JVR24 v Trustee for Sydney Catholic Schools Trust (No 2)
[2024] FedCFamC2G 1220
•15 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JVR24 v Trustee for Sydney Catholic Schools Trust (No 2) [2024] FedCFamC2G 1220
File number(s): SYG 1681 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 15 November 2024 Catchwords: HUMAN RIGHTS – Practice and procedure – application for recusal on the grounds that the applicant’s former lawyer had requested judge to make consent orders in circumstances where it is alleged the lawyer had no instructions to so request and where the judge is alleged to have spoken to the applicant in a way that made her fearful - application for an order to have proceeding transferred to the Federal Court of Australia – application for an order that proceeding be stayed pending determination of application for judicial review of decisions and conduct of the Australian Human Rights Commission – applications for recusal, transfer, and stay dismissed – procedural orders made in relation to the applicant’s pursuing her claims by a litigation guardian and the assignment of pseudonyms to the applicant and her litigation guardian – matter listed for further directions Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH(2), 46PO(1)
Disability Discrimination Act 1992 (Cth) ss 4, 5, 22, 32
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 153, 154
Federal Court of Australia Act 1976 (Cth) Pt IVA, s 33C(1)
Judiciary Acy 1903 (Cth) s 39B
Federal Circuit and Family Court of Australia (Division 2) (General Federal Rules) 2021 (Cth) rr 8.02(1), 12.01
Cases cited: Barakat v Goritsas (No 2) [2012] NSWCA 36
Charisteas v Charisteas [2021] HCA 29
Galea v Galea (1990) 19 NSWLR 263
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 7) [2024] FedCFamC2G 510
Johnson v Johnson [2000] HCA 48
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Vakauta v Kelly (1988) 13 NSWLR 502
Division: General Number of paragraphs: 63 Date of hearing: 10 October 2024 Place: Sydney The Applicant: JVS24 as litigation guardian for the applicant, by video Solicitor for the Respondent: Mr T Makamure for the respondent, by video ORDERS
SYG 1681 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JVR24
Applicant
AND: TRUSTEE FOR SYDNEY CATHOLIC SCHOOLS TRUST
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application for recusal is dismissed.
2.The applicant be relieved from complying with r 8.02(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Rules) 2021 (Cth).
3.The applicant’s application for an order that the proceeding be transferred to the Federal Court of Australia is dismissed.
4.The applicant’s application that the proceeding be stayed pending the determination of an application for judicial review in relation to decisions made, or conduct engaged in, by the Australian Human Rights Commission or by any of its officers, is dismissed.
5.The applicant and her litigation guardian each be assigned a pseudonym for the purposes of this proceeding.
6.The name of the applicant be amended to read “[the pseudonym to be assigned to applicant pursuant to order 5], by her litigation guardian, [the pseudonym to be assigned pursuant to order 5]”.
7.The name of the respondent be amended to read “Trustee for Sydney Catholic Schools Trust”.
8.The reasons for judgment published on 13 June 2024 be amended to reflect the pseudonyms that will be assigned to the applicant and to her litigation guardian pursuant to order 5, and to reflect the change in the name of the respondent made pursuant to order 7.
9.The matter be listed for a directions hearing at 9.30 am on 13 December 2024.
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
INTRODUCTION
At a directions hearing on 10 October 2024 the applicant, by her litigation guardian (LG), applied that I recuse myself; that, unless I recuse myself, the proceeding be transferred to the Federal Court of Australia (Federal Court); and, if not transferred to the Federal Court, the proceeding be stayed pending the applicant, by LG, commencing an application for judicial review of decisions made, and conduct engaged in, by the Australian Human Rights Commission (AHRC) and by its officers.
In these reasons for judgment I consider whether I should recuse myself and, if I am satisfied I should not recuse myself, consider whether the proceeding should be transferred to the Federal Court and, if not, whether I should order that the proceeding be stayed pending LG’s applying to the Federal Court for judicial review in relation to any decision of or conduct by the AHRC or its officers. I also consider a number of other discrete matters.
Before I address these questions, it will be necessary to set out the complaint the applicant, by LG, made to the AHRC, the claims the applicant makes in this Court, and the course of the proceeding in this Court.
BEFORE THE AHRC
On 8 October 2022 LG, on behalf of her daughter, the applicant, lodged with the AHRC a complaint alleging that, during June to August 2020, a school conducted by the respondent (School) unlawfully discriminated against the applicant because of her disability. The applicant’s disability consists of a range of conditions that includes autism spectrum disorder level 2. The act of discrimination on which LG relies was the School’s refusing to accept the applicant’s application for enrolment in the School.
In her complaint, the applicant claimed as follows:
(a)On 17 June 2020, when the applicant was 6 ½ years old, LG and the applicant were invited to meet, and met, with the principal of the School (Principal) after the applicant applied for enrolment with the School. LG understood from the meeting that the Principal fully supported the applicant’s being enrolled in the School.
(b)On about 25 June 2020 the School informed LG that the meeting with the applicant’s father was scheduled for 22 July 2020; and, once the applicant’s father signed the enrolment form, an offer for enrolment would be sent.
(c)On 21 July 2020 LG was informed that the Principal was not at the School at the moment, so the appointment with the applicant’s father had to be moved to the following Wednesday. On 30 July 2020 the applicant’s father met with the School’s relieving principal and a member from Sydney Catholic Schools Diverse Learning team.
(d)LG received a call in which she was informed the School was still in the data collecting stage, and requested that the applicant attend the School on Monday morning at 9 am to meet the teacher and class mates, in addition to attending on Thursday that week to have lunch at the School, and play in the playground. On 31 July 2020, however, LG received a call from the School in which LG was informed the School needed more time to assess the applicant’s enrolment, and asked LG not to bring the applicant to the School on Monday.
(e)LG sent an email to the School on 4 August 2020 to follow up the applicant’s enrolment, and she was informed the School would be in contact in due course. The School contacted LG on 24 August 2020, when she was invited alone to a half hour meeting with the relieving principal of the School, a caseworker, and another representative. LG was informed that the applicant would not be offered enrolment at the School.
(f)On 24 August 2020 LG sent an email to the School in which she said that when she met the Principal, she was fully supportive of the applicant being enrolled, but the Principal became sick and LG has not had further contact with her since. LG asked why, if the Principal said that she would love to enrol the applicant, that decision had changed. LG asked whether she is able to get something in writing from Sydney Catholic Schools “as to the reason why [the applicant’s] enrolment has been declined at [the School] today”, and the School’s recommendations “regarding an Aspect Enrolment”.
