Arend v Construction Forestry Maritime Employees Union
[2025] FedCFamC2G 1646
•15 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arend v Construction Forestry Maritime Employees Union [2025] FedCFamC2G 1646
File number(s): MLG 564 of 2025 Judgment of: JUDGE FARY Date of judgment: 15 October 2025 Catchwords: FAIR WORK – interlocutory application – review of registrar’s decision not to enter default judgment against respondent – review dismissed - respondent sought orders striking out various parts of the statement of claim – respondent sought orders to summarily dismiss one of the claims in the statement of claim – some paragraphs in the statement of claim to be struck out. Legislation: Fair Work Act 2009 (Cth) ss 340, 341(1), 360(1), 361, 539(2), 557A, 793, Pt 3-1
Fair Work (Registered Organisations) Act 2009 (Cth) ss 323C, 323K
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 190
Federal Court of Australia Act 1976 (Cth) ss 31A, 37M
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 13.01(1), 13.15, 23.08
Federal Court Rules 2021 (Cth) r 16.21
Cases cited: Alam v National Australia Bank Limited (2021) 393 ALR 629
Allstate Life Insurance Co v Australia & NZ Banking Group Ltd [1994] FCA 636; 217 ALR 226
Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 248 CLR 500
Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Elisha v Vision Australia Ltd [2024] HCA 50
Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike out Application) [2024] FCA 1206
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171
KTC v David [2022] FCAFC 60
Leach v Burston [2022] FCA 87
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569
Polar Aviation Pty Ltd v Civil Aviation Safety Authority and Ors [2012] FCAFC 97; 203 FCR 325
Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1
Quach v Commissioner of Taxation [2019] FCA 1729
Sabapathy v Jetstar Airways (2021) 283 FCR 348
Serpanos v Commonwealth of Australia [2022] FCA 1226
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305
Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 22 September 2025 Date of hearing: 22 September 2025 Place: Melbourne Counsel for the Applicant: Ms Davern Solicitor for the Applicant: Mr Forbes Nicholson, Nicholsons Lawyers and Consultants Counsel for the Respondent: Ms Knowles Solicitor for the Respondent: Mr Hayward, Holding Redlich ORDERS
MLG 564 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESTHER VAN AREND
Applicant
AND: CONSTRUCTION FORESTRY MARITIME EMPLOYEES UNION (CFMEU)
Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
15 OCTOBER 2025
THE COURT ORDERS THAT:
1.The following parts of the applicant’s statement of claim dated 6 May 2025 be struck out:
(a)paragraph 9(b); and
(b)paragraph 24 to 36.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FARY:
INTRODUCTION
By Interlocutory Application filed on 29 May 2025, the Construction Forestry Maritime Employees Union (CFMEU) (Respondent) seeks orders striking out various parts of the Statement of Claim (SOC) filed by Ms Arend (Applicant) and/or for the summary dismissal of one of the claims in the SOC and for various other orders (Application).
BACKGROUND
According to her SOC:
(a)In around September 2020, the Applicant was elected as shop steward for the CFMEU.
(b)In or around 5 September 2022, the Applicant commenced employment with CFMEU on a full-time basis with an annual gross salary of $146,305.65.
(c)In or around September 2024, Mr Irving KC participated in media interviews, including an appearance on the Channel 9 network program “60 Minutes” (60 Minutes Program).
(d)In or around 8 October 2024, the Applicant attended a meeting at the CFMEU Victorian office with other employees, where Mr Irving KC stated words to the effect that his job was to protect the CFMEU and he was not willing to comment on allegations published by the media. The Applicant at this open forum asked Mr Irving KC about his comments to the effect that the alleged corruption at the CFMEU was worse than reported (Irving Complaint). Mr Irving KC appeared displeased with the Applicant’s questions.
(e)On 12 November, the Applicant received an email from Ms Makris on behalf of Mr Irving KC with a document titled “Menacing Behaviour Memo_A4.pdf” attached.
(f)On 24 November 2024, the Applicant attended Pentridge Cinema in Coburg to watch a film in the evening. Mr McKenzie was also present at the same cinema with his two children and wife.
(i)In or around 6:30 pm, Mr McKenzie walked towards the Applicant.
