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Toma v Fair Work Commission [2022] FCA 1261 (25 October 2022)

Last Updated: 25 October 2022

FEDERAL COURT OF AUSTRALIA

Toma v Fair Work Commission [2022] FCA 1261

File number:	NSD 216 of 2022
Judgment of:	RAPER J
Date of judgment:	25 October 2022
Catchwords:	HUMAN RIGHTS – application for leave to commence proceedings under s 46PO of the Australian Human Rights Commission Act 1976 (Cth) – where Australian Human Rights Commission terminated the complaint on the basis that an inquiry into the complaint was not warranted in all the circumstances – whether the applicant’s claims of unlawful discrimination are reasonably arguable – leave refused PRACTICE AND PROCEDURE – interlocutory application by the respondent for summary judgment – whether the applicant has no reasonable prospects of success – summary judgment entered in favour of the respondent
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PE, 46PF(1)(b), 46PH, 46PH(1)(b)(ii), 46PH(1)(c) 46PO, 46PO(1), 46PO(2), 46PO(3A)(a) Fair Work Act 2009 (Cth) ss 386, 390, 570, 575(2), 576(1)(i), 577, 578, 580, 581A, 581A(2)(a)(i), 584B, 584B(1), 587, 589(2), 590, 592, 593, 601(2), 604, 612, 613, 625, 674, 676 Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2), 31A(3) Judiciary Act 1903 (Cth) s 39B Racial Discrimination Act 1975 (Cth) ss 9(1), 9(1A), 13, 18A Federal Court Rules 2011 (Cth) rr 8.03(1), 26.01
Cases cited:	Budini v Sunnyfield [2019] FCA 2164 Chircop v Technical and Further Education Commission [2022] FCA 1015 Fingleton v The Queen [2005] HCA 34; 227 CLR 166 Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450 James v WorkPower Inc [2018] FCA 2083 Kimber v Owners of Strata Plan No. 48216  [2017] FCAFC 226 ; 258 FCR 575 Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 1564 Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWC 2963 Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWCFB 5811 Loi Toma v Workplace Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240 Matthews v Markos [2019] FCA 1827 Mpinda v Fair Work Commission [2022] FCA 1111 Re East; Ex part Nguyen [1998] HCA 73; 196 CLR 354 Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102 Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100 White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	87
Date of hearing:	12 September 2022
Date of last submissions:	18 October 2022
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr T Boyle (on 12 September 2022) Mr S Reeves, solicitor of Australian Government Solicitor (on 18 October 2022)
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

THE COURT ORDERS THAT:

1. Judgment is entered in favour of the respondent against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).
2. The applicant’s application, filed on 22 July 2022, for leave to pursue his racial discrimination claim pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth), is refused.
3. Any party wishing to make an order for costs must, within seven (7) days of the date of this judgment, file any such application, any evidence in support of that application and written submissions (not exceeding two pages in length) which address the operation of s 570 of the Fair Work Act 2009 (Cth) and the reasons why a costs order can and should be made.
4. If no application is filed in accordance with order 3, this proceeding is deemed to be finally disposed of on the basis that no order is made as to costs.

REASONS FOR JUDGMENT

RAPER J:

Introduction

1. The applicant claims to have been the victim of racial discrimination by the respondent (the FWC) by reason of the manner in which it dealt with his unfair dismissal application first before Commissioner Cambridge on 24 May 2018, where Commissioner Cambridge summarily dismissed the applicant’s claim (Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWC 2963) during a pre-hearing conference, and thereafter by the Full Bench when hearing the applicant’s appeal in May 2019 (Loi Toma v Workplace Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240).
2. This decision concerns two interlocutory applications before it:

(a) an interlocutory application filed by the respondent on 2 June 2022 seeking that the proceedings be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Federal Court Rules);

(b) an application filed by the applicant on 22 July 2022 pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) seeking leave to pursue his racial discrimination claim.

3. For the reasons which follow, the applicant’s application for leave to pursue his racial discrimination claim should be dismissed. Further, the respondent’s application for summary judgment is upheld with respect to the applicant’s originating application, filed on 17 March 2022, pursuant to s 31A(2) of the FCA Act and r 26.01 of the Federal Court Rules.

Background

4. The following comprises an overview of the procedural history giving rise to the applicant’s claims which led to him filing the originating application in the Federal Court of Australia and his subsequent actions before the Australian Human Rights Commission (AHRC) which gave rise to him filing his own interlocutory application under s 46PO of the AHRC Act.

The originating process made prior to the AHRC’s termination of the applicant’s complaint

5. On 17 March 2022, the applicant commenced proceedings in this Court by originating application in which the entirety of his claim comprised the following:

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:

1. Unlawful racial discrimination by the Respondent and violation of rights and protections afforded by the Racial Discrimination Act 1975 and Australian Human Rights Commission Act 1986.
2. Contraventions of the Fair Work Act, by the Respondent, that denied me an opportunity to run my case before the Federal Court.
3. Hurt, humiliation and distress suffered as a result of the Respondent’s actions and inactions. Quantum to be submitted later.
4. Aggravated and exemplary damages. Quantum to be submitted later.

6. No statement of claim was filed with the originating application. However, a supporting affidavit was filed which in essence claimed that the Fair Work Commissioner, “displayed... bias”, did not listen to the applicant’s support person “Nagan” and summarily dismissed his matter when it was ready for hearing and should have been heard, for which he would have “won the case .. and received compensation”. The applicant claimed that the Commissioner engaged in “racial discrimination and colonial attitude”. In addition, the applicant claims that he was the subject of discriminatory treatment by the Full Bench when it conducted his appeal (for which he was unsuccessful).
7. At the time of the applicant filing his application before this Court, the AHRC had not terminated any complaint made by him. Such a termination is necessary for any person wanting to commence proceedings in the Federal Court with respect to claims of this kind: see s 46PO(1)(a) of the AHRC Act.