(g)The School sent an email on 31 August 2020 attaching a letter which stated:
Thank you for attending a number of meetings at [the School]l . . . in relation to your submission of an application to enrol [the applicant] within Sydney Catholic Schools. This letter is to inform you that [the School] will not be proceeding with your application for [the applicant]. We are able to provide support in application to ASPECT educational setting.
The AHRC held a conciliation conference on 16 August 2023, but the applicant’s complaint of unlawful discrimination was not resolved. It appears that LG was assisted by Ms Totoeva, a senior solicitor attached to the Australian Centre for Disability Law (ACDL).
On 28 August 2023 a delegate of the President of the AHRC issued a notice (46PH(2) Notice) pursuant to s 46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), stating that the delegate was satisfied there was no reasonable prospect of the matter being settled by conciliation. The letter was addressed to Ms Totoeva, not to LG or to the applicant.
PROCEEDING BEFORE THE COURT
On 24 October 2023 the applicant, by her litigation guardian, filed an application in this Court in which she alleged that the respondent (Trustee) engaged in unlawful discrimination on the ground of the applicant’s disabilities.[1] At that time the applicant was represented by a lawyer, Ms Gilbert, from the firm Wotton + Kearney (WK). The applicant also filed a statement of claim.
[1] The Trustee is an entity that is registered with the Australian Charities and Not-for-profits Commission.
13 November 2023 – directions made in chambers
On the application and statement of claim being filed, the proceeding was listed for a first court date before me at 9.30 am on 14 November 2023. On 9 November 2023 the parties’ legal representatives were informed that the first court date would proceed by telephone, and dial-in details were provided. On 10 November 2023 Ms Magee, a lawyer apparently employed by WK in the position of “Associate – Pro Bono”, informed my Associate that the parties had agreed to my making a number of orders by consent, and I was requested to make such orders in chambers. On 13 November 2023 I made the following consent orders in chambers:
1.Pursuant to r 11.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) [LG] is appointed litigation guardian of the applicant . . .
2.The respondent file and serve its response and a defence by 4 pm on 8 December 2023.
3.The applicant file and serve a reply by 4 pm on 22 December 2023.
4.The matter be referred to a Registrar of the Court for mediation on a date to be fixed by the Registrar after 29 January 2024.
5.Costs are reserved.
6.The parties have liberty to apply.
The pleadings
On 8 December 2023 the Trustee filed its defence. In earlier reasons I summarised the pleadings in the following table:
Statement of claim
Defence
1
The applicant was born in 2013.
Not pleaded to.
3
The applicant is a person with a disability, within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) (DD Act).
Admitted.
4
The respondent owned and operated a particular school (School); and is an “educational authority” for the purposes of s 22(1) of the DD Act, and an “education provider” for the purposes of paragraph 2.1 of the Disabilities Standards for Education 2005 (Cth) (DSE).
Admitted, and further alleges:
a. It owns and operates several mainstream and specialist schools within the Sydney Diocese;
b. it has established procedures for supporting students with complex social and emotional needs; and
c. the School is a mainstream school.
5
In June 2020 an application was submitted on behalf of the applicant to enrol as a student at the School.
Admitted, but also says on 18 May 2020 [LG] contacted the respondent to inquire about enrolling the applicant at the School.
6
Between 17 June 2020 and 14 August 2020 a series of meetings occurred between the applicant’s parents and representatives of the School in relation to the applicant’s prospective enrolment.
Admitted, and further says:
a. In accordance with Part 4 of the Disability Standards for Education 2005 (DSE), the Respondent was required to take all reasonable steps to explore whether the Applicant was able to be enrolled on the same basis as a prospective student without the applicant’s disability.
b. In taking those required steps, the respondent: (i) collected medical reports regarding the applicant’s disability; (ii) engaged in consultation with other educational providers that the applicant was previously enrolled at; and (iii) consulted with the applicant’s parents.
c. On review of the medical reports available, the respondent cancelled the meeting with the applicant on 3 and 6 August 2020 to avoid re-traumatising her by prematurely exposing her to a new school setting.
7
On 24 August 2024 the applicant’s parents attended separate meetings with the School, and were verbally notified the applicant’s application to enrol was refused.
Admitted only to the extent that the respondent held separate meetings with the applicant’s parents, and otherwise denies. Further says:
a. The purpose of the meetings was to allow the applicant’s parents a further opportunity to consult on the applicant’s learning and schooling needs and assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant’s enrolment.
b. Prior to the meetings of 24 August 2020 and 29 July 2020 with [applicant’s father], the respondent had a meeting with [LG] on 25 June 2020 for the purpose of engaging in consultations with them regarding the applicant’s learning and schooling needs to assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant’s enrolment.
8
In late August 2020 the respondent sent letters to the applicant’s parents refusing the applicant’s application to enrol at the School.
Admitted, and further says that by separate letters sent to each of the applicant’s parents, the respondent communicated an offer to support the applicant to apply for enrolment in an “ASPECT school”, but [LG] rejected “[t]his proposed adjustment”. The respondent further says that:
a. the school and diverse learning team considered that the applicant’s needs were such that she needed to be informed in advance of any changes to routine and structure;
b. any disruptions to these would likely put the applicant in a state of emotional distress; and
c. at the time of the enrolment application the applicant had been enrolled in home schooling as from 8 March 2020, after her parents had withdrawn her from a public school kindergarten.
9
At the time the application to enrol was made there were reasonable adjustments the respondent could have implemented to admit the applicant as a student, these being:
a. a senior student assisting the applicant to transition to and from school each day;
b. participating in a reading recovery program the School offered; and
c. allowing the applicant to sit at the end of the pew during church services and next to an older student or assistance teacher who would be able to escort her outside to a quiet area is she required a sensory break.
Denies and says:
a. the adjustments set out in paragraph 9 (a) to (c) would not have been adequate to support the applicant’s social and emotional needs in a classroom setting.
b. the primary adjustment required by the applicant was that she be provided 1:1 support and interruptive interventions. This was also recommended in the Report from Dr Berlinda Yeoh of 7 February 2019 and Psychological Assessment report from ASPECT of 8 January 2018;
c. [LG] declined an offer of enrolment at a different school, because that school would not allow 1:1 support through a therapist attending classes with the applicant;
d. the respondent determined that the required adjustments were not reasonable, having regard to the impact on the respondent’s [sic] ability to independently achieve learning outcomes and participate in class activities, other students and the risk to health and safety;
e. the respondent proposed a reasonable adjustment by offering to assist the applicant to apply for enrolment at an ASPECT school; and
f. this proposed adjustment was rejected by [LG].
