Holt v Turner Therapy
[2025] FedCFamC2G 1667
•15 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Holt v Turner Therapy [2025] FedCFamC2G 1667
File number(s): MLG 722 of 2025 Judgment of: JUDGE FARY Date of judgment: 15 October 2025 Catchwords: FAIR WORK – PRACTICE AND PROCEDURE – application to strike out statement of claim –statement of claim contains content that is likely to be embarrassing or cause delay in the proceeding – appropriate to strike out parts of the statement of claim and give applicant an opportunity to replead. Legislation: Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth) ss 44, 45, 61, 65, 117, 118, 323, 340, 341, 342, 351, 368, 387, 389, 545, Div 5 Pt 3.1
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 190, 191, 254, 256
Federal Court of Australia Act 1976 (Cth) ss 31A, 37M
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 3.08, 5.09, 5.11, 13.01, 13.15, 23.08
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 2.06, 13.04, 21.01, Div 21.2
Federal Court Rules 2021 (Cth) r 16.21
Cases cited: ALAEA v International Aviation Service Assistance Pty Ltd [2011] 193 FCR 526
Alam v National Australia Bank Limited (2021) 288 FCR 6298
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
Bechara v Bates (2021) 286 FCR 166
Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 248 CLR 500
Cheng v Farjudi (2016) 93 NSWLR 95
Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46
Citius Property Pty Ltd v Logos Australia Group Pty Ltd [2022] VSC 656
Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62
Dowling v Commonwealth Bank of Australia [2008] FCA 59
Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186
Gray v Motor Accident Commission (1998) 196 CLR 1
Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike out Application) [2024] FCA 1206
Haque v Jabella Group Pty Ltd [2016] FCA 962
Hawkins v Kingsway Group Ltd [2009] FCA 1073; BC200908919
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41
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
Quall v Native Title Registrar [2021] FCA 865
Robson v Body Corporate for Sterling at Kings Beach CTS 2942 (2021) 286 FCR 494
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; (2014) 242 IR 1
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Sullivan v North West Crewing Pty Ltd [2016] FCA 1130
Totev v Sfar (2008) 167 FCR 193
Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited [1994] FCA 628; 52 FCR 164
Transport Workers’ Union of Australia v Qantas Airways Limited (Compensation Claim) (2024) 334 IR 187
Division: Division 2 General Federal Law Number of paragraphs: 199 Date of last submission/s: 10 September 2025 Date of hearing: 29 August 2025 Applicant: Self-represented Solicitor for the Respondent: Mr Niven, Tailored Legal ORDERS
MLG 722 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NICOLE HOLT
Applicant
AND: TURNER THERAPY
Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
15 OCTOBER 2025
THE COURT ORDERS THAT:
1.The applicant’s applications filed 24 July 2025 and 5 August 2025 be dismissed.
2.The following parts of the applicant’s statement of claim dated 9 May 2025 be struck out:
(a)paragraphs 7, 9 and 12;
(b)paragraph 10(a);
(c)paragraph 18;
(d)paragraph 19(d);
(e)paragraphs [20(b)], [20(d)], [20(f)] and [20(g)];
(f)paragraph 21;
(g)paragraph [24] of the statement of claim;
(h)the words “which included flexible arrangements and client load” in paragraph [25];
(i)the words “Terminating without warning” in paragraph [26]; and
(j)the words “Ignoring agreed support needs” in paragraph [26].
3.The respondent’s application filed 7 August 2025 be otherwise dismissed.
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
On 13 March 2025, Nicole Holt (Applicant) filed an Application under the Fair Work Act 2009 (Cth) (FW Act) against her former employer, Turner Therapy (Respondent), which had employed her on a part-time basis for around five months.
In short, the Applicant’s claim is that the Respondent has contravened the FW Act in relation to the termination of her employment and in other respects.
On 15 April 2025, Registrar Wilson made directions, including that the Respondent file and serve a defence by 10 June 2025 (15 April Orders).
On 10 June 2025,[1] the Applicant filed an Interlocutory Application (10 June Application), pursuant to Division 21.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 GFL Rules) seeking judgment in default of defence against the Respondent.
[1] While the 10 June Application was lodge for filing on 10 June 2025, it bears the date 15 June 2025 and was accepted for filing on 24 June 2025.
On 8 July 2025, Judicial Registrar Wilson made Orders dismissing the Applicant’s 10 June Application and making some directions preparing the matter for trial.
The Applicant then filed two applications seeking an extension of time to review Judicial Registrar Wilson’s Orders made on 8 July 2025 and for orders to be made reinstating her 10 June Application. These applications being:
(a)the Applicant’s application lodged on 24 July 2025 (24 July Application); and
(b)the Applicant’s application lodged on 5 August (5 August Application).
On 7 August 2025 (7 August Application), the Respondent lodged an application seeking summary dismissal of the Applicant’s claim,[2] alternatively striking out identified paragraphs in her statement of claim (SOC).
[2] Application for summary dismissal alternatively strike out.
The three Applications before me are:
(a)the Applicant’s 24 July Application;[3]
(b)the Applicant’s 5 August Application; and
(c)the Respondent’s 7 August Application.[4]
[3] Application to set aside orders and reinstate the application for default judgment.
[4] Application for summary dismissal alternatively strike out.
BACKGROUND
The following background facts appear to be uncontroversial.
On 1 July 2024, the Applicant commenced employment at the Respondent’s business on a part-time basis, namely 6 hours per week or 12 hours per fortnight.
On 18 November 2024, the Applicant sent an email to the Respondent which provided:
Hi Grace
I want to take a moment to address some of the challenges we’ve encountered in my role as Admin I believe it’s important to provide my perspective so we can move forward with mutual understanding.
Throughout my time here, I have done my best to meet your expectations and follow the instructions provided. However, I’ve encountered situations where the expectations or directions have changed after being communicated. This has led to confusion and difficulties in meeting your standards, despite my genuine efforts to comply.
Additionally, I understand that you have specific ways you prefer things to be done, and I have always aimed to align with them. However, I have also found it challenging when I’ve been criticised for either following or not following those instructions.
My intention has always been to support the business effectively and professionally. To address these concerns, I’ve taken steps to document all instructions, ensure I can reference them accurately, and focus on providing concise, factual responses as per your requests. This approach is not intended to rebut or challenge you but to create transparency and accountability.
I value the opportunity to contribute to this business, and I am committed to continuing to perform my role to the best of my ability. I would appreciate any additional feedback or clarification you can provide to help me better meet your expectations moving forward.
Thank you for taking the time to hear my perspective. I hope this can lead to a more productive and positive working relationship.
Thanks
Nicole Holt
(Emphasis added)
On 19 November 2024, the Respondent’s director (Respondent’s Director) sent the Applicant a letter by way of email and sought to discuss changes to the Respondent’s business (19 November 2024 Letter). A response was to be provided by 25 November 2024.
On 20 November 2024, the Respondent’s Director wrote a further email to the Applicant and requested to meet to discuss operational changes. Attached to this email was a termination letter addressed to the Applicant and confirmed that her employment was to cease immediately due to the position being made redundant (Termination Letter).
On 21 November 2024, the Applicant replied to the Respondent’s Director by way of email and attached extracts of the Health Professionals and Support Services Award 2020 (MA000027) (HPSSA).[5]
[5] That letter and the extracts are not reproduced in the material. See p 15 of the Form 2.
On 14 February 2025, the Fair Work Commission (FWC) conducted a conference to deal with the dispute. Pursuant to s 368(3)(a) of the FW Act, the FWC were satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) were, or are likely to be, unsuccessful.
On 17 February 2025, the FWC issued a Certificate under s 368 of the FW Act.
