Shipwrecked

In Bank of Queensland v Fahy [2025] WASC 180 the WA Supreme Court considered a self-represented litigant's pseudolaw argument in litigation over a mortgage gone wrong. 

The Court states 

In conducting the hearing and determining the Application, I was, and am, mindful that Mr Fahy is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules. 

The court is required to approach the documents in which he articulates his case with some flexibility. The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form. A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'. 

One 'abiding difficulty' faced by the court is 'the tension between the duty of a ... judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'. The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing. The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained. 

It goes on to note that

 The terms of the Mortgage and Memorandum relevantly included that if an event of default occurs BOQ shall serve any notice required by law, and if such notice (if any) has not been complied with then:

(a) the moneys owed to BOQ shall immediately become due and payable; and 

(b) in addition to any other powers conferred on BOQ, BOQ can do anything that BOQ can lawfully do in respect of the Land as if it was the absolute owner of the Land including any of the following: (i) take possession of the Land; (ii) evict Mr Fahy from the Land; (iii) sell the Land; and (iv) exercise any power or right conferred under the Mortgage or Loan Agreement or the law at the time. 

Further, the Mortgage and Memorandum empowered BOQ to recover from Mr Fahy any reasonable costs incurred by BOQ which are reasonable to the exercise of its powers under the Mortgage.

In considering the argument it states 

Does Mr Fahy have an arguable defence to the claim? 

The burden then shifts to Mr Fahy to satisfy the court why judgment should not be given against him. This is an evidentiary burden, the overall legal burden of persuasion remaining on BOQ as the applicant. 

Specifically, Mr Fahy must satisfy the court 'with respect to the claim ... that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim'. Mr Fahy does not have to show a defence on the balance of probabilities, but he must at least show cause why there is an arguable defence. 

Mr Fahy has not filed a defence. I have carefully read the Fahy February Submissions, the Fahy May Submissions and all the other material before the court in which Mr Fahy says he sets out his defence (see [4] and [6]). In assessing these documents, at times Mr Fahy makes factual assertions which ought properly to have been the subject of affidavit evidence. I will take these assertions as submissions. Even with that indulgence, the documents relied on do not disclose anything resembling an arguable defence. 

The following paragraph is indicative of the arguments made:

i christopher-francis openly state the SUPREME COURT OF WESTERN AUSTRALIA HELD AT PERTH... is a maritime vessel that is “held” in dry dock. It is a trusteeship. This vessel is flagged under THE COMMONWEALTH OF AUSTRALIA which is a foreign corporate entity registered under USSEC CIK 0000805157 to the address 1601 Massachusets Avenue N.W C/O AUSTRALIAN EMBASSY WASHINGTON DC, 20036. The jurisdiction of the COMMONWEALTH OF AUSTRALIA is only the waters around the islands of Norfolk Island Christmas Island and the Cocos and Keeling Islands, and any trusts created by this entity. 

i christopher-francis openly state that land cannot be administered from the sea or a vessel from it and any attempt to do so is an act of piracy and robbery ashore.

The matters raised by Mr Fahy embody what courts have taken to refer to as 'pseudo-law'. Pseudo‑law is not law. Arguments of the type which Mr Fahy seeks to raise have been repeatedly rejected by this court, including when raised to resist enforcement of a mortgage. As Lemonis J observed in Moir:

In effect, the defendant seeks to construct a distinction between himself as a living person and his legal status or personality. That proposition has been routinely rejected by courts throughout Australia... The defendant's propositions do not provide any arguable defence or any basis upon which summary judgment should not be granted.

In Moir - ie Commonwealth Bank of Australia v Moir [2024] WASC 319 - the Court states

The defendant filed vast amounts of material in opposition to the application. These include the 377 page document that I have referred to at [17] above and a further 98 page document. Broadly speaking, the structure of these documents, and the arguments they seek to present, are not coherent. They are of little assistance in assessing whether summary judgment ought to be entered. 

It needs to be remembered that the court's role is to administer justice according to law. The presiding judge is not required to scour through vast reams of material put on by a party to make sure that there is no arguable defence or other reason why summary judgment should not be granted. It is contrary to the administration of justice for court resources to be used in such a way. 

