Balbir Singh v Western Australian General Practice Education and Training Limited
[2025] FedCFamC2G 655
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balbir Singh v Western Australian General Practice Education and Training Limited [2025] FedCFamC2G 655
File number(s): PEG 72 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 7 May 2025 Catchwords: PRACTICE AND PROCEDURE – Application in a proceeding – application for extension of time to file originating application – 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 – where self-represented – prejudice – whether respondent wound up - whether underlying claim has sufficient arguable merit
PRACTICE AND PROCEDURE – Application in a proceeding – application for adjournment of extension of time application for filing of originating application – adjournment – factors for consideration
PRACTICE AND PROCEDURE – Application in a proceeding – leave to appear at hearing of application in a proceeding by telephone – consideration of post-COVID pandemic practice of the Court – consideration of overarching civil practice and procedure provisions
PRACTICE AND PROCEDURE – Application in a proceeding – application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical
LAWYERS – Application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical
WORDS AND PHRASES – “must not make”
Legislation: Constitution s 71
Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO
Disability Discrimination Act 1992 (Cth) ss 4, 15, 22, 29
Evidence Act 1995 (Cth), s 140
Fair Work Act 2009 (Cth) ss 723, 725, 729, 731
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 190
Federal Court of Australia Act1976 (Cth) s 32AA
Judiciary Act 1903 (Cth) ss 55A, 55B, 55C
Racial Discrimination Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 26, 1.07, 2.06, 4.01, 6.01, 26.03
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
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
ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578; (2004) 22 ACLC 1125
Auken Animal Husbandry Pty Ltd v 3RD Solutions Investments Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521
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 and Investments Commission v GetSwift Ltd [2020] FCA 504
Australian Securities and Investments Commission v Wilson [2020] FCA 873; (2020) 146 ACSR 149
Balbir Singh v Australian New Zealand College of Anaesthetists [2025] FedCFamC2G 563
Balbir Singh v Commonwealth of Australia (Department of Health) [2025] FedCFamC2G 637
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
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
Capic v Ford Motor Co of Australia Ltd [2020] FCA 486
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
Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89
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
Matthews v Hargreaves [2010] FMCA 840
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
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449
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) 74 CLR 461
Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Reynolds v JB Morgan Administrative Services Australia Ltd & Anor (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612
Rooney v AGL Energy (No 2) [2020] FCA 942
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
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
Tang v AHG Services (NSW) Pty Ltd [2011] FCA 1532
Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261
The Queen v Goldman [2004] VSC 165; (2004) 148 ACrimR 40
Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186
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
Wickham v Victoria Legal Aid [2019] FCA 1503
Division: Division 2 General Federal Law Number of paragraphs: 178 Date of last submission/s: 26 June 2023 Date of hearing: 4 May, 23 and 26 June 2023 Place: Perth Applicant: In person by phone via CISCO Webex Counsel for the Respondent: Ms Nickels Solicitor for the Respondent: DLA Piper ORDERS
PEG 72 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASBIR KAUR BALBIR SINGH
Applicant
AND: WESTERN AUSTRALIAN GENERAL PRACTICE EDUCATION AND TRAINING LIMITED
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application in a proceeding filed 16 February 2023 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.The Applicant’s application in a proceeding filed 17 March 2023 to appear at the hearing of the Extension of Time Application by telephone be dismissed.
3.The Applicant’s application in a proceeding filed 28 April 2023 for an adjournment of the hearing of the Extension of Time Application listed on 4 May 2023 to a date after 9 June 2023 be dismissed.
4.The Applicant’s application in a proceeding filed 22 June 2023 for a foreign lawyer to appear for the Applicant in these proceedings be dismissed.
5.The matter be adjourned to a directions hearing on a date to be advised.
6.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
APPLICATIONS IN A PROCEEDING
Before the Court are four applications in a proceeding filed by the applicant, Dr Jasbir Kaur Balbir Singh (“Dr Balbir Singh”), as follows:
(a)filed 16 February 2023, to extend time for the filing of an originating application (“Extension of Time Application”);
(b)filed 17 March 2023, to appear at the hearing of the Extension of Time Application by telephone (“Telephone Appearance Application”);
(c)filed 28 April 2023, for an adjournment of the hearing of the Extension of Time Application listed on 4 May 2023 to a date after 9 June 2023 (“Adjournment Application”); and
(d)filed 22 June 2023, an application for a foreign lawyer to appear for Dr Balbir Singh in these proceedings (“Foreign Lawyer Application”).
OTHER RELATED PROCEEDINGS
Before proceeding further the Court notes that Dr Balbir Singh has taken other related proceedings in this Court in relation to:
(a)the Australian New Zealand College of Anaesthetists (“ANZCA”): see 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 Australian Human Rights Commission Act 1986 (Cth) (“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 Victorian equal opportunity legislation; and
(b)the Commonwealth of Australia (Department of Health and Aged Care) (“Department”): see Balbir Singh v Commonwealth of Australia (Department of Health and Aged Care) [2025] FedCFamC2G 637 (“Department of Health and Aged Care”) in which an application for extension of time to file human rights proceedings under the AHRC Act in this Court was granted, and an application to summarily dismiss the substantive application was granted in part and dismissed in part.
Both ANZCA and Department of Healthand Aged Care involved applications to this Court arising from earlier terminated applications to the Australian Human Rights Commission (“AHRC”).
The four applications in a proceeding relate to a proposed originating application (“Proposed Application”) accepted for filing by the Perth Registry of the Court (“Registry”) on 7 April 2022, and in which Dr Balbir Singh seeks relief under the AHRC Act against the respondent, Western Australian General Practice Education and Training Limited (“WAGPET”) in relation to decisions made in November and December 2019 to terminate Dr Balbir Singh’s involvement in the Australian General Practice Training (“AGPT”) program (“AGPT Program”). WAGPET operated as the training provider for the AGPT Program.
EXTENSION OF TIME APPLICATION
Filing
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 Registry on or about 7 January 2022, an extension of time under s 46PO(2) of the AHRC Act has become necessary.
Proposed Application
In order to understand Dr Balbir Singh’s applications in a proceeding (and especially the Extension of Time Application) it is necessary to refer to the Proposed Application in which Dr Balbir Singh:
(a)complains of discrimination, as follows:
Disability discrimination
Racial/Nationality Discrimination
under the Disability Discrimination Act 1992 (Cth) (“DD Act”) and the Racial Discrimination Act 1975 (Cth) (“RD Act”);
(b)seeks final orders, as follows:
1.Financial Compensation of AUD 9,500,000 due to years of loss of income as a senior registrar and loss of potential income as a specialist.
2.Financial Compensation of AUD 8,500,000 for loss of time, loss of reputation and exacerbation of injuries.
3.Reinstatement into the training programme and no further discrimination, bullying and sexual harassment against me anywhere.
(c)indicated that her relationship to WAGPET was that she was an employee of the organisation and trainee member; and
(d)indicated she did not need an extension of time.
No formal statement of claim was submitted with or separate to the originating application. Dr Balbir Singh has seemingly sought to set out her claims of discrimination by reference to the Proposed Application and documents and sets of documents annexed thereto, the documents and sets of documents having been accepted for filing by the Registry in four separate tranches.
The first tranche is a letter written on 24 March 2021 (“March 2021 Letter”) addressed to the AHRC. It can reasonably be inferred that the March 2021 Letter formed part of the materials before the AHRC in relation to Dr Balbir Singh’s complaint to the AHRC.
