CPX26 v State of New South Wales - Interlocutory Orders Dismissed, Non-Publication Allowed

Original Word Document (123.7 KB) Federal Court of Australia

CPX26 v State of New South Wales (Department of Communities and Justice Homes NSW) [2026] FCA 352

| File number(s): | NSD 2378 of 2025 |
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| Judgment of: | RAPER J |
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| Date of judgment: | 26 March 2026 |
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| Catchwords: | DISCRIMINATION LAW – application for interlocutory orders directing respondent to relieve the first applicant from a current lease for social housing, to provide other temporary housing and to prioritise permanent housing amongst other orders – whether there is a serious question to be tried with respect to the applicants’ claims of disability discrimination under the Disability Discrimination Act 1992 (Cth) – whether the balance of convenience favours the grant of interlocutory relief – application dismissed

PRACTICE AND PROCEDURE – application for non-publication, suppression and pseudonym orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) –whether orders are necessary to protect safety of any person – application allowed in part |
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| Legislation: | A ustralian H uman R ights C ommission Act 1986 (Cth), ss 46PO, 46PO(3), 46PO(4)

D isability D iscrimination A ct 1992 (Cth), ss 5, 5(1), 5(2), 6, 11, 25, 25(1), 25(2), 25(3), 42, 58A, 58A(2)(a), 58A(2)(b), 58A(2)(c), 58A(2)(d), 58A(2)(e), 58A(2)(f), 58A(2)(g),

Federal Court of Australia Act 1976 (Cth), Part VAA, ss 23, 37AA, 37AE, 37AG, 37AG(1)(c), 37AF

Housing Act 2001 (NSW) |
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| Cases cited: | Aristocrat Technologies Australia Pty Ltd v Light & Wonder, Inc (No 2) [2025] FCA 64; 174 ACSR 1

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Australian Medical Council v Wilson (Siddiqui’s case) [1996] FCA 591; 68 FCR 46

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618

Bibawi v Australian Human Rights Commission [2021] FCA 1476

Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148

Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573

Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118

Hastwell v Kott Gunning [2017] FCA 1557

Ioannou v Commonwealth of Australia (Dept of Human Services) [2012] FCA 1228

Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221

Penhall-Jones v State of New South Wales [2007] FCA 925

Reurich v Savills (SA) Pty Ltd [2025] FCA 420

Samsung Electronics Co Ltd v Apple Limited [2011] FCAFC 156; 217 FCR 238

Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247

Taylor v Angus and Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1

Walker v State of Victoria [2011] FCA 258; 279 ALR 284

Walker v Victoria [2012] FCAFC 38 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 62 |
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| Date of hearing: | 24 March 2026 |
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| Counsel for the Applicants: | The first applicant appeared in person |
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| Solicitor for the Respondent: | Ms J Walshe, Department of Communities and Justice |
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ORDERS

| | | NSD 2378 of 2025 |
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| BETWEEN: | CPX26

First Applicant | |
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| | CRK26 | |
| | Second Applicant | |
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| AND: | STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITIES AND JUSTICE HOMES NSW)

Respondent | |

| order made by: | RAPER J |
| DATE OF ORDER: | 2 6 March 2026 |
THE COURT ORDERS THAT:

1. On the ground in section 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the first applicant be identified in all further documents filed in the proceeding and otherwise in the proceeding from the date of this order by the pseudonym CPX26.

2. On the ground in section 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the second applicant be identified in all further documents filed in the proceeding and otherwise in the proceeding from the date of this order by the pseudonym CRK26.

3. Prior to the determination of any third party request for access to any part of the Court file in this proceeding, the parties to this proceeding will be notified and given an opportunity to make submissions in opposition to access.

4. The applicants’ interlocutory application filed on 11 March 2026 seeking, amongst other things, injunctive relief against the respondent be dismissed.

5. There be no orders as to costs.

6. Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth) the proceedings be referred to mediation before a Judicial Registrar of the Court, to be conducted by 30 April 2026, and with the Judicial Registrar to give directions with respect to the manner in which the mediation is to be conducted. The Court notes that Registry is able to mediate this matter urgently in the week after Easter if the parties are available.

7. By Wednesday 1 April 2026, the respondent file and serve an affidavit containing a response from the respondent to Ms Myers’ report, detailing what alternative accommodation is available and if alternative accommodation is not available, why not.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1 The primary applicant in these proceedings has made two interlocutory applications to this Court seeking interlocutory relief. The primary applicant brings the proceedings on behalf of herself and her child. The applicants’ first application dated 11 March 2026 seeks a number of orders directing the respondent, the State of New South Wales (Department of Communities and Justice Homes NSW), to provide the applicants with temporary housing that is suitable for them and to relieve the primary applicant of her current lease, on the ground that their current housing does not accommodate their disabilities and is in bad condition. The second application of the same date seeks interim suppression of the primary applicant’s identity, residential address, and any other identifying detail of her and her child under s 37AF & s 37AG of the F ederal C ourt of A ustralia Act 1976 (Cth) on the ground that disclosure of these details could place the primary applicant and her child in danger.