That being said, where a person such as the defendant has strong views as to their perceived (lack of) legal identity, and places distinct emphasis on those views, it is important to ensure a possible defence is not obscured. Accordingly, during oral argument I had the defendant specifically address his complaints with the plaintiff's case against him. Further, separately to the matters raised by the defendant, I scrutinised the plaintiff's case to satisfy myself that the plaintiff was entitled to the relief it seeks. As I explain at [54] - [64] above, that scrutiny did reveal an error in the plaintiff's approach. However, that error is not fatal to the summary judgment application. 

It appears that the principal matters relied on by the defendant in opposition to the plaintiff's application are as follows. First, that the Supreme Court of Western Australia is a fiction. Second, that a Supreme Court Judge should not have heard the summary judgment application. Third, that the procedures implemented by the court in managing the summary judgment application were not appropriate. Fourth, a variant of what has been described as the pseudo-legal straw man theory. 

The Supreme Court is a fiction 

It is sufficient to deal with this aspect of the defendant's submissions by referring to s 6(1) of the Supreme Court Act 1935 (WA). It provides: The previously established court called the Supreme Court of Western Australia continues in existence for the State of Western Australia. Section 6(1) acknowledges the existence of the Supreme Court of Western Australia and provides that the court continues in existence. 

Accordingly, the submission that the Supreme Court of Western Australia is a fiction is unarguable. 

Whether the application should not have been heard by a judge of the court 

The defendant submitted the summary judgment application should have been referred to an independent referee consented to by both parties, for trial by jury. Pursuant to the rules of court I have set out at [20] - [21] above, the plaintiff was entitled to bring the application for summary judgment. The application, once brought, is to be heard in chambers in accordance with O 59. The Rules do not provide for the application to be heard before a jury or to be referred to a referee for disposition. Further, the defendant has not pointed to any arguable basis for the contention that the application should have been referred to arbitration, or to a hearing before a jury. 

Whether the correct procedures were followed in the case management of the proceedings 

The defendant objected to the prior involvement of a registrar in the case management of the proceedings. In that respect, a registrar made orders for substituted service of the writ of summons and, separately, of a form 36A notice necessary for the plaintiff to apply for default judgment. A registrar also issued a direction for a case management conference to be held on 30 October 2023. The defendant submits that a registrar does not have jurisdiction in respect of the proceeding because it is a proceeding under the TLA: see O 60A r 2(d)(i). However, while the proceeding pertains to land registered under the TLA, it is not a proceeding under the TLA. That is, it is not a proceeding brought pursuant to a provision of the TLA. Rather, it is a mortgage proceeding brought under O 4AA. 

In any event, the programming of the summary judgment application has been dealt with by a judge of the Supreme Court and I heard the application. Thus, a registrar of the court was not involved in the substantive disposition of the summary judgment application. 

The defendant complains about the registrars not permitting him to file certain documents. However, irrespective of whether that is the case, the defendant emailed substantive material to my associates prior to the final hearing of the application. Further, I received the 377 page document and the 98 page document, which were the principal documents relied on by the defendant during his oral submissions. It should be kept in mind that a party to proceedings does not have an unqualified right to file as much material as they want. 

The defendant also complains that the e-mail addresses the subject of the orders for substituted service were not his e-mail addresses. Irrespective of whether that is the case, the purpose of substituted service is to bring the Writ of Summons to the attention of the relevant defendant. That clearly happened, given a conditional appearance was subsequently filed. 

Accordingly, the complaints regarding the procedures adopted in dealing with the summary judgment application do not provide any arguable basis for me to decline to order summary judgment. 

Living man theory 

During the hearing of the application, I said to the defendant:  What I want you to do is to let me know if you have any submissions that are directed to the plaintiff's claim against you.

In response, the submission was made that:

Well, it's not my name. That's the whole fact. There was no disclosure, or full disclosure, at the start of the contract and that's why it is void [ab] initio. ...

There was no disclosure of the living man signing for a fictitious entity. 

... The fact is the full disclosure of the name has never come up, and I've only found out about this over the last couple of years. So the fraud was perpetrated a long time ago and now that I found out what it is I'm holding them to account.

The defendant also submitted this constituted fraud and unconscionable conduct, and that the relevant contracts were made under a mistake of fact. 

The defendant also submitted that:[

... the plaintiff has supplied no evidence supporting that the capital-lettered entity, Supreme Court of Western Australia, has any authority over or consent from the defendant, nor the living man, Glenn Desmond, acting in the capacity of executor of the named entity, Glenn Desmond Moir.