In the March 2021 Letter Dr Balbir Singh wrote that:
1.I clearly stated in the letters provided to WAGPET and the Department of Health on the 8/10/2019, prior to the decision made to withdraw me from the training programme that “Thank you for your email. I have had multiple difficulties from events in hospitals, to events at home, to events socially all of which I have good evidence of by now. I am also concerned about the healthcare I have received in different places. At this stage my employment at JHC as a registrar is not confirmed. Yes, I am still homeless. Also, I have no idea where I will be in semester 1 of 2020. I understand that nothing is guaranteed here, however considering all that has occurred to me with regards to the "moving ons" from one country to another, and one state to another, I think if there is a delegate from the department of health with your organisation, now would be a good time for me to have a chat with them. That is so that I can work towards achieving some guarantees. Also under my very different circumstances, I may need to have another meeting with the both of you to explain the traumatic circumstances that have occurred to me. I may need to get the department of health and human services involved at this stage as it has all been rather traumatic to put it relevantly.”
2.In 2018 and 2019, I disclosed a health condition namely depression to WAGPET, during interview sessions with them. I wrote it down on a list for applicants, that they said was confidential, so that further consideration could be provided during WAGPET’s processes.
3.On the 18/11/19, prior to the reconsideration/review by WAGPET and prior to the appeal by the Department of Health, Australia, I wrote a letter to the Department of Health, Australia stating “My name is Dr. Balbir Singh. I am an 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 seems like a process designed to cause privacy breaches, degradation, harm and trauma to a female doctor. I have had significant harmful problems 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 with 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 a doctor I had none of these problems whatsoever. I would appreciate some good assistance now.”
4.My GP, Dr. Solomon in his letter dated 27/11/2019, stated that due to medical conditions, I have not been able to satisfy my requirements for my WAGPET training and if any further information is required, he was available to be contacted.
5.On the 29/11/2019, I wrote to WAGPET informing them “I would appreciate it if I was not withdrawn from the training programme. I am very dedicated and passionate about my vocation as a health practitioner. I have been through and am still undergoing extenuating life circumstances. As a result, I have been recovering from wellbeing issues. My healthcare providers are aware of my circumstances. My health condition was disclosed to WAGPET during my first session in Perth. My healthcare practitioners have not disclosed my medical condition in their letters now for the sake of my privacy. However, if it is necessary do let me know and the reasons. I am very serious and committed about my profession as a doctor. I did try to stay on at Joondalup Health Campus in my capacity as an Emergency Medicine Registrar. Unfortunately my position was terminated in October 2019 due to a lack of funding affecting my wellbeing. I also did secure a position at Rudloc Morley for 2020 on the 31st October 2019. Unfortunately, WAGPET made their decisions thereafter. I do not have other submissions for your agency. I would appreciate it if I am not asked to go through processes and typing of more letters as that will only worsen my health and wellbeing. I am trying to improve on my life circumstances to the best of my capabilities now. Please kindly accept this letter as an appeal to keep me in your training programme and please do not withdraw me, as I will be left adrift without my cherished medical career to work on in my life. This will be extremely devastating after all the damaging difficulties I have already been through.”
6.My psychologist Bethany Price, has also supplied a letter dated 26/11/2019 and clearly stated that I was referred by Dr. Solomon under a mental healthcare plan. Patients are referred to psychologists under a mental healthcare plan if they have mental health conditions. If WAGPET or the Department of Health were interested in supporting me, they could have contacted my GP Dr. Solomon or my psychologist Bethany Price for further information as they were both readily available. At no time, was I or my healthcare providers contacted for further information. We had no idea what extent of information was required by WAGPET and the Department of Health, so that they could make good decisions for me. We were all readily available by phone and by email. We assumed that the Department of Health, would ask and enquire if any further health information was required considering, health is meant to be the speciality of the Department of Health, Australia.
7.With regards to my position with Joondalup Hospital, there were problems associated with that position. I needed to have an MRI during that time, and the Cervical Spine Injury was diagnosed in September of 2019 whilst I was working at Joondalup Hospital. I was not aware I had a spine injury till then although I was suffering from neck pain and tension headaches. Some of my previous healthcare providers within the system, unfortunately believed that I was imagining these symptoms due to my concurrent mental health issues. It is fortunate the MRI was carried out then, and physical evidence of spinal injury was obtained. I did supply Joondalup Hospital with sick certificates. I was also undergoing significant privacy breaches which has been a consistent pattern everywhere in Australia and New Zealand. There were unconsented communications about my health and personal life at Joondalup Hospital, and this information was used negatively.
8.WAGPET accusing me of not trying to find work positions is mis-founded, as I clearly tried very hard to find a suitable position for myself. I am very grateful for WAGPET’s assistance, however asking me to become a medical registrar at the Royal Perth Hospital, was not going to be viable as I could not fulfil the requirements for that job. I have worked as an anaesthesia and intensive care registrar, for 10 years in Australia, and was trying to look for positions that would suit those skills. I have never worked as a medical registrar and ward based work is not something I am very comfortable with. I was trying to look for work in adult and paediatric, Emergency Medicine to acquire more generalised training and skills.
9.I apologise if the Department believes that I could not reflect on “ Dot point 1 and 3 referred to above reflect the language and statements made to the Department by Dr Balbir Singh in relation to her appeal and the withdrawal decisions “ but I was unwell. I dont think I was able to reflect on anything at all especially considering all the rejections I had faced from ANZCA, WAGPET and the Department of Health, Australia. I was not aware of what exactly was required from myself or my healthcare providers.
10.In a letter I emailed to the Department of Health, on the 25/5/2020, that stated “Further information could have been obtained directly from my healthcare providers if required. They are extremely approachable and very open with their communication in all ways possible. I have also today provided the Australian Government Department of Health with some diagnoses. I do not believe that my health or wellbeing after all the very traumatic experiences I have sustained through all these processes, will allow achievements which were easy for me to accomplish in the past, such as my goal of becoming an Anaesthetist and Intensivist. I am an Australian Citizen and an Australian Trained Doctor. I worked very hard as a doctor within the Australian and New Zealand public/government health systems for a decade to achieve those cherished aims in my life. I would like to remain within the Perth Metro General Practice Training Programme (AGPT) with WAGPET and I believe that within some time of recovery time, once advised by my own health practitioners, I may be able to adhere to the college requirements should there not be any further damaging tortuous processes and harmful activities. I would like to live in a welcoming place now, and not be forced to move around like a homeless refugee nomad. Feel free to contact me via email or telephone at any time to gather more information for your files. I am extremely open now with all aspects of my life. I would not like to have to keep reapplying. If the AGPT section cannot assist, please let me know which department within the Australian Government Department of Health I need to contact to review this matter. Thank you.“ With this letter, I also attached the mental health care plan by Dr. Solomon dated 11/02/2020 in which he suggested diagnosis of Depression and PTSD. I had also attached the MRI report dated 09/09/2019 which stated I had a spinal injury.
11.The reason for using the word wellbeing is that in the Cambridge Dictionary, wellbeing is defined as the state of feeling healthy and happy. In the online Thesaurus wellbeing is defined as a good or satisfactory condition of existence; a state characterised by health, happiness, and prosperity; welfare. It is clear that my health, happiness and welfare have all been significantly affected negatively, thus using the word wellbeing. I have suffered extensive damages and losses.