The respondent’s interlocutory application for summary judgment

8. As a consequence, on 2 June 2022 the respondent filed an interlocutory application seeking summary judgment on the following bases:

(a) that the applicant has no reasonable prospect of successfully prosecuting the proceeding; and

(b) no reasonable cause of action is disclosed.

9. The respondent contended that such an application may be brought in this case because:

(a) to the extent that the originating application amounts to a claim that the respondent breached the Racial Discrimination Act 1975 (Cth), such a claim can only be brought under s 46PO of the AHRC Act;

(b) a claim may only be made under s 46PO of the AHRC Act if a complaint (regarding the same or substantially the same subject) has been terminated by the President of the AHRC under s 46PE, s 46PF(1)(b) or s 46PH and the President of the AHRC has given notice of that termination under s 46PH(2) (see s 46PO(1));

(c) while the applicant had (at the time of the respondent’s application) made a complaint to the AHRC, the President had not terminated the complaint and therefore the applicant was precluded from bringing his racial discrimination claim in this Court;

(d) where the originating application refers to contraventions of the Fair Work Act 2009 (Cth) (FW Act), no particular provision of the FW Act was identified in the originating application or supporting affidavit and no reasonable cause of action was disclosed. Furthermore, the applicant had not identified any basis on which he could be entitled to the relief he seeks in the originating application even if he was able to establish a breach of the FW Act by the respondent; and

(e) the respondent contended in its interlocutory application that to the extent that the applicant was (at that time) seeking judicial review of the decisions of the respondent referred to in his supporting affidavit in separate proceedings in this Court, the applicant should be barred and estopped from re-litigating issues in those proceedings as part of this claim.

The termination of the AHRC complaint (post-dating) the filing of the originating application

10. No doubt, as a consequence of the respondent’s application, the applicant thereafter made further contact with the AHRC relating to his complaint of racial discrimination as against the FWC. As a consequence, the AHRC terminated the applicant’s complaint on 24 June 2022. Details relating to the AHRC’s statutory Notice of Termination and reasons are at [28] to [32] below.

The applicant’s amended originating application including application for leave

11. The applicant thereafter, filed on 22 July 2022, an amended originating application which is set out in its entirety:

Permission to make New Leave Application

1. I seek leave under paragraph 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Act) to make an Application under subsection 46PO(1) of the Act (New Leave Application).
2. I received correspondence from the Respondent to terminate my complaint to the Australian Human Rights Commission for my Federal Court application to proceed. The termination letter has been served on the Respondent.
3. The President of the AHRC terminated my complaint at my request and found that the AHRC did not need to investigate as I had chosen to lodge an application with the Federal Court.
4. I am making this application within the time limit and as part of a consent Order agreed to with the Respondent.

Details of claim
On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:

1. Unlawful racial discrimination by the Respondent and violations of rights and protections afforded by the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986
2. Contraventions of the Fair Work Act by the Respondent
3. Hurt, humiliation and distress as a result of the Respondents actions. Quantum to be submitted later
4. Aggravated and exemplary damages. Quantum to be submitted later.

The litigation history underlying the applicant’s complaint

12. It is useful to set out the litigation history underlying the applicant’s complaint which is as follows.
13. The applicant brought unfair dismissal proceedings in the FWC in March 2018. The employer raised a jurisdictional objection on the basis that it asserted that the applicant had not been terminated but had in fact resigned. At an interlocutory hearing in May 2018, the employer claimed successfully that the applicant’s unfair dismissal application should be summarily dismissed on the basis that it had no reasonable prospects of success pursuant to s 587 of the FW Act: Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWC 2963. In September 2018, the applicant successfully appealed that decision and it was quashed by a Full Bench of the FWC: Loi Toma v Workplace Variable Pty Ltd T/A Workforce International [2018] FWCFB 5811. The applicant’s unfair dismissal application was then heard by another member of the FWC in February 2019 and was unsuccessful on the jurisdictional basis that the applicant was not “dismissed” within the meaning of s 386 of the FW Act: Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 1564. In June 2019, the Full Bench of the FWC refused the applicant permission to appeal: Loi Toma v Workplace Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240.
14. The applicant then brought proceedings in the Federal Court under s 39B of the Judiciary Act 1903 (Cth) on the basis of the FWC’s purported denial of procedural fairness by reason of “incompetent” interpreting services and the alleged incorrect amendment of the employer’s name from Workforce Variable to Workforce Recruitment. His application was dismissed and unsuccessful on appeal: Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102; Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100.

The interlocutory applications overlap

15. Both of the parties’ interlocutory applications involve consideration of the veracity of the applicant’s claims. Whilst post-dating the respondent’s application, it is logical to commence by considering the applicant’s application for leave to make his racial discrimination application.

Statutory context

16. The applicant contends that he has been the subject of racial discrimination. Sections 9(1) and 9(1A) of the Racial Discrimination Act outline the relevant tests for the existence of direct and indirect racial discrimination, as follows:

9 Racial discrimination to be unlawful

(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A) Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

17. Section 13 of the Racial Discrimination Act provides:

13 Provision of goods and services
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

18. Section 46P of the AHRC Act stipulates that a person may lodge written complaints with the AHRC alleging unlawful discrimination. Section 46PH of the AHRC Act provides the various bases upon which the President of the AHRC must or may terminate a complaint. It is only once a complaint is terminated that a person may bring an application in the Federal Court with respect to the complaint: s 46PO. Section 46PO provides:

46PO Application to court if complaint is terminated
(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;

any person who was an affected person in relation to the complaint may make an application 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.

Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(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.

(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).

(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re‑employ an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section—see section 43 of the Federal Court of Australia Act 1976.
Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under this section—see section 214 of the Federal Circuit and Family Court of Australia Act 2021.