PROCEEDINGS IN THIS COURT
On 15 April 2025, Registrar Wilson made Orders that:
(1)The document filed as “Notice of Appearance” and lodged by the Applicant on 22 March 2025 be removed from the court filed pursuant to rule 2.06 of the 2021 GFL Rules;
(2)The Applicant file and serve a Statement of Claim by 4pm on 13 May 2025;
(3)The Statement of Claim referred to in Order must:
(a)For each and every alleged contravention of the Fair Work Act, which section(s) the Applicant alleges the Respondent has contravened;
(b)For each and every alleged contravention of law, how the alleged facts give rise to a breach or contravention of the law and section referred to in (a) above;
(c)For each and every alleged occurrence of ‘adverse action’ within the meaning of Part 3.1 of the Fair Work Act, the nature of the adverse action and particulars of how and when the adverse action occurred;
(d)For each and every ‘workplace right’ in respect of which any adverse action was alleged to be taken (within the meaning of Part 3.1 of the Fair work Act), the nature of the ‘workplace right’;
(e)For each and every protected attribute in respect of which any adverse action was alleged to be taken (within the meaning of Division 5 of Part 3.1 of the Fair Work Act), the nature of the protected attribute;
(f)For each and every allegation of breach of contract:
(i)If the contract is alleged to be oral or partly oral, the dates on which the oral contract was formed and the names of persons that participated in conversations giving rise to the oral contract;
(ii)If the contract is alleged to be in writing or partly in writing, the relevant document(s) and section thereof that are said to comprise the contract;
(g)If compensation is sought, the amount of compensation and how it is calculated;
(h)Full particulars of steps taken by the Applicant to mitigate her loss; and
(i)If a penalty is sought, the amount of the penalty and how it is calculated.
(4)By 4pm on 10 June 2025 the Respondent file and serve a Defence.
(5)By 4pm on 24 June 2025 the Applicant file and serve any Reply.
(6)The proceeding be listed for further directions after 1 July 2025.
(7)Liberty to apply.
The Court noted that:
(a)Section 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) required the parties to a civil proceeding to conduct that proceeding according to law, and as quickly, inexpensively and efficiently as possible; and
(b)Pursuant to clause 3.2(c) of the Court’s Central Practice Direction: Federal Law Proceedings, parties are expected to negotiate both before and at Court to narrow the issues in dispute.
By the 10 June Application, the Applicant sought orders as follows:
1. That default judgment be entered in favour of the Applicant pursuant to Rule 13.05 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021, on the basis that the Respondent has failed to file and serve a Defence by the deadline of 10 June 2025.
2. In the alternative, the Court may make any further orders it deems appropriate in response to the Respondent’s non-compliance with the Court’s orders dated 15 April 2025.
3. That the matter proceeds to further directions or determination as the Court sees fit.
(Words as written)
On 8 July 2025, Registrar Wilson made Orders that:
(1)The Application in a Proceeding filed by the Applicant on 10 June 2025 be dismissed.
(2)By 4pm on 22 July 2025 the applicant file and serve:
(a)Any reply; and
(b)A response to the Respondent’s request for further and better particulars.
(3)The Applicant file and serve any affidavits on which she intends to rely at trial (including any expert reports) by 4pm on 12 August 2025.
(4)The Respondent file and serve any affidavits on which it intends to rely at trial (including any experts reports) by 4pm on 9 September 2025.
(5)The Applicant file and serve any affidavits in reply by 4pm on 23 September 2025.
(6)The proceeding be listed for further directions on 30 September 2025.
(7)Liberty to apply.
The Court noted that in the event of non-compliance with any of the orders, parties are expected to notify the court by way of email.
On 18 July 2025, the Applicant filed further and better particulars in response to the Respondent’s request dated 26 June 2025 (Particulars).
On 11 August 2025, I made Orders in Chambers that:
(1)On or before 15 August 2025, the Applicant and the Respondent file and serve any further affidavits in reply upon which they seek to rely.
(2)On or before 22 August 2025, the Applicant and the Respondent file and serve an outline of submissions of not more than 5 pages.
(3)On or before 27 August 2025, the Applicant and the Respondent file and serve any submissions in reply.
On 29 August 2025, the following applications proceeded to a hearing (Hearing) before me, at which each of the parties appeared via Webex:
(a)The Applicant’s 24 July Application;[6]
(b)The Applicant’s 5 August Application; and
(c)The Respondent’s 7 August Application.[7]
[6] Application to set aside orders and reinstate the application for default judgment.
[7] Application for summary dismissal alternatively strike out.
The Applicant relied on the following documents:
(a)Affidavit of the Applicant sworn 19 June 2025;[8]
(b)Affidavit of the Applicant sworn 7 July 2025;[9]
(c)Affidavit of the Applicant sworn 15 July 2025;[10] and
(d)Affidavit of the Applicant sworn 15 August 2025.[11]
[8] Exhibit 1A.
[9] Exhibit 2A.
[10] Exhibit 3A.
[11] Exhibit 4A.
The Respondent relied on the following documents:
(a)Affidavit of Cameron Niven sworn 5 August 2025;[12] and
(b)Affidavit of Cameron Niven sworn 15 August 2025;[13]
[12] Exhibit 1R.
[13] Exhibit 2R.
Since the date of the Hearing, on 1 September 2025, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules) commenced. As the 2025 GFL Rules are now in force, I am required to apply them and not the 2021 GFL Rules, that were in force at the date of the Hearing.
CONSIDERATION
24 July Application and 5 August Application
By the 24 July Application, the Applicant seeks orders as follows:
1. That the Consent Orders dated 8 July 2025 be set aside.
2. That the Application in a Proceeding filed by the Applicant on 25 June 2025 (seeking Default Judgment) be reinstated and listed for determination.
3. That the Court fix a further Directions Hearing to consider the reinstated Application in a Proceeding and an related case management matters.
4. That the Applicant be granted an extension of time pursuant to Rule 21.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 to review the registrars decision dated 8 July 2025.
(Words as written)
By the 5 August Application, the Applicant seeks orders as follows:
1. That the Consent Orders dated 8 July 2025 be set aside.
2. That the Application in a Proceeding filed by the Applicant on 25 June 2025 (seeking Default Judgment) be reinstated and listed for determination.
3. That the Court fix a further Directions Hearing to consider the reinstated Application in a Proceeding and any related case management matters.
(Words as written)
In substance, the Applicant seeks:
(a)an extension of time to review the Registrar’s Decision;
(b)review of the exercise of power by the Registrar in relation to the 10 June Application and the making of the 8 July Orders; and
(c)revision of the timetable.
Review of Registrar’s Decision
Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides for the making of Rules of Court for the delegation of any of the powers of the Federal Circuit and Family Court of Australia (Division 2) to a delegate which includes a Senior Registrar or a Registrar.
Rule 21.01 of the 2021 GFL Rules provided that for the purposes of s 254(2)(1) of the FCFCOA Act, the powers of the court mentioned in Table 21.1 are prescribed. Item 58 of Table 21.1 provides that r 13.13 (“to order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding”) may be exercised by a Registrar.
Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under s 254 may apply to the Court for review of that exercise of power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules.
Rule 21.02(2) of the 2021 GFL Rules provided that subject to any contrary direction by the Court or a Judge, an application for review must be made within 7 days after the day on which the power was exercised.
While r 3.06 of the 2025 GFL Rules now provides that the application for review of the exercise of a power by a Registrar must be made within 21 days after the day on which the power is exercised. That time limit does not apply in the present case as both the 7 day period and the 21 day period had expired prior to 1 September 2025.
Rule 3.08 of the 2025 GFL Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[14] in other words, “anew” or “afresh”.