12.I have already worked in rural Australia for 3 years. Considering I am a PGY13, Australian Citizen and Australian Trained Doctor, I am unsure if I have rural work requirements. I cannot take part in ACRRM’s pathway now, as due to my medical conditions, I cannot travel, live or practice in rural Australia. Decisions were made that I cannot specialise in Anaesthesia by ANZCA, because of my medical conditions, thus it would be illogical, to send that type of a doctor, to a rural area which generally lacks support. My family are mostly in Perth and Adelaide, thus applying and accepting the WAGPET position. At this stage, I do not think it will be good for me to be relocating to distant places after all the moving forward, backwards and sidewards I have had to go through.
13.I would appreciate it if both WAGPET and RACGP/AGPT through the Department of Health, Government of Australia, could reconsider giving me financial support as well as a reinstatement into the GP Training WAGPET position I was in 2019, before all these processes began please. This is so that I do not have to continuously type and waste my time with more paperwork and applications. I would then be able to focus on acquiring good financial compensation from all the other parties/agencies involved, possibly acquire a job as a medical practitioner and also focus on gaining clinical skills to become a good Australian GP, so that I am not left so far behind my peers in both Australia and New Zealand, some of whom are trained internationally.
Obviously some of the content of the March 2021 Letter is irrelevant to any claim against WAGPET in relation to Dr Balbir Singh’s withdrawal from the AGPT Program.
The second tranche of documents comprises:
(a)a screenshot of an undated eLodgment page referring to documents lodged by Dr Balbir Singh on 7 January 2022 at 8.01.24 pm AWST, with an e-lodgement ID of 1055561 (“Lodgment 1055561”); and
(b)a screenshot of a 22 February 2022 7.28 pm email to the Registry from Dr Balbir Singh (“22 February 2022 7.28 pm Email”).
Lodgment 1055561 shows that on 7 January 2022 at 8.01.24 pm AWST a document was lodged (as opposed to accepted for filing) by Dr Balbir Singh in the Registry. In Lodgment ID 1055561 the:
(a)“Originating Document” is said to be an “Application – Alleging Unlawful Discrimination”;
(b)“Supporting Document” is said to be “Correspondence”; and
(c)“Matter role type” for:
(i)Dr Balbir Singh is described as “Appellant”; and
(ii)WAGPET is described as “Respondent”.
In the 22 February 2022 7.28pm Email Dr Balbir Singh wrote that:
I have already chosen 1055585 & 1055561 & 1056017.
My contact details have changed and my postal address is now: … [post office box address redacted by the Court].
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.
The purpose of e-lodgement is so that customers do not have to go into the registry in person, especially with the current pandemic problems.
The third tranche of documents comprises:
(a)the notice of termination dated 12 November 2021 (“Notice of Termination”) issued by a delegate of the President of the AHRC (“President’s Delegate”) under s 46PH(2) of the AHRC Act terminating Dr Balbir Singh’s complaint against WAGPET (and also the Department) on the basis that the President’s Delegate was “satisfied that there is no reasonable prospect of the matter being settled by conciliation”; and
(b)the AHRC’s reasons for decision dated 12 November 2021 (“AHRC Reasons for Decision”) in relation to the Notice of Termination.
The fourth tranche of documents relevantlycomprises:
(a)a copy of a complaint made by Dr Balbir Singh under the AHRC Act against the Department dated 13 December 2020 (“Department Complaint”) which does not, in its terms, mention WAGPET;
(b)copies of various other documents, including:
(i)a letter dated 29 December 2020 and signed by Dr Balbir Singh concerning a discrimination claim against the Department, which would appear to relate to the Department Complaint, and in which Dr Balbir Singh asserts that she was:
(A)“registered as a member” on the AGPT training program “linked with … WAGPET … from 2018 till 2020”;
(B)removed from the AGPT program by the Department in December 2019, and that her appeals against this decision were unsuccessful;
(C)discriminated against by the Department through the “AGPT and WAGPET training processes” on the basis of her “imputed and acquired disability, marital or relationship status and race” and that she was also sexually harassed and victimised; and
(D)that “ANZCA, AGPT, WAGPET and the … [Department] cancelled my memberships because it discriminated against me and had preconceived ideas of what happened to me and my personal characteristics” and refers to “attached documents”;
(ii)an undated note which appears to be Dr Balbir Singh’s responses to queries from the AHRC concerning adding WAGPET as a respondent to the Department Complaint (which appears to have eventually occurred: see the Notice of Termination and AHRC Reasons for Decision) in relation to complaints about WAGPET’s decisions of 1 November 2019 and 23 December 2019 to withdraw Dr Balbir Singh from the AGPT Program, and then to uphold that withdrawal, and in relation to which Dr Balbir Singh asserts disability discrimination and victimisation, and says that it was discrimination because:
Because I was unwell from everything that had happened to me and was continuously happening to me. I had a medical condition. They also appear to be discriminating against me because I was an expelled ANZCA trainee. How ANZCA’s processes were managed and my subsequent losses were not in my control.
(iii)a letter from Dr Balbir Singh to the AHRC dated 15 February 2019 concerning why ANZCA removed her from an anaesthetists training program;
(iv)various correspondence dating from 2017 and 2018 from ANZCA to Dr Balbir Singh concerning her removal from an anaesthetists training program;
(v)a letter dated 11 October 2019 from the Joondalup Health Campus (“JHC”) terminating Dr Balbir Singh’s probationary employment with JHC (“JHC termination letter”);
(vi)a letter dated 1 November 2019 from WAGPET to Dr Balbir Singh withdrawing her from the AGPT Program (“WAGPET Withdrawal Letter”);
(vii)notes of a meeting on 1 November 2019 with WAGPET’s Chief Program Officer and the Clinical Director of Training (“1 November 2019 Meeting Notes”);
(viii)a letter dated 18 November 2019 to the Department from Dr Balbir Singh concerning her circumstances and indicating that she was “having some issues with WAGPET now”;
(ix)a copy of a letter dated 26 November 2019 from a psychologist to a WAGPET officer concerning Dr Balbir Singh (“Psychologist’s 26 November 2019 Letter”);
(x)a medical certificate dated 27 November 2019 addressed to “WAGPET Director” from a Dr Solomon, a general practitioner, concerning Dr Balbir Singh’s medical condition (“27 November 2019 Medical Certificate”);
(xi)a letter dated 29 November 2019 from Dr Balbir Singh to WAGPET concerning her withdrawal from the AGPT Program (“29 November 2019 Letter”);
(xii)a letter from the Chief Executive Officer of WAGPET dated 23 December 2019 to Dr Balbir Singh confirming her withdrawal from the AGPT Program (“WAGPET Withdrawal Confirmation Letter”);
(xiii)a letter from the Department dated 28 April 2020 to Dr Balbir Singh rejecting an appeal from Dr Balbir Singh in relation to her withdrawal from the AGPT Program and confirming her withdrawal from the AGPT Program (“Department Appeal Outcome Letter”);
(xiv)a radiologist’s report dated 27 September 2019 concerning Dr Balbir Singh (“September 2019 Radiology Report”);
(xv)a BOIMHC Menta Health 3 Step Process dated 11 February 2020 (“February 2020 Mental Health Plan”); and
(xvi)under cover of a 6 January 2021 email to the AHRC various email exchanges between Dr Balbir Singh and the Department between May and October 2020.