2 For the following reasons, I will make pseudonym orders and order that the parties be given an opportunity to make submissions before the Court grants third party access to the file but otherwise I refuse to grant the relief sought in the applications. My reasons for this refusal are set out below. Whilst, I accept the applicants have established that there is a serious question to be tried in relation to an aspect of their claim, the balance does not favour the grant because of the nature of the interlocutory relief sought.

3 The applicants seek wide-ranging and imprecise positive acts to be undertaken by the respondent. This is in circumstances where it is ultimately for the respondent, within lawful boundaries, to prioritise and allocate social housing according to need. The respondent must balance innumerable competing demands for its finite housing resources. It is not a process that can be driven by potential recipients of social housing.

4 Despite not granting the relief sought by the applicants however, I am concerned by the content and recommendations of the report of Ms Katelyn Myers, Occupational Therapist, dated 13 March 2026, and in particular what she says about the “access issues” including the primary applicant’s (in)ability to enter the social housing safely. The respondent put no evidence before me in response to this report. As these reasons expose, I am of the view that there is a serious question to be tried, on the basis of the current application and evidence, regarding the accessibility of the housing provided by the respondent. For this reason, before this matter proceeds any further, I will order that this matter be referred for mediation before a Judicial Registrar. I will also order that the respondent file and serve by next Wednesday 1 April 2026, an affidavit, containing a response from the respondent to Ms Myers’ report, detailing what alternative accommodation is available and if alternative accommodation is not available, why not.

Organising principles regarding interlocutory relief

5 Section 23 of the FCA Act provides that the Court has a general power, in relation to matters in which it has jurisdiction, to make interlocutory orders.

6 The applicant bears the onus of proving first, that there is a serious question to be tried as to her entitlement to the ultimate relief sought. An applicant will make out a prima facie case if, were the evidence to remain as it is, there is a probability that at trial the applicant would be entitled to the relief claimed. Second, the inconvenience or injury the applicant would be likely to suffer absent the injunction outweighs any injury the respondent would suffer if it were granted, namely, the balance of convenience is in the applicant’s favour: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 622–23 per Kitto, Taylor, Menzies and Owen JJ. Third, damages would not be an adequate remedy: see, for example, Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [19] per Gleeson CJ and Crennan J.

7 The demonstration of whether there is a prima facie case for relief only requires that the applicant show that there is sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial. The strength of the likelihood of success depends on the nature of the rights the applicant asserts and the practical consequences likely to result from the order he or she seeks: see O’Neill at [65] and [71] per Gummow and Hayne JJ.

8 The degree of the likelihood of success is a factor related to the balance of convenience: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 at 153 per Mason ACJ. The apparent strength of the case “will often be an important consideration to be weighed in the balance”: Samsung Electronics Co Ltd v Apple Limited [2011] FCAFC 156; 217 FCR 238 at [67]. Accordingly, the stronger the prima facie case, the less that may be required to tip the balance of convenience and vice versa.

The evidence relied upon by the applicants in support of their application

9 In support of the application regarding housing arrangements, the primary applicant relied on her affidavit affirmed on 16 March 2026. The primary applicant deposed that both she and her child have disabilities that require suitable housing arrangements and that the respondent is responsible for providing appropriate housing services to her and her child. The primary applicant deposed that since August 2024, she had been experiencing ongoing difficulties with the respondent in relation to obtaining suitable housing that accommodates her and her child’s disabilities and that the conditions of the housing provided by the respondent have negatively affected her and her child’s health, safety and wellbeing.

10 The primary applicant deposed to contacting the respondent on multiple occasions since April 2025 regarding her housing arrangement and deposed that she was promised, by Ms Suzanne Barber (whose role remains unclear), that she and her child would be relocated on 28 April 2025 but this did not happen. The primary applicant claims that she applied to relocate to more appropriate housing in September 2025 but this application remains unresolved. The primary applicant deposed that she has provided the respondent with medical documentation indicating that their current housing exceeds her physical capacity and continues to impact her child’s physical and mental health. The affidavit includes allegations that the current housing is deteriorating and requires maintenance that the primary applicant is unable to perform due to her disabilities and that she had informed the respondent of the condition of the property, by way of over 100 calls to the respondent, of consistent ground flooding and internal water ingress from the ceilings. The primary applicant deposed that the respondent has failed or refused to address these issues and has not provided suitable alternative housing. Annexed to this affidavit are certificates and reports drafted by various medical professionals regarding both applicants, pictures depicting flooding inside and outside a residence, mould on furniture, water leaks and bug infestations as well as communications between the primary applicant and the respondent regarding maintenance requests and the condition of the residence. In particular, as referred to above, the primary applicant annexes to her affidavit a very recent report of an occupational therapist who recommends timely relocation to suitable housing by reason of concerns, including accessibility concerns, arising because of the primary applicant’s disabilities.