[14] Bechara v Bates (2021) 286 FCR 166 per Allsop CJ, Markovic & Colvin JJ at [17] – [31]. In Totev v Sfar (2008) 167 FCR 193, Emmett J held that this entailed “a complete rehearing of the facts and the law as they exist when the judge reviews the order made by the registrar” (at [10]).
Section 256(2) of the FCFCOA Act provides that on a review, the court may “and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised”. On a successful review, the court may set aside the exercise of the delegated power and make consequential orders to unwind the effect of the exercise of that power.[15] Where the review is dismissed, the order made by the delegate continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power.[16]
[15] Robson v Body Corporate for Sterling at Kings Beach CTS 2942 (2021) 286 FCR 494 per Allsop CJ (Markovic & Derrington JJ agreeing) at [2]-[4] and [18]-[29].
[16] Section 254(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
Orders on Default
Rule 5.09 of the 2025 GFL Rules provides:[17]
[17] The equivalent of r 13.04(2) of the 2021 GFL Rules.
For the purposes of rule 5.11, a respondent is in default if the respondent:
a. has not satisfied the applicant's claim; and
b. does not:
i. do an act required to be done, or do an act in the time required, by these Rules; or
ii. comply with an order of the Court in the proceeding; or
iii. attend a hearing in the proceeding; or
iv. defend the proceeding with due diligence.
Rule 5.11 of the 2025 GFL Rules provides:
If a respondent is in default, the Court may:
a. order that a step in the proceeding be taken within a specified time; or
b. if the claim against the respondent is for a debt or liquidated damages--give judgment against the respondent for:
i.the debt or liquidated damages; and
ii.if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or
c. if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.04, or if the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or
d. give judgment against the respondent for damages to be assessed, or any other order; or
e. direct that an order mentioned in paragraph (b), (c) or (d) is to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.
Extension of time to review the Registrar’s Decision
I turn now to the merits of the Application for an extension of time.
In Hawkins v Kingsway Group Ltd,[18] Stone J stated:
The court’s general power to extend time is to be found in O 3 r 3 of the Federal Court Rules. It is a wide power that permits the court to extend or abridge the time before or after the time expires, at the discretion of the court. In Bishop v R (1982) 40 ALR 40 Deane J considered the principles to be applied in the exercise of the court’s discretion. At 42, his Honour quoted with approval the following statement of Cullen CJ in Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR(NSW) 141 at 144:
… when a party, who has neglected to observe those requirements which the rules place him under for the protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules.
As Deane J observed, the explanation required will depend on the circumstances of the case. In addition to the explanation for the delay, however, it has generally been accepted, in relation to a wide range of applications, that it is also necessary to consider the likelihood of prejudice to the respondent and whether the applicant for an extension of time has an arguable case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 per Wilcox J; Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]–[24] per Weinberg J; Bahonko v Nurses Board (Vic) (No 4) (2007) 97 ALD 721 at [48] per Middleton J.
It is for the court to weigh up all three factors and exercise its discretion accordingly. In particular circumstances one factor may outweigh the others. For example, an extension of time may be granted where the applicant has a strongly arguable case, even in the case of long delay for which the explanation is not strong. Similarly the prejudice to a respondent who, the prescribed time for appeal having expired, has exercised his or her rights under the decision from which an applicant now seeks to appeal, may be sufficient to justify the court exercising its discretion to refuse an extension of time.
[18] [2009] FCA 1073; BC200908919.
Matters that are relevant to the exercise of the discretion include:
(a)the length of the delay and the explanation for it;
(b)any prejudice to the other party caused by the delay, or that may be presumed;
(c)impact on the party seeking the extension of a refusal to grant an extension; and
(d)the merits of the substantive application which also informs the question of whether any purpose would be served by granting an extension.
The first matter that I consider is the length of the delay and the explanation for it.
The 24 July Application was lodged with the Court, 16 days after Orders were made by Registrar Wilson on 8 July 2025, which means that it is eight days out of time.
The Applicant’s explanation for the delay in seeking a review is that she was confused as to the procedure to be followed for an application for review. She submits that she initially thought that the process for reviewing the Registrar’s orders was initiated by an affidavit, and relies on her affidavit affirmed on 15 July 2025 to initiate that review. While this explanation is not given by way of affidavit, I am prepared to accept that this is what occurred, as by the Applicant’s 15 July 2025 Affidavit she requested the Court, amongst other things, to set aside the 8 July Orders and reinstate the 10 June Application (for default judgment). Further, there is evidence before me that the Applicant is a person with multiple disabilities, which relevantly includes, conditions that affect her ability to process information.[19]
[19] Applicant’s 15 July Affidavit at [3] and Annexure H and the Applicant’s 29 August 2025 Affidavit.
In the circumstances set out above, I consider that the Applicant has a reasonable excuse for the delay in filing her Application.
The next matter that is relevant to the discretion to extend time is the prejudice to the Respondent caused by the Applicant’s delay. I do not consider that there has been any significant prejudice caused to the Respondent by the Applicant’s delay. Further, the length of delay is not such that prejudice ought to be presumed.
The impact of a refusal to grant an extension of time is that her application for default judgment against the Respondent will not be heard. Against this, without default judgment, the Applicant’s application will proceed to trial, meaning that if her claim survives the strike out application, she would have the opportunity to seek judgment on the merits.
I turn then to the merits of the substantive application. If leave were granted, the substantive application would be a hearing de novo of the Applicant’s application for default judgment in circumstances where the Respondent’s defence was filed on 18 June 2025, eight days after 10 June which is the time provided for in Order 4 of the 15 April Orders.
On 1 September 2025, the 2025 GFL Rules commenced. Those rules would apply to the hearing of the Applicant’s application for default judgment, if I were to grant leave for the Applicant to extend time to review the Registrar’s Decision.
In circumstances where a respondent is in default, the Court has a number of options open to it under r 5.11 of the 2025 GFL Rules, including giving judgment for debt or damages, ordering that a step in the proceeding be taken within a specified time, or making a self executing order.
I am not satisfied that it would be appropriate to enter default judgment for a delay of eight days in the filing of a defence, in the context where a defence has now been filed, and where there were no previous defaults in relation to the filing deadline for a defence. I reach that conclusion without having to resolve the dispute as to whether the Respondent’s delay was the result of the need to “recover deleted information”.[20] Whatever the cause of the Respondent’s delay, the Applicant’s application for default judgment has little or no prospect of success. I am fortified in my conclusion by the fact that the SOC upon which the Applicant applies for default judgment has substantial deficiencies in it. The document as filed would not provide a proper basis for the entry of judgment.
[20] See McNiven 15 August 2025 Affidavit at [5(d)(ii)(2)]. Compare Applicant’s “Cover Note – Further Evidence” dated 29 August 2025 at [3] and Annexure A.
Having regard to all of the matters set out above, but particularly the lack of apparent merit in the application for default judgment and the deficiencies in the SOC, I am not satisfied that this is an appropriate case in which to extend the time for review of the Registrar’s Decision.
In reaching this conclusion, I place no weight on the matter raised by the Respondent, that the Applicant’s 24 July Application is not in accordance with the approved form.[21]
[21] See Respondent’s Outline of Submissions at [14(a)].
In summary, the Applicant’s application(s) to extend time for review by eight days, to allow her to enter judgment because of an eight day delay by the Respondent, should be dismissed.
For completeness, I consider that the matters set out in the affidavit of the Applicant sworn 7 July 2025, concerning the outcome of a complaint made by the Applicant, are not relevant to the issues that I am required to decide on the 24 July Application and 5 August Application.