Further procedural orders
On 2 February 2023 the Court made orders, including the following orders:
1.Within 14 days of the date of these orders, the Applicant file and serve any application for an extension of time supported by written submissions and any further affidavit evidence.
2.Within 7 days after the Applicant files an application for an extension of time as referred to in Order 1, the Respondent file and serve any affidavit evidence and written submissions in response.
On 16 February 2023 Dr Balbir Singh filed the Extension of Time Application supported by an affidavit of Dr Balbir Singh affirmed 11 January 2022 (“Balbir Singh January 2022 Affidavit”).
The orders sought
The Extension of Time Application set out the “Orders” being sought 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 7th 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.
The evidence in support
At Part D – Evidence of the Balbir Singh January 2022 Affidavit, Dr Balbir Singh stated as follows:
1.I have been extremely unwell with injuries over the last few years. I have been diagnosed with a spinal injury and with post traumatic stress disorder (PTSD) since 2019. Appendix A and B attached.
2.I have also suffered ongoing human rights violations and hate crimes evident in my originating application preventing me from acquiring any legal assistance. I have had problems typing documents and also problems with my privacy. I have also been homeless. Appendix C and D attached.
3.Please consider allowing the filing of this matter even if there is a delay because the matters are extremely serious and as it involves healthcare, it is matter of public importance. There has been extensive agency involvement which has prevented me from acquiring good legal assistance for the human rights violations I have been through.
4.I am still being oppressed till today. I have also suffered from hate crimes against me which have been uninvestigated because of the ongoing human rights violations against me which were initially promoted and was known [redaction in original]. The conduct, and human rights violations [redaction in original] have caused lasting damages to my health, reputation, finances, career, time, fertility and emotions as a women, citizen and doctor. Please allow this matter to go forward. Appendix E, F and G attached.
The Balbir Singh January 2022 Affidavit annexed a number of documents in appendices described hereunder.
Appendix A comprises:
(a)the September 2019 Radiology Report; and
(b)a radiology Patient Health Summary dated 16 May 2022 (“May 2022 Radiology Report”) (emphasis added).
Appendix B is the February 2020 Mental Health Plan.
Appendix C comprises:
(a)the Psychologist’s 26 November 2019 Letter; and
(b)the 27 November 2019 Medical Certificate.
Appendix D is a letter dated 30 September 2019 from the psychologist, Ms Price to Dr Soloman (“September 2019 Psychologist’s Letter”);
Appendix E is a letter dated 22 August 2021 from Thuyasithu, an organisational psychologist, addressed “TO WHOM IT MAY CONCERN” (“August 2021 Organisational Psychologist’s Letter”);
Appendix F is an undated letter to “Elodgement Team” from Dr Balbir Singh (“ELodgment Team Letter”) and an undated screenshot of Lodgment ID 1055561.
Appendix G comprises partially redacted copies of the 22 February 2022 7.28 pm Email and other emails sent to the Registry at 7.36 pm and 7.40 pm on 22 February 2022 (“22 February 2022 7.36 pm Email” and “22 February 2022 7.40 pm Email”).
The Court notes that the Balbir Singh January 2022 Affidavit was filed in support of the Extension of Time Application filed more than twelve months later on 16 February 2023. The Court also notes that the Balbir Singh January 2022 Affidavit as filed contains:
(a)the May 2022 Radiology Report which postdates the Balbir Singh January 2022 Affidavit; and
(b)the 27 November 2019 Medical Certificate which unlike the other annexures/appendices to the Balbir Singh January 2022 Affidavit is not initialled,
and it is reasonable to infer that these two documents have been inserted amidst the other annexures/appendices at some time after the Balbir Singh January 2022 Affidavit was sworn on 11 January 2022. In the circumstances the Court has not had any regard to either of these documents.
Also in evidence is an affidavit sworn by Dr Balbir Singh on 9 March 2023 (“Balbir Singh March 2023 Affidavit”) to which is annexed a Department of Human Services Medical Certificate dated 4 January 2022 (“Centrelink Medical Certificate”) concerning Dr Balbir Singh.
The evidence in opposition
At Part D – Evidence of the Affidavit of Trina Leanne Pitts affirmed 22 February 2022 (“Pitts’ Affidavit”), Ms Pitts, the Chief Financial officer of WAGPET, states that:
(a)in relation to WAGPET and the AGPT Program:
(i)WAGPET was the sole provider of the AGPT Program in Western Australia. The program trains registrars to become general practitioners throughout Australia and is solely funded by the Department;
(ii)the AGPT program consists of three to four years of full-time on-the-job training for registrars in urban, outer metropolitan, rural and remote locations in Australia and is offered to a capped number of registrars in Western Australia. When participating in the program, registrars were expected to obtain employment with a general practice or a hospital, and at no point were registrars employed by WAGPET and WAGPET was not responsible for finding employment for the registrars; and
(iii)when WAGPET was delivering the AGPT program, the applicable policies were those set by the Department and the Department is the final source of appeal in respect of any decision for registrars pursuant to the AGPT Appeals Policy;
(b)in relation to the future of WAGPET:
(i)as of 1 February 2023, WAGPET ceased to deliver the AGPT program and it has no activity other than delivering the AGPT and its last funding contract with the Department ended on 15 June 2023; and
(ii)as a result of the Department’s intention to cease funding WAGPET to provide the AGPT program, the board of WAGPET determined that WAGPET should be wound up as soon as possible after its last funding contract ended as it has no ongoing activity or funding. Most of WAGPET staff had their employment terminated due to redundancy and all remaining staff were finalising activities which were due to be completed by 31 July 2023 with all other employees terminated on or about that date;
(c)in relation to Dr Balbir Singh:
(i)on 8 August 2018, Dr Balbir Singh was offered a Royal Australian College of General Practitioners (“RACGP”) training position for a general pathway in the AGPT Program, the offer stated that it was conditional on commencing training in 2019 in a hospital or non-GP extended skill training facility;
(ii)it remained the responsibility of the registrars enrolled in the AGPT Program to obtain suitable employment placements at a hospital or extended skills training facility. Registrars were required to complete the Recognition of Prior Learning application by 30 September 2018 or confirm their hospital placement by 16 November 2018 for a semester 1 commencement date of 14 January 2019;
(iii)on 2 November 2018 Ms Katherine Hoogendoorn (“Ms Hoogendoorn”), the Program Training Advisor – Hospital from WAGPET emailed Dr Balbir Singh and advised that as her application for recognition of prior learning was incomplete, WAGPET was unable to assess whether she had met all required prerequisites for GP training and could commence in a general practice and therefore needed to complete hospital training in semester 1 and 2 of 2019;
(iv)on 27 November 2018 Dr Colleen Bradford (“Dr Bradford”), the Clinical Director – Training from WAGPET had a telephone meeting with Dr Balbir Singh to explain the requirements and asked for email confirmation that she had arranged a suitable hospital placement;
(v)on 8 December 2018 Dr Balbir Singh emailed Ms Hoogendoorn that she had not found a hospital position, in response to which in late December 2018 to early January 2019, Ms Hoogendoorn contacted Medical Workforce at numerous hospitals in Western Australia to inquire about vacancies for 2019 (support of this type was not provided to all registrars on the AGPT Program);