(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).

(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.

19. As can be seen from the terms of s 46PO, the basis upon which the complaint is terminated determines whether a person may, as of right, bring an application before this Court or must apply for leave to bring such a claim.
20. In this case, as will be seen at [31] of these reasons the delegate of the President terminated the applicant’s claim pursuant to ss 46PF(1)(b) (where the President was the opinion that the complaint should be terminated “without inquiry”) and 46PH(1)(c) (where the President was satisfied, having regard to all the circumstances, that an inquiry, or the continuation of the inquiry, into the complaint was not warranted). Given this, the applicant is required to seek leave to bring his racial discrimination claim in the Federal Court: s 46PO(3A)(a).

The applicant’s complaint

21. As can be seen from the terms of s 46PO(3), extracted above at [18], the content of an applicant’s complaint to the AHRC determines the scope of this Court’s jurisdiction: Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450 at [18]. The applicant’s complaint to the AHRC was titled “Racial Discrimination denying a fair hearing” and thereafter comprised a discursive, chronological account. To the extent identifiable, the applicant complained first about the purported treatment he received from Commissioner Cambridge during a pre-hearing conference in March 2018. The height of the allegation was that he was “warned” that he would have to pay costs if he made frivolous applications and, by reliance on the account of Mr Nagan, the Commissioner had joked with the respondent’s paid agent.
22. Secondly, the applicant complained that at the hearing before Commissioner Cambridge in May 2018, his application was summarily dismissed without his witnesses being called to give evidence and him being given an opportunity to cross-examine the respondent’s witnesses. The applicant gives an account of the kind of evidence he would have placed before the Court and the submissions, if he had been able, that he would have put about the degree to which he disputed the respondent’s witnesses’ accounts. The applicant relies on the account of his witness Mr Nagan who says that when saying the applicant had no chance of success the Commissioner “then giggle[d] at the barrister when saying that he had not read all the submissions”.
23. Thirdly, the applicant complained that the FWC was required to respond to his complaints about racial discrimination and the President “refused to give [him] a response.” The applicant also described in his complaint a purported meeting between the President of the FWC and the applicant’s witness Mr Nagan, where he alleged that “Ross admitted that he was having a problem with the “colonial attitude” of his Commissioners and how they dealt with unrepresented applicants with English as a second language”.
24. Fourthly, the applicant complained about a pre-hearing conference before Commissioner Simpson where the Commissioner was conversational with the representative for the respondent, purportedly limited the time for the applicant to speak by stating that he did “not want long stories” and required medical evidence from the applicant’s witness before re-listing the matter. In addition, he complained that the interpreter failed to tell him what the Commissioner and the respondent’s representatives were talking about.
25. Fifthly, the applicant complained about the purported treatment he received during the further hearing of his unfair dismissal application before Senior Deputy President Hamberger where the treatment involved the FWC Member failing to find that his employer had failed to comply with a direction made by Commissioner Simpson and accepted (when he should not have) the truth of one of the respondent’s witness’ evidence.
26. Sixthly, the applicant complains that Vice President Catanzariti (as part of the Full Bench) denied him leave to appeal and incorrectly quoted the transcript.
27. As will be revealed later, a relevant consideration in determining whether to grant leave is to consider the AHRC’s reasons for terminating the applicant’s complaint.

The AHRC’s reasons for terminating the complaint

28. In November 2021 the applicant lodged a complaint (reference number 2021-24449) of racial discrimination against the “Commonwealth of Australia (Fair Work Commission)”.
29. On 12 May 2022 the applicant sent an email to the AHRC stating:

I have lodged an application against the Fair Work commission with the Federal Court.
In order for that matter to proceed, the Fair Work Commission requires that I have to discontinue my complaint to the AHRC.
I hereby withdraw my complaint and request confirmation that this has been done as I need to file it with the Federal Court.
I ask that this be done immediately.

30. The AHRC identified in its reasons, provided on 24 June 2022, that:

Following receipt of your email, on 12 May 2022 a Delegate of the President granted leave for you to withdraw the complaint and the complaint was finalised under section 46PG of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA). You were informed of this decision on the same date.
Between 13 and 30 May 2022 you contacted the Commission regarding your finalised complaint. You indicated that the Australian Government Solicitor, representing the FWC, was seeking summary dismissal of your claim as you did not have a Notice of Termination issued under section 46PH(2)of the AHRCA.
In an email dated 30 May 2022 you said that you want the AHRC to terminate your complaint. On 31 May 2022 you were advised that the complaint had been finalised and there is no option under the AHRCA to re-open and terminate a complaint that has been finalised as withdrawn under section 46PG of the AHRCA. You were advised that you could lodge a new complaint using the documents that constituted your original complaint.
On 3 June 2022 you formally requested to resubmit your complaint and I accepted the current complaint (file reference 2022-09402), on 3 June 2022. A copy of the document that you have confirmed constitutes your current complaint is provided at Attachment B.

31. The AHRC set out a summary of the applicant’s complaint. The AHRC thereafter referred to the notification that it had given to the FWC and in which the FWC had provided its own information including orders from the Federal Court dated 7 June 2022. The applicant then received a letter from the AHRC dated 22 June 2022 containing an assessment of all the information before the AHRC and was invited to provide a response to which the applicant advised that he wanted the matter referred immediately for a decision. The AHRC then set out its decision under the heading “My Decision” which stated:

Sections 46PF(1)(a) and 46PF(1)(b) of the AHRCA provides that the President must consider whether to inquire into the complaint, having regard to the matters set out in section 46PH of the AHRCA, and if the President is of the opinion that the complaint should be terminated, terminate the complaint without inquiry.
Section 46PH(1)(c) of the AHRCA says that the President may decide to terminate a complaint if she is satisfied, having regard to all the circumstances, that an inquiry into the complaint is not warranted.
I have considered all the information before me and I wish to advise that I have decided to terminate the complaint under sections 46PF(1)(b) and 46PH(1)(c) of the AHRCA.
I understand you may be disappointed by my decision and I would like to explain the reasons for my decision.

