Firew v Services Australia CaseBase | [2026] FCA 305 | BC202603646 FIREW v SERVICES AUSTRALIA BC202603646 Unreported Judgments Federal Court of Australia · 63 Paragraphs Federal Court of Australia — Australian Capital Territory District Registry Bromwich J ACD 40 of 2025 20 March 2026 Firew v Services Australia [2026] FCA 305 Headnotes PRACTICE AND PROCEDURE — Objection to competency — Where applicant subsequently filed application for leave to amend — Where applicant a litigant in person — Whether original pleadings invoke the Court’s jurisdiction under Judiciary Act 1903 (Cth) s 39B — Whether leave should be granted to rely on amended pleadings — Whether amended pleadings would be liable to be struck out or summarily dismissed. HELD: — Original pleadings struck out — Application for leave to amend on existing draft amended pleadings refused — Applicant granted opportunity to replead subject to consent or leave of the Court. (CTH) Australian Human Rights Commission Act 1986 s 46PO (CTH) Federal Court of Australia Act 1976 ss 32, 37M (CTH) Judiciary Act 1903 ss 39B, 39B(1), 39B(1A)(c) (CTH) Public Service Act 1999 s 25 (CTH) Racial Discrimination Act 1975 Pt II (CTH) Federal Court Rules 2011 rr 16.02, 16.02(1)(a), 16.21(1), 16.59(2), 16.53(1), 31.11, 31.05(1)(a), 31.24(1)(a), 33.30(1)(a) Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 ; Cultivaust Pty Ltd v The Grain Pool of Western Australia [2001] FCA 1812 ; French v Gray [2013] FCA 263; 217 FCR 404 ; Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 852; 66 IPR 19 ; In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 ; Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536 ; Re East; Ex parte Nguyen [1998] HCA 73; 196 CLR 354, cited Commonwealth, Order to Establish Services Australia as an Executive Agency, No C2019G01103, 6 December 2019 Bromwich J. [1] This proceeding concerns an application for relief under s 39B of the Judiciary Act 1903 (Cth) brought by the applicant against his employer, Services Australia, the respondent. This decision concerns an objection to competency made by the respondent, and an apparently responsive application for leave to amend brought by the applicant. Page 2 of 11 Firew v Services Australia, [2026] FCA 305 Background and procedural history [2] On or around 23 August 2021, the applicant was engaged as an employee of the respondent, in a position described as a systems analyst. Since then, his duties for the respondent have been reassigned on various occasions. The applicant seeks relief in relation to those reassignments, given he apparently wishes to work in a role that he describes as being in line with his employment contract, and which he contends uses what he describes as his core competencies in the field of finance, economics and/or accounting. [3] Additionally, in 2024, the applicant applied for promotion to the Executive Level 1 position of Assistance Director – Finance. On 11 November 2024, the applicant was informed that his application for promotion to that position had been unsuccessful. The applicant also seeks relief in relation to that decision. He has previously sought review of the promotion decision internally and from the Merit Protection Commissioner. On both occasions, his application was rejected on the basis that the decision was not reviewable under the relevant legislation. [4] On 31 March 2025, the applicant lodged an originating application for relief under s 39B of the Judiciary Act which was accompanied by a statement of claim. Both documents were accepted for filing on 7 May 2025, and were therefore deemed to have been filed on the date of lodgement: Federal Court Rules 2011 (Cth) (the Rules), r 2.25(3)(a). [5] On 11 June 2025, the respondent filed a notice of objection to competency on the grounds that, either: (a) this Court did not have jurisdiction to hear and determine the applicant’s originating application and/or to provide the relief sought; or (b) the applicant did not have standing to bring the originating application. [6] This notice was filed using form 68, which is prescribed by the Rules for the purposes of objections to competency in relation to applications brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Migration Act 1958 (Cth), or the Administrative Appeals Tribunal Act 1975 (Cth): rr 31.05(1)(a), 31.24(1)(a), 33.30(1)(a). There is no equivalent form for an objection to competency in relation to an application under s 39B of the Judiciary Act. In any case, given the jurisdictional issue was raised, I considered it necessary for that to be determined as a preliminary matter, regardless of whether the rules specifically provided for a process by which this could occur. [7] On 12 June 2025, the applicant provided my chambers with a document indicating that he wished to add a further order to the relief sought in his originating application. [8] Following the first case management hearing on 13 June 2025, I made orders which provided for the objection to competency to be determined as a separate question as sought by the respondent, and for first the respondent and then the applicant to each file written submissions and any evidence addressing this issue. The orders required that these submissions address any questions as to the Court’s jurisdiction that would arise from the applicant’s proposed additional form of relief, in addition to those included in the originating claim. The orders provided for the objection to competency to thereafter be determined by me on the papers, as sought by the respondent and consented to by the applicant during the case management hearing. [9] On 27 June 2025, the respondent filed its written submissions as contemplated by the orders, along with an affidavit of Ms Maria Rivers affirmed 