(ii)The Applicant said words to the effect of “excuse me, is your name Nick” to Mr McKenzie.
(iii)Mr McKenzie confirmed, and the Applicant said words to the effect of “his journalism was disgusting and the lies he had spread were responsible for destroying thousands of worker’s lives”.
(iv)As the Applicant walked away, Mr McKenzie’s wife yelled at the Applicant and said words to the effect of “what’s your name” to which the Applicant replied “Fred”.
(v)Following this interaction, Mr McKenzie followed the Applicant and stated in a raised voice, words to the effect of “what’s your problem” and “not in front of my kids, that not on”.
(vi)In response, the Applicant said words to the effect of “I didn’t do anything in front of your kids, but you have no problem with spreading lies all over the country about construction workers, how do you think that impacts on their kids?”.
The interaction was recorded on CCTV footage.
(g)Prior to 8 am on 25 November 2024, Mr McKenzie contacted Mr Irving KC and informed him of the interaction with the Applicant at Pentridge Cinema. Mr McKenzie alleged that the Applicant had sworn at him and made a complaint about her conduct.
(h)After 8 am on date same, the Applicant met with Mr Smith, National Secretary and Mr McQuaid, Organiser. During the conversation, Mr Smith told the Applicant that Mr McKenzie had made a formal complaint to Mr Irving KC, alleging that she had abused, threated and intimidated Mr McKenzie as well as his family.
(i)The Applicant admitted she told Mr McKenzie that his journalism was disgusting but denied she raised her voice or swore.
(ii)The Applicant denied the allegation that she had abused, threatened and intimidated Mr McKenzie and his family.
(iii)The Applicant suggested a formal investigation should be conducted and that the CFMEU check the CCTV footage from Pentridge Cinema.
(iv)Mr Smith noted that the complaint may result in the termination of the Applicant’s employment.
(i)In or around the afternoon on date same, the Applicant was notified that Mr Irving KC had made a decision and that a termination letter would be sent to her by way of email.
(j)In or around 4:30 pm on date same, the Applicant received a telephone call from Mr Smith and Mr McQuaid.
(k)In or around 4:58 pm on date same, the Applicant received by way of email a letter from Mr Irving KC stating that her employment at the CFMEU was summarily terminated (Summary Dismissal). The reason for termination being that the Applicant engaged in menacing conduct in breach of the direction given by Mr Irving KC to employees and in breach of the Code of Conduct adopted by the Branch prior to the Administration.
PROCEEDINGS IN THE COURT
On 20 February 2025, Applicant filed an Application under the Fair Work Act 2009 (Cth) (FW Act) against the CFMEU alleging a contravention of a general protection.
On 29 May 2025, the CFMEU filed an Interlocutory Application seeking:
1. Pursuant to Rule 16.21(1) of the Federal Court of Rules 2011 (FC Rules), that the following parts of the Statement of Claim (SoC) filed on 6 May 2025 be struck out:
a. Paragraph 9(b) on the grounds that it:
i. is evasive or ambiguous;
ii. is likely to cause prejudice, embarrassment or delay in the proceeding; or
iii. fails to disclose a reasonable cause of action.
b. Further, or alternatively, paragraphs 9, 19, 24 -25, and/or 26-35 on the grounds that they:
i. are likely to cause prejudice, embarrassment or delay in the proceeding; or
ii. fail to disclose a reasonable cause of action;
c. Further, or alternatively, paragraph 36 on the grounds that it:
i. is evasive or ambiguous; or
ii. is likely to cause prejudice, embarrassment or delay in the proceeding;
2. Further, or alternatively to order 1(a) and (b), that, pursuant to Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules), the claims that the CFMEU (the Respondent) breached s 340 of the Fair Work Act 2009 be dismissed because Ms Van Arend (the Applicant in the proceeding) has no reasonable prospect of prosecuting those claims.
3. Orders 3 to 7 of the Court's Orders dated 31 March 2025 be set aside.
4. On a date that is four weeks after the determination by the Court of the Respondent's application for these interlocutory orders, the Respondent file and serve a Defence.
5. Further, that in compliance with Order 2 of the Court's Orders dated 31 March 2025, the Applicant particularises:
a. The amount of compensation sought and details of how it is calculated;
b. Full particulars of steps taken by the Applicant to mitigate her loss; and
c. The amount of penalty sought and how it is calculated.
