failure to make the Proposed Application within time by reference to her not being able to acquire legal services. In this regard, the Extension of Time Application proceeds on a false premise. In Marks at [17] per McHugh J the High Court observed as follows:
An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
There is no right to legal representation in civil proceedings in the federal courts: Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ; MZZZL v Minister for Immigration and Another [2014] FCCA 1309 at [11] per Judge Lucev.
Insofar as Dr Balbir Singh asserts that she is suffering ongoing human rights violations and hate crimes which have prevented her from obtaining legal assistance those assertions are not supported by any evidence.
It nevertheless remains the case that Dr Balbir Singh is self-represented (a factor which must be considered: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J), is not a lawyer, and at the relevant time was suffering from the mental health conditions and their effects as referred to at [94] above, and that although being self-represented might of itself be insufficient to explain the delay in the case of an obviously intelligent professionally qualified person English speaker, the overlay of the mental health conditions and their effects do, as the Court has already found, explain the length of the delay.
The Court notes that Dr Balbir Singh may also have been homeless during part of the period from November 2021 to April 2022, but in the absence of more specific evidence gives no particular weight to that matter.
In all of the above the circumstances the Court is satisfied that Dr Balbir Singh has provided an acceptable explanation for the delay in filing the Proposed Application and that this weighs in favour of the grant of the Extension of Time Application.
Prejudice to the Respondent
The policy rationale behind the 60-day time limitation imposed by Parliament is that delay will inevitably cause prejudice. In Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063 at [41] per Feutrill J the Federal Court observed that:
It is also to be borne in mind that an important policy inherent in s 46PH(1)(b) is that of ensuring that allegations of unlawful discrimination are made promptly: Budini [v Sunnyfield [2019] FCA 2164] at [58]–[59]. Delay in commencing proceedings may result in prejudice that is insidious and unable to be positively proved: Rossi v Qantas Airways Ltd (No 2) [2020] FCA 1080 at [25] –[26] ; see also Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551, 555 (McHugh J)…
The Department did not, however, point to or argue that it would suffer any specific prejudice if the Extension of Time Application is granted. The Department did, however, submit that, if the proceeding is allowed to proceed, the Court should have regard to the costs, inconvenience, and disruption associated with the litigation, especially noting that the allegations against the Department are not sufficiently particularised.
In the circumstances, prejudice weighs neither for nor against granting the Extension of Time Application.
Merits of the case
Background
The broad factual basis behind Dr Balbir Singh’s claims of alleged discrimination is as follows:
(a)on 1 November 2019 the decision to remove Dr Balbir Singh from the AGPT program was made by WAGPET as the relevant training provider on the basis of an alleged failure to comply with the requirements of the program;
(b)the removal decision was confirmed by WAGPET following an internal review process;
(c)the confirmation decision was then appealed by Dr Balbir Singh to the Department on 4 February 2020; and
(d)on 28 April 2020 the Department determined to uphold WAGPET’s decision to remove Dr Balbir Singh from the AGPT program on the basis that WAGPET’s decision was properly made and complied with the applicable policy.
The AHRC limited its consideration of Dr Balbir Singh’s complaint to one of disability discrimination under the DD Act. It did so on the basis that Dr Balbir Singh did not appear to have reasonably arguable claims under the RD Act and the SD Act. Dr Balbir Singh appears, in this proceeding, to be seeking to reagitate the full range of issues as they appeared in the AHRC Complaint as originally filed with the AHRC.
These proceedings
This proceeding commenced on 7 April 2022 with the acceptance for filing of the Proposed Application by the Perth Registry of the Court.
Directions hearings were held by the Court on 12 May 2022 and 2 December 2022. The Department did not participate in those directions hearings as it was then unaware that the Proposed Application had been made. On 2 December 2022 the Court made an order that Dr Balbir Singh serve a copy of all documents filed by her in these proceedings to that date on the Department by registered post to be dispatched by 31 December 2022.
It would appear that the relevant documents were served on the Department on or before 22 December 2022, and on 2 February 2023 a Notice of Address for Service was filed by lawyers representing the Department.
A further directions hearing occurred on 3 February 2023. At that directions hearing the Court made orders, including the following orders:
1. By 17 March 2023, the Applicant file and serve any application for an extension of time supported by written submissions and any further affidavit evidence.
