PRACTICE AND PROCEDURE - application to strike out pleadings pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) - applicable principles for striking out a pleading for not disclosing a reasonable cause of action discussed - applicable principles on the grant of leave to re-plead discussed - requirement that material facts be stated - circumstances where pleading may be struck out as evasive, ambiguous or embarrassing discussed - particulars not a substitute for the requirement to plead material facts
HIGH COURT AND FEDERAL COURT - whether given the terms of s 49B of the Australian Human Rights Commission Act 1986 (Cth) ("AHRCA"), the Federal Court has jurisdiction under s 46PO(1) in relation to conduct which is an offence - where a pleading alleges victimisation pursuant to s 51 of the Age Discrimination Act 2004 (Cth) or s 94 of the Sex Discrimination Act 1984 (Cth) - where such conduct is the subject of a complaint of unlawful discrimination to the Australian Human Rights Commission and terminated by its President in accordance with s 46PH of the AHRCA
HIGH COURT AND FEDERAL COURT - where a pleading alleges accessorial liability pursuant to s 122 of the Disability Discrimination Act 1992 (Cth) ("DDA") in relation to alleged principal contraventions by a mediator appointed by the Court pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth) ("FCCA") - whether the immunity conferred on mediators by s 53C of that Act precludes a finding of principal contravention - consideration of the scope and policy rationale of the common law judicial immunity on which s 53C is based - the purpose of the immunity would be undermined if the immunity allowed curial examination of the conduct of mediators for the purpose of determining whether the conduct constituted civil unlawfulness - the conduct of a mediator, in the course of mediating, is not justiciable - there can be no finding of a principal contravention and thus accessorial liability could not be established - pleading struck out for disclosing no reasonable cause of action -leave to re-plead refused - scope and operation of s 53B of the FCCA discussed
HUMAN RIGHTS - where a pleading alleges discrimination in the provision of a service pursuant to s 24 of the DDA in relation to the conduct of opposing parties, including opposing lawyers, in a mediation - whether services provided by those persons "to" the alleged victim within the meaning of s 24(c) of DDA - proper construction of s 24 of DDA discussed - the existence of a legal obligation is not required, however a sufficient nexus between the provider of services and the recipient is required for the provision to be made "to" the recipient - that a person may be assisted, advantaged or take some benefit from the provision of a service is not of itself sufficient - the reach of s 24 is confined to protecting those persons who are the subject of the provision of goods, services or facilities and does not extend to persons who happen to be advantaged merely as an incident of the provision of a good, service or facility by one person to another - whether parties and their lawyers, by virtue of the nature of mediation alone, provide services "to" opposing parties - nature of a mediation does not impose any obligation on a lawyer to serve an opposing party and any assistance, benefit or advantage received by an opposing party is not provided by the lawyer "to" the opponent but is merely an incident of the provision of a service by the lawyer to his or her own client - pleading struck out for disclosing no reasonable cause of action - leave to re-plead refused
HUMAN RIGHTS - where a pleading alleges direct discrimination pursuant to s 24 of the DDA - meaning of "adjustment" discussed - proper pleading of a contravention of s 24(c) needs to identify with sufficient precision the act or acts of adjusting that were not made by the alleged discriminator for the alleged victim so as to avoid the alleged victim being treated less favourably on the grounds of her disability - material facts need to be pleaded as to why "the effect" was "because" of or brought about by the alleged disability - not necessary to plead the reason why the "adjustment" that should have been made was reasonable
HUMAN RIGHTS - where a pleading alleges indirect discrimination in the provision of legal services in a mediation pursuant to s 24 of the DDA - requirement that a "condition" be facially neutral, ie of general application - where conditions of general application are pleaded - where no material facts pleaded or are available to establish that the alleged imposition of conditions are of general application - whether the pleading is embarrassing - where the pleaded conditions of general application amount to professional misconduct - whether the pleading is scandalous -pleading struck out for being embarrassing and scandalous - leave to re-plead refused
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