6. The name of the Respondent be amended to "Construction, Forestry and Maritime Employees Union".
7. Costs.
(As written)
The Respondent has filed and relies on the affidavit of Sam Hayward affirmed 29 May 2025.[1]
[1] Exhibit R1.
On 1 September 2025, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules) commenced. Accordingly, the provisions that are applicable are those contained in the 2025 GFL Rules.
The hearing of the Application took place at the Melbourne Registry of the Court on 22 September 2025 (Hearing). Both the Applicant and Respondent were represented by Counsel. At the conclusion of the Hearing, judgment was reserved.[2] These are the reasons for judgment in relation to the Hearing.
[2] Orders made by Judge Fary on 12 September 2025, Order 1.
The parties each relied on written submissions, these being:
(a)Respondent’s outline of submissions filed 11 August 2025;
(b)Applicant’s written submissions filed 25 August 2025; and
(c)Respondent’s submissions in reply filed 5 September 2025.
Counsel for each of the parties expanded upon the written submissions at the Hearing.
PRINCIPLES
Purpose of Pleadings
In Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike‑out Application),[3] (Gunawardena) Wheelahan J explained the purpose of pleadings:[4]
The purposes of pleadings are well known. A pleading is a document that defines the issues to be decided in a proceeding. Part 16 of the Rules provides for the content of pleadings generally including, in r 16.02, the requirement to state the material facts necessary to give an opposing party fair notice of the case to be made at trial. Part 16 also specifies how certain matters or things should be dealt with in pleadings (for example facts, references to documents or spoken words, conditions precedent, admissions and denials), and matters that in certain pleadings must be expressly pleaded. It is the function of pleadings to set out material facts, not the evidence that proves those facts: see r 16.02(1)(d).
The rules of pleading are calculated to avoid trial by ambush, and to promote the precise identification of the issues that are before the court: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). Therefore, in any proceeding the purposes of pleadings include enabling the opposing party to have fair notice of the case that must be met at trial, and enabling the Court to know what issues are to be determined.
The identification of issues is necessary not only for a fair trial and ultimate determination of the claims, but also for the purposes of ruling on any applications for discovery, and the admissibility of evidence: see Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 (Banque Commerciale) at 286 (Mason CJ and Gaudron J).
To the extent that the rules of pleading are concerned with fairness, they are an emanation of the requirements of procedural fairness. As with the rules of procedural fairness generally, pleadings are about affording practical justice, and are not an end in themselves: cf the observations of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137.
Overlying the requirements of r 16.02 is the overarching purpose of the civil practice and procedure provisions of the Court that is referred to in s 37M of the Federal Court of Australia Act. The overarching purpose is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible. Parties and their lawyers are required to act consistently with the overarching purpose, and the Court must exercise any procedural powers in a way that best promotes the overarching purpose. The Court's powers under s 37P of the Act to give effect to the overarching purpose are extensive, and include the power to strike out, amend, or limit any part of a party's claim or defence.
[3] [2024] FCA 1206.
[4] At [7] to [13].
While Part 13 of the 2025 GFL Rules makes provision with respect to pleadings, Div 13.1, which governs the content of pleadings in the FCFCOA (Division 2), does not apply to these proceedings, as they did not commence by way of an originating application supported by a statement of claim.[5]
[5] Rule 13.01(1) of the 2025 GFL Rules.
In Sabapathy v Jetstar Airways,[6] Logan and Katzmann JJ said in relation to a pleading used in the Federal Circuit Court:
As the respondents submitted, s 3 of the FCCA Act, upon which Mr Sabapathy relied, provides that the object of the Court is to operate “as informally as possible” (emphasis added). This is a recognition of the fact that the Circuit Court’s jurisdiction is broad and includes proceedings which can fairly be conducted with little formality. Procedural fairness is “not an abstract concept”; it is “essentially practical”: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ). While provision might be made for some level of informality in every case in the Circuit Court, in this kind of case where civil penalties are sought and an order has been made for the case to proceed by pleadings, the rules of pleading should be applied.
(Emaphasis added)
[6] (2021) 283 FCR 348 at [42].
Similar, if not identical, considerations apply in the FCFCOA (Div 2).