32. In the AHRC’s reasons, the AHRC, amongst other things stated:

(a) that with respect to the applicant’s claim of direct discrimination that it appeared to be on the basis that the FWC President had “failed to respond to [the applicant’s] complaints about the actions of Commissioners and ‘refuses to release’ the results of [his] complaints”. The AHRC reasoned that even if it were true that the FWC President had not responded to his complaints noting the FWC’s disagreement with the same “there does not appear to be information before the Commission to support that any alleged failure was ‘based on’ or ‘by reason’ of [his] race or national/ethnic origin” other than assertion. As a consequence, the AHRC was of the view that there was insufficient information for it to support a claim against the FWC President under s 9(1) or under s 13 of the Racial Discrimination Act;

(b) with respect to the indirect discrimination complaint, the AHRC was “very unclear what, if any unreasonable requirement or condition” the applicant claimed was imposed on him. As a consequence, there did not appear to be information before it sufficient to support a claim under s 9(1A) and/or s 13 of the Racial Discrimination Act;

(c) with respect to the claim that the applicant had been denied a “fair hearing” by reference to the FWC and the actions of individual members, the AHRC noted the operation of the principle of judicial immunity which the authorities accept includes claims of unlawful discrimination. The AHRC referred to s 580 of the FW Act which specifically provides for judicial immunity with respect to FWC members. As a consequence, the AHRC was of the view that judicial immunity applies in relation to the alleged acts of the FWC members and the applicant’s claims appeared to arise from a misconception of the FWC’s functions and powers;

(d) with respect to the claims which were the subject of an application before the Federal Court under s 39B of the Judiciary Act, the AHRC determined that it was “satisfied that [the applicant has] already taken appropriate action both within the FWC and in the Federal Court in relation to the alleged acts, omissions and practices that form the subject matter of [his] complaint before the Commission”;

(e) in addition, the AHRC noted that there was specific correspondence before it dated 5 January 2021, in which the FWC identified that it had already given to the applicant copies of all responses to his complaints and that there were no other investigation reports. By reason of the same, the AHRC concluded that the possibility of the applicant receiving a practical outcome or remedy through the AHRC’s complaint handling process was low; and

(f) in conclusion, the AHRC noted that it had decided to terminate the complaint because it was satisfied, having regard to all the circumstances, that an inquiry into the complaint was not warranted.

Relevant principles relating to the determination of leave

33. By reason of the fact that a delegate of the President terminated the complaint pursuant to ss 46PF(1)(b) and 46PH(1)(c), the applicant must therefore obtain leave to pursue an application before this Court: s 46PO(3A)(a).
34. As noted by Mortimer J in James v WorkPower Inc [2018] FCA 2083 the purpose of the leave discretion, “taking into account its text and context, is to provide a filter”: at [32]. Her Honour noted that consideration be given as to “whether the claims by an applicant are reasonably arguable, and are – at least – not fanciful”: at [37]. The assessment does not require a “detailed consideration and determination of the merits of the applicant’s underlying arguments” (at [39]) but rather as observed by Katzmann J in Chircop v Technical and Further Education Commission [2022] FCA 1015 at [104], to “undertake an impressionistic assessment” of the applicant’s claims and the facts supporting them and whether there are factual and legal bases for the purported claims. As noted by Abraham J, in Matthews v Markos [2019] FCA 1827 at [37], the determination of whether a claim is “reasonably arguable” is necessary given “[i]t would be perverse, and contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit”.
35. In James, Mortimer J concluded (at [37]–[39]):
    37. I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

38. There may be a range of other permissible considerations including:

(1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8) other factors that are often considered in leave applications – such as prejudice to a party.

39. As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration & Border Protection [2015] FCA 584; 233 FCR 507 at [28]–[31] and in DJS16 v Minister for Immigration & Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

Consideration of the applicant’s application for leave

36. The applicant’s contentions with respect to both his application for leave and his response to the respondent’s application for summary judgment were intertwined.
37. The applicant must establish that his discrimination claim is reasonably arguable before leave may be granted: Matthews at [37]. Whilst it is accepted that the applicant is only required to articulate the relief he seeks in his amended originating application, the viability of his cause of action is assessed by reference to any pleading (of which there is not one), accompanying affidavit or documentation. The applicant contends that he should be granted leave because:

(a) the granting of leave constituted a “formality”;

(b) the AHRC terminated the complaint on the basis that there was “no need for [it] to use its very limited resources to investigate” it given the applicant was bringing this application to the Court and accordingly did not undertake its own investigation;

(c) the AHRC did not have before it what this Court has before it, namely the applicant’s affidavit and the evidence of Mr Nagan;

(d) at a substantive hearing of this matter, the applicant will rely on “audio recordings, transcripts, emails and a first-hand witness”;

(e) the respondent’s application is to avoid the provision of evidence from happening and to evade the “truth and accountability”;

(f) the President of the FWC “has admitted that [the applicant] was discriminated against” for which the applicant has a witness;

(g) the alleged meeting with the President of the FWC, in July 2018 was the only time that the respondent “has addressed the discrimination complaint”. The Full Bench in both appeals before the FWC ignored the complaint; and

(h) his racial discrimination claim is different from his previous litigation for which no other forum has addressed the alleged racial prejudice.