Is there a serious question to be tried?

The claims as advanced by the applicants in their originating application

11 The primary applicant made oral submissions in support of their application. Those submissions gave a discursive account of the circumstances giving rise to the dispute. They included the primary applicant’s serious concern as to what she perceives to be the failures on the part of the respondent to ensure that she and her child have secure, habitable accommodation that is accessible and accommodates each of their respective disabilities. The primary applicant submitted that the respondent is well aware of her disabilities and has received numerous medical reports. This appears to be so. It was her submission that the respondent should be able to provide her with the same access to housing as a person without a disability.

12 The primary applicant claims that the respondent knew the extent of the inhabitability of the housing she was provided before she was offered the housing. There were, according to the primary applicant, numerous extant work orders with respect to the property raised by the previous tenant but despite this, she was forced (by reason of being given no other option) to accept the lease for this residence. The primary applicant submitted that this was discriminatory, in part, because the respondent would have known about the property’s incompatibility with her disabilities and those of her child. Further, the primary applicant submitted that the provision of this pallus housing constituted a form of victimisation because the primary applicant had been involved in other proceedings against the respondent and had made complaints to other government ministers about the respondent’s conduct.

13 The applicants have filed 3 originating applications. After the applicants filed the originating application dated 18 December 2026, they were given leave to file, after a pro-bono referral, an amended originating application and any supportive affidavit. The applicants thereafter filed three documents: an amended originating application filed on 2 March 2026, a document entitled “Originating Application Statement” filed on 2 March 2026 (originating application statement), and a further amended originating application (filed on 11 March 2026) (hereafter described as the originating application). By the applicants’ originating application the applicants claim:

1. Jurisdiction and Protected Status

1.1 This proceeding is brought pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth).

1.2 The Applicant and her 11-year-old child are persons with disabilities within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) (DDA). The Applicant’s disabilities include bilateral carpal tunnel paralysis, spinal injuries (C-spine bone-on-bone), C-PTSD, and mobility limitations requiring step-free access (max 3 steps).

1.3 The Respondent is an accommodation provider within the meaning of s 25 of the DDA.

1. Direct Discrimination and Discrimination in Accommodation (ss 5, 25)

2.1 Between 1 August 2024 and 13 March 2025, the Respondent subjected the Applicant to less favourable treatment by:

Forced Homelessness: Denying Temporary Accommodation (TA) on 1 August 2024 (Officer Sally) and 30 January 2025 (Officer Travis Fennell) despite eligibility and updated medical evidence.

Unsafe Housing: Providing an "uninhabitable" premises on 13 March 2025 featuring a 6 metre drop and 60-degree slope, with full knowledge of structural defects.

Environmental Neglect: Failing to relocate the Applicant during an 8-day flooding event (22 April 2025), exposing her and her child to black mould, electrocution risks, and entrapment.

2.2 The Claim: The Respondent provided housing and services that were functionally inaccessible and dangerous, causing the Applicant physical injury (drop attacks) and severe psychological trauma.

1. Indirect Discrimination (s 6)

3.1 The Respondent imposed unreasonable "requirements or conditions" that the Applicant could not meet due to her disabilities:

Administrative Maladministration: Incorrectly lodging the Priority Application to the Gosford office (3 October 2024) instead of Maroubra and refusing to release the file for assessment despite urgent medical needs.

Coerced Compliance: On 29 November 2024, Officer Bernadette McMahon coerced the Applicant to change her location preferences under a false promise of immediate housing.

3.2 The Claim: These administrative hurdles and the requirement for manual property maintenance in unsafe conditions disproportionately disadvantaged the Applicant due to her physical and cognitive limitations.

1. Failure to Make Reasonable Adjustments (s 11)

4.1 The Respondent had notice of the Applicant's needs via medical assessments (24 Oct and 19 Nov 2024).

4.2 The Respondent failed to make reasonable adjustments to its "voucher cycle" policy, requiring the Applicant to vacate hotel rooms (Long Jetty Motel, Ibis, Holiday Inn) every few days.

4.3 This forced the Applicant into over 20 instances of street-homelessness, vehicle-living, and couch-surfing.

4.4 The Claim: Stable, medium-term accommodation and a step-free dwelling were reasonable adjustments that the Respondent refused to provide, causing significant physical and mental deterioration.