10
The respondent’s conduct as alleged above constituted direct discrimination against the applicant on the basis of the applicant’s disability, contrary to s 5(1) and s 22 of the DD Act in that:
a. the respondent refused to accept the applicant’s application to enrol because of her disability; and
b. in refusing to accept her enrolment the respondent treated the applicant less favourably than it would have treated a person with a disability in circumstances that were not materially different.
Denied; and further says:
a. the applicant has misconceived the conceptual comparator (Comparator);
b. the proper comparator is a student without the applicant’s disability, displaying similar behaviours, seeking enrolment in year 1 at the School; and
c. the respondent would have treated the Comparator in the same way in circumstances that are not materially different.
11
Further, the respondent’s conduct referred to above constituted direct discrimination against the applicant on the basis of her disability, contrary to s 5(2) and s 22 of the DD Act, in that:
a. the respondent refused to consider reasonable adjustments for the applicant; and
b. for that reason, the applicant was treated less favourably than a person without that disability would be treated in circumstances that were not materially different.
Denied.
12
Further, the respondent’s conduct referred to above contravened s 32 of the DD Act.
Denied; and further says that at all material times, the respondent acted consistently with the DSE and took all reasonable steps to explore whether the applicant was able to be enrolled on the same basis as a prospective student without the applicant’s disability.
13
The respondent’s conduct referred to above is unlawful pursuant to ss 5, 22, and 32 of the DD Act.
Denied.
The matter went to mediation, but the parties did not resolve their differences. The matter was listed for further directions before me on 4 April 2024. In the meantime, the applicant’s lawyer withdrew.
4 April 2024 – directions hearing
On 4 April 2024 the matter came before me on a directions hearing, at the conclusion of which I made the following orders:
1.Pursuant to r 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the applicant be referred to a lawyer for legal assistance.
2.The matter be listed for a directions hearing at 9:30 am on 30 May 2024.
3.The parties have liberty to apply on such notice as the circumstances warrant.
1 May 2024 – directions hearing
The matter was relisted on 1 May 2024 on my initiative because LG had sent a number of emails to the Court, and I considered it would be appropriate to address in open court the concerns that prompted LG to send the emails. At the directions hearing LG raised a number of matters:
(a)LG stated that the proceeding was initiated in this Court rather than in the Federal Court without her instructions, and she suggested the proceeding should be transferred to the Federal Court.
(b)LG claimed that her former lawyers had agreed to my making the consent orders on 13 November 2023 without her consent.
(c)The matter was referred to mediation before LG had put on her evidence.
(d)LG does not know what occurred at the mediation.
(e)The statement of claim did not include a claim for an apology or for the payment or interest.
(f)The Trustee had not filed a response to the applicant’s genuine steps statement.
(g)LG was unclear whether the AHRC could act as an amicus curae in this proceeding.
I asked LG questions that were intended to reveal whether LG was aware of the claims that had been made in the statement of claim; and whether the facts alleged in the statement of claim reflected the case she believed the applicant intended to pursue. Apart from noting the statement of claim was not supported by evidence, and the statement of claim required particulars, LG confirmed that the statement of claim reflected the case LG intended to pursue as litigation guardian for the applicant.
I concluded the directions hearing by confirming the fixing of the directions hearing at 9:30 am on 30 May 2024.
30 May 2024 – directions hearing
At the directions hearing on 30 May 2024 LG had drawn to my attention an email she had sent to the Trustee’s lawyers requesting particulars of the defence. After hearing submissions about whether I should order the Trustee to provide the particulars LG requested, I reserved judgment on that question with a view to delivering judgment on 13 June 2024.
During the directions hearing LG again raised the Trustee’s not having provided a response to the applicant’s genuine steps statement. I expressed the view that the only relevance to the Trustee’s not having provided a response to the applicant’s genuine steps statement is costs.
The directions hearing concluded by my listing the matter at 2:15 pm on 13 June 2024 for judgment on the question of particulars, and also for directions.
13 June 2024 – directions hearing and judgment
At the directions hearing at 2:15 pm on 13 June 2024 I made an order requiring the Trustee to provide particulars, and I published reasons for judgment on the basis of which I made that order. I also ordered that the Trustee supply the particulars by 4 July 2024, and I listed the matter for further directions on 12 July 2024.
By 9 July 2024 the LG obtained pro bono legal assistance; and on that day Ms Jane Thomson, of Moray & Agnew, lawyers, filed a notice of appearance on behalf of the applicant.
On 11 July 2024 the Trustee’s lawyer send the following email to my Associate:
We act for the Respondent and write with the consent of the Applicant. The parties have been conferring in an attempt to reach a consent position following the acceptance of the pro-bono referral however, given the short turn around between the Applicant’s representatives appointment and the directions hearing, we have not yet been able to do so and would be grateful if we could be afforded more time before tomorrow’s directions hearing.
Bearing this in mind, we would be grateful if his Honour could adjourn the directions hearing by 1 week to allow the parties further time to confer with a view to reaching a consent position and, failing which, provide competing proposed consent orders for his Honour’s consideration at least 1 day before any re-listed directions hearing.
In response to the request made in the email, I arranged to list the matter for a further directions hearing on 19 July 2024.
18 July 2024 – consent orders in chambers
On 18 July 2024 the Trustee’s lawyer sent an email to my Associate to which there was attached draft proposed consent orders, with a request that I make orders in those terms in chambers. On that day I made the following orders in chambers by consent:
1.The directions hearing listed on 19 July 2024 is vacated.
2.The Respondent is to file and serve an amended defence by 2 August 2024
3.The Applicant is to file an amended reply by 16 August 2024.
4.The proceedings are listed for a directions hearing at 9:30 am on 23 August 2024.
5.Costs are reserved.
6.The parties have liberty to apply with two days’ notice.
The Trustee filed an amended defence, as required by the directions I made on 18 July 2024; but the applicant did not file an amended reply. Instead, on 18 August 2024 Ms Thomson filed a “Notice of Withdrawal as Lawyer”, and LG filed a notice of address for service.
