Kelly v Commonwealth of Australia as represented by Services Australia (formerly the Department of Human Services) [2023] FCA 69

FEDERAL COURT OF AUSTRALIA

Kelly v Commonwealth of Australia as represented by Services Australia (formerly the Department of Human Services) [2023] FCA 69 File number(s): NSD 1487 of 2019

Judgment of: FARRELL J

Date of judgment: 8 February 2023

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for orders striking out parts of pleadings pursuant to rule 16.21(1)(e) and/or (d) of the Federal Court Rules 2011 (Cth) or for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and for the question of liability to be heard separately from the question of damages pursuant to rule 30.01(1) of the Federal Court Rules 2011 – interlocutory application dismissed HUMAN RIGHTS – discrimination – where applicant claims declarations, general and aggravated damages and a civil penalty for contraventions of the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Fair Work Act 2009 (Cth) and relevant enterprise agreement (EA) – where the Australian Human Rights Commission (AHRC) terminated complaint – where applicant was a Commonwealth employee – whether a student on placement as part of mandatory practical experience towards a Bachelor of Social Work degree was an employee or agent of the Commonwealth – whether the jurisdiction conferred by s 46PO of the Australian Human Rights Commission Act 1986 (Cth) constrains the availability of aggravated damages to conduct the subject of the complaint to the AHRC or in the manner of conduct of proceedings relating to the complaint – whether EA was contravened – whether damages or a civil penalty can be awarded for non-economic loss occasioned by breach of the EA

Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 3, 46PO Disability Discrimination Act 1992 (Cth) ss 4, 14, 15, 122, 123 Fair Work Act 2009 (Cth) ss 22, 50, 90, 117, 545, 546 Federal Court of Australia Act 1976 (Cth) ss 31A, 37M Federal Court Rules 2011 (Cth) rr 16.21(1), 30.01(1) Public Service Act 1999 (Cth) ss 20, 29 Sex Discrimination Act 1984 (Cth) s 4, 14, 105, 106 Trade Practices Act 1974 (Cth) s 84 Anti-Discrimination Act 1977 (NSW)