38. I reject the applicant’s submissions and refuse the applicant leave to bring his racial discrimination claim on the following bases:

(a) the applicant’s claims comprised complaints about the conduct of the President and FWC Members when exercising their powers and functions under the FW Act which are protected from suit by reason of the judicial immunity arising by operation of ss 580 and 584B of the FW Act;

(b) even if there was no such protection, the applicant has failed to articulate how, based on fact, save for bald assertion, the conduct of the President and the FWC Members comprised racial discrimination within the meaning of the Racial Discrimination Act; and

(c) certain aspects of the complaint have already been the subject of review in this Court.

39. A review of the applicant’s complaint at its highest, together with the evidence the applicant foreshadows he will rely on at a final hearing and the evidence tendered at this hearing, reveal that the applicant’s claims are not reasonably arguable. Whilst, I accept that s 46PO(3A)(a) does not impose a particularly high bar, its purpose is to act as a filter to preclude claims of this kind whose limited merits are “disproportionate to the time and resources likely to be consumed by dealing with them”: James at [37].

The existence of judicial immunity provides a complete bar

40. The applicant’s complaint, a summary of which is at [21] to [27] above, reveals that the alleged conduct falls wholly within the protection afforded to FWC members and the President by ss 580 and 584B of the FW Act.
41. Sections 580 and 584B of the FW Act provide:

580 Protection of FWC Members
An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.
Note: See also section 584B (which deals with protection of persons involved in handling etc. complaints about FWC Members).
...
584B Protection of persons involved in handling etc. complaints about FWC Members

(1) A person who is exercising powers or performing functions under or for the purposes of paragraph 581A(1)(a), subsections 581A(2) to (5), or section 641A, in relation to a complaint about an FWC Member, or assisting in exercising those powers or performing those functions, has the same protection and immunity as a Justice of the High Court.

(2) A witness requested to attend, or appearing, before a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection, and is subject to the same liabilities in proceedings, as a witness in a case tried by the High Court.

(3) A lawyer assisting, or appearing on behalf of a person before, a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

42. The protection and immunity of a Justice of the High Court arises by conferral from the common law not legislative provision. The common law recognises immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity: Re East; Ex part Nguyen [1998] HCA 73; 196 CLR 354 at [30]. That function or capacity is referrable to the broad and general authority conferred upon a judicial officer to hear and determine the issues together with their exercise of any specific statutory functions.
43. Such an immunity includes immunity from civil liability. Its purpose is to protect the independence of judicial (and quasi-judicial) officers as explained by Gleeson CJ, as he then was, in Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at [38]–[39]:
    38. This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O’Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has “emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have”. She said that “[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits”.
    39. This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.

(Footnotes omitted).

44. With respect to the respondent’s contention regarding the operation of statutory judicial immunity arising under s 580 of the FW Act, the applicant submits:

(a) that a former High Court judge “was found to have breached the Sex Discrimination Act” and therefore judicial immunity has not applied in other discrimination contexts;

(b) section 9(1) of the Racial Discrimination Act refers to the fact that “any person” may be liable for discrimination, which defeats the operation of s 580; and

(c) the applicant’s claim is against the FWC not individual members of the FWC and therefore s 580 has no operation.

45. In addition, the applicant submits that the respondent is unable to rely on s 584B as it only applies to “giving protection to those handling complaints about [FWC] members”. Further there has been no investigation of the applicant’s complaint therefore “[n]obody has this protection”.
46. I reject these submissions.
47. The purpose of the immunity is to deal with circumstances of this kind. The applicant’s true complaint is with respect to the outcomes of his failed unfair dismissal application ventilated at a first instance and appellate level. The legal system provides avenues of redress by way of appeal which the applicant has exhausted.
48. To the extent that the applicant made the misguided submission that a former High Court judge had already been the subject of sanction in discrimination proceedings, the applicant pointed to no authority evincing the same. The Court has found no authority suggestive of this occurring. Rather, the High Court came to the opposite conclusion in a case where a litigant claimed he was the subject of racial discrimination by judicial officers in the County Court of Victoria: Re East. The Court in that case unanimously dismissed the claim on the basis that there were “fundamental problems” with the notion that a judicial officer or a court may be subject to legal redress on the ground of an alleged contravention of s 9 of the Racial Discrimination Act (at [29]) and that there was “nothing” in that Act which indicated that Parliament intended to override judicial immunity: at [30].
49. The respondent brought to the Court’s attention a decision handed down after the hearing of this matter namely, Mpinda v Fair Work Commission [2022] FCA 1111. In that decision, Feutrill J considered, amongst other things, the statutory judicial immunity provision under the FW Act. The applicant strongly opposed the capacity on the part of this Court (after the hearing of the application) to take into account this decision. The applicant was given the opportunity to make further written and oral submissions (which he availed himself of). I accept that it is appropriate and ordinary for a party to bring to the Court’s attention a decision handed down after the hearing of a matter that may be of assistance to the Court. I make no criticism of the respondent in bringing this decision to my attention. However, I accept the applicant’s submission that the factual circumstances giving rise to that decision were different from the current case and therefore do not consider that it is necessary to consider this decision in any detail. I accept and share the view of Feutrill J as to the application of judicial immunity to the FWC. However, I am required to consider the availability of this protection in this case by reference to the nature of the applicant’s claim at its highest (as identified in his amended originating application, submissions and any evidence relied upon by him).
50. From my consideration of these matters, it is my view that the alleged conduct of the FWC Members falls squarely within the performance of their functions and powers for the reasons which follow. The applicant’s complaint about the purported treatment he received from Commissioners Cambridge and Simpson during pre-hearing conferences, and when Commissioner Cambridge summarily dismissed the applicant’s complaint, arose in the context of the FWC Members’ exercise of their powers in deciding whether to order a remedy for unfair dismissal, to dismiss proceedings and the powers to conduct conferences and hearings (ss 390, s 576(1)(i), 587, 590(2)(h), 592 and 593 of the FW Act).
51. Similarly, to the extent that the applicant complained about the purported treatment he received during the further hearing of his unfair dismissal application before Senior Deputy President Hamberger, again this purported treatment arose in the context of the FWC Member exercising his powers to make interim decisions and to inform himself as to matters before him as he considered appropriate (ss 589(2) and 590) and to ultimately decide the matter and give reasons (ss 390, 576(1)(i) and 601(2)).
52. In the same way, to the extent that a claim was made about alleged treatment the applicant received from Vice President Catanzariti (as part of the Full Bench) whereby he was denied leave to appeal and the Vice President purportedly incorrectly quoted the transcript, this conduct falls squarely within the powers of the FWC to decide whether to grant leave to appeal (s 604) and to give reasons: s 601(2).
53. Lastly, to the extent that it is claimed that there has been a failure by the President of the FWC to provide the applicant with a copy of the results of his complaints about FWC Members, this arises in the context of the power of the FWC to dismiss a complaint (s 581A(2)(a)(i)) and where there is specific judicial immunity: s 584B(1).
54. To the extent that the applicant contends that his claim is with respect to the FWC not its Members and therefore, on his submission, the immunity under ss 580 and 584B does not arise, I do not accept that submission for the following reasons. First, the FWC is not meaningfully separate from its individual members such that ss 580 and 584B may be construed in such a narrow manner. The FWC consists of the various FWC Members: s 575(2). Individual FWC Members and Full Benches comprised of FWC Members perform the functions of the FWC: ss 612, 613. The President delegates his functions and powers to FWC Members: s 625. Accordingly, I accept the respondent’s submission that when a FWC Member engages in conduct falling within s 580, they are – by definition – performing the function of, and as, the FWC. Secondly, to the extent that the FWC can be distinguished from the FWC Members and/or the President, it is unclear how the applicant attributes the FWC with liability for its members. Even if he were able to articulate his argument under s 18A of the Racial Discrimination Act on the basis of vicarious liability, this does not overcome the insurmountable obstacle – that the relevant conduct of the President and FWC members falls within the scope of the immunity under ss 580 and 584B. If the applicant were able to run such an argument, and merely name the FWC as the respondent to avoid the applicability of those sections, it would undermine fundamentally the obvious purpose of both provisions.
55. Furthermore, none of the allegations are capable of supporting a claim in damages against the Commission (or any member).