Strike Out
Division 13.15 of the 2025 GFL Rules provides:
1. A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
a. contains scandalous material; or
b. contains frivolous or vexatious material; or
c. is evasive or ambiguous; or
d. is likely to cause prejudice, embarrassment or delay in the proceeding; or
e. fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
f. is otherwise an abuse of the process of the Court.
2. A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
It has been held that r 16.21 of the Federal Court Rules 2021 (Cth) (Federal Court Rules)[7] which is in the same terms as r 13.15 of the 2025 GFL Rules, relates only to the adequacy of the pleadings, and does not permit consideration of matters outside of the pleadings.[8]
[7] Which previously had application by r 1.06(3) of the 2021 GFL Rules and item 14 of Schedule 1.
[8] Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 per Finkelstein J at 43.
In KTC v David,[9] Wigney J (with whom Jackson J agreed), commenting on r 16.21 of the Federal Court Rules said in relation to a strike out on the ground that the pleading “contains frivolous or vexatious material”:[10]
The word "vexatious" in the context of rules such as r 16.21 is an "omnibus expression" that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing, or the inclusion of which is otherwise an abuse of the processes of the Court: Gallo v Attorney-General (Vic) (Full Court of the Supreme Court of Victoria, Starke J, with whom Crockett and Beach JJ agreed at [12], 4 September 1984), referred to with approval in Mathews v State of Queensland [2015] FCA 1488 at [87]. Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are "obviously untenable or manifestly groundless": Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491; see also Von Reisner v Commonwealth (2009) 177 FCR 531; [2009] FCAFC 97 at [27].
[9] [2022] FCAFC 60.
[10] At [119].
As to strike out on the ground that the pleading “is likely to cause prejudice, embarrassment or delay in the proceeding”, in KTC v David,[11] Wigney J stated:[12]
A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 41-434; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [18]; Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.
A pleading may be considered to be embarrassing if it suffers from narrative prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27 at [80]-[84]. A party cannot be expected to respond to mere context, commentary, "history, narrative material or material of a general evidentiary nature": Fuller v Toms at [83].
A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd & Steinhardt v Pearce, Neville & Oke Industrial Pty Ltd (1996) 138 ALR 522 at 531.
[11] [2022] FCAFC 60.
[12] At [120]-[122].
In KTC v David,[13] Wigney J (with whom Jackson J agreed) stated:[14]
If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the “residue would be confusing”: Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305 at 323.
Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: Allstate at 236. The power is discretionary and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175.
[13] [2022] FCAFC 60.
[14] See also Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [21].
As to strike out on the ground that the pleading “fails to disclose a reasonable cause of action”, the relevant principles are:[15]
(a)a “reasonable cause of action” (or defence) is one that has some chance of success if regard is had only to the allegations in the pleadings relied upon by the claimant. Such a cause of action is not amenable to strike out;
(b)the mere fact that the case appears to be a weak one is not of itself sufficient to justify the striking out of the action or defence;
(c)generally speaking, the power to strike out should be exercised with great caution and only in plain and obvious cases, where no reasonable amendment could cure the alleged defect; and
(d)the Court is entitled to determine the matter on the basis of a point of law where the point can be decided appropriately, thereby avoiding the necessity of, and expense in, going to trial.
[15] See: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J at 91; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [6]; Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164 at 175 (Sheppard J, with whom Jenkinson and Drummond JJ agreed); Allstate Life Insurance Co v Australia & NZ Banking Group Ltd [1994] FCA 636; 217 ALR 226; Polar Aviation Pty Ltd v Civil Aviation Safety Authority and Ors [2012] FCAFC 97; 203 FCR 325 at [40]-[43].
It has been held that r 16.21 of the Federal Court Rules must be interpreted and applied in light of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.[16] Similarly, r 13.15 of the 2025 GFL Rules must be interpreted and applied in light of the same requirements in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
[16] KTC v David [2022] FCAFC 60 at [118].
Summary Dismissal
Section 143 of the FCFCOA Act provides relevantly that summary judgment may be given in relation to the whole or part of any proceedings where “the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”.
