FEDERAL COURT OF AUSTRALIA
Bilal v EML NSW Limited [2025] FCA 1190
File number(s): NSD 617 of 2025 Judgment of: SHARIFF J Date of judgment: 25 September 2025 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for summary dismissal of proceedings – where applicant alleges contraventions of whistleblower protections in the Corporations Act 2001 (Cth) and contraventions of s 345 of the Fair Work Act 2009 (Cth) – forensic choices made by the parties in the face of overarching purpose of civil practice – whether the forensic choices made by the parties encourage a “brume of endless interlocutory applications and collateral disputation” as opposed to the just resolution of disputes “quickly, inexpensively and efficiently as possible” – the functional system of the administration of justice relies upon the co-operation of the parties and the Court to achieve the overarching purpose – whether the application for summary dismissal was a “clean kill” or in part involved the Court determining contested facts in a mini-trial
PRACTICE AND PROCEDURE – where whistleblower claims and misrepresentation claims do not plead material facts as to essential elements of alleged contraventions – where pleadings are otherwise defective in form and substance – where pleadings involve significant logical leaps – claims struck out but not dismissed
PRACTICE AND PROCEDURE – accessorial liability – where second and third respondents were employed by the first respondent – where applicant alleges the second and third respondents are liable as accessories to contraventions alleged against the first respondent – where applicant failed to plead the requisite mental element of intention or knowledge of essential elements and ingredients of primary contravention – claims against second and third respondents struck out but not dismissed
Legislation: Corporations Act 2001 (Cth) Pt 9.4AAA, ss 1317AA, 1317AAA, 1317AAB, 1317AAC, 1317AC, 1317AD, 1317AD, s 1317AE
Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 37N
Fair Work Act 2009 (Cth) ss 345, 550
Federal Court Rules 2011 (Cth) rr 16.02, 16.43, 26.01
Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985
Australian Securities and Investments Commission vCassimatis [2013] FCA 641; 220 FCR 256
Azad v Avant Insurance Ltd (No 2) [2025] FCA 853
Bilal v Ampol Limited [2025] FCA 1189
Butorac v WIN Corporation Pty Ltd [2009] FCA 1503
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 109
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; 360 ALR 261
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479
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- AGLC
- Bilal v EML NSW Limited [2025] FCA 1190
- Case
- [2025] FCA 1190
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case revolved around the adequacy of Mr Bilal’s pleadings and whether the claims should be dismissed or struck out. The respondents argued that Mr Bilal's whistleblower claims lacked specificity, failed to identify material facts, and were expressed in non-exhaustive terms. Additionally, they contended that Mr Bilal had no reasonable prospect of proving that the respondents believed or suspected that he had made certain disclosures, which motivated the handling of his workers’ compensation claim. For the misrepresentation claims, the respondents argued that Mr Bilal’s pleadings were defective as they did not allege any material fact from which the Court could infer that the respondents had knowledge or were reckless regarding the falsity or misleading nature of the representations. Furthermore, they argued that Mr Bilal's claims were an abuse of process as they sought to relitigate issues already resolved in other proceedings.
The Court found that Mr Bilal’s claims against the respondents were defective and liable to be struck out. The Court held that the whistleblower claims were not specific enough and failed to identify material facts, leading to the conclusion that Mr Bilal had no reasonable prospect of proving his allegations. For the misrepresentation claims, the Court found that Mr Bilal’s pleadings were insufficient as they did not establish the requisite knowledge or recklessness of the respondents. The Court also noted that Mr Bilal’s claims were an abuse of process because they sought to relitigate resolved issues and duplicate compensation sought in other proceedings. Consequently, the Court ordered that the Statement of Claim be struck out in its entirety and provided a detailed process for Mr Bilal to serve and file an amended statement of claim, with specific deadlines for the respondents to respond and for the applicant to apply for leave to amend if necessary.
In conclusion, the Court's orders were aimed at ensuring that Mr Bilal's claims were adequately pleaded and that the proceedings moved forward efficiently and effectively. The Court struck out the existing Statement of Claim and set out a clear pathway for Mr Bilal to amend his pleadings, while also scheduling a case management hearing to oversee the process. This decision underscores the importance of well-pleaded claims and the role of the Court in ensuring that litigation proceeds in a manner that is just, quick, and economical.