(vi)on 18 January 2019 Dr Balbir Singh forwarded an email chain between her and Ms Florrie Staker-King from Royal Perth Hospital to Ms Hoogendoorn in which Dr Balbir Singh was offered a General Medicine position at Royal Perth Hospital which Dr Balbir Singh declined, stating the offered rotations were unsuitable;
(vii)by the time semester 1 commenced on 14 January 2019, Dr Balbir Singh had not secured hospital employment and therefore on 15 February 2019, Ms Hoogendoorn advised Dr Balbir Singh via email that she needed to complete the application for a Deferral of Commencement of Training (which Dr Balbir Singh never completed) from 14 January 2019 to 14 July 2019 and also recommended that she start applying for a semester 2 hospital employment placement;
(viii)on 1 March 2019 a meeting was arranged with Dr Bradford and Dr Erica Clarke, RACGP WA Censor, and Dr Balbir Singh to discuss the deferral and the training plan for 2020, which Dr Balbir Singh did not attend;
(ix)on 6 March 2019 Dr Balbir Singh emailed Dr Bradford where she apologised and claimed adverse circumstances for not attending the meeting;
(x)on 24 March 2019 Dr Balbir Singh emailed Ms Hoogendoorn stating she was homeless and on 25 March 2019, Dr Bradford emailed Dr Balbir Singh to arrange a face-to-face meeting;
(xi)on 3 May 2019 Dr Bradford and Ms Hoogendoorn met with Dr Balbir Singh to discuss her training plans. Dr Balbir Singh confirmed she was looking to commence hospital training for semester 2. Hospital placements were required to be confirmed by 19 April 2019, this deadline was extended to 3 May 2019, then to 17 June 2019, and again to 26 June 2019. On 4 June 2019 Ms Hoogendoorn again tried to find a vacancy and a position was found at JHC commencing 5 August 2019;
(xii)on 5 June 2019 WAGPET advised Dr Balbir Singh via email that a failure to organise and confirm a placement may lead to her withdrawal from the AGPT program;
(xiii)Dr Bradford and Ms Hoogendoorn met with Dr Balbir Singh on 11 July 2019 and Dr Balbir Singh confirmed she will be commencing employment with JHC on 5 August 2019. After a number of meeting cancellations, on 23 September 2019, Dr Balbir Singh attended a meeting with Ms Hoogendoorn and Dr Bradford and advised that JHC provided her with 3 weeks leave to resolve her accommodation situation as she was still homeless and unable to rent due to break-ins at her previous rental properties; and
(xiv)on 18 October 2019 Dr Bradford contacted Dr Cassandra Host from JHC who confirmed Dr Balbir Singh was no longer employed. Dr Host later confirmed via email stating Dr Balbir Singh ceased employment with JHC as of 6 October 2019;
(d)in relation to the withdrawal of Dr Balbir Singh from the AGPT Program:
(i)confirmation of placement for semester 1 2020 was required by 31 August 2019 which Dr Balbir Singh was unable to provide and on 1 November 2019 Dr Bradford met with Dr Balbir Singh to inform her she had been officially withdrawn from the AGPT Program in accordance with the AGPT Program policies;
(ii)on 13 August 2018 Dr Balbir Singh had signed the Registrar Declaration stating she had no current or past illnesses or disabilities which may adversely impact on her participation in the AGPT Program;
(iii)at no point did Dr Balbir Singh:
(A)advise WAGPET that she was suffering from any disability; or
(B)supply WAGPET with any medical certificates prior to 1 November 2019; and
(iv)WAGPET was unaware that Dr Balbir Singh was suffering from any health defects or disabilities prior to the decision to withdraw her from the AGPT Program and Dr Balbir Singh only provided medical certificates dated 26 and 27 November 2019, stating she was dealing with medical and psychological related issues after the withdrawal decision was made.
(e)in relation to the AHRC Complaint she received an email from the AHRC in February 2021 notifying WAGPET of Dr Balbir Singh’s complaint dated 13 December 2020 which was later terminated; and
(f)in relation to a second offer in the AGPT Program:
(i)in April 2021 Dr Balbir Singh applied for and was accepted into the AGPT Program for semester 1 commencing January 2022. For the 2022 application process, registrars were required to attend multi-mini interviews which Dr Balbir Singh successfully completed;
(ii)on 17 January 2022 Dr Balbir Singh commenced a Deferral of Commencement of Training in the AGPT Program which expired on 15 January 2023;
(iii)on 16 November 2022 Dr Bradford advised Dr Balbir Singh that she will be withdrawn from the AGPT Program on 15 January 2023 as she had not confirmed her hospital placement for 2023 by the required date. The process was not finalised until 1 February 2023; and
(iv)it is also open to Dr Balbir Singh to reapply at any time for the AGPT Program which is now managed and delivered by RACGP.
WAGPET’s submissions
In summary WAGPET submits as follows:
(a)the delay, being 86 days out of time, is not insignificant;
(b)Dr Balbir Singh’s explanation for the delay can be summarised as:
(i)there were multiple administrative requests which were difficult for Dr Balbir Singh to manage because she was injured and unrepresented;
(ii)Dr Balbir Singh has mental and physical injuries which makes it difficult to type legal submissions and requires a typist who is not always available; and
(iii)Dr Balbir Singh is suffering ongoing human rights violations and thus has not been able to acquire any legal assistance, including pro-bono legal assistance;
(c)Dr Balbir Singh has not filed any evidence of what documents she attempted to file with the Registry or when or why any documents were not accepted for filing;
(d)at or around the same time as Dr Balbir Singh was required to lodge the Proposed Application, she successfully reapplied for and was accepted into AGPT Program commencing in January 2022;
(e)there is no evidence of mental or physical impediments that prevented Dr Balbir Singh from lodging the Proposed Application within the required time period;
(f)WAGPET was solely funded by the Department to provide the AGPT Program and WAGPET has no other activity other than delivering the AGPT Program. This ceased on 1 February 2023 and the AGPT Program is now delivered by the Australian College of Rural and Remote Medicine (“ACRRM”). WAGPET’s last funding contract with the Department ends on 15 June 2023 and all surplus funds not acquitted in delivery of the AGPT Programme must be returned to the Department;
(g)the prejudice to WAGPET from the delay in Dr Balbir Singh filing the Proposed Application is that these proceedings will delay the winding up of WAGPET as planned by the WAGPET board since May 2022 in circumstances where it has no ongoing funding;
(h)the significant prejudice WAGPET will suffer cannot be remedied by an appropriate order as to costs;
(i)Dr Balbir Singh may still be enrolled in the AGPT Program or it is open to her to re-apply to the AGPT Program now delivered by ACRRM;
(j)WAGPET was only aware of Dr Balbir Singh’s homelessness impacting her participating in the AGPT Program and it tried to accommodate this by assisting Dr Balbir Singh to secure employment;
(k)Dr Balbir Singh was advised, and it was set out in the letter of offer dated 8 August 2018, that the offer of a RACGP training position for a general pathway in the AGPT Program was conditional on her commencing employment in 2019 in a hospital or a non-GP extended skills training facility;
(l)at no time prior to Dr Balbir Singh’s withdrawal from the AGPT Program on 1 November 2019 was WAGPET aware of Dr Balbir Singh’s alleged “acquired disabilities” nor did WAGPET receive any medical certificates from Dr Balbir Singh. To the contrary, Dr Balbir Singh signed a Registrar Declaration on 13 August 2018 which stated she had no current or past illnesses or disabilities which may adversely impact on her participation in the AGPT Program;
(m)Dr Balbir Singh does not have an arguable case;
(n)there is no utility in the proceedings being brought or continuing; and
(o)Dr Balbir Singh’s explanation for the delay is unsatisfactory to explain the entire period of the delay, there is significant prejudice suffered by WAGPET as a result and in any event, Dr Balbir Singh does not have an arguable case.