27 June 2025. [10] On 24 July 2025, the applicant filed its written submissions as contemplated by the orders. An affidavit of the applicant was also filed on 27 July 2025, but the date on which it was affirmed is unclear. The written submissions filed by the applicant referred to three purported cases which were said to provide guidance as to what the applicant contends are breaches in the application of s 25 of the Public Service Act 1999 (Cth). The respondent’s representatives indicated by email to my Chambers, copying the applicant, that they were unable to locate these authorities in any legal database. [11] My associate was similarly unable to identify those authorities. The applicant provided no explanation and did not provide any copy of those three purported cases. [12] On 15 August 2025, the applicant lodged an interlocutory application and supporting affidavit seeking to amend his originating application and statement of claim. These amendments were evidently sought in order to seek to address certain submissions made by the respondent in support of the objection to competency. The application and accompanying affidavit did not include an amended copy of the originating application or statement of claim which were sought to be relied upon. The applicant claimed in the interlocutory application that the respondent had provided what he described as implied consent to these amendments, by way of an email from the respondent to my chambers which raised concerns about the fact that the applicant’s submissions dated 24 July 2025 went beyond the scope of his existing pleadings (addressing matters which he now seeks to have included by his proposed amendments). Contrary to the applicant’s indication, I do not accept that that communication from the respondent in any way constituted consent to his proposed amendments. Page 3 of 11 Firew v Services Australia, [2026] FCA 305 [13] On 24 August 2025, the applicant lodged for filing draft copies of the amended originating application (dated 24 August 2025) and amended statement of claim (dated 25 August 2025). [14] On 1 September 2025, I made orders which provided for the interlocutory application for leave to amend to be determined on the papers together with the notice of objection to competency, following the provision of written submissions addressing (a) whether leave to amend the originating application and statement of claim should be granted; and (b) the notice of objection to competency insofar as it applies to the amendments in the event that leave to amend were to be granted. The respondent’s written submissions were provided on 12 September 2025, and the applicant’s written submissions followed on 29 September 2025. [15] On 3 October 2025, the applicant lodged for filing a further version of the draft amended originating application, dated 2 October 2025. The Court’s registry apparently understood that this further version had been provided to address some issues it had identified with the filing of the version lodged on 24 August 2025 (and again lodged on 29 September 2025). As a result, registry rejected the previous lodgements of the draft amended originating application. However, the version dated 2 October 2025 also contained amendments to the body of the application which did not appear in the version dated 24 August 2025, and which were not responsive to the problems identified by registry. [16] I consider that these proposed amendments do not materially affect the resolution of the interlocutory application for leave to amend or the notice of objection to competency, in the event that leave to amend was granted. On that basis, I decided to assess the application for leave to amend on the basis of the version of the proposed amended originating application which is dated 2 October 2025. [17] In addition to the above, on 24 July 2025 the applicant filed an interlocutory application and supporting affidavit seeking interim relief, and has since sought to file at least four further affidavits without leave of the Court, none of which have been accepted for filing. I return to the status of these documents at the conclusion of these reasons, after setting out my decision in relation to the more fundamental issues. [18] The above summary provides the necessary background for the issues addressed by this judgment. It also serves to provide some explanation for the Court’s delay in determining the notice of objection to competency and application for leave to amend, given the considerable complexity introduced by the applicant’s repeated attempts to file further evidence, and to amend and re-amend the documents setting out the nature of his claim, and in relation to the most recent attempt, his lack of transparency (whether intentional or otherwise) in doing so. Objection to competency in relation to the original pleadings [19] I now turn to consider the objection to competency in relation to the originating application and statement of claim as originally filed. The applicant claims relief under section 39B of the Judiciary Act 1903 (Cth). That section relevantly provides: 39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. [20] For the Court to have jurisdiction under s 39B, it must be satisfied that there is a “matter” before it. The meaning of “matter” under that section is informed by its meaning under ss 75 and 76 of the Constitution. Relevantly, a “matter” requires a justiciable controversy between the parties involving an immediate right, duty or liability to be established by the determination of the Court: In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich, Starke JJ). [21] Additionally, the “matter” must fall within one of the grounds of jurisdiction conferred by s 39B. Relevantly