Revision of Timetable
Both parties agreed that Orders 4, 5 and 6 made by Registrar Wilson on 8 July 2025, concerning the timetable for interlocutory steps, should be set aside, and that timetabling orders should be revisited after I have ruled upon the other aspects of the three applications before me. This approach is consistent with the fact that the timetabling orders are interlocutory in nature and may be revised to address changed circumstances.
This approach renders it unnecessary for me to resolve the Applicant’s complaints concerning the circumstances in which what she describes as the Consent Orders came to be made.[22]
[22] Applicant’s Affidavit sworn 15 July 2025 at [3] and [4].
I shall dismiss the Applicant’s 24 July and 5 August Applications and address the question of the revision of the timetable and costs following the delivery of judgement.
7 August Application
By the 7 August Application, the Respondent seeks orders as follows:
1. Orders 3 to 7 of Registrar Wilson made 8 July 2025 be vacated.
2. The Applicant’s Application filed 6 March 2025 is summarily dismissed pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), rule 13.13, or alternatively
3. The Applicant’s Statement of Claim filed 12 May 2025, paragraphs 7, 8, 9, 10, 11, 12, 13, 19, 20, 21, 24, 26 and 27 is struck out pursuant to the Federal Court Rules 2011 (Cth), rule 16.21, in that the Statement of Claim is frivolous, ambiguous, likely to cause prejudice/delay/embarrassment in proceedings, or fails to disclose a reasonable cause of action; and
4. Costs
(Words as written)
In substance, the Respondent seeks:
(a)summary dismissal of the Application; alternatively
(b)striking out of paragraphs 7, 8, 9, 10, 11, 12, 13, 19, 20, 21, 24, 26 and 27 of the Applicant’s SOC; and
(c)consequential directions.
Purpose of Pleadings
In Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike‑out Application),[23] (Gunawardena) Wheelahan J explained the purpose of pleadings:[24]
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.
[23] [2024] FCA 1206.
[24] 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.[25]
[25] Rule 13.01(1) of the 2025 GFL Rules.
In Sabapathy v Jetstar Airways,[26] 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)
[26] (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)[27] 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.[28]
[27] Which previously had application by r 1.06(3) of the 2021 GFL Rules and item 14 of Schedule 1.
[28] Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 per Finkelstein J at 43.
In KTC v David,[29] 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”:[30]
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].
[29] [2022] FCAFC 60.
[30] 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,[31] Wigney J stated:[32]
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.
[31] [2022] FCAFC 60.
[32] At [120]-[122].
In KTC v David,[33] Wigney J (with whom Jackson J agreed) stated:[34]
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.
[33] [2022] FCAFC 60.
[34] 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:[35]
(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.
[35] See: Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 per Dixon J at [91]; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 at [6]; Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited [1994] FCA 628; 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.[36] 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 FCFCOA Act.
[36] 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 provided 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;[37]
(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”; [38]
(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”;[39]
(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;[40]
(e)section 143 of the FCFCOA Act has lowered the bar for summary disposal from previous provisions;[41] and
(f)the power to summarily dismiss must be exercised with “caution”.[42]
[37] Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [45].
[38] Leach v Burston [2022] FCA 87 (Leach v Burston) at [36].
[39] Quach v Commissioner of Taxation [2019] FCA 1729 at [12].
[40] Leach v Burston at [36].
[41] Noting s 143(3) of the FCFCOA Act.
[42] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24].
In Spencer v Commonwealth of Australia,[43] 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 FCFCOA Act):[44]
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)
[43] (2010) 241 CLR 118.
[44] At [24]-[26].
Statement of Claim
The SOC is structured in 10 parts as follows:
(a)Part 1 – the Parties
(b)Part 2 – Jurisdiction
(c)Part 3 – Factual Background
(d)Part 4 – Contraventions Alleged
(e)Part 5 – Adverse Action
(f)Part 6 – Workplace Rights Asserted
(g)Part 7 – Protected Attributes
(h)Part 8 – Breach of Contract
(i)Part 9 – Remedies and Compensation
(j)Part 10 – Exhibits
The SOC seeks to articulate five causes of action:
(a)a claim for compensation/penalties for contravention of s 44 of the FW Act (Contravening the National Employment Standards (NES)) (NES Contravention Claim);
(b)claims in respect of “Adverse Action”:
(i)a claim for compensation/penalties for contravention of s 340(1) of the FW Act (Protection in relation to a workplace right) (Workplace Right Claim); and
(ii)a claim for compensation/penalties for contravention of s 351(1) of the FW Act (Discrimination because of protected attributes) (Discrimination Claim); and
(Adverse Action Claims);
(c)a claim for compensation/penalties for contravention of s 323 of the FW Act (Method and frequency of payment) (Payment Claim); and
(d)a claim for compensation for breach of contract (Breach of Contract Claim).
The SOC is based on five causes of action, three contraventions of the NES, seven instances of adverse action, four workplace rights, five “diagnosed disabilities” and three contractual terms. While it is a matter for the Applicant, it seems to me that some of the difficulties that I have identified in the Applicant’s SOC are, in part, the product of the scope and complexity of the claims the Applicant is seeking to articulate. A more focused claim would lend itself to a more straightforward pleading.
For example, the Applicant’s core claims would appear to be that adverse action constituted by the termination of her employment on 21 November 2024 was the result of a series of complaints concerning methods of communication, including a complaint in an email sent by her on 18 November 2024,[45] three days before her dismissal,[46] and/or because of a protected attribute, including "mental disability”.[47] But the pleaded case is much broader than this.
[45] Email dated 18 November 2024: Form 2 p 72. See also email dated 6 November 2024: Form 2 p 67.
[46] Workplace Right Claim.
[47] Discrimination Claim.
There are no references to the HPSSA in the SOC or Particulars and no allegation of a contravention of s 45 of the FW Act (breach of a modern award). In pointing this out, I should not be taken to be encouraging the expansion of the SOC to a sixth cause of action.
NES Contravention Claim
Section 44 of the FW Act provides that an employer must not contravene the NES.
Section 44 of the FW Act is a civil remedy provision.
A pleading in relation to the NES Contravention Claim ought as a minimum to identify:
(a)the NES standard contravened and its source;[48]
(b)the conduct by the employer that constitutes the contravention; and
(c)the loss or damage alleged to have been caused by the contravention or other remedies including penalties.
[48] See s 61 of the Fair Work Act 2009 (Cth) (FW Act). Also see ss 117 and 118 of the FW Act.
The pleading ought to do this for each standard and instance of conduct that is relied upon.
Paragraph 19(d) of the SOC provides:
The Respondent contravened the following sections of the Fair Work Act 2009:
…
d. Section 44 – Breach of NES due to failure to consult, give proper notice, or consider redeployment.
Section 61(2) of the FW Act sets minimum standards in relation to twelve identified matters, including:
(a)“requests for flexible working arrangement (Division 4)”; and
(b)“notice of termination and redundancy pay (Division 11)”.
Paragraph 19(d) of the SOC does not adequately address the matters set out above at [82]:
(a)first, the SOC does not identify the relevant NES that requires the Respondent to “consult” with the Applicant. It does not identify facts giving rise to the obligation to consult or those constituting the alleged failure to consult. It does not explain how the alleged failure to “consult” caused particular loss and damage;[49]
(b)second, the SOC does not identify the relevant NES that requires the Respondent to “give proper notice” to the Applicant or the deficiencies in the notice given. For example, if the Applicant relies on s 117 of the FW Act,[50] the SOC would need to say so, and identify the minimum notice period the Applicant says is applicable. For an employee of less than one year’s continuous service,[51] the minimum notice period provided by s 117(3)(a) of the FW Act is one week. The letter from the Respondent to the Applicant dated 20 November 2024 purported to give the Applicant one week’s notice;[52] and
(c)third, the SOC does not identify the relevant NES that requires the Respondent to “consider redeployment”. It does not identify facts constituting the failure to consider redeployment or the alternate positions available (noting that the Respondent is a small business). For example, s 389(1)(b) of the FW Act which contains an obligation to consult and consider redeployment only applies to an employee who, in the case of a “small business employer”, has completed the “minimum period” of one year.[53]
[49] Compare s 387(c) of the FW Act.