2. By 24 March 2023, the Applicant must file and serve on the Respondent particulars of:
a. the sections of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act), Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) or the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) that the Respondent is alleged to have contravened;
b. the attributes the Applicant alleges formed the basis or part of the basis of the alleged act or acts of unlawful discrimination by the Respondent (contravention);
c. the particulars relevant to each alleged act or acts of unlawful discrimination by the Respondent (contravention);
d. the particulars of the Applicant’s loss; and
e. particulars and calculations of the basis upon which damages are sought.
On 3, 15, 17 and 18 February 2023 Dr Balbir Singh sent several emails and documents to the Department’s lawyers and the Court. Dr Balbir Singh did not in any of the materials sent to the Department or the Court then provide:
(a)particulars:
(i)of the sections of the DD Act, the RD Act, or the SD Act the Department is alleged to have contravened;
(ii)of the attributes Dr Balbir Singh alleged formed the basis or part of the basis of the alleged act or acts of unlawful discrimination by the Department; or
(iii)relevant to each alleged act or acts of unlawful discrimination by the Department; and
(iv)of loss; or
(b)calculations of the basis upon which damages are sought.
Following receipt of six emails from Dr Balbir Singh on 11 March 2023, the Department’s lawyers on 17 March 2023, having set out the relevant orders from 3 February 2023, advised Dr Balbir Singh in the following terms:
We acknowledge that since the above orders were made, you have sent several emails to our offices, inclusive of various attachments. You have not yet provided to us and filed with the Federal Circuit Court particulars of the matters identified in paragraphs 2(a) – (e) above which are due on 24 March 2023. Whilst it is a matter for you as to how you wish to conduct your application, we urge you to have regard to the attached Orders in terms of what materials you serve on us and file with the Federal Circuit Court (and the dates that those materials are due). In this regard, we consent to you filing and serving further supplementary materials in accordance with the Orders.
We also note that in one of your emails you invite us to contact you should we have any questions or any enquiries about the serious matters. You are required to comply with Order 2; we will not be calling you to discuss the matters informally as the particulars are required to be provided to the Federal Circuit Court as well. We trust that the above clarifies our position and the upcoming steps in your application. For the avoidance of doubt, we reserve all rights in relation to your required compliance with the Orders.
Should you otherwise require any assistance in the conducting of your application, we suggest to contact the Court or seek legal advice.
On 20 March 2023 Dr Balbir Singh emailed the Department 's lawyers as follows (formal parts omitted):
Like I said in my previous email I have needed assistance from the Australian Department of Health. I needed constructive assistance years ago, thus contacting and emailing your agency. This is for your information so you can better understand what has happened to an Australian Doctor in New Zealand and the consequences of it all.
On 20 March 2023 Dr Balbir Singh also sent an email to the Perth Registry, copying in the Department’s lawyers. Attached to this email were the following documents:
(a)an affidavit affirmed by Dr Balbir Singh on 9 March 2023 (two copies);
(b)materials relating to Dr Balbir Singh’s qualifications and experience as a medical practitioner (attached to Dr Balbir Singh’s affidavit, first copy); and
(c)a document titled “Losses DOH.pdf” where Dr Balbir Singh sets out her alleged financial and economic loss, and attached pay rates for doctors in training and senior practitioners prescribed in the WA Health System – Medical Practitioners – AMA Industrial Agreement 2016.
On 22 March 2023 Dr Balbir Singh emailed the Perth Registry stating that all emails and attachments sent to the Department’s lawyers (she referred specifically to Ms Frampton, a solicitor) “are to be filed for this case involving the Department of Health PEG73/2022.” Dr Balbir Singh also indicated her intention for all attachments she emailed to the Perth Registry to be filed in this proceeding.
On 24 March 2023 Dr Balbir Singh sent two emails to the Perth Registry, copying in the Department’s lawyers. Attached to these emails were the following documents:
(a)an affidavit affirmed by Dr Balbir Singh on 9 March 2023 attaching:
(i)what would appear to be the proposed Application dated 28 December 2021 with comments inserted by Dr Balbir Singh;
(ii)a lodgment details form dated 9 January 2022;
(iii)copies of three emails sent by Dr Balbir Singh to the Perth Registry on 22 February 2022; and
(iv)the Centrelink Medical Certificate dated 4 January 2022;
(b)a document titled “Submission 2332023.pdf”;
(c)a document titled “AHRC3.pdf”;
(d)a document titled “Orders-DOH copy.pdf” which includes Dr Balbir Singh’s affidavit affirmed on 9 March 2023;
(e)a document titled “Qualifications DOH.pdf” which includes Dr Balbir Singh’s affidavit affirmed on 9 March 2023; and
(f)a document titled “Losses DOH.pdf” which includes Dr Balbir Singh’s affidavit affirmed on 9 March 2023.