for present purposes, this will be the case if the matter arises under a law of parliament, or is a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, which generally requires showing the officer had acted without jurisdiction: Judiciary Act s 39B(1), (1A)(c). Page 4 of 11 Firew v Services Australia, [2026] FCA 305 [22] The applicant sought the following relief in the first originating application (subparagraphs (a) to (c) below) and the further orders provided to my chambers on 12 June 2025 (subparagraph (d) below), using the applicant’s own words in relation to each form of relief: (a) an injunction against the “employee loan scheme” that put a staff member from racial background like the applicant (myself) at a disadvantage; (b) an order for my reinstitution to a financial/economic/accounting (payment systems) or an equivalent occupational role for which the respondent employed me for (as well as I had substantial educational and occupational experiences); (c) Any other sanctions the court finds fit for the emotional, reputational damage and family crisis suffered over the last two and half years together with court costs; and (d) Revoke the Applicant decision made on 11 November 2024 to deem the applicant (myself) unsuitable for promotion in respect to the EL1 Assistant Director Finance (EXT-EL1-2024-1459) role. [23] The first originating application listed the following grounds for relief (verbatim): [1] The “employee loan scheme” whereby an employee is loaned to a different section or branch for a period six or twelve months exposes a person of racial background to significant risk of systematic biases such as in-group favouritism and racial prejudice. I have been loaned for two loan periods of six months and a period of one year to different sections and branches outside the occupational role I was hired for (see the statement of claims for details). [2] I had pleaded to be placed in financial/accounting/economics type roles in projects, programs or portfolios within the department for me to contribute my best for the successes of the organisation’s goals and objectives. On several occasions, I spoke to my managers and contacted interested intra-agency teams for no avail. It appears; I am partially being used as a resource (see the statement of claims for details). [3] The trial and tribulation I have spent for the last two plus years has caused me uncertainties, emotional trauma, reputational damage and family crisis. Through the “employee loan scheme, my placement in short term and purely information technology (IT) roles (consecutively) for the last two years, made my contribution for the organisation’s goals and objectives less than it could be. It derailed me from my career progression. Even when I have been extremely meticulous and cautious, it exposed me to in-group bias and group-thinking. There were occasions, when staff asked me what I was doing in IT area when I was an economist or a financial specialist. I was exposed to cultural and racial biases (see the statement of claims for details). [24] The statement of claim largely expands upon the grounds in the originating application, and additionally identifies, in relation to order 4, various alleged defects in the process by which the respondent determined not to offer him the relevant promotion, and in the review processes conducted internally and by the Merit Protection Commissioner. [25] Insofar as the applicant sought by his first originating application to make a claim for racial discrimination contrary to Pt II of the Racial Discrimination Act 1975 (Cth), there is no suggestion, much less evidence, that this claim has been the subject of a terminated complaint to the Australian Human Rights Commission. As a result, the Court lacks jurisdiction to hear those claims: see s 46PO of the Australian Human Rights Commission Act 1986 (Cth); see also French v Gray [2013] FCA 263; 217 FCR 404 at [150] (Besanko J) and Re East; Ex parte Nguyen [1998] HCA 73; 196 CLR 354 at [31]-[32] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). [26] With the above principles in mind, it is apparent that the first originating application does not give rise to a “matter” under s 39B of the Judiciary Act. The grounds do not disclose any controversy over a right, duty or liability which is capable of being determined by this Court. It is certainly clear that the applicant considers that the employee loan scheme as described by him (ie his reassignment to different teams within Services Australia), and his failure to secure a promotion, have been unjust in a general sense. But the originating application does not refer to any legal right, duty or liability capable of giving rise to a “matter” under s 39B, particularly once the allegations of racial discrimination averted to in the grounds are set to one side, as they must be. [27] Even if one were to assume that the pleadings did raise a “matter” for determination by the Court, nothing in the applicant’s pleadings indicates that it would fall under the Court’s jurisdiction in s 39B of the Judiciary Act. [28] The submissions filed by the applicant additionally refer to alleged breaches of contract and statutory provisions which are not pleaded in the first originating application and statement of claim and thus should not be taken to bear upon the question of whether those pleadings enliven the Court’s jurisdiction to hear that application. Page 5 of 11 Firew v Services Australia, [2026] FCA 305 [29] It follows that the respondent’s objection to competency in relation to the first set of pleadings succeeds. As a result, if I do not grant leave to amend or to replead, the proceeding must be dismissed. Leave to amend [30] The applicant filed an interlocutory application