Rule 23.08 of the 2025 GFL Rules provides as follows:
1. The Court may order that judgment be given against a party if the Court is satisfied that:
a. the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or
b. the proceeding is frivolous or vexatious; or
c. no reasonable cause of action is disclosed; or
d. the proceeding is an abuse of the process of the Court; or
e. the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.
2. If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not dismissed.
…
The relevant principles are summarised as follows:
(a)the party seeking summary disposal bears the onus of persuading the court that the proceeding has no reasonable prospects of success and should be disposed of summarily;[17]
(b)“the enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail”; [18]
(c)“it may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success”;[19]
(d)the word “may” in s 143 of the FCFCOA Act is used to indicate the conferral of power, rather than a discretion, such that if the criterion “no reasonable prospects of success” is satisfied, then the court is bound to exercise the power of summary disposal;[20]
(e)section 143 of the FCFCOA Act has lowered the bar for summary disposal from previous provisions;[21] and
(f)the power to summarily dismiss must be exercised with “caution”.[22]
[17] Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [45].
[18] Leach v Burston [2022] FCA 87 (Leach v Burston) at [36].
[19] Quach v Commissioner of Taxation [2019] FCA 1729 at [12].
[20] Leach v Burston at [36].
[21] Noting s 143(3) of the FCFCOA Act.
[22] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24].
In Spencer v Commonwealth of Australia,[23] French CJ and Gummow J said in relation to 31A of the Federal Court Act (which is expressed in similar terms to s 143 of the FCFCOA Act):[24]
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
(Footnotes omitted)
CONSIDERATION
[23] (2010) 241 CLR 118.
[24] At [24]-[26].
Claims under Part 3-1 (General Protection)
The Applicant’s claims under Part 3-1 of the FW Act are said to be founded upon the exercise by the Applicant of a workplace right (the “Irving Complaint and/or Inquiry”).
The Applicant’s claims under Part 3-1 of the FW Act alleged two instances of adverse action (the “Irving Unfair Conduct” and the “Summary Dismissal Adverse Action”).
The Applicant alleges that:
(a)the “Summary Dismissal Adverse Action” was taken by the CFMEU because of the exercise by the Applicant of making the “Irving Complaint and/or Inquiry” in contravention of s 340(1)(a) of the FW Act; and
(b)the “Irving Unfair Conduct” was taken by the CFMEU because of the exercise by the Applicant of the making of the “Irving Complaint and/or Inquiry” in contravention of s 340(1)(a) of the FW Act.
Section 340(1) of the FW Act provides that a person must not take adverse action against another person for various reasons relating to a workplace right.
Section 340(1) of the FW Act is a civil remedy provision.
Exercise of a workplace right
General protections contained in the FW Act are designed to safeguard employees from being subject to adverse action for exercising a workplace right or because of a protected attribute.
If an employee claims that adverse action was taken against them because they exercised a workplace right or because of a protected attribute, the employer must prove to the court on the balance of probabilities that this was not the reason for their decision to undertake the adverse action.[25] This is known as the reverse onus of proof.[26]
[25] Section 360(1) of the FW Act.
[26] See generally Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551.
In Australian Building and Construction Commissioner v Hall,[27] the Full Court stated:[28]
Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. … 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial”. See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.
It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a “particular reason” and it does not extend to a “particular intent”, both of which are covered by s 361. Section 360 therefore only applies to the “particular reason” component of s 361.
…
[W]e consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Pt 3–1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173, “[a] material fact is one which is necessary to formulate a complete cause of action. … Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.”
(Emphasis added)
[27] (2018) 261 FCR 347.
[28] At [13], [14] and [19].
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor,[29] Gummow and Hayne JJ stated:
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.
(Emphasis added)
[29] (2012) 248 CLR 500 at [104].
Section 341(1) of the FW Act provides:
Meaning of workplace right
1. A person has a workplace right if the person:
a. is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
b. is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
c. is able to make a complaint or inquiry:
i. to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
ii. if the person is an employee--in relation to his or her employment.
In Shea v TRUenergy Services Pty Ltd (No 6),[30] (Shea) Dodds-Streeton J stated:
…the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
[30] (2014) 314 ALR 346 (Shea) at [625].
In Cigarette & Gift Warehouse Pty Ltd v Whelan,[31] the Full Court of the Federal Court endorse the following statement of the trial Judge, Collier J:
Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be "in relation to" his employment means that there must be a relationship between the subject matter of the complaint and the complainant's employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
[31] (2019) 268 FCR 46.