In effect, the defendant seeks to construct a distinction between himself as a living person and his legal status or personality. That proposition has been routinely rejected by courts throughout Australia. The defendant's propositions do not provide any arguable defence or any basis upon which summary judgment should not be granted. 

Also, the defendant's position does not sit consistently with his behaviour in respect of other properties owned by him. Mr Ralston's affidavit sets out that another of the defendant's properties was mortgaged to the plaintiff. In respect of that property, the defendant entered into a contract of sale, which he signed. Upon the sale being effected in accordance with that contract, the moneys owing to the plaintiff under the mortgage were paid out and the defendant received a surplus of $739,306.61. By acting in that way, the defendant effectively acknowledged his legal status in his dealings with the plaintiff. The defendant cannot pick and choose when he is regarded as a legal person. 

Additional matters 

The defendant also complained that the plaintiff did not provide him with 'wet-ink signed contracts'. 

The defendant's submission that '[t]here was no disclosure of the living man signing for a fictitious entity' ([87] above), implicitly accepts that he signed the relevant documents relied on by the plaintiff. Furthermore, as I have said at [28] above, Mr Di Gregorio in his affidavit that attached those documents described them as 'true copies'. That is sufficient for the documents to be received into evidence. 

The defendant also sought to have the transcripts amended because they referred to the person attending as 'Mr Moir'. As I have explained at [90] above, the courts do not accept the proposition that there is a delineation between a living person and their legal status or personality. That being so, the designation in the transcript is correct.

ADA

The NSW Law Reform Commission discussion paper on its review of the Anti-Discrimination Act 1977 (NSW) (ADA) reflects Terms of Reference regarding 

1. whether the Act could be modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards 

2. whether the range of attributes protected against discrimination requires reform 

3. whether the areas of public life in which discrimination is unlawful should be reformed 

4. whether the existing tests for discrimination are clear, inclusive and reflect modern understandings of discrimination 

5. the adequacy of protections against vilification, including (but not limited to) whether these protections should be harmonised with the criminal law 

6. the adequacy of the protections against sexual harassment and whether the Act should cover harassment based on other protected attributes 

7. whether the Act should include positive obligations to prevent harassment, discrimination and vilification, and to make reasonable adjustments to promote full and equal participation in public life 

8. exceptions, special measures and exemption processes 

9. the adequacy and accessibility of complaints procedures and remedies 

10. the powers and functions of the Anti-Discrimination Board of NSW and its President, including potential mechanisms to address systemic discrimination 

11. the protections, processes and enforcement mechanisms that exist in other Australian and international anti-discrimination and human rights laws, and other NSW laws 

12. the interaction between the Act and Commonwealth anti-discrimination laws 

13. any other matters the Commission considers relevant to these Terms of Reference. 

 The Commission states 

 This is the first of two consultation papers in which we will invite you to share your views on the Anti-Discrimination Act 1977 (NSW) (ADA). In this paper, we consider issues relating to the tests for discrimination, who is protected, the areas in which discrimination is prohibited and exceptions. We also consider harassment, civil vilification and other unlawful acts, as well as liability and measures to promote substantive equality. We ask if any of these aspects of the ADA should change and, if so, how. 

Next steps 

The NSW Attorney General has asked us to review the Anti-Discrimination Act 1977 (NSW) (ADA). Among other things, we have been asked to consider whether the ADA “could be modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards”. 

... In this consultation paper, we focus on the conduct that is (or should be) unlawful under the ADA. In summary, we seek your views on: • the types of acts and conduct that should be prohibited, and the circumstances in which the prohibitions should apply • the people and groups who should be entitled to the ADA’s protections • the people and organisations who should be held responsible for unlawful conduct, and when (if ever) their actions should be exempt from the ADA, and • whether the ADA should do more to promote substantive equality. 

Our second consultation paper will consider the procedural aspects of the ADA, including complaint pathways, enforcement options, remedies and options for preventing unlawful conduct. 

Background to this review 

The ADA was groundbreaking when it was enacted almost 50 years ago. As the first broad discrimination Act in Australia, it prohibited discrimination based on race, sex and marital status. When the legislation was introduced into the NSW Parliament, the Premier said “I am confident that this legislation is the most enlightened, and will be the most effective, legislation in this field in Australia”. 

