s 94. Accordingly, this is, deliberately, not a victimisation case, a characterisation that is of some importance to the basis for Ms Tickle's claim for aggravated damages, considered below.
211 Whether an application in this Court can rest on conduct that occurred after a complaint to the AHRC was made was considered by Katz J in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573 (the AHRC and AHRC Act then being named as the Human Rights and Equal Opportunity Commission (HREOC) and the Human Rights and Equal Opportunity Commission Act (HREOC Act), respectively). Katz J considered whether conduct that occurred after a complaint had been made to the HREOC could found proceedings in this Court alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth). His Honour concluded that such unlawful discrimination was beyond the scope of s 46PO(3): at [36]. I agree with that conclusion for the detailed and comprehensive reasons given by his Honour, which are therefore worth setting out in some detail in order to adopt them in full:
[37] It appears to me that s 46PO(3) of the HREOCA [HREOC Act] is only incidentally concerned with those allegations of fact which can be made in an application under s 46PO(1) of the HREOCA; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear. In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.
[38] Paragraph (a) of s 46PO(3) of the HREOCA proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.
[39] Paragraph (b) of s 46PO(3) of the HREOCA, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character "arise[s] out of" the facts which are now being alleged.
[40] It is worth recording here that, although the Senate explanatory memorandum for the Bill which became the amending Act did not elaborate on the intended operation of the proposed s 46PO(3)(a) of the HREOCA, it did elaborate on the intended operation of the proposed s 46PO(3)(b) of the HREOCA, saying,
"This second limb is intended to cover situations in which different instances