Dr Balbir Singh’s submissions
In summary Dr Balbir Singh submits that:
(a)the COVID-19 pandemic caused extensive unprecedented problems with services all over Australia, due to lockdowns and quarantine requirements and that she was under COVID quarantine lockdowns from 13 to 28 December 2021 in Western Australia;
(b)the COVID lockdown made it very difficult to obtain a typist which she needs to hire due to her physical cervical spine injury, and which prevents her from doing excessive amounts of computer typing, such as the typing of multiple pages of legal documents, emailing, and the online submission of legal documents;
(c)she has serious acquired physical injuries, specifically a cervical spine injury and neck strain and sprain, causing neck pain, requiring a typist specifically for the typing of legal submissions and documents, the emailing of multiple legal documents and the online submissions of legal documents. Further, due to her physical injuries, she cannot drive long distances and thus at times has difficulty accessing services which may be a long distance away;
(d)she has serious acquired mental injuries, specifically depression, anxiety and some degree of Post Traumatic Stress Disorder (“PTSD”) which means that it takes her much longer to understand legal documents;
(e)she also suffers from tension headaches and migraines;
(f)she is not a trained lawyer, and has no legal experience whatsoever, which means that she needs assistance and time to understand what legal actions to take and that she was unsure what legal actions to take to preserve her own basic human rights “which have been extensively violated as a woman and doctor”;
(g)ongoing human rights violations, manipulative harmful privacy breaches, racism and extensive severe discrimination throughout Australia has hindered her ability to take timely actions and to receive appropriate constructive assistance. An example of this was that despite the pro bono legal referral made by the presiding Judge, she received no assistance whatsoever;
(h)there are high levels of mismanagement and maladministration with regards to multiple processes involving her “throughout Australia”, and that an example of this was that Registry staff had asked her for a physical address for the forms she had filed, but that it is not always possible for citizens to provide a physical address and due to this, there is a “strong possibility of corruption and fraud involving the Perth Court Registry … encouraged by corrupt and fraudulent government/police agencies, which have worked hard to cause [her] losses and damages”; and
(i)the merits of her application have already been discussed in the March 2021 Letter.
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 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 Application 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 7 January 2022, but the Registry 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.
The evidence concerning the alleged maladministration or mismanagement of the attempted lodgment is lacking in both, importantly, quality, and quantity.
In her evidence Dr Balbir Singh referred to at least three e-lodgment forms: see [X] and [Y] below, 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 separate proceedings sought to be filed under the AHRC Act in this Court against ANZCA and the Department: and see generally ANZCA and Department of Health.
There is no doubt that on 7 January 2022 Dr Balbir Singh lodged Lodgment 1055561 for filing, and that on its face it was intended to be an unlawful discrimination application against WAGPET. Equally, there is no doubt, and it is not in dispute that, Lodgment 1055561 was not accepted for filing, and that it was not accepted for filing until 7 April 2022.
Dr Balbir Singh’s evidence does not address what occurred between 7 January 2022 and 22 February 2022 when the 22 February 2022 7.28 pm, 7.36 pm and 7.40 pm Emails respectively were sent to the Registry.
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, and it is not in dispute, that Lodgment ID 1055561 had not been accepted for filing by the Registry.
On 22 February 2022 Dr Balbir Singh sent to the Registry the 22 February 2022 7.28 pm, 7.36 pm and 7.40 pm Emails respectively.
The 22 February 2022 7.28 pm Email is set out at [13] above.
In the 22 February 2022 7.36 pm Email Dr Balbir Singh appears to annex her fee exemption form “including the relevant PO Box address and relevant card” and says that “[t]hese are the files to be processes [sic] timely 1055585 & 1055561 & 1056017”.
In the 22 February 2022 7.40 pm Email 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.
In the undated Elodgment Team Letter Dr Balbir Singh states that:
I filed this within the time limits in January 2022, and I have provided that evidence in this file. This mess has occurred due to maladministration by … [Registry officers name deleted] in the Perth Registry. I have already elected to have the documents served electronically by email at … [email address omitted] in January 2022. I have already provided a postbox address also. Perth Registry has created the problem.
Although undated it is apparent that the Elodgment Team Letter must date from sometime between the provision by Dr Balbir Singh of a post office box address in the 22 February 2022 7.28 pm Email and the acceptance of the Proposed Application for filing on 7 April 2022. But that apart the Elodgment Team Letter establishes nothing. There is a bare allegation of maladministration by the Perth Registry which lacks context in terms of what allegedly happened and when it allegedly happened.
On 7 April 2022 what is now the Proposed Application, and was until then Lodgment ID 1055561, was accepted for filing by the Registry.
A number of other points must be made concerning the evidence in relation to the events leading up to the filing of the Proposed Application on 7 April 2022.
First, in relation to an application (the Extension of Time Application), on which Dr Balbir Singh bears the onus of proof: see [36] above, there are plainly significant gaps in the evidence as to what occurred in relation to Lodgment ID 1055561 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 are almost devoid of such evidence. For example:
(a)the alleged “excuses not to process my documents” referred to in the 22 February 2022 7.28 pm Email are not the subject of any specific explanation by way of affidavit evidence from Dr Balbir Singh;
(b)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 Registry;
(c)nor is there any evidence of the “already filed … relevant affidavits and … relevant documents” referred to in the 22 February 2022 7:28 pm email (which documents were not then “filed” because it was not until 7 April 2022 that the Proposed Application was accepted for filing); and
(d)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 WAGPET was not involved in, or copied into, the email exchanges between Dr Balbir Singh and the Registry, because, as noted at [121]-[122] below, WAGPET was not aware of these proceedings until Dr Balbir Singh served the Proposed Application (and other materials) on it sometime on or before 31 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 22 February 2022 7:28 pm Email, or other documents referred to in email exchanges between Dr Balbir Singh and the Registry prior to 7 April 2022 do not constitute part of the Court record.
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; (2012) 64 AILR 101-563 (“Pitrau”) at [23]-[28] per Lucev FM; and
(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 (“FM 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 FM Court to obtain a sequestration order in circumstances where a creditor’s petition had earlier been presented to the FM 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 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 unlawful discrimination application 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 President’s Delegate of the 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 President’s Delegate] 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 President’s Delegate wrote that:
I am satisfied that there is no reasonable prospect of this matter being settled by conciliation and I 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 s 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 Lodgment ID 1055561 was, and in particular whether it was 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 it would have been wrongly rejected insofar as that basis is concerned. That lack of evidence means that the Court, insofar as it may need to, cannot conclude that Lodgment ID 1055561 was wrongly rejected on any basis related to s 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 [65(a)] 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.
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 is 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”. WAGPET was therefore arguably administering the training of general practitioners, including Dr Balbir Singh: 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 sufficiently arguable that s 22(2) of the DD Act might apply to WAGPET’s conduct (as set out at [146]-[147] above) in relation to the withdrawal of Dr Balbir Singh from the AGPT Program 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”. In those circumstances the Court considers that there is sufficiently arguable case of alleged contravention of s 22(2) of the DD Act.