seeking leave to amend his originating application and statement of claim pursuant to r 16.53(1) of the Federal Court Rules on 15 August 2025. As set out above, I consider it appropriate to resolve that application on the basis of the latest draft amended originating application dated 2 October 2025, and the draft amended statement of claim dated 25 August 2025 (together the amended pleadings). [31] The grounds on which the applicant seeks relief are again outlined in both the amended originating application (which now runs to six pages) and amended statement of claim (now 28 pages). The matters pleaded are too lengthy to repeat here, but it is useful to summarise them briefly, insofar as they are relevant for present purposes. [32] First, in relation to the promotion decision, the applicant pleads that: (a) the interview and selection process for the promotion were attended by a lack of procedural fairness, a failure to consider relevant matters (including the contents of his CV, his qualifications, his professional experience, and what he describes as relevant cultural nuances), the provision of flawed feedback, biases, racial discrimination and jurisdictional error; (b) the respondent’s conduct amounted to breaches of the Racial Discrimination Act 1975 (Cth); and (c) the internal review and subsequent review conducted by the Merit Protection Commissioner were attended by various biases, and ignored the racial biases and other defects in the interview and selection process for the promotion. [33] Second, the applicant pleads that the previous decisions to reassign his duties were made pursuant to s 25 of the Public Service Act and these reassignments: (a) were unjustified, unfair, discriminatory, made without consultation, constituted a misappropriation of the statutory power, and were attended by jurisdictional error; (b) amount to a breach of his contract of employment; and (c) have had a significant negative impact on his career progression and other aspects of his life. [34] Finally, the applicant generally pleads that his employment situation has caused him significant distress and hardship, and have been deleterious for his career prospects. [35] Prior to addressing the respondent’s submissions on leave to amend, it should be noted that the applicant is self-represented, and obviously unfamiliar with the complexities of the rules of pleading in this Court. As such, I consider it appropriate to afford some flexibility to the applicant in relation to his pleadings, having regard to the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), which includes the just determination of proceedings before the Court. However, that flexibility is limited by the need to avoid the expense and inefficiency which may arise from having the proceedings conducted on inadequate pleadings, or impinging upon the procedural fairness afforded to the respondent: see, for example, Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286 (Mason CJ and Gaudron J). Relevant principles [36] The principles applicable to applications for leave to amend were outlined by Gleeson J in Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536, as follows: [54] The question of whether leave to amend should be granted is a matter for the Court’s discretion. The powers of the Court are broad and consideration of the question must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act 1976 (Cth): Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Ltd (in liq) ;Tamaya”) at [125]. [55] The principles applicable to applications for leave to amend are well established and include the following: (1) the starting point is “that all amendments should be made and allowed that are necessary to ensure the real questions in controversy between the parties are decided”: Oswal v Apache Corp (No 3) [2014] FCA 835 at [5]; Page 6 of 11 Firew v Services Australia, [2026] FCA 305 (2) an amendment will “ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment”: S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035 (“S.P.I. Spirits”) at [14]; (3) leave should be granted unless the proposed amendment “is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner” indicated above: S.P.I. Spirits at [17]; (4) the allowance of an amendment before the commencement of a trial “stands in a very different position from amendment towards the end of a trial”: S.P.I. Spirits at [18]; and (5) relevant matters the Court may consider include the nature and importance of the amendment to the party applying for it and the prejudice caused by the amendment: Tamayaat [127]. [37] It is also recognised that leave to amend should not be granted if the pleaded case as amended would be hopeless, such that the pleadings would be liable to be struck out or summarily dismissed: Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 852; 66 IPR 19 at [12] (Goldberg J); Cultivaust Pty Ltd v The Grain Pool of Western Australia [2001] FCA 1812 at [7] (Mansfield J). The respondent’s submissions on leave to amend [38] The respondent contends that the applicant should not be granted leave to amend his pleadings, on the basis that the proposed amended pleadings: (a) would have no reasonable prospect of success and therefore would be liable to be summarily dismissed under r 26.01(1) of the Rules; and/or (b) would be liable to be struck out under r 16.21(1) of the Rules. Prospects of success of the amended pleadings related to the promotion decision [39] The respondent submits that the applicant’s claim for relief relating to the decision not to offer him the promotion is outside of the Court’s jurisdiction, because it would require it to traverse the hiring decisions of the agency which are not amenable to judicial review. It also contends that none