On 14 April 2023 the Department filed the Summary Dismissal Application.
At the conclusion of the second day of hearing on 3 August 2023 the Court made orders, including orders that:
1.The Applicant is to serve on the Respondent a complete copy of the affidavit which is marked “DOH 9323” and attachments thereto by 4:00pm on 4 August 2023.
2.The Respondent have leave to file any further written submissions in relation to the affidavit referred to in order 1 by 18 August 2023.
The allegations of discrimination
On 21 April 2023 there was a directions hearing in respect of the Summary Dismissal Application at which the Court made orders, including the following orders:
1.The document appearing at page 120 in Annexure NFJ-6 of the affidavit of Nicola Jess Haggett Frampton sworn 13 April 2023 and entitled “Application for Extension of Time” be treated as the application for extension of time by the Applicant for the purposes of order 1 of the Court’s orders of 3 February 2023, and be placed on the Court’s Electronic Court File for this matter as such as an application.
2. By 30 May 2023:
a)the Respondent file and serve its submissions in respect of the Applicant’s application for extension of time; and
b)the Respondent file and serve its submissions in respect of its application to dismiss the proceedings brought by the Applicant.
3.By 30 June 2023 the Applicant file and serve her submissions in respect of the Respondent’s application to dismiss the proceedings.
Dr Balbir Singh alleges in submissions that the Department has unlawfully discriminated against her by contravening:
(a)ss 15, 22, 25, 26, 27 and 29 of the DD Act;
(b)ss 18C and 18D of the RD Act; and
(c)ss 6, 7, 9, 14, 21, 22, 23, 26, 28A – H and L, 105 and 106 of the SD Act.
Dr Balbir Singh alleges the Department contravened Articles 6, 23, 26 and 27 of the "United Nations convention on Disability Discrimination”, but the Convention is not relevant for present purposes.
In relation to the alleged disability discrimination Dr Balbir Singh generally asserts that:
In reality, [she] has not received any constructive assistance for her acquired injuries such as Depression/Anxiety, Post Traumatic Stress Disorder (PTSD), Tension Headaches/Migraines, Exposure to Tuberculosis (TB) as well as Cervical Spine Injury (Physical Injury)”
but this not identify how or when the Department discriminated against her based on these alleged disabilities. In relation to these general assertions there is no linking of any alleged attribute of disability to any particular act related to those disabilities by any particular person on behalf of the Department at any particular time or place.
Section 15(1) and (2) of the DD Act provides that:
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
There is no allegation, no evidence, and no logical connection to suggest that in confirming the decision of WAGPET, a training provider, to terminate Dr Balbir Singh’s involvement in a training program, that the Department was “acting or purporting to act on behalf of an employer”. Save to say that WAGPET, the training provider, and the Department, the funder and seemingly ultimate controller of the AGPT training program, were obviously not the employer of Dr Balbir Singh at the time of the termination of her involvement in the AGPT training program, it is pertinent to note that on the materials filed by Dr Balbir Singh it is not obvious that she was even employed as at 1 November 2019. That is because on her own evidence Dr Balbir Singh’s probationary employment at Joondalup Hospital Pty Ltd trading as the Joondalup Health Campus was terminated with effect from 10 October 2019, part way through her three month period of probationary employment. That Dr Balbir Singh was not employed as at 1 November 2019 is also evident from the letter from WAGPET dated 1 November 2019 wherein it was said that:
The Joondalup Health Campus have confirmed that your last date of employment was 6 October 2019 and you will not be returning there. Your approved category 2 leave concludes as of 1 November, and as you have been unable to confirm any further placements we have determined that you are unable to comply with your ongoing training requirements.
As a result, from 1 November 2019 you will be withdrawn from the AGPT Program in accordance with the AGPT Withdrawal Policy 2019.