1. Victimisation (s 42) and Harassment

5.1 The Applicant performed "protected acts" by lodging complaints with Minister Rose Jackson, Tanya Plibersek MP, and the AHRC.

5.2 In retaliation, the Respondent engaged in a campaign of detriment:

Withdrawal of Offers: Officers Nicholas Lazar and Travis Fennell repeatedly reinstated and withdrew housing offers between Jan–Feb 2025.

Surveillance: Conducting unnotified daily/weekly "drive-bys" and unnotified daily trade visits to the Applicant's location to cause distress and reputational harm.

Obstruction: Deliberately obstructing maintenance and failing to act on urgent relocation requests following the April 2025 floods.

5.3 The Claim: This conduct was intended to intimidate the Applicant for exercising her legal right to complain, constituting unlawful victimisation and harassment.

14 I note that it is unclear, from either the originating application or the originating application statement, which aspects of the claim concern the primary applicant or her child or both. When asked at hearing, the primary applicant submitted that they were claims made by each of them separately. It is unclear how they could ultimately all arguably be made separately by each of them. However, I am prepared to assume they are brought by both applicants for the purpose of considering whether there is a serious question to be tried.

The limits of the Court’s discrimination jurisdiction

15 This Court’s jurisdiction to deal with discrimination complaints is enlivened and constrained by statute. Section 46PO of the A ustralian H uman R ights C ommission Act 1986 (Cth) prescribes the process for making an application to the Court if a complaint to the A ustralian H uman R ights C ommission has been terminated. In order for an applicant to be able to bring a claim before this Court, the applicant must have satisfied a number of requirements under the AHRC Act, including as contained in s 46PO(3), which provides:

(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.

16 Section 46PO(3) operates as a constraint on the ability of an applicant to seek relief in the Court in respect of a complaint she or he had not previously raised for consideration by the AHRC. However, some flexibility is permitted: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46]–[48]; Hastwell v Kott Gunning [2017] FCA 1557 at [23]–[26]. Notably, those two decisions make clear, as was previously stated by Katz J in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573 at [39], that there is capacity to allege different facts that are not in substance different from what was formerly alleged.

17 In this case, the applicants were required in their complaint to the AHRC to set out “when did the alleged event(s) happen?”. The applicants in their complaint stated that the relevant period was between 13 March 2025 and the present. The complaint alleges, amongst other things, that the applicants were misled and induced by the State to live in an uninhabitable premises, that the lease has exacerbated their injuries, that defect and fault works were not done prior to the primary applicant signing the lease and that the primary applicant is expected to fix the defects. The applicants complained that “we can no longer be discriminated against because we [are] vulnerable” and “have nowhere to go and no one to turn to”. The applicants claim that they have made various complaints to the respondent regarding the lack of accessibility to the property, by reason of the primary applicant’s disabilities, including because of the steep driveway access. As will be seen from the claim as articulated above, certain of the claims are of a different character to those alleged before the AHRC.

18 Further, the President, through his delegate, did not accept a number of aspects of the applicants’ complaint, including their claim of victimisation, claim of family responsibilities discrimination and a breach of human rights. The delegate provided the applicants with an explanation for its non-acceptance of aspects of their claims, referred to in the Notice of Termination, by email dated 29 September 2025 (Exhibit A-1).

19 When asked about the effect of the jurisdictional impediment on aspects of the applicants’ claims, the primary applicant explained the reason for why her claim is now more expansive (than that contained in the AHRC complaint) is because she had become privy to further information, better versed in anti-discrimination legislation and had accumulated more experience and knowledge by reason of the numerous matters she has filed against the respondent.

20 Whilst it may be accepted that a person may accumulate greater knowledge of the bounds of a claim or conduct over time, the difficulty here is that certain of the claims were not accepted by the AHRC and therefore they do not form part of the complaint and cannot now be before this Court.

How one establishes direct and indirect discrimination.

21 As evident from the above, the applicants make separate allegations that they have been directly or indirectly discriminated against, within the meaning of ss 5 or 6 of the D isability D iscrimination A ct 1992 (Cth). The applicants also make a separate claim of a failure to make reasonable adjustments purportedly under s 11. However, each of ss 5, 6 and 11 are definitional provisions which inform the Court as to how it determines whether the applicants have been discriminated against in the provision of accommodation within the meaning of s 25 of the DDA. It is this provision that provides the applicants with a gateway. Claims of discrimination are not at large and must fall within prescribed areas.

22 Section 25 is in the following terms:

25 Accommodation

(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s disability:

(a) by refusing the other person’s application for accommodation; or

(b) in the terms or conditions on which the accommodation is offered to the other person; or

(c) by deferring the other person’s application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.