23 August 2024 – directions hearing
At the directions hearing of 23 August 2024 LG applied for an order that I vacate the orders I made on 18 July 2024, and adjourn the matter to 6 September 2024. LG said that, if the matters were adjourned to 6 September 2024, she would, on that day, apply for an order that this proceeding be adjourned until such time as the Federal Court were to hear and determine an application LG was in the process of preparing for filing with the Federal Court. Over the opposition of Mr Makamure, who appeared for the Trustee, I vacated order 3 of the orders I made on 18 August 2023, and listed the matter for a further directions hearing at 9:30 am on 12 September 2023. I also made the following order:
By 6 September 2024 the applicant email to the Chambers of Judge Manousaridis a sealed copy of any application, statement of claim, and affidavit the applicant may have field with the Federal Court of Australia in relation to matters that are the subject of this proceeding.
LG did not comply with this order.
12 September 2024 – directions hearing
Through error by its lawyer, the Trustee did not appear at the directions hearing on 12 September 2024; but LG did. I nevertheless proceeded with the directions hearing in the absence of the Trustee, during which the following occurred.
(a)At the beginning of the hearing, when I asked LG whether she was appearing as litigation guardian of the applicant, LG said her former lawyers (that is, WK) “did that”, and LG said she wanted “an order to get that removed”. LG said she needed to be the applicant’s “litigation representative”.
(b)I informed LG that, although there was no appearance by the Trustee, I proposed to deal with what LG proposed the Court should do. I referred to an email LG had sent to the Court, and asked LG to tell me what the email she sent would ask me to do.
(c)LG said the applicant was not represented legally by any person. I informed LG that that was not the case because LG is the litigation guardian until she is removed as litigation guardian. LG said that she understood that somebody had to be litigation guardian of the applicant, but LG said WK got LG to sign an affidavit which she did not understand, and WK did not explain to LG what she was being asked to sign. LG, however, accepted that she “signed it . . . that that would make me a litigation guardian”. After I asked LG whether she did not want to be litigation guardian, LG confirmed she was the litigation guardian.
(d)LG said she had serious concerns about the way the human rights complaint was handled by the AHRC, with the AHRC doing “some things in there which” LG did not “believe was according to the Act”. LG wanted more time because she was waiting for the transcript of the directions hearing of 23 August 2024 before me, and was “waiting on the Human Rights Commission and the President”.
(e)LG said she wanted to “terminate the mediation” order I had previously made; but, after I said I was prepared to make such order, LG said she did not want me to make such order.
(f)LG said that she had sent an email to the Federal Court (a copy of which had been provided to this Court) in which, among other things, she appeared to raise questions about my conduct.
The directions hearing concluded by my making the following order and notation:
THE COURT ORDERS THAT:
1. The matter to be listed for a further case management hearing at 9.30 am on 10 October 2024
THE COURTS NOTES THAT:
2. Subject to the applicant making an application at the case management hearing referred to in order 1 that the proceeding be stayed or adjourned, such application to be supported by affidavit evidence, the court will make directions for the further progress of the matter.
10 October 2024 – directions hearing
At 5.44 am on 10 October 2024 LG sent an email to my Associate in which LG set out the orders LG intended to submit I should make at the directions hearing that was listed for 9.30 am on 10 October 2024. These are as follows:
1. The name of the Applicant in these proceedings is amended from . . . to . . . , by her litigation guardian, [LG] pursuant to Rules 7.01 and 11.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
2. The Court pursuant to r 7.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Amendment after limitation period) grants leave and makes an amendment correcting the name of a party as the Court is satisfied that the mistake sought to be corrected was genuine and was not misleading or such as to cause reasonable doubt as to the identity of the party.
3. The name of the first respondent is amended from [the Trustee] pursuant to FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) (GENERAL FEDERAL LAW) RULES 2021 RULE 7.02
4. The name of the Second respondent be amended from . . . to . . . pursuant to FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) (GENERAL FEDERAL LAW) RULES 2021 RULE 7.0
5. The Court grants leave pursuant to FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) (GENERAL FEDERAL LAW) RULES 2021 - RULE 8.02 factors to which the Court must have regard under subsection 153(3) of the Act transfer a proceeding to the Federal Court, the Court must take the following factors into account as the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue.
6. The Court grants leave to the applicant to file and human rights application in the Federal Court of Australia brought under the discrimination statute, Disability Discrimination Act 1992 (Cth) as this Court has power to hear proceedings under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) include the Commission’s issued Notice of Termination made pursuant to s 46PO(2) to allow the Federal Court of Australia to begin to deal with the case.
7. The Court grants leave to the applicant to file a statement of claim given the new cause of action arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding under the Australian Human Rights Commission Act 1986 (Cth) by the party seeking leave to amend and file and serve a Form 116 - Originating application under the Australian Human Rights Commission Act (r 34.163 of the Federal Court Rules) outlining what happened to the applicant, what was done and who did it. Explaining why what happened was unlawful under one of the discrimination statutes, identifying the area of activity (education) and the reason the applicant says she was treated as you she was were (disability) and what harm or damage the applicant has suffered because of what was done to her outing the what the Court should order the person who discriminated to do to fix the discrimination ( apology, compensation) accompanying a form 16 - Applicants genuine steps statement pursuant to r8.02 of the Federal Court Rules and affidavit with supporting evidence complete the “Extension of time" part of the form requesting an extension of time for making the complaint and explain the reasons for the delay by 1 November 2024.
8. FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) (GENERAL FEDERAL LAW) RULES 2021 - RULE 8.03Proceeding transferred to Federal Court
9. The Respondents pursuant to FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) (GENERAL FEDERAL LAW) RULES 2021 - RULE 4.08 file a Respondent's genuine steps statement as the applicant has filed a genuine steps statement, the respondent must file the respondent's genuine steps statement in accordance with the approved form within 14 days after service of the applicant's new human rights disability application filed in the Federal Court of Australia.
10. The matter is listed for a further case management hearing before the docket judge for future procedural orders on a date to be fixed by the Court.
11. In order for the Applicants to be able to obtain ongoing legal advice from Legal Aid NSW provides assistance to unrepresented litigants through services such as information sessions, referrals (including direct referrals to family dispute resolution and private practitioners), assistance with applying for legal aid, preparing documents including urgent applications, duty appearances and assisting in court and to ensure that they can access Duty lawyers are available in the registry from 9.30am to 1:00pm and 2:00pm to 4:00pm which is not available at Sydney - Terrace Tower Group Building, 80 William Street, Woolloomooloo.