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 the 1 November 2019 Meeting Notes, that the Department has primary responsibility for the AGPT Program, but that it is run by WAGPET as an education and training provider for the Department, 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, and for essentially the same reasons as set out at [154] above in relation to s 22(2) of the DD Act, it might constitute disability discrimination. In those circumstances the Court considers that there is sufficiently arguable merit in an alleged contravention of s 29 of the DD Act.
The Court accepts WAGPET’s evidence that Dr Balbir Singh was not an employee of WAGPET, and it follows therefrom that no issue of potential liability for discrimination arises under s 15 of the DD Act. The Court also accepts that WAGPET asserts that it did not discriminate against Dr Balbir Singh on the basis of her disability, but for the reasons set out above the Court has concluded that there is, at this stage, a sufficiently arguable case of alleged contraventions of ss 22(2) and 29 of the DD Act in relation to WAGPET’s conduct in relation to Dr Balbir Singh’s withdrawal, and the confirmation of Dr Balbir Singh’s withdrawal, from the AGPT Program. It is important to recognise that the Court’s conclusion goes only to a sufficiently arguable case for the purposes of the Extension of Time Application, and is not a conclusion that there has been disability discrimination or a contravention of ss 22(2) and 29 of the DD Act by WAGPET.
Conclusion – Extension of Time Application
In summary:
(a)there is a sufficient explanation for the somewhat lengthy delay in making the Proposed Application;
(b)there is not insignificant prejudice to WAGPET in terms of the delay; and
(c)there are possible contraventions of ss 22(2) and 29 of the DD Act which have sufficient arguable merit.
In the circumstances the Court’s task is not easy and the weighing of the above factors goes to an exercise of the discretion to extend time which is very finely balanced. But having regard to all of the circumstances 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.
TELEPHONE APPEARANCE APPLICATION
On 17 March 2023 Dr Balbir Singh filed the Telephone Appearance Application together with an affidavit of Dr Balbir Singh affirmed 9 March 2023 (“Balbir Singh March 2023 Affidavit”).
The Telephone Appearance Application set out the “Orders” being sought as follows:
1.I would like for the hearing for the extension of time on the 12th April 2023 to be conducted via the telephone. I am unwell, I am not a lawyer, there are ongoing human rights violations against me, I have serious injuries and I have no knowledge of court rules I will not be able to act and do what a lawyer does in Court. At least on the telephone I only have to speak. I am unwell at the moment due to the ongoing circumstances.
2.The evidence of my health injuries have already been submitted to the curt and the relevant registry.
3.I am under the impression this hearing on the 12th of April 2023 is only for the extension of time and it is not the real hearing involving all the human rights violation matters
On 12 April 2023 the Court made orders as follows which were partly relevant to the Telephone Appearance Application:
1.The applicant’s application in a proceeding for an Extension of Time in which to file the originating application be listed for hearing at 10.00am on 4 May 2023, with leave pursuant to ss 202 and 203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to the applicant to appear and make submissions by telephone.
2.Reasons for Judgment in relation to order 1 be delivered in writing at the same time as the Reasons for Judgment in relation to the Extension of Time application referred to in order 1.
In issuing Order 1 of the 12 April 2023 Orders the Court effectively granted the Telephone Appearance Application. In so doing the Court had regard to a number of factors:
(a)first, that the practice and procedure of this Court (and many other courts) has changed since the onset and post the COVID pandemic. That change means that, certainly in this Court that the vast majority of directions hearings and a significant proportion of applications in a proceeding where evidence is not subject to challenge or cross-examination, are now heard, primarily by video-link, but also by telephone;
(b)second, the hearing of directions and applications in a proceeding hearings other than in person where there is no evidence sought to be challenged or cross-examined upon is consistent with the overarching purpose of civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), applicable to Division 2 of the Court, in as much as it:
(i)enables the resolution of any issues at that stage of the proceedings to be dealt with quickly, inexpensively and as efficiently as possible;
(ii)is more efficient use of judicial and administrative resources available for the purposes of the Court; and
(iii)effects a more efficient disposal of the Court’s overall case load and a disposal of the interlocutory proceedings in a timely manner: FCFCOA Act, s 190(1) and (2); and
(c)third, in these proceedings the parties did not seek to cross-examine on the affidavit evidence in relation to any of the applications in a proceeding filed by Dr Balbir Singh, and therefore issues associated with the difficulties of a party cross-examining remotely via technology do not arise (but as to which see, for example, the helpful analysis in relation to video-link evidence in ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578; (2004) 22 ACLC 1125 at [43] per Austin J; see also The Queen v Goldman [2004] VSC 165; (2004) 148 ACrimR 40 at [15]-[18] per Redlich J; Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [19] per Katz J; and, more recently, Auken Animal Husbandry Pty Ltd v 3RD Solutions Investments Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521; Australian Securities and Investments Commission v Wilson [2020] FCA 873; (2020) 146 ACSR 149; Capic v Ford Motor Co of Australia Ltd [2020] FCA 486; Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 and Rooney v AGL Energy (No 2) [2020] FCA 942.
In light of Order 1 of the 12 April 2023 Orders in which the Court effectively granted the Telephone Appearance Application and having regard to [163] above it is unnecessary for any further orders to be made in relation to the Telephone Appearance Application, save that it should be dismissed.
ADJOURNMENT OF EXTENSION OF TIME APPLICATION
The Adjournment Application came on for hearing on 4 May 2023 together with the Extension of Time Application and the Court made the 4 May 2023 Orders (as set out at [125] above) Order 1 of which adjourned the hearing of the Extension of Time Application to 23 June 2023.
As it explained briefly at the hearing the Court ordered the adjournment having regard to some observations of the Federal Court made on 28 April 2023 in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J concerning the need to afford procedural fairness to self-represented applicants (albeit in that case non-English speaking applicants).
Order 1 of the 4 May Orders in effect granted the Adjournment Application, and no further adjournment was sought when the hearing resumed on 23 June 2023, and it is therefore unnecessary for any further orders to be made in relation to the Adjournment of Extension of Time Application, save that it should be dismissed.
FOREIGN LAWYER APPLICATION
On 27 June 2023 Dr Balbir Singh filed the Foreign Lawyer Application, together with another copy of the Balbir Singh March 2023 Affidavit (and annexures).
The Foreign Lawyer Application set out the “orders” being sought as follows:
1.I cannot obtain a lawyer from Australia to represent me due to fraud and corruption involving agencies blocking my services and assistance. This Order by Judge Lucev that the lawyer representing me has to be from Australia is very restrictive to someone like me, facing extreme human rights violations in Australia and New Zealand. I am having difficulties having any lawyer represent me due to racial discrimination and human rights violations by both Australian and New Zealand agencies.
2.I need to acquire a lawyer and I would like for the lawyer to be able to be someone who is from any country. An international human rights lawyer should be able to represent me if my human rights are being violated in Australia and New Zealand. I am injured with known mental and physical injuries and it’s very difficult to acquire a typist to lodge these reviews and claims timely.
3.I would like for these orders by Judge Lucev to be reviewed and for a stay of orders before this decision is made.
It is not evident how it is that the alleged “known mental and physical injuries” suffered by Dr Balbir Singh prevent her from obtaining an Australian lawyer or require her to have a foreign lawyer to appear for her.