Orders
Orders of the court
1. The statement of claim filed on 23 April 2025 be struck out in its entirety.
2. The applicant serve a proposed amended statement of claim on the respondents by 4.00 pm on Thursday, 6 November 2025.
3. The respondents convey their consent or opposition to the filing of the proposed amended statement of claim by 4.00 pm on Thursday, 13 November 2025.
4. To the extent the respondents oppose the filing of the proposed amended statement of claim, the applicant is to apply for leave to amend by 4.00 pm on Tuesday, 18 November 2025.
5. To the extent the respondents consent to the filing of the proposed amended statement of claim, the applicant is to be granted leave to filed it in the form proposed.
6. The matter be listed for case management hearing at 10.15 am on Thursday, 20 November 2025.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr Bilal commenced these proceedings by way of an Originating Application and Statement of Claim (SOC) filed on 23 April 2025. He claims that each of EML, Ms Taylor, and Mr Stewart contravened the “whistleblower” protections contained in Part 9.4AAA of the Corporations Act 2001 (Cth) (the Corporations Act) and each contravened the prohibition in s 345 of the Fair Work Act 2009 (Cth) (the FW Act) against knowingly or recklessly making false or misleading representations about workplace rights. By an interlocutory application filed on 16 July 2025, the respondents sought orders for the summary dismissal of the whole of the proceedings or such of the claims that the Court may order be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and/or r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules). They also seek their costs of the proceedings. In the alternative, the respondents seek an order pursuant to r 16.21 of the Rules that the SOC be struck out in whole or in part. Mr Bilal has also commenced separate proceedings in this Court (NSD391/2025) against Ampol Australia, and other entities related to it, alleging contraventions of Part 9.4AAA of the Corporations Act (the Ampol Whistleblower Proceedings). The respondents in the Ampol Whistleblower Proceedings have also applied for summary judgment and/or strike out of the claims made by Mr Bilal against them. Many aspects of Mr Bilal’s claims against EML, Ms Taylor and Mr Stewart in respect of contraventions of Part 9.4AAA of the Corporations Act rely upon the same or similar apparent substratum of alleged facts as to alleged “qualifying” disclosures or proposed disclosures. In my separate reasons in the Ampol Whistleblower Proceedings, I have set out relevantly applicable principles and other matters to which I will refer throughout these reasons: see Bilal v Ampol Limited [2025] FCA 1189 (Ampol Judgment). In the present proceedings, the respondents’ primary contentions can be summarised as follows: (a)as for the whistleblower claims, it is contended that: (i)Mr Bilal’s pleadings are defective and liable to be struck out as each of the alleged disclosures, among other things, lack specificity, fail to identify material facts, and are expressed in non-exhaustive terms; and(ii)Mr Bilal has no reasonable prospect of establishing that EML (or any of its employees) believed or suspected that Mr Bilal had made, may have made, proposed to make, or could make the disclosures alleged and that such a belief or suspicion actuated the handling of Mr Bilal’s workers’ compensation claim in the way that it was; and(b)as for the misrepresentations claims under s 345 of the FW Act, it is contended that: (i)in many respects, Mr Bilal’s pleadings assert that the respondents made representations in particular documents which are not borne out from an examination of the relevant documents or, to the extent that the representations were made in those documents, they are not false or misleading such that these claims should be dismissed or struck out; (ii)in any event, Mr Bilal’s claims should be dismissed or struck out because they fail to allege any material fact from which the Court can infer that each representor had knowledge or was reckless as to the falsity or misleading nature of the representations;(iii)aspects of Mr Bilal’s claims should be dismissed or struck out because they do not concern workplace rights; and(iv)Mr Bilal’s claims are an abuse of process as he is seeking to relitigate issues resolved by consent or discontinuance in three proceedings instituted in the Personal Injury Commission and because he is seeking the same compensation sought in those proceedings; and(c)as for Mr Bilal’s pleading of accessorial liability as against Ms Taylor and Mr Stewart, it is contended that the pleadings disclose no cause of action because they fail to articulate essential elements of an accessorial case against these individuals.