12. In the alternative the Court grants leave and makes orders the Applicants seeks of a adjournment for 2 months by the Court to allow her to obtain legal advice regarding the recent correspondence received dated the 17 September 2024 as attached from the Australian Human Rights Commission (the Commission), in which she raised concerns about a complaint that she lodged on behalf of [the applicant] against [the Trustee] (the Respondent), which was terminated under section 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) on 28 August 2023 (our reference 2022-15649) and the recent email correspondence to the Australian Human Rights Commission (the Commission) on 23 and 27 August 2024 about a previous complaint lodged by you on behalf of her daughter, [the applicant] under the Disability Discrimination Act 1992 (DDA) (our reference 2022-15649)
13. the Court grants leave to the applicant pursuant to FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) (GENERAL FEDERAL LAW) RULES 2021 - RULE 8.01Change of venue and consider all relevant matters the matter be transferred from the Terrace Tower Group Building, Levels 8, 80 William Street, Woolloomooloo to Garfield Barwick Commonwealth Law Courts Building, 1-3 George St, under the docket of Judge D Humphreys
14. The applicant be granted leave to file and serve an amended originating application and amended statement of claim on or before 31 October 2024.
15. The respondents are to serve any request for further and better particulars on or before 14 November 2024.
16. The matter be referred to mediation before a Registrar of the Court pursuant to s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) on the next available date after 28 November 2024, at which an officer of the first respondent ( Claire Hernandez Lawyer Sydney Catholic Schools ) who has full authority to mediate and effect a settlement must be present; and person participating in the mediation including legal representatives, whether attending in person or by video/audio link, is to attend for the full duration of the mediation.
17. In the event that the mediation referred to in order 7 is unsuccessful, the parties must jointly approach the Chambers of Judge D Humphreys within 7 days of the concluded mediation, with a view to the matter being relisted for a directions hearing for the further conduct of the proceeding including listing the proceeding that the matter be set down for hearing in Sydney an estimate of the time required for the hearing. The case management hearing is adjourned to a date to be fixed. for trial at 10.15 am on or after the 10 June 2025 with an estimate of 4 days.
18. The applicant is to file and serve any affidavits and expert reports from any person intended to be called as a witness at the trial by 4 pm on 30 January 2025.
19. The respondents are to file and serve any affidavits and expert reports from any person intended to be called as a witness at the trial by 4 pm on 13 February 2025.
20. The applicant is to file and serve any affidavits and expert reports in reply by 4 pm on 27 February 2025.
21. The parties agree and settle a statement of agreed facts in chronological order; agree and settle a list of issues for determination at the trial; and agree on the common documents for the trial that will be tendered without objection, limited to those documents that are material and which will be referred to in the evidence.
22. The applicant is to file and serve a list of the persons intended to be called in its case to give evidence at the trial, which list must be limited only to those witnesses able to give material evidence as to disputed facts and which is cross-referenced to affidavits made by the witness by 4pm on 13 March 2025.
23. The respondents are to file and serve a list of the persons intended to be called in their respective cases at the trial, which list must be limited only to those persons able to give material evidence as to disputed facts and which is cross-referenced to affidavits made by the witness by 4pm on 27 March 2025.
24. Subject to further order and any evidence objection pressed at the trial, the evidence-in-chief from each witness will be adduced by adoption of his or her affidavits save that viva voce evidence must be led as to any disputed conversation and which evidence will be excised from the adopted affidavit(s).
25. Subject to any further order of the Court, a witness in evidence-in-chief must not be led on evidence that is not set out in an affidavit of the witness.
26. On or before 12 March 2025, each of the experts in common fields of expertise are required to attend before a Registrar of the Court on a day to be appointed by the Registrar as facilitator pursuant to the Expert Evidence practice note (GPN-EXPT) to do the following:a)conduct the conference required by paragraphs 7.4 to 7.9 of the practice note; identify the matters upon which the experts agree; identify the matters upon which the experts disagree, together with a short statement of reasons as to why, and prepare a joint expert report in accordance with paragraphs 7.10 to 7.11 of the practice note.
27. The applicant is to file and serve a court book in electronic format by no later than 4 pm on 2 April 2025 which complies with the Court practice direction for eBooks (GPN-eBOOKS) as a single paginated PDF document to be divided into five parts:
28. Part A: Current pleadings;
29. Part B: Witness statements or affidavits to be relied upon by the parties, separately divided as between the applicant and the respondent;
30 Part C: The agreed chronology and list of material events;
31. Part D: The documents listed in strict chronological order, with those documents about which there is a dispute as to admissibility or which are to be treated as confidential to be clearly identified; and
32. Part E: The joint expert reports and the outcome of the attendance of the experts before the Registrar.
33. No document is to be included in the court book unless counsel for the party requiring its inclusion considers that the document is relevant to resolution of the material issues, that inclusion is consistent with the overarching purpose at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and the document will be referred to in the evidence (including cross-examination) and or the submissions of that party.
34. The applicant is to file and serve an outline of opening submissions adopting the format of the agreed list of issues for determination and limited to no more than 20 pages, minimum 12-point typeface, one and a half line spacing, by 4 pm on 23 April 2025.
35. The respondents are to file and serve an outline of opening submissions, limited to no more than 20 pages, minimum 12-point typeface, one and a half line spacing, by 4 pm on 14 May 2025.
36. the alternate the Applicants seek that the Court notes that should the Respondent not agree the Applicants foreshadowed an application
STAND OVER the matter for further case management Hearing before Judge D Humphreys in the week commencing on the 9 December 2024 in person at the Parramatta Registry where the Applicants will have access to at the Garfield Barwick Commonwealth Law Courts Building, 1-3 George Street, Parramatta. the matter transferred from the Terrace Tower Group Building, Levels 8, 80 William Street, Woolloomooloo to Garfield Barwick Commonwealth Law Courts Building, 1-3 George St, Parramatta for my safety and to be able to obtain legal advice from a duty solicitor at the Parramatta registry. the filing of any affidavit evidence and submissions on which the parties intend to rely:
37. whether the matter should be heard in person or online
38. an estimate of the time required for the hearing.
39. By 24 October 2024 the Applicant is to file and serve any evidence and submissions in support of the Application.
40. By the 7 November 2024 the Respondent is to file and serve any evidence and submissions in response to the Application.
41. His honour list the Application for Hearing with an estimate of up to 2 hours on a day convenient to the Court after 21 November 2024 and delivered an oral judgment
42. The parties have liberty to apply to have the matter listed with 3 days' notice
43. Costs are reserved.
44. THE NOTES , THAT
45. The complaint made on behalf of the [the applicant] (aggrieved person) met the requirements of a valid complaint under section 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) and was referred to the President’s Delegate under section 46PD.