The Order which Dr Balbir Singh asserts as being “very restrictive” was part of the 4 May 2023 Orders set out at [125] above, and was in fact Note A to those Orders, and was in the following terms:
A.Any lawyer retained by the Applicant and who files a Notice of Address for Service must be a person entitled to practice in an Australian federal court under Part VIIIA of the Judiciary Act 1903 (Cth): see ss 55A, 55B, 55C.
Sections 55A, 55B and 55C of the Judiciary Act 1903 (Cth) (“Judiciary Act”) provide as follows:
55ARight of barristers and solicitors admitted in federal courts to practise in those courts
A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be.
55BRight to practise as barrister or solicitor in federal courts and courts exercising federal jurisdiction
(1) Subject to this section, a person who:
(a)is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or
(b) is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory;
has the like entitlement to practise in any federal court.
(2)A person is not entitled to practise in a federal court as a solicitor by reason of paragraph (b) of the last preceding subsection unless:
(a)he or she has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or
(b)he or she practises as a solicitor in the Territory and his or her sole or principal place of business as a solicitor is in the Territory.
(3)A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.
(4)A person who is, under subsection (1), entitled to practise as a barrister or solicitor, or both, in any federal court has a right of audience:
(a) in any court of a State in relation to the exercise by the court of federal jurisdiction; and
(b) in any court of an internal Territory in relation to the exercise by the court of federal‑type jurisdiction.
(5)The Chief Justice of the Supreme Court of a State or an internal Territory may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purposes of subsection (4) and, where such a Register is kept in a State or Territory, a person is not entitled, in a court of that State or Territory, to the right of audience referred to in subsection (4) unless he or she is registered in that Register.
(6)Where a Register is kept in a State or Territory in accordance with subsection (5), a person who satisfies the Registrar or other officer keeping the Register that he or she is a person referred to in subsection (4) is entitled to be registered in that Register.
(7)Where it is proved to the satisfaction of the Supreme Court of a State or Territory constituted by 2 or more Judges that a person who is registered in the Register kept in that State or Territory in accordance with subsection (5) has been guilty of conduct that justifies it in so doing, the Supreme Court may order that person’s registration be cancelled or be suspended for a specified period, but the Supreme Court may, at any time, order that the registration of the person be restored or that the suspension be terminated.
(8)The Registrar or other proper officer of the Supreme Court shall make such alterations and notations in a Register kept by him or her as are required by reason of orders of the Supreme Court under subsection (7).
(9)Notwithstanding subsection (6), where the registration of a person has been cancelled in accordance with subsection (7) and has not been restored, or is for the time being suspended, that person is not entitled again to be registered in the Register except pursuant to an order under subsection (7).
(10) In this section:
federal‑type jurisdiction, in relation to a court of an internal Territory, means jurisdiction conferred on the court by or under a law of the Commonwealth, but does not include jurisdiction conferred on the court under an Act providing for the acceptance, administration or government of that Territory.
55C Register of Practitioners
(1)For the purposes of section 55B, the Chief Executive and Principal Registrar of the High Court shall cause a Register of Practitioners to be kept at the Registry of the High Court.
(2)Where it is shown to the satisfaction of the Chief Executive and Principal Registrar that a person would, but for subsection (3) of the last preceding section, be for the time being entitled by reason of that section to practise as a barrister or solicitor, or as both, in federal courts, the Chief Executive and Principal Registrar shall cause the name of the person, and the capacity in which he or she is to be entitled to practise, to be entered in the Register of Practitioners.
(3)Where, otherwise than by reason of an order by the High Court under subsection (5), the Chief Executive and Principal Registrar is satisfied that a person whose name appears in the Register of Practitioners:
(a)is not for the time being entitled by reason of the last preceding section:
(i) to practise in federal courts; or
(ii)to practise in federal courts in a capacity specified in the Register; or
(b)would, but for subsection (3) of the last preceding section, be for the time being entitled by reason of that section to practise in federal courts in a capacity not specified in the Register;
the Chief Executive and Principal Registrar shall cause the particulars in the Register in relation to the person to be struck out or amended, as the case requires.
(4)Where the Chief Executive and Principal Registrar is satisfied that a person whose name appears in the Register of Practitioners has died, the Chief Executive and Principal Registrar shall cause the particulars in the Register in relation to the person to be struck out.
(5)Where it is proved to the satisfaction of the High Court that a person whose name appears in the Register of Practitioners has been guilty of conduct that justifies it in so doing, the High Court may:
(a)order that the person be not entitled to practise in federal courts and that his or her name be struck off the Register; or
(b)order that the person’s entitlement to practise in federal courts be suspended for a specified period;
but the High Court may at any time, by order, revoke or vary such an order.
(6)Where the High Court makes an order under the last preceding subsection, the Chief Executive and Principal Registrar shall cause such entries or amendments to be made in the Register of Practitioners as are necessary to give effect to, or show the effect of, the order.
(7)Where the Chief Executive and Principal Registrar causes an entry to be made in the Register of Practitioners, or causes an entry in the Register to be struck out or amended, the Registrar shall cause the ground on which, and the date upon which, the entry is so made, struck out or amended to be noted in the Register.
The Judiciary Act provisions set out above provide that a person has an entitlement to practise as a barrister or solicitor, or both, in any federal court if that person is entitled to practise as a barrister or solicitor in the Supreme Court of a State or Territory: Judiciary Act, s 55B(1). Further, a person does not have a right of audience and is not entitled to practice in a federal court as a barrister or solicitor unless their name appears in the Register of Practitioners kept in the High Court of Australia: Judiciary Act 1903 (Cth), s 55B(3). In order to enter the High Court Register of Practitioners, a person must be presently entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State or Territory: Judiciary Act 1903, s 55C(2). Therefore, a foreign lawyer would be entitled to practise as a barrister or solicitor in a federal court of Australia if that lawyer is entitled to practise as such in a Supreme Court of a State or Territory and their name appears in the High Court Register of Practitioners.
Taking the orders sought by Dr Balbir Singh as being a request for the Court to order or allow a foreign lawyer who is not on the High Court’s roll of practitioners to appear for her, the Court cannot do so as the effect of the Judiciary Act provisions set out above is that a lawyer must be on the High Court’s roll of practitioners for the lawyer to appear in a federal court. This Court is a federal court for those purposes being a federal court for the purposes of s 71 of the Constitution: FCFCOA Act, s 8. This Court cannot make orders contrary to legislation validly enacted by Parliament, such as the Judiciary Act, and as such cannot make an order that a person who does not meet the Judiciary Act requirements may appear in this Court. Further, the Foreign Lawyer Application is entirely hypothetical as no lawyer who presently does not meet the Judiciary Act requirements is seeking or has sought leave to appear in this Court in this matter.
Finally, the Court notes that if there is a foreign lawyer who also meets the Judiciary Act requirements, that is, they are on the High Court’s Register of Practitioners, such a lawyer would, on the face of it, be entitled to appear in this Court without the necessity for any order from the Court.
It follows that the Foreign Lawyer Application must be dismissed.
CONCLUSION 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;
(b)the Telephone Appearance Application is to be dismissed;
(c)the Adjournment of Extension of Time Application is to be dismissed;
(d)the Foreign Lawyer Application is to be dismissed;
(e)the matter is to be adjourned to a directions hearing on a date to be advised; and
(f)costs, if any, are to be reserved.
There will be orders accordingly.
I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 7 May 2025
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