(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s disability:

(a) by denying the other person access, or limiting the other person’s access, to any benefit associated with accommodation occupied by the other person; or

(b) by evicting the other person from accommodation occupied by the other person; or

(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person; or

(d) by refusing to permit the other person to make reasonable alterations to accommodation occupied by that person if:

(i) that person has undertaken to restore the accommodation to its condition before alteration on leaving the accommodation; and

(ii) in all the circumstances it is likely that the person will perform the undertaking; and

(iii) in all the circumstances, the action required to restore the accommodation to its condition before alteration is reasonably practicable; and

(iv) the alteration does not involve alteration of the premises of any other occupier; and

(v) the alteration is at that other person’s own expense.

(3) This section does not apply to or in respect of:

(a) the provision of accommodation in premises if:

(i) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside on those premises; and

(ii) the accommodation provided in those premises is for no more than 3 persons other than a person referred to in subparagraph (a)(i) or near relatives of such a person; or

(b) the provision of accommodation if:

(i) the accommodation is provided by a registered charity, or by a voluntary body that is not a charity; and

(ia) the accommodation is provided solely for persons who have a particular disability; and

(ii) the person discriminated against does not have that particular disability.

23 As is evident from this provision, a person cannot claim they were discriminated against in the provision of accommodation simpliciter, rather the person may only bring a claim if the alleged discrimination (whether direct or indirect) arises from the putative discriminator engaging in conduct which falls within one of the forms of identified actions in s 25(1) or s 25(2) unless one of the exceptions under s 25(3) applies.

24 Further, the Courts have determined that the two definitions of direct and indirect discrimination are “mutually exclusive”, meaning a person cannot claim at the same time, that they have been directly and indirectly discriminated against on the same facts: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [13]–[16] per Bromberg J.

25 The primary applicant asserted, at hearing, an additional claim under s 24 of the DDA. However, that allegation does not form any part of the claims articulated in any of the documents filed in this Court.

Different statutory tests apply to each species of discrimination.

26 Accordingly, whilst the anchor is s 25, and the applicants must be able to establish that that putative discriminator engaged in one of the activities in ss 25(1) or 25(2) and did not fall within an exception under s 25(3), the applicants must then establish that the alleged discrimination was either direct or indirect discrimination within the meaning of ss 5 or 6 of the DDA.

27 Section 5 prescribes the circumstances in which a person directly discriminates against another on the ground of a disability:

5 Direct disability discrimination

(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)     For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)     the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

28 Accordingly, in order for a person to satisfy the Court that they have been the subject of direct disability discrimination, they must establish that they were the subject of (or proposed to be the subject of) treatment that is less favourable than the treatment the discriminator would subject a person without the disability, to in circumstances which are not materially different. There are additional matters which may be taken into account where a person claims that the discriminator has not made reasonable adjustments (s 5(2)).

29 In this case, it is accepted by the respondent that the primary applicant has disabilities within the meaning of s 4 of the DDA.

30 In the applicants’ originating application statement, it is claimed that the “[r]espondent subjected the Applicant to less favourable treatment” due to her disability by, amongst other things, providing unsafe accommodation and failing to consider mobility and disability-related needs.

31 In the applicants’ originating application, the applicants’ claim of direct discrimination involves allegations that, during the period 1 August 2024 and 13 March 2025, the respondent subjected them to forms of “less favourable treatment” namely (a) “forced homelessness” said to involve denying temporary accommodation on 1 August 2024 and 30 January 2025; (b) the provision of “unsafe housing” on 13 March 2025; (c) “environmental neglect” by failing to relocate her during an 8-day flooding event (said to be on 22 April 2025); (d) providing accommodation that was “functionally inaccessible and dangerous” causing her physical injury and “severe psychological trauma”.

32 In the applicants’ originating application statement, they describe various events from 3 October 2024 onwards. There is a symmetry between the substance of the overarching claims in both the originating application and the originating application statement.

33 As adverted to above, there appears to be an arguable basis that at least (a) in the originating application does not fall within the bounds of the applicants’ claim as conciliated and terminated by the AHRC. Further, that there are arguments as to why aspects of their further claims (as articulated in both documents) do not fall within the parameters of their claim before the AHRC.