In any event the complaints are not reasonably arguable

56. A careful review of the applicant’s complaints, the evidence he relies upon in support of his application and what he foreshadows as being evidence he would rely on at a substantive hearing, reveal no reasonably arguable basis for his claim, even if the doctrine of judicial immunity did not stand in his way. As Mortimer J observed in James at [43], an unmeritorious complaint may, inter alia, be so because it is not arguable as a matter of law, or because there is no rational factual substratum for the allegations.
57. At any hearing the applicant would bear the burden of establishing the alleged treatment occurred in a prescribed area of protection under the Racial Discrimination Act and was found to constitute unlawful discrimination. The applicant has not articulated in his complaint, affidavit nor his submissions which sections of the Racial Discrimination Act are enlivened and how he can satisfy the relevant statutory tests as they arise. As can be seen from the extracted sections of the Racial Discrimination Act, at [16]–[17] above, in order for an applicant to claim the existence of discrimination (whether on a direct or indirect basis), requires the identification and satisfaction of a number of statutory hurdles. Mere assertion is not sufficient.
58. The applicant relies on his own affidavit as to what he observed during the various pre-hearing conferences, hearings of his unfair dismissal matter and hearings before the Full Bench of the FWC. He contends that he was the subject of “racial bias” and “racial discrimination”.
59. The applicant also relies on two affidavits of Mr Nagan. Mr Nagan deposes to the fact that he attended the “Mentions, Hearings and [has] read all the submissions and listened to all audio recordings”. Mr Nagan also states that he attended a meeting with the President of the FWC.
60. However, there is nothing in the evidence, save for bare assertion of “bias” and “discrimination”, which the applicant proffers to articulate the basis for and fact of discrimination.
61. In any event, the Court’s focus is on the allegations as articulated in the AHRC complaint given the statutory cause of action in s 46PO only lies in respect to the subject matter of the complaint to the AHRC: s 46PO(3) of the AHRC Act.

Certain issues raised by the complaint have already been considered both through the appeals’ mechanisms under the FW Act and by this Court

62. To the extent that a portion of the complaint arises with respect to the decision of Commissioner Cambridge to summarily dismiss the applicant’s unfair dismissal claim, the Full Bench overturned that decision and remitted the matter for a re-hearing by a different FWC Member: Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWCFB 5811.
63. The applicant’s allegation regarding the purported deficiency in interpreting has already been the subject of an application for judicial review in this Court including an unsuccessful challenge on appeal: Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102 at [63]; Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100 at [6]. In the proceeding at first instance before Wigney J, his Honour considered the applicant’s concerns in detail (at [15]–[33]), the recording was played at the hearing (at [22]) and whilst finding the interpreting was “plainly deficient” (at [31], [71]–[73]), found that any denial of procedural fairness was not material: at [74].
64. I accept, as the applicant has submitted, that none of his previous matters have involved the ventilation and resolution of, together with relief for, racial discrimination, in particular compensation.
65. However, it is clear that the applicant is attempting, through the AHRC complaint, to re-litigate certain claims that have already been the subject of legal recourse. I accept they do not comprise the entirety of his complaint but nonetheless they are factors which weigh against leave being granted.