Category 4 – Withdrawal based on Compliance with Education and Training Requirements
5.4.1 Where a registrar fails to comply with the education and training requirements specified by their RTO and/or the AGPT Program and/or the Relevant College they will be withdrawn.
In short it is evident that as at 1 November 2019 Dr Balbir Singh was not able to comply with the AGPT program requirements because she was not employed at that time, and had not been able to confirm any further employment placements for forthcoming semesters. Because Dr Balbir Singh was not employed at that time no person, including the Department, could at that time, have been “acting or purporting to act on behalf of an employer” and hence s 15(1) and (2) of the DD Act were not applicable to Dr Balbir Singh’s then circumstances. Furthermore, it is evident that the action taken to terminate Dr Balbir Singh’s involvement in the AGPT training program as at 1 November 2019 was not action taken by the Department, but rather by WAGPET, and there is no evidence that as at 1 November 2019 the Department had had any involvement with WAGPET concerning Dr Balbir Singh, nor, importantly, that it was aware of any of Dr Balbir Singh’s alleged disabilities.
The first time that the Department appears to have alerted to any possible assertion of disability is in an 18 November 2019 letter or note addressed globally to the Department (that is not addressed to a specific person within the Department but to the Department generally) and which, in its totality reads as follows:
18/11/19
Dear Department of Health
My name is Dr. Balbir Singh. I am Australian Trained Doctor who has had and is still facing extenuating circumstances. I have had some very difficult circumstances within healthcare. This problem started in New Zealand and has continued on in Australia. I have been sufficiently and genuinely traumatised as a result of these circumstances. I have had some major issues with ANZCA and their ongoing processes. There has been a controlled process to change me from a full-time senior advanced trainee to a casual trainee medical officer, and then now unemployed as well as homeless. Instead of turning me into a specialist, this seem like a process designed to cause privacy breaches, degradation, harm and trauma to a female doctor. I have had significant harmful problem within my work, personal and social life as a consequence. My work, training and finances have been affected. I have had serious wellbeing issues and have had to deal with defamation. I am currently having some issues wit WAGPET now and I hope there is a Department of Health advocate who can assist with all of this please.
I am extremely passionate about my career and vocation as a doctor and have worked all these years within the government system. In my initial years as doctor I had none of these problems whatsoever. I would appreciate some good assistance now. Thank you.
Regards,
Dr. Balbir Singh
Following an internal review by WAGPET which confirmed the termination of Dr Balbir Singh’s involvement in the AGPT training program, Dr Balbir Singh appealed to the Department, which rejected her appeal in a letter dated 28 April 2020 where it relevantly said as follows:
In the application for appeal it was requested that the Department reconsider your withdrawal from the AGPT Program.
The AGPT Appeals Policy 2019 outlines the process for registrars to lodge appeals and the process for the consideration of those applications for appeal by the Department.
The Department has carefully considered your appeal application along with the supporting documentation provided and records held by the Department.
As per the Appeals Policy, in relation to determining the appeal the Department may choose to:
•Decide if the decision was correct and appropriate and uphold the decision; or
•Decide if the original decision should be overturned.
The Department may also make recommendations in relation to the outcome of an appeal.
I have considered all supporting documentation supplied with your appeal application, information supplied by WAGPET and records held by the Department.
Based on consideration of the application for appeal and supporting documentation provided, I have determined that WAGPET has correctly applied the AGPT Withdrawal Policy 2019 when withdrawing you from training under Category 4 (Withdrawal based on compliance with education and training requirements).
While you have identified issues of wellbeing and homelessness, there is no evidence that you sought or required Category 1 Leave from the AGPT Program due to these issues or other considerations requested to address these matters. Without clearer medical evidence and further information regarding your medical condition, WAGPET were acting appropriately and in good faith in seeking to have you comply with the education and training requirements. In addition, in the appeal application you submitted to the Department, you did not provide any new or additional information other than that which had previously been provided and considered by WAGPET. As such, the Department has decided to uphold the decision made by WAGPET to withdraw you from training.
Please consider this letter formal notification of your withdrawal from the AGPT Program by the Department.
The terms of the letter indicate that the Department was considering an appeal from the decision of WAGPET in accordance with an “Appeals Policy” and were not “acting or purporting to act on behalf of an employer” in making the decision on the appeal.