34 To the extent that the alleged failure to make reasonable adjustments is said to form part of the applicants’ claim of direct discrimination, though unclear, the alleged failures are said to have involved a failure to “make reasonable adjustments” to the respondent’s “voucher cycle” policy that required the applicants to vacate hotel rooms every few days and forced them into homelessness. It is claimed that “[s]table, medium-term accommodation and a step-free dwelling” are reasonable adjustments. To the extent that it is alleged in the applicants’ originating application statement, though it is unclear, as part of the claim of direct discrimination, it is claimed that there was a “failure to make reasonable adjustments”. The alleged “adjustments” are described as the “[r]espondent refused relocation during flooding, denied temporary or alternative accommodation, and did not accommodate disability-related housing needs”. However, it does appear that the claim of the failure to provide “step-free” accommodation or accommodation that is otherwise accessible is a claim that was made initially, is arguable and is within the Court’s jurisdiction. Accordingly, it must be accepted that there are aspects of the applicants’ claims of direct discrimination that are within jurisdiction.

35 Section 5 is directed to circumstances where the disability explains (or partially explains) the treatment or conduct of the discriminator: Sklavos at [23]. It is for the applicants to establish the causal link between their disability and the treatment or conduct of the discriminator.

36 As a consequence, in addition to the potential jurisdictional difficulties described above, there are a number of apparent deficiencies with the applicants’ claim of direct discrimination. First, the applicants have not identified the relevant comparator to be applied. Secondly, the applicants have not pleaded or otherwise put in evidence a basis upon which they claim that the alleged “less favourable treatment” was on the ground of their disabilities and how it is alleged that a person without their disabilities would have been treated differently in circumstances that are not materially different. This is necessary for a claim under s 5(1) of the DDA. This was raised with the primary applicant at the hearing. The primary applicant submitted that, in effect, there has been an absence of explanation by the respondent for why, despite the primary applicant providing them with the details of her disabilities and making her complaints, it has not acceded to her demands to be placed into different accommodation. For her, the most obvious example is that she needs accommodation on a flat level and she has been placed in housing where access is by way of a steep downward slope. However, this potential impediment does not apply with respect to a claim under s 5(2) of the DDA.

37 However, for the reasons already given, the primary applicant’s claim regarding the need for reasonable adjustments, and the failure to provide them, is arguable. For an adjustment to be reasonable, it is for the applicant to prove that there were adjustments which it said the respondent could make and that those adjustments were known by the respondent. Further, an adjustment will not be reasonable if it would impose an unjustifiable hardship on the respondent.

38 Turning next to the question of whether there is a serious question to be tried with respect to the applicants’ claim of indirect discrimination.

39 By contrast to direct discrimination, the test for indirect discrimination (as prescribed in s 6) is directed to what may be a facially neutral requirement or condition but which, by its effect or impact, disadvantages persons with the relevant disability: Australian Medical Council v Wilson (Siddiqui’s case) [1996] FCA 591; 68 FCR 46 at 79–80.

40 Section 6 provides:

6 Indirect disability discrimination

(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)     because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)     the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)     For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)     because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)     the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)     For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

41 As can be seen by the requirements of s 6, it is necessary for the applicants to identify, with some precision: 1) the requirement or condition they claim they were subjected to and that the discriminator required or proposed to require them to comply with; 2) that because of their disabilities they were not able or would not be able to comply with the requirement or condition; and 3) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

42 Here, the applicants claim, without explanation, that the respondent imposed a number of “requirements or conditions” which they say they could not meet by reason of their disabilities, namely:

Administrative Maladministration: Incorrectly lodging the Priority Application to the Gosford office (3 October 2024) instead of Maroubra and refusing to release the file for assessment despite urgent medical needs.

Coerced Compliance: On 29 November 2024, Officer Bernadette McMahon coerced the Applicant to change her location preferences under a false promise of immediate housing.

3.2 The Claim: These administrative hurdles and the requirement for manual property maintenance in unsafe conditions disproportionately disadvantaged the Applicant due to her physical and cognitive limitations.

43 The applicants’ claim of indirect discrimination, in the originating application statement, is not identical but there is some overlap with the originating application. The applicants claim “[t]he Respondent imposed conditions incompatible with the Applicant’s disability, including requirements for manual labour and property maintenance that were unreasonable and incompatible with disability”.

44 Again, it is apparent, to the extent that there is greater particularisation of the claim in the originating application, by reason of both the alleged time periods when these “requirements or conditions” were imposed and the subject matter of these alleged requirements and conditions, as the respondent propounds, that there is arguably a jurisdictional impediment: That the claims fall outside the ambit of the AHRC complaint. However, it is clear that the applicants did assert a claim of indirect discrimination on the basis of requiring the primary applicant to undertake manual maintenance works. To the extent that the claims of indirect discrimination incorporate the alleged failure to make reasonable adjustments, I repeat my earlier observations with respect to them.