46. The President’s Delegate decided to inquire into the complaint and attempted conciliation.
47. The complaint was terminated after inquiry under section 46PH(1B)(b).
48. The Notice of Termination included the information required by section
49. 46PH(2A).
50. A copy of the Notice of Termination is attached,
51. The Notice of Termination cannot be revoked under section 46PH(4) as the applicant has already lodged an application in the FCOFCA by Wotton + Kearney
52. If the Applicant wishes to have a Notice of Termination naming the correct respondent, it is open to the applicant to lodge a new complaint to that effect and request that the complaint is terminated without inquiry.
53. The complaint was not withdrawn. As noted above, it was terminated under section 46PH(1B)(b).
At the directions hearing on 10 October 2024 (which commenced at 9.49 am and ended at 12.01 pm), LG applied for a number of orders.
Recusal
One of the orders for which LG applied was that I recuse myself; and she relied on three grounds. The first is that I had made consent orders in chambers based on the request made by the applicant’s and the Trustee’s legal representatives, in circumstances where LG claimed that her legal representative did not have her instructions to request that I make those orders. That, at any rate, is my understanding of what LG submitted, as revealed in the following extract from the transcript of the directions hearing:[2]
HIS HONOUR: Can I – can I just interrupt you there. So is the point that I’ve made orders on the basis of communication from lawyers who did not have your instructions to communicate and ask me to make those orders? Is that what you’re saying?
[LG]: It could be, but I don’t know if that’s your fault, your Honour, because you’re probably just basing it off my ‑ ‑ ‑
HIS HONOUR: Well, that’s all right. I just want to know – I just want to know what it is you’re saying.
[LG]: That’s it. So I don’t ‑ ‑ ‑
HIS HONOUR: Okay.
[LG]: You may not even look at them. Maybe, your associates – I don’t know how the court system works, your Honour.
HIS HONOUR: No. No, no, no. You can be sure any order that a judge makes is made with the knowledge of the judge and the authority of the judge. All right.
[2] T6.45-T7.15
The second ground on which LG relied for claiming I should recuse myself is that LG said “I’m so scared of you”.[3] A little later the following exchange occurred:[4]
HIS HONOUR: So is the second thing that I communicated in a way which made you scared? Is that the idea?
[LG]: Well, it wasn’t trauma informed and not – I’ve got a disability, your Honour. So, I guess, I would say it’s not trauma informed, if that’s the word. I don’t know if the courts are meant to be trauma informed.
HIS HONOUR: All right.
[LG]: But I think – I mean – yes. I guess, it made me feel fearful.
HIS HONOUR: All right.
[LG]: I feel very – for the last month, I’ve been so scared. I don’t know what to do, and I – I’m up till midnight trying to work out orders, and I simply don’t know what to do . . . .
[3] T7.20
[4] T7.40-T8.5
A third ground appears to be that the order for mediation I had made remained operative; that is, the mediation remains open.[5]
[5] T20.45-T21.5
There was some discussion with LG about whether she intended to file evidence in support of her recusal application. In the course of that discussion, I informed LG how I proposed to deal with that part of LG’s application for recusal that relied on LG’s claim that her pro bono lawyers had requested I make consent orders without LG’s instructions:[6]
HIS HONOUR: Well, can I tell you, I am going to assume that what you say is true about that. And I’m telling you that because the principle is that a court – when a party is represented by lawyers, the court is entitled to assume that that lawyer is acting with the client’s authority. So there’s no need for you to put on any evidence. I’m going to [assume], for the purposes of the recusal application, that they did not have instructions. Because you’re not alleging that I had knowledge, or the court had knowledge that your lawyers do not have your authority. Or are you?
[LG]: This is what’s confusing. So, [the applicant] is the applicant, but on these, you know, notices of withdrawal of lawyer, they actually have myself as the client. So, I don’t know who they’re acting for. But then they keep telling me [the applicant] is the client. But then if you look at the court portal, the notice of withdrawal of lawyer ‑ ‑ ‑
HIS HONOUR: All right. All right. I have access to all the things that have been filed on your behalf, or on behalf of your daughter. I will look at those. I will look at those.
[LG]: So that – your Honour – but ultimately, particularly at the first – the two administrative listings, they’re the key ones where I certainly haven’t made instructions. . . . ‑
HIS HONOUR: All right, but can I just bring it back. I’ve heard what you wanted to say about recusal. I’m not sure whether you want to put evidence as well. I’m telling you that I’m going to assume certain things as being correct for the purposes of determining whether there are grounds for my being recused.
[6] T23.15-T23.40
Transfer to Federal Court
LG also applied for an order that the proceeding be transferred to the Federal Court. I asked LG to inform me, as briefly as she could, why the proceeding should be transferred to the Federal Court. The transcript records the following:[7]
[LG]: And I can put evidence is because I never – [previous lawyers] never ever actually asked me which court I wanted to file it in. They made that decision unilaterally and I have evidence from [another former lawyer] from ACDL with that. And I have evidence from the Human Rights Commission that they put the name of Sydney Catholic Schools Trading as . . . because apparently the lawyer for the school gave the Human Rights Commission that name, and I’ve said to the Human Rights Commission, “I’m the one who made the complaint” Why won’t – the complaint was in [the School]. So I’ve been trying to argue with the Human Rights Commission for months and they’ve been very obstructive. All I want is the name changed, so we can go to the Federal Court where it belongs under 116 and seek relief under the Australian Human Rights Commission Act 1986.
HIS HONOUR: All right. All right. So the first reason you want it transferred it is that you’ve always wanted it to go to the Federal Court, but, through non-instructions, your then-lawyers filed in this court. Is that right? Is that what you’re saying?
[LG]: 100 per cent.
[7] T25.25
LG also said that she wanted the matter to be transferred to the Federal Court because “a lot of children like [the applicant] are being unlawfully discriminated and not provided reasonable justice and denied enrolment”, and LG wants to bring the proceeding before the Federal Court “because it’s in the public interest”;[8] LG wanted to “bring a representative claim”, but a “representative complaint” cannot be brought in this Court;[9] and the Federal Court has “expert judges in [the] human rights national practice area that are specialists in the area”.[10]
[8] T26.40
[9] T27.20
[10] T27.30
Stay pending judicial review application
LG said that she would like the proceeding before the Court to be adjourned or stayed “because what I want to do is seek a judicial review under 39B of the Judicial Review Act 1903 (sic) because I want the Human Rights Commission to go back and look at their decision”; and that is because “their termination letter was very vague, and I think this is what’s misled everybody”.[11] I asked LG whether there are any materials LG has filed or sent to the Court which sets out the grounds on which she intends to rely on an application for judicial review.