[50] Requirement for notice of termination or payment in lieu
[51] The Applicant pleads that she commenced as an administrative assistant on 1 July 2024 (SOC at [5]) and was made redundant on 21 November 2024 (SOC at [16]).
[52] Form 2 Application
[53] See s 389(1)(b) of the FW Act. I note the Respondent’s claim that the Respondent is a “sole trader”, which I take to mean that the Respondent has one employee: Respondent’s Outline of Contentions at [18(d)(i)].
Paragraph 19(d) 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”.
Adverse Action Claims
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.[54] This is known as the reverse onus of proof.[55]
[54] Section 360(1) of the FW Act.
[55] See generally Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551.
In Australian Building and Construction Commissioner v Hall,[56] the Full Court stated:[57]
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)
[56] (2018) 261 FCR 347.
[57] At [13], [14] and [19].
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor,[58] 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)
[58] (2012) 248 CLR 500 at [104].
Workplace Right Claim
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.
A pleading in relation to the Workplace Rights Claim ought as a minimum identify:
(a)the relevant workplace right and its source;
(b)the assertion of the workplace right;
(c)the adverse action by the employer alleged to have been taken because of the assertion of the workplace right;
(d)and address the issue of causation;[59] and
(e)the loss or damage alleged to have been caused by the contravention or other remedies including penalties.
[59] Including, for example, any reliance on s 360(1) of the FW Act: Gunawardena.
The pleading ought to do this for each assertion of a workplace right and instance of adverse action that is relied upon.
Paragraph 19(a) of the SOC provides:
The Respondent contravened the following sections of the Fair Work Act 2009:
a. Section 340(1) – Taking adverse action because the Applicant exercised workplace rights (reasonable adjustments, complaints, legal claim)…
I start with the identification of the workplace right.
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.
Paragraph 21 of the SOC provides:
The Applicant exercised the following workplace rights:
a. Requesting reasonable adjustments under disability discrimination and inclusion obligations, including the Respondent's legal duty to take positive steps to accommodate the Applicant's disabilities consistent with the Fair Work Act 2009 and the Disability Discrimination Act 1992 (Cth);
b. Making formal internal complaints regarding work conditions and communication (s.341(1)(c));
c. Requesting clarity on duties, support, and entitlements; and
d. Lodging a General Protections application and participating in Fair Work proceedings.
The Particulars given in respect of paragraph 21 provide:
In response to paragraph 12(j):
i. My entitlements arose under sections 65 and 351 of the Fair Work Act.
ii. Requests for accommodations were made both verbally and in writing.
iii. My complaints stemmed from breaches of these entitlements.
The Particulars given in respect of paragraph 7 provide:
i. I rely on sections 65 and 351 of the Fair Work Act 2009 (Cth).
ii. “Reasonable accommodations” refer to workplace modifications to support an employee with disability.
iii. Requested accommodations included written (rather than verbal) instructions, simplified communication, reduced cognitive load, and emotional safety considerations.
iv. These requests were made to Grace Turner verbally and via email in July, September, and November 2024.
v. The Respondent did not implement these adjustments. Refer to my Affidavit at paragraphs 6–8.
In Shea v TRUenergy Services Pty Ltd (No 6),[60] (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.
[60] (2014) 314 ALR 346; (2014) 242 IR 1 (Shea) at ALR 440 [625].
In Cigarette & Gift Warehouse Pty Ltd v Whelan,[61] the Full Court of the Federal Court endorsed[62] 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.
[61] (2019) 268 FCR 46.
[62] At [33].
In Alam v National Australia Bank Limited,[63] (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:[64]
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).
[63] (2021) 288 FCR 6298.
[64] At [75].
In Messenger v Commonwealth of Australia (Represented by the Department of Finance),[65] 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.
[65] [2022] FCA 677 [141]-[143].
In Serpanos v Commonwealth of Australia,[66] (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.
[66] [2022] FCA 1226 at [172].
In Qantas Airways Ltd v Transport Workers’ Union of Australia,[67] 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).
[67] (2022) 402 ALR 1 at [36].
In short, for s 341(1)(c)(ii) 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);[68]
(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;[69]
(c)the complaint or inquiry ‘must be about a subject, circumstance, issue or thing that arises by reason of the complainant’s employment’;[70] and
(d)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.[71]
[68] Shea at [625].
[69] Alam.
[70] Serpanos at [172].
[71] Alam at [75].
Paragraph 21 of the SOC does not adequately identify the workplace rights asserted:
(a)First, the SOC does not sufficiently identify the source of the obligation to make “reasonable adjustments” (or “reasonable accommodations”) or the “duty to take positive steps”. To put it another way, the SOC does not explain how the “complaint or inquiry [pleaded at [11]] relates to a subject matter for which the contract of employment makes provision”.[72] In this regard, I note that before a casual employee is entitled to make a request for flexible arrangements under s 65 of the FW Act, they must have completed at least 12 months of continuous service.[73] The Applicant completed less than twelve months continuous service.[74] Section 65 has no apparent application to her.[75] ([21(a)])
(b)Second, while the SOC identifies s 341(1)(c) of the FW Act as the source of the right to make a complaint – it does not explain the source of the right or obligation the subject matter of the complaint. Further, while the SOC identifies the Disability Discrimination Act 1992 (Cth) as a source of rights it does not identify any provisions that are applicable to the facts alleged.[76] ([21(b)])
(c)Third, the SOC does not identify the source of the obligation to provide “clarity on duties, support, and entitlements”. ([21(d)])
(d)Fourth, while the right to lodge a general protections application and to participate in FW Act proceedings are rights of the Applicant, the events pleaded in paragraph 21(e) post-date her employment, and therefore could not be causative of adverse action “in relation to” the Applicant’s employment. ([21(e)]).
[72] See Alam above.
[73] Section 65(2)(a) of the FW Act.
[74] The Applicant pleads that she commenced as an administrative assistant on 1 July 2024 (SOC at [5]) and was made redundant on 21 November 2024 (SOC at [16]).
[75] The Applicant pleads that she commenced as an administrative assistant on 1 July 2024 (SOC at [5]) and was made redundant on 21 November 2024 (SOC at [16]).
[76] Consideration would need to be given to s 734 of the FW Act.
Paragraph 21 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”.
I turn then to the pleading of “adverse action”.
Paragraph 20 of the SOC provides:
The adverse actions taken by the Respondent include:
a. Locking the Applicant out of work systems immediately after her 18 Nov 2024 complaint;
b. Providing no support or reasons from 18–21 Nov 2024;
c. Issuing a redundancy without prior consultation or process;
d. Post-dismissal interference with her digital accounts and data;
e. Convenient timing of redundancy: no performance issues, no indication of redundancy beforehand, role still existed;
f. Engaging in ongoing written correspondence and legal submissions that used inflammatory, intimidating, or derogatory language, including language that discredited the Applicant’s disabilities and legal standing, with the apparent intention of deterring her from pursuing claims under the Fair Work Act and in the Federal Court; and
g. Inappropriately referencing or drawing on confidential personal and psychological information acquired through the Applicant’s NDIS sessions and therapeutic relationship with the Respondent, using this knowledge in a legal context to destabilise or distress the Applicant and discourage her from continuing legal proceedings.