Victimisation

45 As to the claim of victimisation there are three elements, which the applicants will be required to ultimately establish in order to make out their claim of victimisation within the meaning of s 58A: First ly, that the alleged discriminator “subjected” the applicants, or threatened to subject them, to a detriment: Ioannou v Commonwealth of Australia (Dept of Human Services) [2012] FCA 1228 at [42] per McKerracher J; Bibawi v Australian Human Rights Commission [2021] FCA 1476 at [50] per Greenwood J. Secondly, that the alleged conduct (actual or threatened) is a “detriment”: Taylor v Angus and Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1 at [398] per Katzmann J. Thirdly, that the detrimental conduct was taken “on the ground” that the applicants engaged in or proposed to engage in one of the processes protected by s 58A(2)(a)–(g) of the DDA: Penhall-Jones v State of N ew S outh W ales [2007] FCA 925 at [85] per Buchanan J; Walker v State of Victoria [2011] FCA 258; 279 ALR 284 at [328] per Tracey J, quoting with approval Penhall-Jones at 85.

46 The authorities referred to above, beginning with Penhall-Jones, are instructive as to the third element; namely, that the detrimental conduct was taken “on the ground” that the applicants engaged in, or proposed to engage in, one of the processes. It is not necessary that it be the sole factor, but it must be a “substantial and operative factor”. What is meant by “substantial and operative” was helpfully explained by Buchanan J at [85] in Penhall-Jones:

Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s 42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, “why” an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. The establishment of the suggested ground is as much a matter for proper proof as any other factual circumstance. The Federal Magistrate obviously concluded that no ground in s 42(2) of the Act was shown to be a substantial or operative factor for Mr Duffy's letter of 18 November 2004. I see no error in this conclusion.

(emphasis added)

47 The difficulty with this claim is firstly, it is made under s 42 of the DDA. This is a penal provision. As referred to in Reurich v Savills (SA) Pty Ltd [2025] FCA 420, at [49]-[52], the applicants are not able to prosecute a claim under s 42. However, the same limitations do not apply to a claim of victimisation made pursuant to s 58A. However, more fundamentally, this claim was not accepted by the AHRC. It is not apparent how, therefore, the applicants will be able to establish that this Court has jurisdiction to deal with that claim.

Nature of the relief sought

48 It is worthwhile also considering the nature of the interlocutory relief sought. By the interlocutory application, the applicants seek the following orders (and set out the alleged facts in favour, and the necessity, of the relief):

1. Orders Sought

The Applicant requests that the Court make an interlocutory order directing the Respondent, the Department of Communities and Justice (DCJ), to:

(a) Relieve the Applicant from the current lease immediately, notwithstanding the stated lease expiry date of 14 March 2026.

(b) Provide suitable temporary housing pending the determination of the Applicant’s permanent relocation application.

(c) Prioritise appropriate permanent housing for the Applicant and her daughter, which accommodates the Applicant’s disabilities.

(d) Alternatively, allow the Applicant to seek housing independently, with DCJ providing financial subsidy up to $750 per week under its usual subsidy arrangements.

(e) Ensure DCJ provides reasonable adjustments to services provided to the Applicant, consistent with obligations under the Human Rights Act 2004 (NSW) and the Disability Discrimination Act 1992 (Cth).

(f) Provide a clear indication of actions taken by DCJ regarding urgent housing needs, including whether temporary housing alternatives have been considered or offered

1. Facts and Necessity of Relief

(a) The Applicant and her child have disabilities that require DCJ to provide reasonable accommodations.

(b) The Applicant has experienced discrimination and inadequate housing services from DCJ, causing ongoing hardship, distress, and breaches of statutory rights since August 2024.

(c) Immediate relief is necessary to prevent further breaches of human rights and to protect the safety, well-being, and dignity of the Applicant and her child.

(d) The Applicant’s current temporary housing is inadequate and unsuitable, and continuing occupancy would perpetuate discrimination.

(e) The relief sought is interlocutory and necessary pending the final determination of the substantive relocation application.

(f) Without interlocutory relief, the Applicant and her child risk irreparable harm to their safety, health, and dignity.

49 As is evident from the above, the applicants are in effect seeking final relief. In Aristocrat Tec hnologies Australia Pty Ltd v Light & Wonder, Inc (No 2) [2025] FCA 64; 174 ACSR 1, Burley J, at [51], synthesised the competing authorities as to the requisite standard to be applied in cases of this kind. His Honour ultimately accepted that the dominant view is that there is no different (or higher) standard to be applied. However, consistent with authority, an important question in assessing the balance of convenience is the risk of injustice to the party to whom the injunction issues. This risk is usually, but not always, high in cases involving mandatory interlocutory injunctions.