Insofar as the Proposed Application relates to s 15 of the DD Act it therefore has insufficient arguable merit and would be highly unlikely to succeed at hearing.
Section 22(1), (2) and (2A) of the DD Act provides that:
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability:
(a)by refusing or failing to accept the person’s application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability:
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
(2A)It is unlawful for an education provider to discriminate against a person on the ground of the person’s disability:
(a)by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or
(b) by accrediting curricula or training courses having such a content.
Section 4(1) of the DD Act defines “educational authority”, “educational institution” and “education provider” as follows:
educational authority means a body or person administering an educational institution.
educational institution means a school, college, university or other institution at which education or training is provided.
education provider means:
(a) an educational authority; or
(b) an educational institution; or
(c)an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers referred to in paragraph (a) or (b).
The Court notes that the DD Act does not define “student”.
It appears evident that the Department is not an “educational institution”, at least for present purposes, but it appears to be arguable that WAGPET may be an “educational institution” because it is an organisation (indeed it appears to be a company) “at which education or training is provided”. If that is arguable then it would appear to be arguable that the Department is an “educational authority” because it may be “a body or person administering an educational institution” because there is evidence that:
(a)the Department is the ultimate determiner of whether or not a person is withdrawn from the AGPT training program: see the Department’s letter of 28 April 2020 at [128] above; and
(b)it was “explained” to Dr Balbir Singh at a meeting on 1 November 2019 with two officers from WAGPET, the Chief Program Officer and the Clinical Director of Training, that the “Department … had primary responsibility for the AGPT program”,
and the Department may arguably therefore be administering, at least in part, WAGPET’s training of general practitioners: see Applicant N v Respondent C [2006] FMCA 1936 at [42] per McInnis FM.
It is plainly arguable that Dr Balbir Singh was a “student” for the purposes of s 22 of the DD Act.
It follows that it is arguable that s 22(2) of the DD Act might apply to the Department’s conduct in relation to the refusal of Dr Balbir Singh’s appeal if it were arguable that the refusal was on the ground of Dr Balbir Singh’s disability and that she had been, as a student, denied access to a benefit, or expelled, or subject to “any other detriment”.
The Court accepts that the Department asserts that it did not discriminate against Dr Balbir Singh on the basis of her disability, but the Department’s 28 April 2020 letter (set out at [128] above) advising that Dr Balbir Singh’s appeal was being refused did refer to “identified issues of wellbeing” and to “your medical condition” (albeit that the latter was referred to in the context of a lack of “clearer medical evidence” available to WAGPET, the Department having considered “information supplied by WAGPET”).
WAGPET’s letter of 1 November 2019 terminating Dr Balbir Singh’s AGPT training program placement says that:
WAGPET is aware of your personal circumstances that have had an impact on your ability to comply with your AGPT training obligations.
The nature of the “personal circumstances” referred to and the extent to which they might have encompassed any disability suffered by Dr Balbir Singh is not further explained in the letter. Prior to WAGPET, on 23 December 2019, after an internal review confirming the termination of Dr Balbir Singh’s AGPT training program placement WAGPET appears to have been provided with, at least, the further letter from the second psychologist dated 26 November 2019 indicating that Dr Balbir Singh had:
(a)been referred to the psychologist by a doctor under a “Mental Health Care Plan” dated 12 July 2019; and
(b)had attended eight sessions between 19 July 2019 and 22 November 2019.
It might be inferred that the Department’s “identified issues of well being” and to “your medical condition” refer to the matters disclosed by Dr Balbir Singh to the Department and to WAGPET, and thus to her disabilities, and that it is possible that these matters may have been considered when the Department’s decision was made. In the Court’s view this in is an aspect of the matter where further evidence, may “give colour and content to allegations” and “where questions of fact and degree are important”: Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J (albeit said in relation to a summary dismissal application).
In those circumstances the Court considers that there is sufficiently arguable merit in the Proposed Application’s alleged contravention of s 22(2) of the DD Act.
The allegations in relation to ss 25, 26 and 27 of the DD Act, those sections relating respectively to the provision of accommodation (which means “residential or business accommodation”: DD Act, s 4(1)), estates or interests in land, and membership of clubs and incorporated associations, have nothing to do with anything that the Department has done in relation to Dr Balbir Singh, and therefore those alleged contraventions have no merit whatsoever.