of the matters pleaded by the applicant have any bearing on procedural fairness. [40] In relation to the promotion decision, the applicant makes various allegations which I consider could, in isolation and hypothetically, amount to a finding of jurisdictional error in a statutory decision. For example, the applicant alleges that the respondent did not consider his qualifications and relevant professional experience as outlined in his CV in deciding not to offer him the position. If able to be proven, it could conceivably amount to an allegation that the respondent did not have regard to a mandatory relevant consideration, which could constitute jurisdictional error depending on the nature of the power exercised. However, the applicant’s pleadings elsewhere indicate that he accepts these matters were considered, but contends they were not given enough weight, which cannot make good a ground of failing to have regard to a mandatory relevant consideration. [41] In any case, the amended pleadings do not remedy the fundamental defect which was apparent in the first set of pleadings filed by the applicant, in that he has not identified any particular statutory decision to which the allegation of jurisdictional error could attach, or to which the relief he seeks could be directed. None is readily apparent to me, and the role in determining an application to amend is not to provide guidance as to how a non- viable case might be made viable. [42] As a result, I am satisfied that the applicant’s amended pleadings relating to the promotion decision have no prospect of success and would be liable to be summarily dismissed or struck out. It follows that leave will not be granted to rely on the amended pleadings in that respect. Prospects of success of the amended pleadings relating to the reassignment of the applicant’s duties [43] The respondent submits that the applicant’s pleadings relating to the reassignment of his duties disclose no ground for judicial review, but rather merely consist of a general complaint that he has been subjected to frequent transfers which he contends did not align with his occupational and academic training. Again, it submits that, in general, decisions relating to employee transfers are not amenable to judicial review. [44] In relation to the reassignment of his duties, the applicant by the amended pleadings seeks relief under s 39B of the Judiciary Act in relation to decisions made under s 25 of the Public Service Act. Section 25 empowers the Chief Executive Officer (CEO) of Services Australia and his delegates to, from time to time, determine the duties of APS employees and the place or places at which they are to be performed. The applicant’s amended pleadings (as Page 7 of 11 Firew v Services Australia, [2026] FCA 305 summarised at [33] above), effectively allege that in exercising that power to transfer him between different teams, the statutory decision-maker committed various errors which amounted to jurisdictional error. [45] I am not satisfied that the applicant’s amended pleadings regarding the reassignment of his duties necessarily have no reasonable prospects of success such that they would be liable to be summarily dismissed on that basis. It seems to me to be at least arguable that the CEO or his delegate could commit a jurisdictional error when determining the duties of an employee under s 25, and that such a jurisdictional error could arise from the kinds of defects which are pleaded by the applicant, such as a failure to provide procedural fairness or an unreasonable exercise of the statutory power. Given that the determination of jurisdictional error is a process of statutory construction, matters including the breadth of the power conferred by s 25 and the purpose for which it was conferred would presumably indicate that such a conclusion is at least unlikely. But it was for the respondent to convince me that there is no reasonable prospect of the applicant making out his cause of action, which it was unsuccessful in achieving. [46] That said, the applicant’s prospects of successfully establishing that a transfer decision was in fact infected by jurisdictional error may suffer from a lack of admissible evidence. It is only fair to the applicant to point out that if he does not succeed in this regard, he may be liable for a costs order, potentially on an indemnity basis if he never had any proper basis for such allegations. Availability of the remedies sought by the applicant [47] The respondent further submits that the remedies sought by the applicant are not available on a review under s 39B of the Judiciary Act, and as a result, the amended pleadings would be incompetent or have no reasonable prospect of success. [48] The relief sought by the applicant in the amended originating application, teased out of the rest of the pleaded text, is as follows: (a) at [1], an “injunction to revoke the Respondent’s decision made on 11 November 2024 that deemed the applicant […] unsuitable for promotion in respect to the EL1 Assistant Director Finance role”(order 1); (b) at [2], an “[i]njunction […] to stop repeat of the unjustified, unfair and racially discriminatory transfers or reassignments using Section 25 of the PSA that breached my employment contract, cancelled my position title and job classification deploying me into job roles that did not use my core competencies” (order 2); (c) at [3], an “injunction […] to bring about my progress to a job role that uses my core competencies and or in line with my employment contract” (order 3); (d) at [4], an “injunction against the staff members who sponsor or coordinate ’Section 25 of the APS’ for lacking the mechanism to resolve an impasse or deadlock even after almost three years or officers