50 Here, the proposed injunction requires that the respondent, amongst other things, relieve the primary applicant of her obligations under the current lease, provide other temporary housing and prioritise appropriate permanent housing. It is not clear how the Court has power, under s 46PO(4), to grant the majority of the forms of imprecise relief sought. There is a recognised caution that the Court not exercise its remedial power, by use of anti-discrimination legislation, to compel public authorities to exercise statutory discretions in a particular way. I accept the submission of the respondent that social housing is a function conferred on the respondent under the Housing Act 2001 (NSW) and involves the exercise of administrative discretion and the allocation of finite public resources. Whilst I accept that caution ought be exercised, this is not to say that the Court could not make certain of the orders claimed, given the breadth of the Court’s non-inclusive powers under s 46PO(4).

51 By reason of the above, it is my view that the applicants face significant challenges in establishing jurisdiction with respect to many of their claims. I am of the view that there is not a sufficient likelihood of success with respect to their claim of victimisation. As to their claims of direct and indirect discrimination, based on accessibility issues, and the failure to provide reasonable adjustments, I am satisfied that there is a serious question to be tried. This is not to say, as I cannot, that the applicants will ultimately succeed in their claims. I will not know that until after hearing all the evidence and understanding all the legal issues and applying the law.

52 Whilst I accept that the balance could tip in the applicants’ favour for granting interlocutory relief, I am concerned by the wide-ranging, imprecise positive acts that are claimed to be required to be undertaken by the respondent. This is particularly so where it is ultimately for the respondent to decide, within lawful boundaries, the recipients of accommodation and the kind of accommodation provided within the bounds of its own statutory powers and balancing innumerable competing demands for finite resources. It is not a process that can be driven by potential recipients. However, this is not to say, as I have already said, that I am not concerned by the evidence that the applicants have put before me and it is for this reason I am ordering mediation be undertaken urgently.

Application for interim non-publication and suppression orders

53 By way of interlocutory application filed on 11 March 2026, the applicants seek interim non-publication and suppression orders in the following form:

1. Interim Non-Publication/Suppression Order

(a) Pursuant to s 37AF & s 37AG of the Federal Court of Australia Ac t 1976 (Cth), an interim non-publication and suppression order prohibiting publication or disclosure (including on electronic Court services) of the Applicant’s identity, residential location, and any identifying detail of the Applicant and their children pending further order.

(b) The order is made on grounds that it is necessary to protect the safety of the Applicant and others, and to prevent prejudice to the proper administration of justice due to ongoing threats, including threats of kidnapping and murder spanning international borders.

54 In support of their application for interim and final suppression orders, the applicants relied on the primary applicant’s affidavit affirmed on 16 March 2026. The primary applicant deposed that both she and her child live with disability and their safety and wellbeing are dependent on their identities, residential address and other identifying details remaining confidential. Further, the evidence concerned threats of ongoing harm and violence to both applicants.

55 The Court is empowered by Part VAA of the FCA Act to make suppression orders or non-publication orders. Section 37AA defines a suppression order to mean an “order that prohibits or restricts the disclosure of information (by publication or otherwise)”. A “non-publication order” is defined to mean an “order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).”

56 It may be accepted that the applicants seek, as part of their application, pseudonym orders. Pseudonym orders are a particular species of suppression or non-publication order which are governed by the same principles as those that apply to suppression and non-publication orders: Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221 at [23]–35.

57 Section 37AE states that “[i]n deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

58 Sections 37AF provides that:

37A F Power to make orders

(1) The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b) information that relates to a proceeding before the Court and is:

(i) information that comprises evidence or information about evidence; or

(ii) information obtained by the process of discovery; or

(iii) information produced under a subpoena; or

(iv) information lodged with or filed in the Court.

(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

59 Section 37AG relevantly provides that the Court may make a suppression order on the ground that it is necessary to protect the safety of any person:

37AG  Grounds for making an order

(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice;

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c) the order is necessary to protect the safety of any person;

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

[emphasis added]

60 I am satisfied, on the evidence before me, that it is necessary to make the pseudonym orders. I am of the view that it is not necessary to make the remaining orders sought, but rather require that a notation be placed on the Court file to allow the parties to be given an opportunity to make submissions as to suppression or non-publication of aspects of the Court file in the event that a third party request for inspection is made.

Conclusion

61 For these reasons, I will only grant the relief sought with respect to the pseudonym orders and allow for a notation to be placed on the Court file for notification before any third party access is granted. I will otherwise dismiss the applicants’ applications. I will order mediation and for the respondent to file evidence of the kind I have referred to.

62 As to the question of costs, I will not grant the respondent their costs in the circumstances. The applicants have been partially successful in one of their applications. Whilst I accept that costs ordinarily follow the event, because of the truncated timetable and the applicants’ desire to get this matter on quickly, they only received the respondent’s submissions a short time before the hearing. For this reason, I am not prepared to order costs against them.

| I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper. |
Associate:

Dated:    26 March 2026

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