Much has changed in NSW since 1977. By the 1990s, there were concerns that the ADA had not stood the test of time. This led to the NSW Government asking the NSW Law Reform Commission (NSWLRC) to review the ADA in 1991. As the NSWLRC explained in it its final report:

The legislation as it currently exists tends to reflect the political and social climate at the time of its enactment. Although the ADA has been amended several times to reflect changing community values, these amendments have been piecemeal. ... Taking into account the length of time that has elapsed since the introduction of the ADA, and the law’s inability to deal once and for all with constantly evolving social, political and legal conditions, it is appropriate that there be a comprehensive review of the legislation. 

Our predecessors’ 8-year review of the ADA was indeed comprehensive. The NSWLRC’s 1999 report made 161 recommendations and contained a Draft Anti- Discrimination Bill. While some recommendations were implemented, most were not. 

In the years since 1999, there have been many changes to discrimination laws across Australia. Other states and territories have reviewed their discrimination laws. Some of these reviews have led to significant legislative reform. There have been developments in employment law and reviews of discrimination laws at the federal level too. 

In 2021, there were renewed calls by community and legal groups for a comprehensive review of the ADA. In announcing this review in 2023, the NSW Attorney General recognised that: There have been monumental shifts in society, demographics and attitudes since the Act came into force nearly half a century ago. … It is essential to conduct reviews of this nature to ensure our laws represent who we are today as a community. 

It could still be said, as the NSWLRC did in 1999, that many aspects of the ADA continue to “reflect the political and social climate at the time of its enactment”. In addition to concerns about its substantive content, many believe the ADA uses outdated and offensive language, and its style and structure is difficult for the community to navigate. 

Our role in this review is to examine the ADA thoroughly and, where necessary, make recommendations to ensure that this law serves our community effectively

The Commission's questions are 

3. Tests for discrimination 

Question 3.1: Direct discrimination Could the test for direct discrimination be improved or simplified? If so, how? 

Question 3.2: The comparative disproportionate impact test Should the comparative disproportionate impact test for indirect discrimination be replaced? If so, what should replace it? 

Question 3.3 Indirect discrimination and inability to comply What are your views on the “not able to comply” part of the indirect discrimination test? Should this part of the test be removed? Why or why not? 

Question 3.4: Indirect discrimination and the reasonableness standard (1) Should the reasonableness standard be part of the test for indirect discrimination? If not, what should replace it? (2) Should the ADA set out the factors to be considered in determining reasonableness? Why or why not? If so, what should they be? 

Question 3.5: Indirect discrimination based on a characteristic Should the prohibition on indirect discrimination extend to characteristics that people with protected attributes either generally have or are assumed to have? 

Question 3.6: Proving indirect discrimination (1) Should the ADA require respondents to prove any aspects of the direct discrimination test? If so, which aspects? (2) Should the ADA require respondents to prove any aspects of the indirect discrimination test? If so, which aspects? 

Question 3.7: Direct and indirect discrimination (1) How should the relationship between different types of discrimination be recognised? (2) Should the ADA retain the distinction between direct and indirect discrimination? Why or why not? 

Question 3.8: Intersectional discrimination (1) Should the ADA protect against intersectional discrimination? Why or why not? (2) If so, how should this be achieved? 

Question 3.9: Intended future discrimination Should the tests for discrimination capture intended future discrimination? Why or why not? If so, how could this be achieved? 

4. Discrimination: protected attributes 

Question 4.1: Age discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “age”? (2) What changes, if any, should be made to the age-related exceptions? 

Question 4.2: Discrimination based on carer’s responsibilities (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “responsibilities as a carer”? (2) Should the ADA separately protect against discrimination based on someone’s status of being, or not being, a parent? 

Question 4.3 Disability discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “disability”? (2) Should a new attribute be created to protect against genetic information discrimination? Or should this be added to the existing definition of disability? (3) What changes, if any, should be made to the public health exception? 

Question 4.4: Discrimination based on homosexuality What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “homosexuality”? 

Question 4.5: Discrimination based on marital or domestic status What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “marital or domestic status”? 

Question 4.6: Racial discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “race”? (2) Are any new attributes required to address potential gaps in the ADA’s protections against racial discrimination? 