at branch level for their inability to coordinate or collaborate with human resources” (order 4); (e) also at [4] (order 5): the Court’s sanction for: (a) appropriate damages and sanctions pursuant to Section 32 of the Federal Court of Australia. (b) the identification and placement of a grievance officer at human resources in matters related to Section 25. (c) training and education of directors and other relevant employees on legal implication of section 25 related breaches. (d) the identification and placement of a dedicated employee at a branch or division level who coordinates and oversees ’Section 25 matters’ (see paragraph 4 under grounds for application for details). (f) at [5]: “[a]ny other sanctions the court finds fit for the emotional, psychological, reputational damage, financial and family crises suffered over the last two and half years together with court costs”(order 6). [49] In a number of respects, the precise relief sought by the applicant is unclear, due to the manner in which it has been drafted. In those circumstances, given the applicant’s lack of representation, I consider it appropriate to read the orders included in the amended originating application in such a way that they fall, to the extent possible, within the relief which this Court is empowered to grant. In doing so, I consider that: Page 8 of 11 Firew v Services Australia, [2026] FCA 305 (a) order 1 effectively seeks certiorari quashing the decision to deem the applicant ineligible for the promotion; (b) order 2, while not entirely clear, either seeks an injunction as he expressly pleads, or perhaps effectively seeks an order in the nature of a writ of mandamus, requiring that the future reassignment of the applicant’s duties under s 25 be made in according to law; (c) order 3 effectively seeks certiorari to quash any previous purported decisions under s 25 to reassign his duties, and/or an injunction requiring him to be returned to his previous role; (d) orders 4, 5, and 6 seek various interventions and/or “sanctions” against the respondent and its officers relating to the governance and decision-making processes concerning the reassignment of employees’ duties; and (e) order 5 also seeks damages pursuant to s 32 of the Federal Court of Australia Act. [50] As discussed, the applicant’s amended pleadings do not invoke the Court’s jurisdiction in relation to the promotion decision. As a result, the applicant would be unable to obtain the relief sought by order 1, and it is unnecessary to consider whether it falls within the Court’s authority. [51] I consider that proposed orders 2 and 3 do fall within the Court’s jurisdiction, as beneficially understood in the manner indicated above. If the applicant is successful in showing jurisdictional error, the s 25 decisions could be liable to be set aside by a court issuing certiorari (order 3) and, an order in the nature of mandamus or an injunction requiring that the CEO exercise the statutory power in accordance with the statute (order 2). [52] Notwithstanding that conclusion, it is worth noting at this stage that there may be real difficulties in obtaining order 2, given that: (a) s 25 gives the CEO, as agency head, and thus delegates of the CEO, a wide discretion to determine an employee’s duties from time to time; (b) either remedy might not be ordered if there is no basis for presuming that such decisions will be made otherwise than according to law in any event; and (c) the availability of certiorari may be impacted in the absence of either mandamus or an injunction, in the context of s 39B(1) of the Judiciary Act. [53] Additionally, insofar as order 3 seeks the Court to require the CEO or his delegate to assign certain duties to the applicant, that is not a remedy within the power of this Court to grant, and would be liable to be struck out. The Court cannot substitute its own decision for that of a statutory decision-maker or direct them as to how their decisions should be made; it can only act, in the context of s 39B, to ensure that the decision-maker does not exceed jurisdiction when doing so. A similar observation could be made in relation to order 2, insofar as it seeks to prevent the CEO from exercising his power under s 25 of the Public Service Act at all. [54] Finally, the applicant has not effectively identified any power of the Court to make the remedial or punitive orders sought by orders 4, 5 and 6. In part, the applicant seeks to rely on s 32 of the Federal Court of Australia Act, but that section only confers on this Court jurisdiction to hear associated matters, not by that device to enlarge the kinds of relief that can be granted. As a result, those claims for relief presently have no reasonable prospects of success and would be liable to be stuck out. Competence of the claim generally [55] The respondent further maintains its submission that the amended pleadings as a whole do not enliven the Court’s jurisdiction under s 39B(1) of the Judiciary Act because he does not seek relief against an officer of the Commonwealth. The applicant has only ever named Services Australia as the respondent to the proceedings. Plainly, the Chief Executive Officer of Services Australia should be named as a respondent, given he is the decisionmaker under s 25 of the Public Service Act (being the provision relied upon for at least some of the decisions impugned by the applicant): Commonwealth, Order to Establish Services Australia as an Executive Agency, No C2019G01103, 6 December 2019. However, I would not consider it appropriate to summarily dismiss the proceeding or strike out the pleadings on that basis, given that this concern would be quickly resolved by the applicant being granted leave to change the title of the Commonwealth