Delay in bringing the complaint

66. Lastly, I note that the complaint relates to FWC proceedings which occurred between 5 March 2018 and 18 June 2019. The AHRC complaint was sent to the AHRC on 17 November 2021 and remade on 3 June 2022. I accept the applicant’s submission as to the reason why he withdrew his complaint in May 2022 and then sought to resurrect it once he understood that the AHRC needed to complete its processes with respect to his complaint in order to enliven this Court’s jurisdiction. Accordingly, the magnitude of the delay in bringing his complaint, is properly just over two years. I concur with the compelling force of Charlesworth J’s reasoning in Budini v Sunnyfield [2019] FCA 2164 at [58], as to why, despite there being no strict timeframe for bringing complaints under the AHRC Act, the six-month timeframe in s 46PH(1)(b)(ii) reflects a policy that complaints should be made promptly. I note, with some circumspection, the applicant’s purported explanation for the delay being that he did not know about the AHRC. I find this surprising given the applicant’s pursuit of the various legal avenues that were available to him including before this Court during this period. Nonetheless, I do not attribute weight to the fact of the delay in refusing leave given the extent of the delay and the fact that the applicant’s assertion of ignorance was not challenged.

The respondent’s summary judgment application

67. The disposal of the applicant’s claim for leave does not defeat the entirety of the applicant’s claims given the applicant also brings claims for breaches of the FW Act.
68. In this respect the respondent presses its application for summary judgment under s 31A(2) of the FCA Act and r 26.01 of the Federal Court Rules.
69. Section 31A of the FCA Act provides:

31A Summary judgment
...
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or
(b) bound to fail;

for it to have no reasonable prospect of success.
...

70. The respondent relies on r 26.01(1)(a) (no reasonable prospect of successfully prosecuting the proceeding) and (c) (no reasonable cause of action is disclosed).
71. Rule 26.01(1) of the Federal Court Rules provides:

26.01 Summary judgment

(1) A party may apply to the Court for an order that judgment be given against another party because:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b) the proceeding is frivolous or vexatious; or
(c) no reasonable cause of action is disclosed; or
(d) the proceeding is an abuse of the process of the Court; or

(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

...
(Emphasis added).

Applicable principles

72. In order for the Court to give summary judgment in favour of a respondent under s 31A(2) of the FCA Act, the respondent bears the onus of establishing that the applicant has no reasonable prospects of successfully prosecuting the proceeding: Kimber v Owners of Strata Plan No. 48216  [2017] FCAFC 226 ; 258 FCR 575 at  [62] . It is not necessary for the respondent to establish that the claim is “hopeless” or “bound to fail” for it to have no reasonable prospects of success: s 31A(3). In this regard, the Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, namely prospects which are “real” not “fanciful”: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17] – [26] per French CJ and Gummow J. The real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded: Spencer at [23] citing White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [47] (per Lindgren J).
73. As stated in Spencer, in the joint judgment of French CJ and Gummow J at [24]:

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such disposition is sought in a summary judgment application supported by evidence. As to the latter this Court in Fancourt v Mercantile Credits Ltd said:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

(Footnotes omitted).

74. Justices Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ, in Spencer, agreed with the result but explained their conclusion differently from French CJ and Gummow J, their Honours’ focus was whether the Court is satisfied that there was “no reasonable prospect” of success: at [60].
75. Accordingly, attention must turn to the applicant’s claimed breaches of the FW Act. To the extent that there is an articulation of those breaches, the amended originating application, extracted above at [11], contains a bald assertion of the same. However, as noted above at [37], a person is not required, in their originating application, to do anything other than identify the relief claimed and if relief is claimed under a provision of an Act, the Act and provision for which the relief is claimed: r 8.03(1) of the Federal Court Rules. However, for the purpose of a summary judgment application, the Court’s consideration draws from a wider net than the application or pleaded case (if there is one) to the manner in which the applicant has articulated his claim in his submissions and evidence.

Alleged breaches of the FW Act

76. When asked by the Court to identify what parts of the FW Act the applicant claims have been breached, the applicant identified ss 577, 578, 580, 581 and 581A.
77. These provisions are extracted as follows:

577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

...
580 Protection of FWC Members
An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.
Note: See also section 584B (which deals with protection of persons involved in handling etc. complaints about FWC Members).
Subdivision B—Functions and powers of the President
581 Functions of the President
The President is responsible for ensuring that the FWC performs its functions and exercises its powers in a manner that:
(a) is efficient; and
(b) adequately serves the needs of employers and employees throughout Australia.
Note: The President must perform his or her own functions and exercise his or her own powers in a manner that facilitates cooperation with prescribed State industrial authorities (see section 649).
581A Dealing with a complaint about an FWC Member

(1) Without limiting section 581 (which deals with the functions of the President), the President may:

(a) deal, in accordance with subsection (2) of this section, with a complaint about the performance by another FWC Member of his or her duties; and

(b) take any measures that the President believes are reasonably necessary to maintain public confidence in the FWC, including (but not limited to) temporarily restricting the duties of the FWC Member.

Note 1: The complaint is a complaint about an FWC Member (see section 12).
Note 2: The Minister may also handle complaints about FWC Members (see section 641A).

(2) The President may deal with a complaint about an FWC Member referred to in paragraph (1)(a) by doing either or both of the following:

(a) deciding whether or not to handle the complaint and then doing one of the following:

(i) dismissing the complaint;

(ii) handling the complaint if the President has a relevant belief in relation to the complaint;

(iii) arranging for any other person to assist the President to handle the complaint if the President has a relevant belief in relation to the complaint;

(b) arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:

(i) dismiss the complaint;

(ii) handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint.

Note 1: A complaint handler (other than the President) may handle a complaint by referring it to the President. The President may then do either or both of the things referred to in paragraph (2)(a) or (b) in respect of the complaint.
Note 2: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.
Authorisation of persons or bodies

(3) The President may authorise, in writing, a person or a body to do one or more of the following in relation to a complaint about an FWC Member referred to in paragraph (1)(a) (whether in relation to a specific complaint or generally):

(a) assist the President to handle the complaint or complaints;

(b) decide whether or not to handle the complaint or complaints;

(c) dismiss the complaint or complaints;

(d) handle the complaint or complaints.