Question 4.7: Sex discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “sex”? (2) Should the ADA prohibit discrimination based on pregnancy and breastfeeding separately from sex discrimination? 

Question 4.8: Discrimination on transgender grounds What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “transgender grounds”? 

Question 4.9: Extending existing protections (1) Should the ADA protect people against discrimination based on any protected attribute they have had in the past or may have in the future? (2) Should the ADA include an attribute which protects against discrimination based on being a relative or associate of someone with any other protected attribute? 

5. Discrimination: potential new protected attributes 

Question 5.1: Guiding principles What principles should guide decisions about what, if any, new attributes should be added to the ADA? 

Question 5.2: Potential new attributes (1) Should any protected attributes be added to the prohibition on discrimination in the ADA? If so, which what should be added and why? (2) How should each of the new attributes that you have identified above be defined and expressed? (3) If any of new attributes were to be added to the ADA, would any new attribute- specific exceptions be required? 

Question 5.3: An open-ended list Should the list of attributes in the ADA be open-ended to allow other attributes to be protected? Why or why not? 

6. Discrimination: Areas of public life 

Question 6.1: Discrimination at work — coverage (1) Should the definition of employment include voluntary workers? Why or why not? (2) Should the ADA adopt a broader approach to discrimination in work, like the way the Sex Discrimination Act 1984 (Cth) approaches harassment? Why or why not? (3) Should local government members be protected from age discrimination while performing work in their official capacity? Why or why not? 

Question 6.2: Discrimination in work — exceptions What changes, if any, should be made to the exceptions to discrimination in work? 

Question 6.3: Discrimination in education (1) What changes, if any, should be made to the definition and coverage of the protected area of “education”? (2) What changes, if any, should be made to the exceptions relating to: (a) single-sex educational institutions, and (b) disability and age discrimination in educational institutions? 

Question 6.4: The provision of goods and services — coverage What changes, if any, should be made to the definition and coverage of the protected area of “the provision of goods and services”? 

Question 6.5: Superannuation services and insurance exceptions What changes, if any, should be made to the exceptions applying to insurance and superannuation? 

Question 6.6: The provision of goods and services — exceptions What changes, if any, should be made to the exceptions to sex, age and disability discrimination in relation to the provision of goods and services? 

Question 6.7: Discrimination in accommodation — coverage What changes, if any, should be made to the definition and coverage of the protected area of “accommodation”? 

Question 6.8: Discrimination in accommodation — exceptions What changes, if any, should be made to the exceptions for private households, age-based accommodation and charitable bodies in relation to discrimination in accommodation? 

Question 6.9: Discrimination by registered clubs — coverage What changes, if any, should be made to the definition and coverage of the protected area of “registered clubs”? 

Question 6.10: Discrimination by registered clubs — exceptions What changes, if any, should be made to the exceptions for registered clubs in relation to sex, race, age and disability discrimination? 

Question 6.11: Discrimination based on carer’s responsibilities (1) Should discrimination based on carer’s responsibilities be prohibited in all protected areas of public life? If not, what areas should apply and why? (2) In general, should discrimination be prohibited in all protected areas for all protected attributes? Why or why not? 

Question 6.12: Additional areas of public life (1) Should the ADA apply generally “in any area of public life”? Why or why not? (2) Should the ADA specifically cover any additional protected areas? Why or why not? If yes, what area(s) should be added and why? 

7. Wider exceptions 

Question 7.1: Religious personnel exceptions (1) Should the ADA provide exceptions for: (a) the training and appointment of members of religious orders? (b) “the appointment of any other person in any capacity by a body established to propagate religion”? (2) If so, what should these exceptions cover and when should they apply? 

Question 7.2: Other acts and practices of religious bodies Should the ADA provide an exception for other acts or practices of religious bodies? If so, what should it cover and when should it apply? 

Question 7.3: Exceptions for other forms of unlawful conduct Should the general exceptions for religious bodies continue to apply across the ADA, including to all forms of unlawful conduct under the Act? 

Question 7.4: Exceptions for providers of adoption services Should the ADA have a specific exception for providers of adoption services? If so, what should it cover and when should it apply? 