In Alam v National Australia Bank Limited,[32] (Alam) the Full Court of the Federal Court considered when an employee “is able to make a complaint or inquiry – in relation to his or her employment” and stated:[33]
It is evident that, in applying the approach of Dodds Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).
[32] (2021) 393 ALR 629
[33] At [75].
In Messenger v Commonwealth of Australia (Represented by the Department of Finance),[34] Snaden J stated:
…Section 341 does not invest employees with new rights. It merely characterises existing rights or entitlements as “workplace rights”, the possession or exercise of which is the subject of protections located elsewhere in pt 3-1 of the FW Act.
…successive full courts have now made clear [that] in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.
[34] [2022] FCA 677 [141]-[143].
In Serpanos v Commonwealth of Australia,[35] (Serpanos) Snaden J stated:
Whether a complaint made by an employee qualifies as one made “in relation to his or her employment” depends upon the subject matter about which the complaint is made. In order so to qualify, a complaint must be about a subject, circumstance, issue or thing that arises by reason of the complainant’s employment.
[35] [2022] FCA 1226 at [172].
In Qantas Airways Ltd v Transport Workers’ Union of Australia,[36] Kiefel CJ, Gageler, Gleeson and Jagot JJ stated by way of obiter:
The words “is able to” in s 341(1)(b) and (c), while not words of limitation, necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).
[36] (2022) 402 ALR 1 at [36].
In short, for s 341(1)(c)(ii) of the FW Act to apply:
(a)the applicant must establish an ability to make a complaint or inquiry by demonstrating that the ability is founded on a source of entitlement (instrumental or otherwise);[37]
(b)the complaint or enquiry must be ‘in relation to his or her employment’ i.e. there must be a relationship between the subject matter of the employee’s complaint or enquiry and the employee’s employment;[38]
(c)it is not necessary that the right or entitlement to make a complaint or inquiry be found in the contract of employment, it is sufficient that it relates to a subject matter for which the contract of employment makes provision;[39] and
(d)the complaint or inquiry ‘must be about a subject, circumstance, issue or thing that arises by reason of the complainant’s employment’.[40]
[37] Shea at [625].
[38] Alam v National Australia Bank Limited (2021) 393 ALR 629 (Alam).
[39] Alam at [75].
[40] Serpanos v Commonwealth of Australia [2022] FCA 1226 at [172].
Paragraph 9(b) of the SOC provides:
Ms Van Arend repeatedly asked Mr Irving KC and complained about his comments published in the 60 Minutes program to the effect that alleged corruption at the CFMEU was far worse than she first thought (the Irving Complaint and/or Inquiry).
The further and better particulars of paragraph 9(b) are provided in the format of extracts from the transcript of a meeting between the Applicant and Mr Irving KC on 15 May 2025 (Meeting), concerning, amongst other matters, comments made by Mr Irving KC to Mr McKenzie in a 60 Minutes Program concerning alleged corruption at the CFMEU.
The Respondent’s main complaints are:
(a)that material facts identifying the allegation of the exercise of a workplace right (namely the complaint) are not pleaded or particularised; and
(b)the Applicant does not establish that her alleged complaint or enquiry was in relation to her employment.
It appears to me that these two questions are interrelated. There needs to be a sufficient degree of specificity with respect to the identification of the complaint in order to determine whether the complaint is one made “in relation to employment”. I agree with the Respondent’s contention, that both of these questions are not sufficiently identified in the SOC so as to give the Respondent fair notice of the case it is required to meet.
The subject matter of the complaint in paragraph 9(b) of the SOC is not sufficiently identified. Paragraph 9(b) begins with the allegation that the Applicant asked Mr Irving KC and complained about his comments published in the 60 Minutes Program. Rather than identifying the complaint that was made, the words following “to the effect that” describe the 60 Minutes Program. The reader is given the gist of the 60 Minutes Program, but not the terms of the complaint or its connection to the Applicant’s employment.