[11] T28.30
In the course of the hearing, I understood LG intended to make a number of specific complaints in relation to the proceeding before the AHRC, these being that there is no evidence of the enquiries the President of the AHRC undertook in relation to the applicant’s complaint, the 46PH(2) Notice being very vague;[12] the 46PH(2) Notice was sent to Ms Totoeva without LG’s complaint, and LG cannot proceed until the 46PH(2) notice is changed.[13] But the principal complaint appears to be the contention that the AHRC compelled LG to participate in a conciliation in circumstances where that was not appropriate:[14]
[12] T31.35
[13] T31.35
[14] T33.40-T34.30
HIS HONOUR: All right. So, is your complaint about the Human Rights Commission is that the respondent really wasn’t willing to conciliate, really, but the Commission nevertheless held the conciliation. You say that ACDL, what, they’re your lawyers, then?
[LG]: It’s Australia’s Centre for Disability Law. I could never get a
HIS HONOUR: All right. That’s all right. But just hold on, because I want to repeat to you what I understand you’re saying, but ACDL advised you to withdraw your claim for an apology, and to seek only money?
[LG]: So ‑ ‑ ‑
HIS HONOUR: So is that it? So, your complaint to the Human Rights Commission is that they, in effect, compelled you to have a conciliation in circumstance where it was not appropriate given those matters. Is that what you’re saying?
[LG]: 100 per cent. They didn’t allow – remember I spoke to you that I wanted to bring a representative claim, and they didn’t allow me to mend it? And also they kept – I was so fearful that once they terminated it ‑ ‑ ‑
HIS HONOUR: So when you say representative claims, does that mean you to represent your daughter, or are you saying something broader? You representing ‑ ‑ ‑
[LG]: No – in like with First Nations people, if it’s a systemic issue, you can bring a claim with your other people, and then you can bring it to like a class action type thing, which is ‑ ‑ ‑
HIS HONOUR: A class action. That’s all right. That’s how I understood it. All right. So is that the gist of what you want to say about the judicial review? About why you say that it would be appropriate to have a judicial review of the matter and for it to go back to the Human Rights Commission? Is that right?
[LG]: 100 per cent. Because they knew I didn’t have legal rep.
HIS HONOUR: All right. Okay.
Other matters
I enquired of LG whether she wanted the opportunity of filing any affidavit in relation to the matters she submitted at the hearing; but, after some discussion, LG said she did not want to file any affidavit.
RECUSAL
Principles
The principles[15] that govern an application for recusal on the ground of reasonable apprehension of bias were recently restated by the High Court in Charisteas v Charisteas:[16]
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
[15] In this and the following two paragraphs I the repeat here what is said in Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 7) [2024] FedCFamC2G 510, at [16]-[17].
[16] Charisteas v Charisteas [2021] HCA 29, at [11], [12] (footnotes omitted)
There are a number of matters to note. First, the required reasonable apprehension is not “that the case will be determined adversely to the interests of the complaining party”; it is that “the trial judge had formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party”.[17] Second, there is the standard of risk of the judge forming such a fixed view, this being an “objective test of possibility, as distinct from probability”.[18]
[17] Barakat v Goritsas (No 2) [2012] NSWCA 36, at [40]
[18] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, at [28]
Third, there are the attributes of the fair-minded lay observer. The fair minded lay observer is taken to be reasonable;[19] the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”;[20] the fair-minded lay observer “is neither complacent nor unduly sensitive or suspicious”;[21] and that the fair-minded lay observer “would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”.[22] Further, in “judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge’s conduct in the context of the whole of the trial”.[23]
[19] Johnson v Johnson [2000] HCA 48, at [12]
[20] Johnson v Johnson [2000] HCA 48, at [12]. The quoted passage is from the judgment of McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at page 527.
[21] Johnson v Johnson [2000] HCA 48, at [53]
[22] Johnson v Johnson [2000] HCA 48, at [53]
[23] Galea v Galea (1990) 19 NSWLR 263, at page 279
Given that one of the grounds on which LG applies that I recuse myself relates to the manner in which she alleges I have spoken to her, it would be convenient to set out what has been said about the circumstances in which a judge’s behaviour towards counsel might give rise to a reasonable apprehension of bias, adjusting, of course, for the fact that LG is not a lawyer, and also taking into account the fact that LG suffers from a number of disabilities. First, there is what the Hon James Thomas AM, a former judge of the Court of Appeal of Queensland, said in his book on judicial ethics:[24]
All judges should regularly ask themselves whether they are being unnecessarily aggressive towards counsel or litigants. The deference with which judges are treated in court makes it easy to fall into this trap. This does not mean that the judges should tolerate rude counsel, permit repetitious questioning or put up with irrelevant argument. If judges do not run the equivalent of a tight ship, control is easily lost and cases tend to run at great expense to the parties and the state. Courts are robust institutions and it is undesirable that either judges or counsel should be too thin-skinned about an occasional skirmish.
[24] Judicial Ethics in Australia, 3rd edition 2009 at [4.7]
Second, there is the following passage from Kirby A-J’s judgment in Galea v Galea:[25]
In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge’s conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context.”
[25] Galea v Galea (1990) 19 NSWLR 263, at page 279
Determination
Even if it be the case that the applicant’s lawyers requested I make orders by consent in chambers without LG’s instructions, that by itself would not be a matter that might lead a fair-minded lay observer to apprehend I might not be able to bring an impartial mind to bear on the determination of any issue in the proceeding. That is particularly so when LG does not suggest that I was made aware of information that showed or could suggest that the applicant’s lawyer acted without LG’s instructions.
It is the case that during the directions hearings, and in particular, the directions hearing of 12 September 2024, I actively engaged with LG by asking questions that could well have caused her personal anxiety. A fair-minded lay observer, however, would view my engagement with LG as an attempt by me to understand what it is LG was seeking from the Court, and the grounds on which she sought them; and the purpose of my asking the questions was to obtain information to determine the directions I should make so that the applicant, through LG, could prosecute the claims the applicant wishes to make in the proceeding. There is nothing in the questions I asked, or the manner in which I asked them, or the manner in which I otherwise conducted myself, at any time in the course of this proceeding that might lead a fair-minded lay observer to apprehend that I might not be able to bring an impartial mind to the determination of any issue between the parties.
Finally, there is the mediation order remaining operative. That by itself is not a matter that might lead a lay fair-minded lay observer to apprehend that I might not be able to bring an impartial mind to the determination of any issue in the proceeding.