Section 342 of the FW Act identifies the circumstances in which a person takes adverse action against another person by reference to a table. For example, adverse action is taken by an employer against an employee where they “dismiss the employee” (Item 1).
While paragraphs 20(a), 20(c) and 20(e) of the SOC, are not without their shortcomings, I consider that they are sufficiently clear for the purpose of putting the Respondent on notice of the case that it must meet at trial; in particular, they identify the “adverse action” relied upon. It is sufficiently clear that the adverse action referred to in paragraphs 20(a), 20(c) and 20(e), is constituted by (c) in Column 2: “alters the position of the employee to the employee’s prejudice”, including in this case, by termination of employment.
On the other hand, paragraphs 20(b), 20(d), 20(f) and 20(g) are not clear. The Applicant does not sufficiently identify the “adverse action” alleged in paragraph 20(b). The Applicant does not identify the nature of the adverse action by reference to Column 2 of the table in s 342 of the FW Act. For example, she does not say whether the allegation in 20(b) is said to constitute (c) (“alters the position of the employee to the employee’s prejudice”) or (d) (“discriminates between the employee and other employees of the employer”). Similar criticisms can be made of paragraphs 20(d), 20(f) and 20(g).
As for the identification of the facts said to constitute the “adverse action”:
(a)Paragraph 20(a) is sufficiently identified when read in conjunction with [14];
(b)Paragraph 20(b) is not sufficiently identified even when read in conjunction with [15];
(c)Paragraph 20(c) is sufficiently identified;
(d)Paragraph 20(d) is not sufficiently identified even when read in conjunction with paragraph 18;
(e)Paragraph 20(e) is sufficiently identified;
(f)Paragraph 20(f) is not sufficiently identified or explained; and
(g)Paragraph 20(g) is not sufficiently identified or explained.
Paragraphs 20(b), 20(d), 20(f) and 20(g) must be struck out 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”.Having struck out paragraphs 20(g) of the SOC, it would follow that 18 of the SOC, which appears to be based upon those claims, should also be struck out.
Discrimination Claim
Section 351(1) of the FW Act provides that an employer must not take adverse action against a person who is an employee because of a protected attribute, including “physical or mental disability”.
Section 351(1) of the FW Act is a civil remedy provision.
A pleading in relation to the Discrimination Claim ought as a minimum to identify:
(a)the relevant protected attribute(s);
(b)the adverse action by the employer alleged to have been taken because of the protected attribute;
(c)and address the issue of causation; and
(d)the loss or damage alleged to have been caused by the contravention or other remedies including penalties.
The SOC identifies six protected attributes at paragraph 22. They are sufficiently identified.
The Applicant has also provided the following further and better particulars:
My diagnoses were made by registered psychologists and medical practitioners between 2009 and 2024. They are detailed in Annexure G to my Affidavit.
Paragraph 8 provides further information concerning the Applicant’s protected attributes, and her claim of adverse action because of them.
The pleading of knowledge at paragraph 23 of the SOC when read with paragraph 10 is sufficiently clear.
Paragraph 24 of the SOC provides:
The Respondent failed to accommodate the Applicant's disabilities throughout employment, despite clear legal obligations under s.351 of the Fair Work Act and the Disability Discrimination Act 1992 (Cth). Oral communication caused anxiety and exacerbated the Applicants current medical conditions. This was not an unreasonable request.
The Particulars given in respect of paragraph 19 provide:
Discrimination occurred through my exclusion from systems, failure to implement accommodations, and my dismissal without substantive reason.
The Particulars given in respect of paragraph 24 provide:
i.I rely on sections 65 and 351 of the Fair Work Act 2009 (Cth).
ii.“Reasonable accommodations” refer to workplace modifications to support an employee with disability.
iii.Requested accommodations included written (rather than verbal) instructions, simplified communication, reduced cognitive load, and emotional safety considerations.
iv.These requests were made to Grace Turner verbally and via email in July, September, and November 2024.
v.The Respondent did not implement these adjustments. Refer to my Affidavit at paragraphs 6–8.
The Applicant’s written submission in reply provide:
Section 351 – adverse action because of disability. The Applicant was locked out of the IT system on 18 November 2024, only 20 minutes after exercising her right to written communication. She was then dismissed on 21 November 2024, under the guise of “operational changes”. This was in truth adverse action because of her disability.
I have already identified the deficiencies in relation to the pleading of “adverse action” in paragraph 20, above at 111 to 117. Critically, the only allegations of adverse action that remains in paragraph 20 that I have not struck out are adverse action constituted by (1) locking out from work systems and (2) dismissal.
The pleading of “adverse action” constituted by “failure to accommodate” at paragraph 24 is also deficient. The Applicant does not identify the nature of the “adverse action” by reference to Column 2 of the table in s 342 of the FW Act.
Paragraph 24 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”.
Paragraphs 22 and 23 can remain. The Applicant’s claim that the locking out from work systems and dismissal by reason of her disabilities as pleaded is sufficiently clear. The “adverse action” pleaded is “alters the position of the employee to the employee’s prejudice”.
Payment Claim
Section 323(1) of the FW Act provides that an employer must pay an employee amounts payable to the employee in relation to the performance of work in full, in money or by an approved method, and at least monthly.
Section 323(1) of the FW Act is a civil remedy provision.
A pleading in relation to the Payment Claim ought as a minimum to identify:
(a)the source of the employer’s obligation to make the payments and its content; and
(b)and explain what amounts that are payable to the employee.
The pleading ought to do this for each amount that is payable and obligation.
Paragraph 19(e) of the SOC provides:
The Respondent contravened the following sections of the Fair Work Act 2009:…
e. Section 323 – Failure to pay all entitlements upon termination (underpayment and all wages owed).
Paragraph 26 bullet point 3 provides:
The Respondent breached this contract by:…
• Underpaying for hours worked and failing to pay wages earned post-dismissal.
Paragraph 27(a) of the SOC provides:
The Applicant seeks:
a. Economic loss: includes lost wages and superannuation…
The Particulars given in respect of paragraph 13 provide:
(i) I claim financial loss exceeding $10,500 from unpaid hours and missed wages.
(ii) I claim $50,000 for general damages based on emotional distress, disability impact, and exclusion.
(iii) I seek pecuniary penalties due to the Respondent’s unlawful conduct.
Full calculations and supporting documentation are contained in Annexure G of my Affidavit.
Annexure G to the Holt 15 July Affidavit contains an “Indicative Compensation Breakdown” which sets out “Total Compensation Sought” of $216,082.14.
Annexure G includes the following:
1. Financial Losses (Lost Income, Superannuation & Loan Impact)
A. Lost Wages Due to Dismissal
• Weekly wage before dismissal: $178.74
• Weeks unemployed since dismissal: 16 weeks
• Total past lost wages:
$178.74 x 16 = $2,859.84
• Estimated weeks needed to find new work: Permanent (Retirement aged 60 yo. Current age 47. 60 – 47 = 13 years divided by 52 weeks = 676 weeks
• Total future lost wages (estimated):
$120,828.24 (Total Future Wage Loss)
Lost unpaid wages:
• Weekly overtime wage before dismissal: $61.89
• Breakdown of hours:
•Facebook posts: 16 hours
•Facebook page setup: 6 hours
•Facebook page management: 10 hours
•Facebook advertising: 30 hours
•Digital designs (logos, business cards, posters, ads, posts): 70 hours
•OT program research:10 hours
• Total past unpaid wages:
142 hours x $61.89 = $8,788.38 (Total unpaid wages earned)
Total Wage Loss:
$2,859.84 (total Past Wage Loss) + $8,788.38 (total Unpaid Wages) + $120,828.24 (Total Future Wage Loss) = $132,476.46 (Total Lost Income)
(Words as written)
While the Applicant’s claim to an entitlement to 13 years’ worth of income without discount in circumstances where the Respondent had the right to terminate her employment by giving notice is, to say the least, ambitious; from a pleading perspective, it is sufficiently clear to let the Respondent know the case that it would need to meet. Accordingly, I do not propose to strike out paragraph 19(e) of the SOC.