The Applicant contends that the terms of the complaint and its connection to the Applicant’s employment are made clear by the particulars that were given of paragraph 9(b). Those particulars set out extracts from a transcript of the Meeting. During the Meeting, the Applicant made numerous comments, some of which might be characterised as complaints; for example, complaints about making “us” (presumably the CFMEU) “look as bad as possible” and complaints about making public comments without investigating, or without the allegations having been “proven”. The comments made are open to multiple characterisations for the purposes of s 341(1)(c)(ii) of the FW Act.
In my opinion, precisely identifying (including characterising) the complaint(s) and identifying the connection to the Applicant’s employment is fundamental to the Applicant’s case under s 340(1)(a) of the FW Act. Those facts “must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet”.[41]
[41] Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 per French J at 173.
The question of characterisation of the complaint in the present case is made more difficult by the nature and purpose of the CFMEU and the Applicant’s role as an employee, that being an organiser and shop steward. A pleading that does not pay attention to the differences between each of these distinct aspects is liable to be confusing.
The necessity to precisely identify the complaint and the connection to the Applicant’s employment is enhanced by two matters:
(a)first, where, as here, an applicant wishes to take advantage of the presumption in s 361 of the FW Act, “an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent”[42] which include ones necessary to formulate a complete cause of action; and
(b)second, the fact that the Applicant is seeking civil penalties.
[42] Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [19].
Paragraph 9(b) of the SOC must be struck out on the basis that it “is likely to cause prejudice, embarrassment or delay in the proceeding” or “fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading”.
Striking out paragraph 9(b) of the SOC renders the pleadings in relation to Claims under Part 3-1 (General Protection) incomplete, and should be struck out on that basis. I shall strike out paragraphs 26 to 35 of the SOC on that basis.
Attribution of conduct
Paragraph 24 of the SOC provides:
Mr Irving KC engaged in the conduct pleaded in paragraph 8 to 21 above on behalf of the CFMEU within the scope of his actual or apparently authority.
Paragraph 25 of the SOC provides:
By reason of the matters pleaded in paragraph 24, the conduct engaged in by Mr Irving KC pleaded in paragraphs 8 to 21 above was engaged in by the CFMEU by operation of s 793 of the FW Act.
Section 793 of the FW Act provides:
Liability of bodies corporate
Conduct of a body corporate
1. Any conduct engaged in on behalf of a body corporate:
a. by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
b. by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act (subject to subsection (3A)) and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
2. If, for the purposes of this Act (subject to subsection (3A)) or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
a. that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
b. that the person had that state of mind.
Meaning of state of mind
3. The state of mind of a person includes:
a. the knowledge, intention, opinion, belief or purpose of the person; and
b. the person’s reasons for the intention, opinion, belief or purpose.
Exception – offence relating to failure to pay amounts
3A.Subsection (1) and (2) do not apply for the purposes of:
a. subsection 327A(1) (offence for failing to pay amounts as required); or
b. a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1).
Disapplication of Part 2.5 of the Criminal Code
4. Part 2.5 of Chapter 2 of the Criminal code does not apply to an offence against this Act, other than an offence against a provision referred to in paragraph (3A)(a) or (b) of this section.
5. In this section, employee has its ordinary meaning.
I am not convinced that the Applicant’s complaint in relation to the pleading of attribution of conduction in respect of Mr Irving KC is necessary to inform the Respondent of the case that it is required to meet at trial. Nevertheless, given that I am going to strike out paragraphs 24 and 25 of the SOC, the Applicant has an opportunity to address the complaints made by the Respondent. I shall leave it to the Applicant to determine whether to address this matter further in any revised pleading.
I note in passing that Mr Irving KC would appear to have been appointed pursuant to s 323C of the Fair Work (Registered Organisations) Act 2009 (Cth) with the powers and functions that are set out in s 323K of that Act.
Serious Contraventions Allegations
Paragraph 33 of the SOC provides:
At all material times, by reason of the matters in paragraphs 2 and 3 above, the CFMEU knew that Ms Van Arend was entitled to the workplace rights described at paragraph 9.b above.
Paragraph 34 of the SOC provides:
By reason of the matters referred to in paragraph 33 above, the CFMEU’s contraventions of s 340 set out at paragraphs 29 and 32 above are serious contraventions within the meaning of ss 539 and 577A of the FW Act.