Question 7.5: Private educational authorities employment exceptions (1) Should the ADA contain exceptions for private educational authorities in employment? Should these be limited to religious educational authorities? (2) If you think the Act should provide exceptions in this area: (a) what attributes should the exceptions apply to? (b) what requirements, if any, should duty holders meet before an exception applies? (a) what attributes should the exceptions apply to? (b) should they apply to prospective students, existing students, or both? (c) what requirements, if any, should duty holders meet before an exception 

Question 7.6: Discrimination against students and prospective students (1) Should the ADA contain exceptions for private educational authorities in education? Should these be limited to religious educational authorities? (2) If you think it is necessary for the ADA to provide exceptions in this area: applies? 

Question 7.7: Exceptions relating to sport Should the ADA provide exceptions to discrimination or vilification in sport? If so, what should they cover and when should they apply? 

Question 7.8: The charities exception Should the ADA provide exceptions relating to charitable benefits? If so, what should they cover and when should they apply? 

Question 7.9: Voluntary bodies exception Should the ADA provide an exception for voluntary bodies? If so, what should it cover and when should it apply? 

Question 7.10: Aged care accommodation providers exception Should the ADA provide an exception for aged care accommodation providers? If so, what should it cover and when should it apply? 

Question 7.11: The statutory authorities exception Should the ADA provide an exception for acts done under statutory authority? If so, what should it cover and when should it apply? 

8. Civil protections against vilification 

Question 8.1: Protected attributes (1) What changes, if any, should be made to the way the ADA expresses and defines the attributes currently protected against vilification? (2) Should the ADA protect against vilification based on a wider range of attributes? If so, which attributes should be covered and how should these be defined? 

Question 8.2: The test for vilification (1) Should NSW adopt a “harm-based” test for civil vilification? If so, should this replace or supplement the existing “incitement-based” test? (2) What, if any, other changes should be made to the incitement-based test for civil vilification? 

Question 8.3: The definition of “public act” What changes, if any, should be made to the definition of “public act” in the test for vilification in the ADA? 

Question 8.4: Exceptions What changes, if any, should be made to the exceptions to the vilification protections in the ADA? 

Question 8.5: Religious vilification What changes, if any, should be made to the protection against religious vilification in the ADA? 

9. Harassment 

Question 9.1: The definition of sexual harassment (1) Should the reasonable person test be expanded to include the “possibility” of offence, intimidation or humiliation? Why or why not? (2) Should the ADA expressly require consideration of an individual’s attributes, or the relationship between the parties, in determining whether a person would be offended, humiliated or intimidated by the conduct? Why or why not? (3) Does the ADA need to define “conduct of a sexual nature”? Why or why not? 

Question 9.2: Other sex-based conduct (1) Should harassment on the ground of sex be expressly prohibited by the ADA? Why or why not? (2) Should the ADA prohibit workplace environments that are hostile on the ground of sex? Why or why not? (3) Are there any other options or models to prohibit conduct which may fall in the gap between sex discrimination and sexual harassment? What could be the benefits of these options? 

Question 9.3: Sexual harassment in the workplace Should the ADA adopt the Sex Discrimination Act’s approach of prohibiting sexual harassment in connection with someone’s status as a worker or person conducting a business or undertaking? Why or why not?  (a) areas of life that are protected from discrimination (b) all areas of public life, or (c) any area of life, public or private? 

Question 9.4: Workplace-related laws regulating sexual harassment (1) Are workplace-related sexual harassment laws and the ADA currently working well together, in terms of the definitions of sexual harassment? (2) Should the ADA and workplace-related sexual harassment laws be more aligned? 

Question 9.5: Expanding the areas of life where sexual harassment is prohibited (1) Should the ADA continue to limit the areas of life where sexual harassment is unlawful? Why or why not? (2) Should sexual harassment be unlawful in other areas of life? For example: 

Question 9.6: The private accommodation exception Should sexual harassment be prohibited in private accommodation? Why or why not? If an exception for private accommodation is required, how wide should it be? 

Question 9.7: Attribute-based harassment If the ADA was to prohibit attribute-based harassment, which attributes and areas should it cover? 

10. Other unlawful acts and liability 

Question 10.1: Victimisation (1) Should the prohibition of victimisation in the ADA expressly extend to situations where a person threatens to victimise someone? Why or why not? (2) Should the ADA provide that victimisation is unlawful even if it was done for two or more reasons? If so, how best could this be achieved? 