I note that in correspondence there was a suggestion that the Applicant was paid below the relevant award (claimed to be the HPSSA). I can find no reference in the SOC as to such a claim. If I am wrong about this, any amended pleading should make clear the basis of such a claim and its calculation.
The pleadings in relation to the “Lost Unpaid Wages” claim are somewhat deficient. In particular, they do not identify the contractual or other basis for that claimed entitlement. Such a claim does not sit very comfortably with the allegation in the Applicant’s form 2 application that she had been “allocated only 6 hours per week” but resolution of that tension is a matter for trial.[77] To the extent that the claim does not sufficiently particularise the work performed, I consider that is a matter better addressed by the Applicant in her evidence in chief.
[77] At 1.1.
Breach of Contract Claim
A pleading in relation to the Breach of Contract Claim ought to identify:
(a)the contract and its terms;
(b)the acts of performance of the contract by the Applicant;
(c)the breach of the contract by the Respondent; and
(d)the loss or damage alleged to have been caused by breach of contract.
While the Applicant’s contract of employment is identified, its terms are not pleaded.
Paragraph 25 of the SOC provides:
The employment contract was: a. Partly written and not signed by the Respondent – Letter of engagement dated 26 June 2024; b. Partly oral – Terms agreed during meetings between the Applicant and Turner Therapy which included flexible arrangements and client load.
Despite the reference to the contract being partly in writing and partly oral, the Applicant appears to resile from the written aspect at paragraph 16 of her submissions filed 30 August 2025. The Applicant should give clear particulars identifying whether the contract was partly written, and in so far as it is alleged to be partly oral, the Applicant ought to identify the date, time and substance of the conversation(s) relied upon.
Paragraph 26 of the SOC provides:
The Respondent breached this contract by:
• Terminating without warning.
• Ignoring agreed support needs.
• Underpaying for hours worked and failing to pay wages earned post-dismissal.
The pleading of terms of the agreement is deficient.
(a)First, the reference to terms “which included flexible arrangements and client load”, is expressed in vague terms.
(b)Second, the allegation of a breach constituted by “Termination without warning” implies, without explicitly pleading, a term requiring that notice of termination be given and without identifying the content of the required notice.
(c)Third, the breach constituted by “Ignoring agreed support needs” implies, without explicitly pleading, a term that the Respondent was required to provide certain support need to the Applicant. What the pleading fails to do is identify with precision what the terms that are relied upon and their basis; noting that a contractual term that is “unacceptably ambiguous or uncertain” may not be enforceable.[78]
[78] Citius Property Pty Ltd v Logos Australia Group Pty Ltd [2022] VSC 656 at [710] – [720].
The claim in respect of “Underpaying for hours worked and failing to pay wages earned post-dismissal” is sufficiently clear having regard to the particulars given and referred to above. That is not to say anything about whether that claim has merit.
Accordingly, I shall strike out the following words:
(a)“Which included flexible arrangements and client load” in paragraph 25;
(b)“Terminating without warning” in paragraph 26; and
(c)“Ignoring agreed support needs” in paragraph 26;
on the basis that they are “likely to cause prejudice, embarrassment or delay in the proceeding” or “fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading”.
Strike Out
The Respondent seeks to strike out paragraphs 7, 8, 9, 10, 11, 12, 13, 19, 20, 21, 24, 26 and 27 of the Applicant’s SOC pursuant to r 16.21 of the Federal Court Rules.
The principles that govern strike out are set out above at 64 to 70.
In the case of a self-represented litigant, “there is a need for particular caution in considering whether summarily to dismiss proceedings”[79] or to strike out parts of his or her pleadings. The court has an obligation to afford a reasonable opportunity to a self-represented person to put his or her case.[80] At the same time, due regard must also be given to the interests of other parties and the overarching purpose of the practice and procedure provisions of the FCFCOA Act.
[79] Quall v Native Title Registrar [2021] FCA 865 at [25]; Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [57] per Reeves J; Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 per McKerracher J; Haque v Jabella Group Pty Ltd [2016] FCA 962 at [36]-[38] per Bromwich J.
[80] Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike‑out Application) [2024] FCA 1206 at [5].
I also note that many of the contraventions alleged are of pecuniary penalty provisions, and the Applicant seeks “Pecuniary penalties: under s.546, for each breach”. I regard the allegations that are made against the Respondent as serious ones that ought to be properly articulated.
I have already indicated that I will strike out some of the paragraphs identified by the Respondent, above.
Part 3 – Factual Background
The Respondent seeks to strike out paragraphs 7, 8, 9, 10, 11, 12, 13 under this heading.
Paragraph 7 provides:
These disabilities required the Respondent to make reasonable accommodations under the Fair Work Act, which they failed to implement.
The Applicant gives the following further and better particulars of paragraph 7:
i.I rely on sections 65 and 351 of the Fair Work Act 2009 (Cth).
ii.“Reasonable accommodations” refer to workplace modifications to support an employee with disability.
iii.Requested accommodations included written (rather than verbal) instructions, simplified communication, reduced cognitive load, and emotional safety considerations.
iv.These requests were made to Grace Turner verbally and via email in July, September, and November 2024.
(v)–(vi) The Respondent did not implement these adjustments. Refer to my Affidavit at paragraphs 6–8.
Paragraph 8 provides:
These conditions required reasonable adjustments, such as written communication instead of verbal/ audio messaging, reduced and clarified instruction sets, paced workload, and emotional support due to her anxiety and physical conditions. Continued reliance on oral communication despite these needs was harmful and unreasonable.
a. On 6 November 2024, the Applicant was transported to the Emergency Department via ambulance due to cardiac related concerns. These symptoms were triggered by the stress and anxiety associated with the Respondent’s ongoing use of verbal communication, which the Applicant had repeatedly identified as harmful due to her disabilities. The Respondent was notified that the Applicant had been hospitalised, yet no change to communication practices or support was offered following this incident.
The Particulars given in respect of paragraph 28 provide:
i.The advice was provided by my treating psychologist, as set out in Annexure G.
ii.Disability-related support requirements were formalised in psychologist reports dated April and July 2025.
iii.These were conveyed to the Respondent via email and discussion, including in November 2024.
The Particulars given in respect of paragraph 8(a) provide:
i.My psychologist advised that verbal communication increased distress and impaired processing.
ii.(ii) This was communicated to me during treatment and documented in reports.
iii.(iii) I advised the Respondent via email and verbally between July and November 2024.
Paragraph 9 of the SOC provides:
Stressful working environments directly impacts the Applicants heart conditions, increasing their risk of reoccurrence or exacerbation leading to hospital admission.
Paragraph 12 of the SOC provides:
The Respondent failed to implement any reasonable accommodations throughout the Applicant’s employment, not only after formal complaint were raised. The failure was ongoing and systemic and not addressed despite notice.
The allegation made in paragraphs 7, 9 and 12 of the SOC appear to be in the form of general commentary. If they are intended to form part of one of the Applicant’s five causes of action, they ought to be pleaded with specificity.
I shall strike out paragraphs 7, 9 and 12.
Paragraph 8 is sufficiently pleaded for the purposes of identify the Applicant’s core complaint in relation to the method of communication. I shall not strike out paragraph 8.