respondent. In addition, the applicant in his written submissions contended that he was invoking the Court’s jurisdiction under s 39B(1A)(c), which is not limited to claims against officers of the Commonwealth. Whether or not that submission is correct, it was not adequately addressed by the respondent. Other defects of the amended pleadings [56] It follows from the above that the respondent has shown that the amended pleadings would be liable to be Page 9 of 11 Firew v Services Australia, [2026] FCA 305 summarily dismissed or struck out, other than in relation to the allegation of jurisdictional error in the s 25 reassignment decisions, and the claims for an injunction (or in substance, mandamus) and certiorari as relief arising from that cause of action. [57] Nonetheless, even in relation to that claim, I do not consider that the applicant should be granted leave to rely upon his existing proposed amended pleadings. That is because, as the respondent correctly submits, the amended pleadings are attended by various defects which would render them liable to be struck out under r 16.21(1) of the Rules, including, but not limited to, the following: (a) The proposed pleadings contain material which is either entirely irrelevant to his claim, or is in the nature of evidence rather than material facts. As a result, they breach r 16.02 of the Rules, which requires pleadings to be as brief as possible, and state the material facts relied upon but not the evidence by which they are to be proven. For example, the applicant: (i) describes conversations with various officers of the respondent concerning the reassignment of his duties; (ii) describes in some detail the comments made by his managers in relation to his performance at work; and (iii) makes various complaints regarding his experience as an employee of the respondent, including criticisms directed at certain individuals specifically and the workplace culture more generally; Such material should not have been included in the pleadings. (b) The applicant does not sufficiently plead the basis on which he says that the alleged defects in the decisions of the CEO and/or his delegates amount to jurisdictional error. For example, he states that he was not consulted regarding the reassignment of his duties but does not state the basis on which he says that failure renders them jurisdictionally flawed. (c) The applicant also alleges that certain alleged errors in the documentation relating to one s 25 transfer render that transfer invalid, without explaining why that is the case. (d) The applicant continues to allege that the respondent’s conduct amounts to racial discrimination. Insofar as the applicant intends to rely upon a breach of the Racial Discrimination Act, this Court does not have jurisdiction to hear such a claim in the absence of a terminated complaint to the Australian Human Rights Commission, as outlined at [25] above. This allegation and anything akin to it cannot be included in an amended pleading. (e) The applicant alleges at various points that the respondent’s conduct amounts to a breach or repudiation of his employment contract. However, this claim is put as a bare allegation, without specifying how that breach or repudiation is said to arise from the terms of the contract, or is relevant to any of the relief sought by the applicant in the pleadings. The same can be said for the applicant’s reference to constructive dismissal. (f) Rule 31.11 of the Rules requires that the originating application filed be in accordance with Form 69. Although the applicant has evidently used that form as a base, the version he has used includes a section for the “grounds of application”, in addition to specifying the relief sought following the “details of claim”. That has the effect that the originating application and statement of claim both seek to specify the grounds of application, producing a large amount of duplication and inconsistency. The pleadings should have been prepared in accordance with the prescribed form. (g) At various points in the amended pleadings the applicant makes reference to and presumably attempts to incorporate the contents of other documents filed or sought to be filed with the Court, including his written submissions and affidavits. That is not a proper way to plead a material fact. (h) For the purpose of assessing whether the applicant’s claim has no reasonable prospects of success above, I considered it appropriate to read the relief sought in the amended originating application in such a way that they fall, to the extent reasonably possible, within the relief which this Court is empowered to grant. For example, I understood order 2 as seeking an order in the nature of mandamus requiring that the future reassignment of the applicant’s duties under s 25 of the Public Service Act be made according to law (which is seldom necessary for Commonwealth bodies), and order 3 as seeking to quash the previous decisions (or purported decisions) under s 25 to reassign his duties. However, whether that is in fact what the applicant seeks is uncertain, due to the lack of clarity in the way the orders have been drafted by the Page 10 of 11 Firew v Services Australia, [2026] FCA 305 applicant. In addition, as described above, various aspects of the relief sought by the applicant are beyond the power of the Court to grant in an application under s 39B of the Judiciary Act. For example, the Court cannot substitute its own decision for that of the CEO or his delegates, or direct them as to how their statutory power should be exercised. The Court’s jurisdiction is limited to ensuring that any such actions are taken lawfully. (i) The amended pleadings breach r 16.02(1)(a) of the Rules, in that each paragraph is not