The application for recusal, therefore, fails.
TRANSFER TO THE FEDERAL COURT
This Court has power to transfer a proceeding from this Court to the Federal Court; and that power is vested by s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), which relevantly provides:
(1) If:
(a)a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and
(b)the proceeding is not a family law or child support proceeding;
the Court may, by order, transfer the proceeding from the Court to the Federal Court.
. . .
(3)In deciding whether to transfer a proceeding to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
(a) any Rules of Court made for the purposes of subsection 154(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and
(d)the interests of the administration of justice.
Subsection 154(2) of the FCFC Act provides that “the Rules of Court may set out factors that are to be taken into account by [this Court] in deciding whether to transfer a proceeding to the Federal Court pursuant to subsection 153(1)”. Rule 8.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Rules) 2021 (Cth) (GFL Rules) regulates applications for transfer; and it relevantly provides as follows:
(1)Unless the Court otherwise orders, an application under paragraph 153(2)(a) of the Act to transfer a proceeding from the Court to the Federal Court must:
(a) be made on or before the first court date for the proceeding; and
(b)be included in an application or a response in accordance with the approved form; and
(c) be supported by an affidavit.
(2)…
(3)…
(4)In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
The applicant has not complied with r 8.02(1) of the GFL Rules, but I propose to order that the applicant need not comply with that rule.
I am satisfied that it is not appropriate to make an order under s 153(1) of the FCFC Act to transfer the matter to the Federal Court. First, although it is true that the FCFC Act and the GFL Rules do not have equivalent provisions to those contained in Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) (which provide for representative proceedings), the applicant has not provided any document, and has otherwise not articulated a case, that shows, or arguably shows, that the applicant will be able to satisfy the requirements for commencing a representative proceeding, as specified in s 33C(1) of the FCA Act. That subsection provides:
Subject to this Part, where:
(a) 7 or more persons have claims against the same person; and
(b)the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c)the claims of all those persons give rise to a substantial common issue of law or fact;
a proceeding may be commenced by one or more of those persons as representing some or all of them.
Second, although the determination of the applicant’s claims based on alleged unlawful discrimination is important, her claims do not disclose a public interest that extends beyond the public interest in having any other claim based on alleged unlawful discrimination being determined, such as might give rise to the necessity of the Federal Court having to consider the applicant’s claims. There is nothing in the claims the applicant makes that is likely to involve questions of general importance.
Third, there is nothing in the material before me which suggests that, if the proceeding is transferred to the Federal Court, it is likely to be heard and determined at less cost and at more convenience to the parties than if the proceedings were not transferred, or that the proceeding will be heard in the Federal Court earlier that it will be heard in this Court.
For these reasons, I do not propose to make an order transferring the proceeding to the Federal Court.
STAY OF PROCEEDING
Although LG has attempted to articulate the claims the applicant wishes to make in relation to the manner in which her complaint was handled by the AHRC, LG has not prepared any draft document which, if finalised, would be capable of initiating in the Federal Court an application for judicial review under s 39B of the Judiciary Acy 1903 (Cth) in relation to any decision or conduct by the AHRC or by any one of its officers. There is therefore no pending or near pending proceeding in the Federal Court that could constitute a ground for staying the proceedings in this Court.
For these reasons, I will not order that the proceeding be stayed.
OTHER MATTERS
There are a number of other matters LG raised during the directions hearings, and in the email LG sent to the Court at 5.44 am on 10 October 2024. First, LG submitted that a pseudonym should be assigned to the applicant and to herself. I agree. The matters relate to a minor, who also has disabilities; and the proceeding is being conducted by LG as litigation guardian, who also has disabilities. I propose to order that pseudonyms be assigned to both the applicant and to LG. I also propose to order that the name of the respondent be changed to “Trustee for Sydney Catholic Schools Trust”, and to amend the reasons for judgment I already published in this matter by replacing the names of the applicant and LG with the pseudonyms that will be assigned to them, and I will amend the name of the respondent to “Trustee for Sydney Catholic Schools Trust”.
Second, LG submitted that the applicant is incorrectly named in the proceeding; the applicant should be identified as acting by LG as her litigation guardian. I propose to make an order that the name of the applicant be amended by replacing her name with “[the pseudonym that will be assigned to the applicant] by her litigation guardian, [the pseudonym that will be assigned to LG]”.
Third, LG submitted that the proceeding should be transmitted to the Parramatta Registry of the Court, and docketed to Judge Humphreys. The basis of this application appears to be what LG believes is the availability of a duty lawyer at the Parramatta. I am not aware there is available at the Parramatta Registry any duty lawyer to provide legal assistance to persons who have brought proceedings under s 46PO(1) of the AHRC Act. In any event, I am not prepared to assume that that is the case without any evidence. I therefore do not propose to transfer the proceeding to the Parramatta Registry, at least not in the absence of evidence that shows that it would be more appropriate in the interests of justice to have the proceeding conducted at the Paramatta Registry.
Finally, the applicant, through LG, seeks a number of case management orders up to and including the hearing. It is not necessary, at this stage, to make any such orders.
DISPOSITION
I propose to order that:
(a)the application for recusal be dismissed;
(b)the applicant be relieved from complying with r 8.02(1) of the GFL Rules;
(c)the application for transfer to the Federal Court be dismissed;
(d)the application that the proceeding be stayed pending the determination of an application for judicial review be dismissed;
(e)the applicant and LG each be assigned a pseudonym for the purposes of this proceeding;
(f)the name of the applicant be amended to read “[the pseudonym to be assigned to applicant], by her litigation guardian, [the pseudonym to be assigned pursuant to LG]”.
(g)the name of the Trustee be amended to read “Trustee for Sydney Catholic Schools Trust”; and
(h)the reasons for judgment published on 13 June 2024 be amended to reflect the pseudonyms that will be assigned to the applicant and to LG, and to reflect the proposed amendment to the name of the Trustee.
The consequence of my making these orders is that, subject to the applicant, through LG, wishing to maintain her claims, the proceeding will progress in the usual way. That is likely to mean that I will renew the order I made on 18 July 2024 requiring the applicant to file a reply to the amended defence, and requiring the applicant to file her non-expert evidence. I do not propose, however, to make orders at the time I publish these reasons. Instead, I propose to adjourn the matter to 9.30 am on 13 December 2024 to give the applicant, through LG, an opportunity to consider these reasons and, in the light of these reasons, consider what further directions she considers the Court should be asked to make for the further progress of the matter.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 15 November 2024
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