Bartlett v Commonwealth of Australia

FEDERAL COURT OF AUSTRALIA

Bartlett v Commonwealth of Australia [2025] FCA 1107   

File number(s):

NSD 1590 of 2023

Judgment of:

PERRAM J

Date of judgment:

10 September 2025

Catchwords:

PRACTICE AND PROCEDURE – where the applicant seeks to make allegations of adverse action by omission – where the applicant alleges breach of contract – where damages not sought for breach of contract – whether s‍ 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is engaged – whether the allegations are a claim for common law damages for an injury sustained in the course of employment or a claim for compensation for personal injury under the Fair Work Act 2009 (Cth)

Legislation:

Fair Work Act 2009 (Cth), ss 340, 570

Australian Human Rights Commission Act 1986 (Cth), s 46PO(4)(d)

Disability Discrimination Act 1992 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 44, 45

Sex Discrimination Act 1984 (Cth)

Cases cited:

Comcare v Friend [2024] FCAFC 4; 301 FCR 617

Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; 203 FCR 325

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

20

Date of hearing:

4 September 2025

Counsel for the Applicant:

A Britt

Solicitor for the Applicant:

Harmers Workplace Lawyers

Counsel for the First Respondent:

P Bindon

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

D Mahendra

Solicitor for the Second Respondent:

DLA Piper Australia

Counsel for the Third Respondent:

J Hooper

Solicitor for the Third Respondent:

Sparke Helmore

ORDERS

NSD 1590 of 2023

BETWEEN:

JAMES BARTLETT

Applicant

AND:

THE COMMONWEALTH OF AUSTRALIA

First Respondent

MERYL SWANSON

Second Respondent

SUSANNE HEATH

Third Respondent

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	10 SEPTEMEBER 2025

THE COURT ORDERS THAT:

1.Prayer 3 of the First Respondent’s interlocutory application dated 20 December 2024 be dismissed.

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

REASONS FOR JUDGMENT

PERRAM J

1. Now for determination is a pleading issue in an employment case.  The applicant, Mr Bartlett, was employed by the Commonwealth as a member of the staff of Ms Swanson, the member for the Federal seat of Paterson.  His employment with the Commonwealth came to an end on 9 August 2023 when Ms Swanson informed Mr Bartlett his employment had been terminated.

2. Relevantly for present purposes, Mr Bartlett makes two allegations in the second further amended statement of claim (the ‘2^nd FASOC’) about the events leading up to his termination.  The first of these is an allegation that the Commonwealth breached its contract of employment with him by not ensuring his health and safety whilst in its employ: §§11, 121(p).

3. The second is that Mr Bartlett had complained about a number of matters (set out at §136A) and, as a result of those complaints, the Commonwealth omitted to take steps to ensure that his health and safety were protected in accordance with his contract of employment:…