numbered. (j) It seems likely that the applicant will need to change the identity of the respondent to that of its CEO, but that is a matter for him to consider and decide. Appropriate orders [58] The existing originating application and statement of claim must be struck out. Having regard to the above, I do not consider it appropriate to grant the applicant leave to amend his pleadings in the form currently proposed. As a result, I would dismiss the application for leave to amend. However, I will make orders for a regime by which the applicant can endeavour to replead his case in accordance with the Rules and these reasons. [59] This repleading effort is to be strictly limited to setting out his claim for judicial review of the decisions to reassign his duties under s 25 of the Public Service Act, being the only claim which I have been able to be satisfied might be able to be prepared in a way that would not render it liable to be summarily dismissed for a lack of any reasonable prospect of success. Any such further pleadings must clearly set out the material facts relied upon to make out that cause of action, and the relief he seeks (which must be within the power of the Court to grant). The further pleadings must also otherwise comply with the requirements set out in r 16.02 of the Rules, which will require the applicant to remedy various defects, such as those identified above at paragraph [57]. [60] I will make orders to the following effect: (a) within 28 days of the publication of this judgment, or such further time as may be allowed, the applicant is to serve on the respondent a draft originating application and statement of claim; (b) within 7 days thereafter, the respondent is to indicate to the applicant whether it consents to or opposes the applicant being granted leave to rely upon the draft pleadings, and if the latter, the reasons it takes that position; (c) if the respondent’s consent is provided pursuant to subparagraph (b) above, within 7 days thereafter the applicant is to file and serve the further pleadings; (d) if the respondent’s consent is not provided pursuant to subparagraph (b) above, within 7 days thereafter, or such further time as may be allowed, the applicant is to file and serve an interlocutory application seeking leave to rely upon the further pleadings, accompanied by an affidavit which annexes the draft originating application and statement of claim on which he seeks to rely, and the application for leave will be listed for hearing (and will not be dealt with on the papers). [61] I note that, in taking this course, I am affording an unusually significant degree of flexibility to the applicant, in circumstances where the pleadings he has provided to date are far from what would normally be required. As outlined above, I consider it is necessary to do so to enable him a proper opportunity to have his claim determined by the Court. However, if the further pleadings prepared by the applicant are similarly defective, the overarching purpose would weigh heavily against him being afforded a further attempt to properly state his claim. [62] Finally, given that the interlocutory application for interim relief was prepared on the basis of, and relies upon, a set of pleadings which have been effectively set aside, that application must be dismissed as it lacks the necessary substratum in any substantive relief sought. It is also appropriate for the further affidavits to be rejected for filing, for similar reasons. [63] Given the respondent succeeded on its objection to competency and the applicant’s application for leave to amend, I will also order that the applicant pay the respondent’s costs. Order 1. The originating application and statement of claim filed on 31 March 2025 be struck out. 2. The interlocutory application for interim relief filed 24 July 2025 be dismissed. 3. The interlocutory application seeking leave to amend filed 15 August 2025 be dismissed. Page 11 of 11 Firew v Services Australia, [2026] FCA 305 4. Within 28 days of these orders, or such further time as may be allowed, the applicant is to serve on the respondent any draft originating application and statement of claim, without any markup from the prior versions. 5. Within 7 days after the applicant complies with order 4 above, the respondent is to indicate to the applicant whether it consents to or opposes the applicant being granted leave to rely upon the draft originating application and statement of claim, and if the latter, a summary of reasons for taking that position. 6. Within 7 days after the respondent complies with order 5 above, or such further time as may be allowed: (a) if the respondent’s consent is provided, the applicant is to file and serve an originating application and statement of claim in the form consented to; and (b) if the respondent’s consent is not provided, the applicant is to file and serve an interlocutory application seeking leave to replead, accompanied by an affidavit which annexes the draft amended originating application and statement of claim on which he seeks to rely, and the application for leave to replead will be listed for hearing. 7. The four affidavits lodged with registry by the applicant on 29 and 30 September 2025 not be accepted for filing. 8. No further documents be accepted for filing from the applicant without an order or leave of the Court, except as provided for by order 6 above. 9. The applicant pay the respondent’s costs relating to the respondent’s notice of objection to competency filed 11 June 2025 and the applicant’s interlocutory application for leave to amend filed 15 August 2025. The applicant appeared in person. Counsel for the respondent: Ms J Zhou Solicitors for the respondent: Holding Redlich End of Document