Referral to Minister

(4) The President must refer a complaint about an FWC Member referred to in paragraph (1)(a) to the Minister if, after the complaint has been handled in accordance with subsection (2), the President is satisfied that:

(a) one or more of the circumstances that gave rise to the complaint have been substantiated; and

(b) each House of the Parliament should consider whether to present to the Governor-General an address praying for the termination of the appointment of the FWC Member.

Note: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor-General.

(5) The Minister must consider whether each House of the Parliament should consider the matter referred to in paragraph (4)(b).

78. In addition, in the applicant’s submissions, he purportedly relied on ss 674 and 676 of the FW Act, which are as follows:

674 Offences in relation to the FWC
Insulting or disturbing an FWC Member
(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct insults or disturbs an FWC Member in the performance of functions, or the exercise of powers, as an FWC Member.

Penalty: Imprisonment for 12 months.
Using insulting language
(2) A person commits an offence if:

(a) the person uses insulting language towards another person; and

(b) the person is reckless as to whether the language is insulting; and

(c) the other person is an FWC Member performing functions, or exercising powers, as an FWC Member.

Penalty: Imprisonment for 12 months.
Interrupting matters before the FWC
(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct interrupts a matter before the FWC.

Penalty: Imprisonment for 12 months.
Creating or continuing a disturbance
(4) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct creates, or contributes to creating or continuing, a disturbance; and

(c) the disturbance is in or near a place where the FWC is dealing with a matter.

Penalty: Imprisonment for 12 months.
Improper influence of FWC Members etc.
(5) A person commits an offence if:

(a) the person uses words (whether by writing or speech) that are intended to improperly influence another person; and

(b) the other person is an FWC Member or a person attending before the FWC.

Penalty: Imprisonment for 12 months.

Delegates of the FWC

(6) A reference in subsections (1) to (5) to the FWC or an FWC Member includes a delegate of the FWC.

Adversely affecting public confidence in the FWC
(7) A person commits an offence if:

(a) the person publishes a statement; and

(b) the statement implies or states that an FWC Member (whether identified or not) has engaged in misconduct in relation to the performance of functions, or the exercise of powers, as an FWC Member; and

(c) the FWC Member has not engaged in that misconduct; and

(d) the publication is likely to have a significant adverse effect on public confidence that the FWC is properly performing its functions and exercising its powers.

Penalty: 12 months imprisonment.
Note 1: Sections 135.1, 135.4, 139.1, 141.1 and 142.1 of the Criminal Code create offences of using various dishonest means to influence a Commonwealth public official.
Note 2: Sections 676 and 678 of this Act and sections 36A, 37, 38 and 40 of the Crimes Act 1914 create offences relating to interference with a witness. Section 39 of that Act makes it an offence to destroy anything that may be required in evidence.
...
676 Intimidation etc.
A person commits an offence if:

(a) the person threatens, intimidates, coerces or prejudices another person; and

(b) the person does so because the other person has given, or proposes to give, information or documents to the FWC.

Penalty: Imprisonment for 12 months.
Note: A person may also contravene a civil remedy provision by threatening etc. a person who has given, or proposes to give, information or documents to the FWC (see section 343).

79. For the following reasons, I find that the applicant has no reasonable prospects of successfully prosecuting his FW Act claims and will order that summary judgment be entered in favour of the respondent.
80. I rely on my reasons for refusing leave, with respect to the discrimination claims contained in the applicant’s application, as to why there are no reasonable prospects of successfully prosecuting that aspect of the applicant’s claim.
81. With respect to the FW Act claims, no identifiable cause of action has been articulated by the applicant, rather broad, imprecise submissions have been made with respect to each of the provisions identified above.
82. Sections 577 and 578 comprise broad provisions as to how the FWC must perform its functions and powers under the FW Act. Both sections do not appear capable of giving rise to a claim of breach of statutory duty. Further, even if they did, the immunity under s 580 applies and the applicant has not articulated at all in his evidence or submissions, how he claims they have been breached.
83. Section 581 prescribes the President’s functions generally and s 581A concerns the President’s powers to deal with a complaint. Again the applicant did not articulate with any degree of particularity how the Act has been breached with respect to either of these sections. In handling the applicant’s complaints, the FWC President is immune from suit by the operation of s 584B(1). Furthermore, there is nothing in s 581A (or elsewhere in the FW Act) which required the FWC or FWC President to give the applicant a copy of the outcome of his complaints. Section 581A(2)(a)(i) gives the President a broad discretion to dismiss a complaint. In any event, the evidence revealed that the applicant was given a copy of the outcome of his complaints.
84. Section 674 is an offence provision relating to the conduct of “persons” towards a FWC Member. It is a provision that relates to the conduct of persons other than the FWC or its Members. The applicant can derive no claim under it with respect to purported conduct by the FWC or a FWC Member towards him. Section 676 concerns the intimidation of a person who gives or proposes to give information or documents to the FWC. When asked as to what the intimidation comprised the applicant submitted that “they” put “emphasis on what the judge was saying rather than taking notice of [his] submission and what [he] was saying” and the “who” were said to be persons the applicant could provide no specificity but stated without any particular reference, that they were those persons referred to by Mr Nagan in his affidavit.
85. Accordingly, the applicant’s claims show no reasonable prospect of being successfully prosecuted nor disclose a reasonable cause of action.

Conclusion

86. For these reasons, the applicant’s interlocutory application for leave is refused and the respondent’s interlocutory application for summary judgment under s 31A(2) of the FCA Act is upheld.
87. The respondent seeks its costs, as agreed or assessed. It is noted that s 570 of the FW Act applies at least with respect to part of the application. As a consequence, any application will need to be considered with the benefit of submissions and be determined separately on the papers.

Associate:

Dated: 25 October 2022