Section 29 of the DD Act provides as follows:
29 Administration of Commonwealth laws and programs
It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
Under s 4(1) of the DD Act a ““Commonwealth program” means a program conducted by or on behalf of the Commonwealth Government”. It is not in dispute that the Department is a Commonwealth Government department. There is evidence: see [134] above, that the Department has primary responsibility for the AGPT program, and it is therefore arguable that it is a program “conducted by or on behalf of the Commonwealth Government” and that s 29 of the DD Act could apply to it, for essentially the same reasons as set out at [137]-[140] above in relation to s 22(2) of the DD Act. In those circumstances the Court considers that there is sufficiently arguable merit in the alleged contravention of s 29 of the DD Act.
In respect of the alleged contraventions of the RD Act Dr Balbir Singh appears to assert that she was not provided assistance by the Department because she is “of an ethnic minority Asian Race being Non-Caucasian.” This assertion has otherwise not been particularised at all and is wholly unsupported by any evidence of any act or conduct of the kind asserted being done by any person from, or on behalf of, the Department. In the circumstances it would not be possible to establish an act of offensive behaviour done because of race, colour or national or etnic origin as required by s 18C of the RD Act. Section 18D of the RD Act which was also relied on by Dr Balbir Singh in her submissions has no application as it deals with reasonable and good faith exemptions from the application of s 18C of the RD Act.
In respect of the alleged contraventions of the SD Act Dr Balbir Singh’s submissions contain generalised statements about challenges faced by women in employment, such as a gender pay gap, which Dr Balbir Singh asserts is encouraged by the Department. This assertion is unsupported by any evidence at all.
Dr Balbir Singh also asserts she has “encountered reduced employment opportunities as a result of widespread sexual harassment.” There is no evidence of sexual harassment as it related to the Department’s involvement in considering the appeal from WAGPET’s decision to terminate Dr Balbir Singh’s involvement in the AGPT training program. Nor is there any evidence of sex discrimination or sexual harassment for which the Department might be liable in relation to Dr Balbir Singh’s involvement in the AGPT training program, or otherwise. The alleged contraventions of ss 6, 7, 9, 14, 21, 22, 23, 26, 28A – H and L, 105 and 106 of the SD Act have no merit.
In relation to the alleged contraventions of the DD Act, the RD Act and the SD Act the Court has concluded that the alleged contraventions have no merit, save for the alleged contraventions of ss 22(2) and 29 of the DD Act which do have sufficient arguable merit.
Conclusion – Extension of Time Application
In circumstances where:
(a)there is a sufficient explanation for the delay in making the Proposed Application;
(b)prejudice does not weigh against an extension of time; and
(c)at least in part, the alleged contraventions have sufficient arguable merit,
the Court has concluded that it will exercise its discretion such that the Extension of Time Application is to be granted, and that time for making an application be extended to 7 April 2022 (“Application”).
SUMMARY DISMISSAL APPLICATION
Legislative provisions
The powers of the Court in respect of summary dismissal are set out in s 143(2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCA Act”) regarding summary dismissal provides as follows:
(2)The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 1) has apart from this section.
Rule 13.13 of the GFL Rules regarding summary dismissal provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Principles in relation to summary dismissal
In Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ it was observed that:
(a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
(b)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
(c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
(d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
(e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
(f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
(g)full weight must be given to the expression (“no reasonable prospect”) as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
The Court also observes that:
(a)the Department, in making the summary dismissal application, bears the onus of persuading the Court to make an order for summary dismissal: Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeves J;
(b)an application for summary dismissal does not involve “mere pleading points” but is concerned with substance, and the Court should consider matters outside the pleadings: Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 (“Qualify Me”) at [24] per Markovic J; Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121; (2012) 207 FCR 390 (“Singh (No 3)”) at [39] per Griffiths J;
(c)where an applicant fails to identify any valid claim at all in the materials placed before the Court a conclusion may be justified that there is not, and never will be, a valid claim to advance to the Court. In Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [30] per Reeves J the Federal Court said:
However, where the applicant has failed to identify any valid claim in the materials he or she has placed before the court and has failed to provide any factual material that could amount to a valid claim and the court concludes that the party has no reasonable prospects of ever being able to do so, the situation is fundamentally different. The complete absence of an identified and valid claim and, more importantly, the factual materials to found either that valid claim, or some other form of valid claim, along with the likelihood that the applicant has no reasonable prospects of ever being able to produce that material, justifies a conclusion that there is not, and never will be, a valid claim before the court. This obviously cannot be remedied by orders to amend or strike out the pleadings because no amount of pleadings will remedy the fundamental absence of a valid claim. Moreover, the complete absence of a valid claim in this sense ie no identification of a claim, no factual foundation for a claim and no prospect of providing either, must lead inexorably to the conclusion that the applicant has no prospects of prosecuting his or her proceedings to a successful conclusion …
and see also Ghanem v Australian Research Council [2014] FCAFC 132 at [19] per Flick, Jagot and Perry JJ; and
(d)the Court must be cautious in summarily dismissing an application involving a litigant in person, and ought to act so as to diminish any disadvantage that a litigant in person suffers when faced with a lawyer in the adversarial process, but do so in a manner which does not confer upon the litigant in person an advantage over their represented opponent: Re Morton, Ex parte v Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497 at 513-514 per Sackville J.
