Delpachitra v University of Technology Sydney [2023] FCA 18

Federal Court of Australia

Delpachitra v University of Technology Sydney [2023] FCA 18 File number: SAD 124 of 2020

Judgment of: O'SULLIVAN J

Date of judgment: 20 January 2023

Catchwords: PRACTICE AND PROCEDURE — Interlocutory application by applicant under r 16.53 of Federal Court Rules 2011 (Cth) (Rules) for leave to file a second further amended statement of claim (SFASOC) — where applicant brings claims under Racial Discrimination Act 1975 (Cth) (RD Act), Age Discrimination Act 2004 (Cth) (AD Act) and the Fair Work Act 2009 (Cth) (FWA) concerning circumstances surrounding non-renewal of employment with respondent in position based at Shanghai University, Shanghai, China — where applicant seeks compensation including for loss of base salary under alleged employment contract with Shanghai University — where applicant has had prior opportunities to address appropriate pleading of his case — where critical paragraphs in SFASOC alleging breaches of RD Act, AD Act and FWA ambiguous in that not clear how pleadings of matters of law relate to accompanying paragraphs which applicant submits particularise allegations of breach — order refusing leave to file a SFASOC

Legislation: Age Discrimination Act 2004 (Cth), ss 14, 18(1)(a)-(c) & (2)(a) & (d), 56, 57 Australian Human Rights Commission Act 1986 (Cth), ss 46PR, 49PH(1B)(b) Fair Work Act 2009 (Cth), ss 3, 50, 171 Federal Court Rules 2011 (Cth), rr 16.02(2)(d), 16.53 Racial Discrimination Act 1975 (Cth), ss 9(1), 9(1A), 15(1)(a) & (b) and (2)

Cases cited: Amcor Ltd Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2022] FCAFC 50 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 Delpachitra v University of Technology Sydney [2022] FCA 22 Kucks v CSR Ltd (1996) 66 IR 182 Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCA 152 Wotton & Ors v Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146