Question 10.2: Advertisements Should it be a defence to publishing an unlawful advertisement that the person reasonably believed publication was not unlawful? Why or why not? 

Question 10.3: The forms of liability What, if any, concerns or issues are raised by the ADA’s approach to the various forms of liability? 

Question 10.4: The exceptions for liability Should the ADA continue to provide two exceptions to vicarious liability (that is, the “reasonable steps” and “unauthorised acts” exceptions)? Or is a single “reasonable steps” exception sufficient? 

Question 10.5: Liability and artificial intelligence Does the use of AI challenge the ADA’s approach to liability? If so, how could the ADA be amended to address this? 

11. Promoting substantive equality 

Question 11.1: Adjustments (1) Should the ADA impose a duty to provide adjustments? If so, what attributes should this apply to? (2) Should this be a separate duty, form part of the tests for discrimination, or is there another preferred approach? (3) Should a person with a protected attribute first have to request an adjustment, before the obligation to provide one arises? 

Question 11.2: Special measures (1) Should the ADA generally allow for special measures? Why or why not? (2) If so, what criteria for a special measure should the ADA apply? (3) If a general special measures section is added to the ADA, should it replace the existing exemption and certification processes? Why or why not? 

Question 11.3: A positive duty to prevent or eliminate unlawful conduct (1) Should the ADA include a duty to take reasonable and proportionate measures to prevent or eliminate unlawful conduct? Why or why not? (2) If so: (a) What should duty holders be required to do to comply with the duty? (b) What types of unlawful conduct should the duty cover? (c) Who should the duty holders be? (d) What attributes and areas should the duty apply to?.

Reasons, Reading and Writing

In Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 Bell CJ and Jirk JA state 

[1] The appellant, Dr Albina Della Bruna (the appellant), prescribed and dispensed human growth hormone (HGH) to ten patients in the period June 2017 to November 2019, doing so “off-label” for reasons said to be connected to fatigue and ageing. The Health Care Complaints Commission (the Commission) brought a complaint in the Occupational Division of the NSW Civil & Administrative Tribunal alleging that this conduct, together with inadequate record keeping, constituted unsatisfactory professional conduct and professional misconduct for the purposes of the Health Practitioner Regulation National Law (NSW) 2009 (the Law). A majority of the Tribunal, writing jointly, concluded that the appellant had engaged in such professional misconduct. The majority was comprised of the two senior members of the Tribunal, who are doctors, along with a general member (the Majority). The presiding principal member of the Tribunal, Ian Coleman SC ADCJ, dissented, and would have found the appellant guilty of unsatisfactory professional conduct only. The remedial “stage 2” hearing is yet to take place. 

[2] The appellant has appealed. She has a right to do so on questions of law and may seek leave to do so on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, cl 29(4)(b). 

[3] Her amended notice of appeal raised many grounds, but as oral argument was developed particular attention was directed to the following issues: whether the Majority denied the appellant procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH (ground 5(a)); whether the Majority erred in rejecting the appellant’s oral evidence regarding her prescribing to and management of patients, and thereby reversed the onus of proof, constructively failed to exercise jurisdiction, denied procedural fairness and gave inadequate reasons (grounds 2, 4, 5(b) and 6, noting those grounds also raised other issues); whether the Majority erred in fact in finding that the appellant did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed HGH (ground 7, noting leave to appeal is required for this ground). 

[4] Success on any one of these issues would be sufficient to uphold the appeal. In our view the appellant should succeed on all three. It is unnecessary to address the remainder of the issues and grounds raised. The matter should be remitted to a differently constituted Tribunal. 

[5] One further significant point should also be noted at the outset. Although many grounds of appeal were raised, there was no ground relating to how both the Majority and the presiding member of the Tribunal directed themselves as to the meaning of professional misconduct. Given the importance of the topic, the Tribunal’s approach should not be left unremarked. The Majority (at [356]) followed the presiding member (at [263]) in considering that this issue turned on a standard articulated by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. Yet Kirby P’s discussion related to a past statutory scheme involving a different criterion. Under the Law the notion of “professional misconduct” is defined in s 139E. It means, in short, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration (which can be established by the cumulative effect of more than one instance of unsatisfactory professional conduct). The notion of “unsatisfactory professional conduct” is itself defined in s 139B of the Law in relation to registered health practitioners generally, as added to by s 139C with respect to medical practitioners. I: ... 