Paragraph 10 provides:
The Respondent was aware of these conditions and their impact, having provided Occupational Therapy services for the National Disability Insurance Agency (NDIA) to the Applicant prior and during employing her.
a. Despite being aware of the Applicants diagnosed conditions, including Autism, ADHD, fibromyalgia, dystonia, anxiety, and heart related vulnerabilities, the Respondent failed to reasonably accommodate her disability in practice. Specifically, the Respondent continued to rely on verbal/ audio communication, despite repeated requests to use written formats due to the Applicant’s anxiety and processing difficulties. This failure to adjust communication methods created excessive stress and exacerbated the Applicant’s conditions, including cardiac symptoms.
The allegation of knowledge in the first part of paragraph 10 of the SOC explained. I shall not strike it out.
The allegations made in paragraphs 10(a) appear to be in the form of general commentary. If it is part of the Applicant’s claim, they ought to be pleaded with specificity and linked to an identified cause of action, or at least located in a place where that link is obvious.
I shall strike out paragraph 10(a).
Paragraph 11 of the SOC provides:
The Applicant repeatedly raised concerns regarding the communication style and requested disability related adjustments, with four formal complaints submitted prior to her dismissal. These emails were sent on:
• 1 July 2024
• 16 August 2024
• 4 November 2024
• 5 November 2024
• 6 November 2024
• 8 November 2024
• 18 November 2024
The Particulars given in respect of paragraph 11 provide:
i.I made verbal and written complaints to Ms Turner.
ii. The complaints included failure to provide disability accommodations, exclusion from communication, and adverse psychological impacts.
iii.These complaints were made pursuant to sections 340 and 351 of the Fair Work Act.
iv.I sought reinstatement of access and reasonable workplace adjustments.
Paragraph 13 of the SOC provides:
On 18 November 2024, the Applicant sent an email formally asserting her workplace rights, including:
• A request for reasonable disability related adjustments (communication)
• A complaint under s.341(1)(c)(ii) of the Fair Work Act
The Particulars given in respect of paragraph 13 provide:
i. The phrase “formally asserting her workplace rights” refers to my complaints about discrimination and the refusal to accommodate my disabilities.
ii.On 18 November 2024, I formally raised concerns about being excluded from workplace systems and denied support.
iii.These were made under sections 65, 340, and 351 of the Fair Work Act.
iv.The remedy sought included clarity, support, and the implementation of requested accommodations.
While there is some merit to the Respondent’s contention that some or all of the seven emails listed do not identify complaints “in relation to” the Applicant’s employment, paragraphs 11 and 13 can stand as an allegation that complaints were made. The relevant emails will largely speak for themselves without embarrassment to the Respondent.
Part 4 – Contraventions Alleged
I have already addressed the deficiencies with paragraph 19.
Part 5 – Adverse Action
I have already addressed the deficiencies with paragraph 20.
Part 6 – Workplace Rights Asserted
I have already addressed the deficiencies with paragraph 21.
Part 7 – Protected Attributes
I have already addressed the deficiencies with paragraph 24.
Part 8 – Breach of Contract
I have already addressed the deficiencies with paragraph 26.
Part 9 – Remedies and Compensation
Paragraph 27 provides:
The Applicant seeks:
a. Economic loss: includes lost wages and superannuation
b. General damages: for humiliation, distress, and loss of dignity
c. Out-of-pocket costs: for medical, therapy, and legal costs
d. Pecuniary penalties: under s.546, for each breach
e. Injunctive relief – preventing further data interference
f. A declaration: - that the Respondent contravened the Fair Work Act as pleaded
g. Order restraining any further unlawful interference with the Applicant’s data or wellbeing
The “Indicative Compensation Breakdown” has the following headings:
1️. Financial Losses (Lost Income, Superannuation & Loan Impact)
A. Lost Wages Due to Dismissal
B. Superannuation Loss (Missed Employer Contributions)
C. Loan Repayment & Financial Hardship
2. Non Economic Losses (Emotional Distress & Disability Breach)
A. Emotional Distress & Missed Graduation
B. Breach of Disability Accommodations (Fair Work Act Violation)
C. Aggravated damages:
3. Civil Penalties Against Employer
Section 545(1) of the FW Act provides that the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Orders that may be made include an order awarding compensation for loss that a person has suffered because of the contravention. The power under s 545(1) of the FW Act includes the power to award compensation for non-economic loss including “distress, hurt, humiliation or other economic harm because of a contravention”.[81]
[81] Transport Workers’ Union of Australia v Qantas Airways Limited (Compensation Claim) (2024) 334 IR 187 per Lee J at [207], citing ALAEA v International Aviation Service Assistance Pty Ltd [2011] 193 FCR 526.
I have addressed the pleading in relation to wages aspects of the Applicant’s claim under the heading “1. Financial Losses” above at 134 to 146.
The claim in respect of “Loan Repayment & Financial Hardship” is as follows:
C. Loan Repayment & Financial Hardship
• Loan taken due to employment $19,860 (Debt consolidation loan)
• Missed loan repayments due to job loss: (Number of missed payments) 0 x $255 (Amount per payment)
• Additional interests/fees due to job loss: $0 (Total Extra Charges)
Total Loan-Related Financial Loss: $5000 (Loan Loss)
Total Financial Compensation Sought: $5000 (turner Therapy knew my financial situation and assisted with this loan).
(Words as written)
While it is not clear to me how the “Debt consolidation loan” is causally connected to the alleged contraventions or how the “Loan Loss” of $5,000 is calculated, those matters can be addressed by the Applicant in her evidence in chief.
The claim for aggravated damages would appear to test the limits of compensation under the FW Act, particularly in a context where penalties are also sought. Nevertheless, those matters can be addressed by evidence and submissions.[82]
[82] Gray v Motor Accident Commission (1998) 196 CLR 1 at 14–15 [46] and Cheng v Farjudi (2016) 93 NSWLR 95 at [110]-[111].
Summary Dismissal
The Respondent seeks summary dismissal pursuant to r 23.08 of the 2025 GFL Rules.
The principles that govern summary dismissal are set out above at 71 to 74.
I have indicated above the parts of the SOC ought to be struck out.
I do not consider that the Applicant’s claims are so obviously devoid of merit to warrant summary judgment for the Respondent. In other words, I am not satisfied that the Applicant “has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”. The Applicant ought to be given an opportunity to replead to address the deficiencies that I have identified if she wishes to do so. I would suggest that any fresh pleading incorporate such of the Particulars as remain relevant.
The paragraphs that I have struck out will render the Workplace Rights Claim and the NES Contravention Claims incomplete. If the Applicant does not take up the opportunity to replead, those claims will not be able to proceed to trial.
Revision of timetable
I will hear the parties as to a revised timetable for interlocutory steps.
CONCLUSION
In the premises, I will make orders:
(a)The applicant’s applications filed 24 July 2025 and 5 August 2025 be dismissed.
(b)The following parts of the applicant’s statement of claim dated 9 May 2025 be struck out:
(i)paragraphs 7, 9 and 12;
(ii)paragraph 10(a);
(iii)paragraph 18;
(iv)paragraph 19(d);
(v)paragraphs [20(b)], [20(d)], [20(f)] and [20(g)];
(vi)paragraph 21;
(vii)paragraph [24] of the statement of claim;
(viii)the words “which included flexible arrangements and client load” in paragraph [25];
(ix)the words “Terminating without warning” in paragraph [26]; and
(x)the words “Ignoring agreed support needs” in paragraph [26].
(c)The respondent’s application filed 7 August 2025 be dismissed.
I will hear the parties in relation to both costs and further directions.
I certify that the preceding one hundred and ninety-nine (199) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 15 October 2025
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