The Court notes that:
(a)in Walker v State of Victoria [2012] FCAFC 38 at [26] per Gray J the Federal Court said, of a disability discrimination claim, that:
There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.
(b)it is important even where a litigant in person is involved, that the matters required to be established in a disability discrimination claim are, ultimately, comprehensively pleaded in something akin to the proper form. In Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 (“Modra”) at [32] per Gray J the Federal Court considered a case in which there were deficient pleadings, and stated:
32… A pleading lacking in precision places upon the judge an extra burden of attempting to ascertain whether there are issues on which the party can rely lawfully. There is a risk that, without the assistance of precise pleadings, the judge will fall into error in that respect. An imprecise pleading adds to the expense of a proceeding. The opposing party will have a great deal more work to do than would normally be the case, in determining whether to gather evidence to meet all that is said in the deficient pleading. The trial is likely to be longer than if the claim were pleaded properly. Thus, a failure to plead a claim correctly will impact not only on justice, but also on timeliness, efficiency and expense…
That Dr Balbir Singh is self-represented is a relevant consideration but does not preclude the Court from summarily dismissing the application where no reasonable prospects of success exist. In Quall v Native Title Registrar [2021] FCA 865 at [25] per Griffiths J the Federal Court said (citations omitted):
I am mindful that there is a need for particular caution in considering whether summarily to dismiss proceedings instituted by a self-represented litigant. Regard must also be had to the interests of other parties and the overarching purpose of this Court’s practice and procedure provisions (s 37M of the FCA Act) to prevent the unnecessary waste of public and private resources.
For the reasons set out at [137]-[140] and [144] above the Court concluded that the alleged contraventions of ss 22(2) and 29 of the DD Act had sufficient arguable merit to warrant (together with other considerations) granting the Extension of Time Application, and for similar reasons, on the available materials: Qualify Me at [24] per Markovic J; Singh (No 3) at [39] per Griffiths J, the Court is of the view that it is not inevitable that Dr Balbir Singh has no, or no reasonable, prospect of proving the alleged contraventions of ss 22(2) and 29 of the DD Act: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ. The Court is nevertheless conscious that Dr Balbir Singh will now need to articulate the now much narrowed Application in something akin to the proper form: Modra at [32] per Gray J, and with more precision and clarity, and probably some further tailored evidence.
Save as to the claims made under ss 22(2) and 29 of the DD Act, and for similar reasons to those set out above in relation to the Extension of Time Application the other allegations of contravention of the DD Act, and the allegations of contravention of the RD Act and the SD Act have no reasonable prospect of success and must therefore be dismissed.
In the circumstances the Court has concluded that pursuant to s 143(2) of the FCFCA Act and r 13.13(a) of the GFL Rules it will dismiss the Application, save as to the claims made under ss 22(2) and 29 of the DD Act.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)the Extension of Time Application is to be granted, and that time for making an application be extended to 7 April 2022; and
(b)pursuant to s 143(2) of the FCFCA Act and r 13.13(a) of the GFL Rules the Application is to be dismissed, save as to the claims made under ss 22(2) and 29 of the DD Act.
There will be orders accordingly.
The matter is to be adjourned to a directions hearing on a date to be advised.
Costs, if any, are to be reserved.
I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 2 May 2025
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