 Reviewing reasons 

[9] When hearing complaints against medical practitioners the Tribunal is required to be constituted by a member of the Occupational Division of the Tribunal who is a senior judicial officer (as defined in s 165), two health practitioners selected for appointment by the relevant Council who are registered in the same health profession as the practitioner in question, and one lay person: Law, s 165B(2); CAT Act, Sch 5, cll 12-13. If the members are evenly divided on a decision (other than a decision of law) then the opinion of the presiding, legal member prevails: CAT Act, s 57(3)(a). Otherwise, for such non-legal decisions, the opinion of the majority prevails: CAT Act, s 57(1). For the Tribunal to be divided in opinion, and for the presiding judicial member to be in dissent, is relatively unusual in disciplinary matters. However, it is appropriate and important that all members diligently come to their own views. 

[10] It is also appropriate that when a court comes to review reasons given by members of the Tribunal who are not lawyers, that characteristic is borne in mind. In its submissions the Commission quoted a statement that a specialist tribunal “consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of ‘a Brennan’ or display the verve and reasoning power of ‘a Denning’”: Seablest Pty Ltd v Smith (1996) 91 LGERA 1 at 4. So much may be accepted. Compressed reasoning, unusual structuring, infelicities of language, inaccurate use of legal phrases, or such like may simply reflect the nature, training and experience of the author. 

[11] Nevertheless, medical and lay members of the Tribunal are still required to give legally adequate reasons. Section 165M of the Law requires the Tribunal to “give a written statement of the decision”, which statement must set out any findings on material questions of fact, refer to any evidence or other material on which the findings were based, and give the reasons for the decision. Failure to give adequate reasons may suffice to uphold an appeal in such matters: eg Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCA 353 at [128]-[151]. The reasons must be sufficient to enable a court to see whether the opinion does or does not involve any error of law: note analogously Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54]; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [71]-[73]. Given the serious nature of the issues and the potential consequences, there may be little difference in substance from the duty of a court to give reasons: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [55]. 

[12] The Commission sought to emphasise the oft-cited approval by a plurality of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 of statements by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. The plurality in the High Court said (at 272, citations omitted):

it was said [in Pozzolanic] that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” 

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [citing McAuliffe].

[13] Justice Kirby made similar points in Liang at 291, also citing Pozzolanic. As his Honour said there: “The reasons under challenge must be read as a whole. They must be considered fairly”. The plurality’s judgment in Liang is consistent with taking that approach (see eg at 280). 

[14] In Pozzolanic the statement (at 287) about avoiding an “eye keenly attuned to the perception of error” was itself supported by a reference to an earlier judgment of Lockhart J in Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708. It is worth noting what his Honour then went on to say in that case after having deployed that phrase (ibid):

the court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole.

[15] Consistently with approaching the task in a sensible and balanced way, a beneficial approach to reasons does not demand that any ambiguity be resolved in favour of the decision-maker: see SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J); approved eg Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; (2015) 73 MVR 211 at [26]; Minister for Home Affairs v Ogawa (2019) 269 FCR 536; [2019] FCAFC 98 at [116]. 

[16] The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. For example, it is not for the Court to fill gaps in reasons by speculating about what further unarticulated considerations, if any, lie behind what the decision-maker said. The Court’s duty is to read the reasons fairly and as a whole, making do allowance (where relevant) for the fact that the authors are not lawyers accustomed to writing in a legal manner.

In Seablest Pty Ltd T/A Salamanca Executive Suites v v R and J J Smith, G L and W Lowman, R and J Upcher, B Ambrose, G and M Casimaty and Hobart City Council [1996] TASSC 39 Slicer J stated 

[10]. A specialist Tribunal consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of "a Brennan" or display the verve and reasoning power of "a Denning". It is inappropriate to examine the published reasons in order to expose an unskilled formulation or to undertake an over zealous exercise in reviewing the language used (Branson v Repatriation Commission [1991] FCA 459; (1991) 23 ALD 600). The question is whether the Tribunal discloses its reasoning process which led it to its conclusion (Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500) and in the words of Underwood J in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262, the test requires that the reasons: "... must be sufficient to enable the parties to ascertain what facts were found, which of the arguments ... were accepted and which were rejected and what law was applied to arrive at the ultimate determination."