Section 539(2) of the FW Act sets out the maximum penalties for breaches of civil remedy provisions and details when a Court can order penalties for serious contraventions. Item 11 of the table, which includes s 340, does not refer to serious contraventions.
Section 557A of the FW Act provides:
Serious contravention of civil remedy provisions
1. A contravention of a civil remedy provision by a person is a serious contravention if:
a. the person knowingly contravened the provision; or
b. the person was reckless as to whether the contravention would occur.
2. For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:
a. the person is aware of a substantial risk that the contravention would occur; and
b. having regard to the circumstances known to the person, it is unjustifiable to take the risk.
Involvement in a serious contravention
5A.A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:
a. the principal’s contravention was a serious contravention; and
b. the involved person knew that the principal’s contravention was a serious contravention.
Application for a serious contravention order and alternative orders
6. If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.
7. If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:
a. is not satisfied that the person has committed a serious contravention against that provision; and
b. is satisfied that the person has contravened that provision;
the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.
In short, for certain contraventions of the FW Act, there is a greater penalty where the contravention can be characterised as a ‘serious contravention’. The Applicant’s claims for contravention of the general protection provisions are not ones for which a finding of ‘serious contravention’ provide enhanced penalties. The pleading of ‘serious contravention’ would appear to serve no purpose. Such a finding goes to the characterisation of the contravention for the purpose of penalty only.
Accordingly, had I not already determined to strike out paragraphs 33 and 34 (on the basis that they formed part of an incomplete cause of action), I would have struck out those paragraphs on the basis that they are “likely to cause prejudice, embarrassment or delay in the proceeding” or “fail
sto disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading”.Loss and damage
I am not satisfied that the Respondent’s complaints in relation to paragraph 35 and the particulars to that paragraph are in respect of matters that would cause embarrassment at trial. Many of those complaints concern questions of fact, that will be addressed by evidence and submissions at trial. Accordingly, had I not already determined to strike out paragraph 35 (on the basis that it formed part of an incomplete cause of action), I would not have struck out that paragraph. To the extent that there is merit in the complaint made in paragraph 29 of the Respondent’s submissions, that matter should be addressed in any revised pleading.
Claims for breach of contract
Paragraph 36 of the SOC provides:
The Summary Dismissal Adverse Action, amounted to a termination in breach of contract because Ms Van Arend’s the interactions pleaded at 13 and 14 above did not constitute serious misconduct.
I consider that the pleadings at paragraphs 36 and 37 are deficient because they fail to plead essential elements of the claim, namely the relevant terms of the Contract of Employment, and by extension, the breach(es) of the term(s) alleged.
Paragraph 36 of the SOC must be struck out on the basis that it “is likely to cause prejudice, embarrassment or delay in the proceeding” or “fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading”.
Having determined to strike out paragraph 36 of the SOC, it is unnecessary for me to consider the further point that some of the loss and damage sought to be recovered is barred by the Workplace Injury Rehabilitation and Compensation Act2013 (Vic), because a serious injury certificate is required. Until the question of the terms of contract and breach are addressed, it would be speculative to attempt to address the complaint in relation to the pleading of the claim for non-economic loss.[43] To the extent that there is merit in this ground, it is a matter that can be pleaded by way of defence. It strikes me that the issue is likely to be more efficiently addressed by way of evidence and submissions, rather than in a pleading fight.
[43] Compare Elisha v Vision Australia Ltd [2024] HCA 50.
CONCLUSION
As set out above, I have decided to strike out critical parts of the two causes of action pleaded by the Applicant in the SOC, namely the Applicant’s claims under Part 3-1 (General Protection) and the Applicant’s claims for breach of contract. While not all of the constituent paragraphs of the two causes of action are objectionable (for example, most of paragraphs 1 to 25), the “residue would be confusing” and leave incomplete causes of action.[44]
[44] Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323.
I am not satisfied that the Applicant “has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”. Accordingly, I shall strike parts of the SOC out on the basis that the Applicant have a right to replead and to address the deficiencies identified above. The contention that the Applicant’s claims ought to be summarily dismissed because she has had “three opportunities to frame those claims”, elides the separate nature and roles of the initiating process, statement of claim and particulars.
I will hear the parties in respect of costs.
I certify that the preceding seventy-onenine (71) numbered paragraphs areare a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 15 October 2025
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