Kirkham v Monash University
[2025] FedCFamC2G 818
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kirkham v Monash University [2025] FedCFamC2G 818
File number(s): BRG 443 of 2024 Judgment of: JUDGE VASTA Date of judgment: 30 May 2025 Catchwords: INDUSTRIAL LAW – application to strike out – where statement of claim does not follow Federal Court Rules in format – where statement of claim does not disclose a cause of action – where the Court not satisfied that the applicant can successfully prosecute his claim – statement of claim struck out – application summarily dismissed. Legislation: Fair Work Act 2009 (Cth) – ss 50, 351, 363, 364, 550, 772
Federal Court Rules 2001 (Cth) – rr 16.02, 16.21
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – rr 1.04, 1.06, 1.07, 13.13
Cases cited: Sabapathy v Jetstar and Ors [2021] FCAFC 25 Division: Division 2 General Federal Law Number of paragraphs: 132 Date of last submission/s: 23 May 2025 Date of hearing: 22 and 23 May 2025 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf Counsel for the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Eighteenth and Nineteenth Respondents: Mr Avallone Solicitor for the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Eighteenth and Nineteenth Respondents: Clayton Utz Counsel for the Second Respondent: Mr White Solicitor for the Second Respondent: National Tertiary Education Industry Union ORDERS
BRG 443 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: REUBEN KIRKHAM
Applicant
AND: MONASH UNIVERSITY (ABN 12 377 614 012)
First Respondent
NATIONAL TERTIARY EDUCATION UNION (NTEU) (ABN 338 579 396 344)
Second Respondent
ANN NICHOLSON (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.The statement of claim filed on 14 February 2025 be struck out in whole.
2.The application filed on 22 July 2024 be dismissed.
3.That the Court file be suppressed and inaccessible without an order of a Judge of a Chapter III Court.
4.There be no order as to costs.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 14 April 2024, the applicant, Dr Reuben Kirkham, did not have his employment extended upon the expiration of his probation period. It is not controversial that this action amounts to a “dismissal” under the provisions of the Fair Work Act 2009 (Cth) (“the FW Act”).
The applicant took the matter to the Fair Work Commission (FWC). A Commissioner issued a s 368 certificate on 10 July 2024, and the applicant commenced these proceedings in this Court on 22 July 2024.
The applicant filed a statement of claim with his application to this Court. The applicant filed an amended statement of claim on 14 February 2025. On 24 March 2025, the respondents filed an application in a proceeding seeking to strike out the amended statement of claim.
This application was heard by me on 22 and 23 May 2005.
History in this Court
As earlier noted, the applicant filed his application and statement of claim on 22 July 2024, some 12 days after the certificate was issued by the FW Commissioner. Notwithstanding this event, the applicant appealed the decision of the Commissioner to the Full Bench of the FWC. The Full Bench ordered that the matter be reassessed by the same Commissioner.
When the matter came before me as a “first court date” on 2 December 2024, there was some consternation that the matter was not properly before the Court because the Full Bench decision effectively quashed the s 368 certificate, which was the basis for being allowed to file this application. As the Court knew that the matter would be reassessed by the FWC, and it was likely that another s 368 certificate would issue, I ordered that if such a certificate issued, that certificate could be substituted for the one which formed the basis of this application being made to the Court. In this way, the applicant would not be prejudiced because of his successful appeal to the Full Bench.
2 December 2024
What occurred on the “first court date” is important because of matters that were raised by the applicant at the hearing of this strike out application.
On this day, there were four matters that were “Fair Work first court date” matters (as well as nine “direction” matters and seven “consumer protection first court date” matters).
Because there are a number of self-represented litigants appearing on these occasions, my practice is to warn the litigants that the fair work jurisdiction is very complex and there are many lawyers who do not truly understand the nuances of the legislation. My practice is to tell the litigants that there is no disadvantage to representing themselves, but neither is there an advantage. I tell them that they are now “deemed to know what it is that they are doing”. I tell them that “because they are so deemed”, they cannot come to me later and say that they did not know what they had to do because they are self-represented. I tell them that this is an excuse that will no longer wash in this Court and if they need to ask questions, or are unsure of the process, they can ask the Court to explain further.
When I speak to each self-represented litigant thereafter, I ask them whether they heard what I said to the first self-represented litigant. In this way I do not need to repeat myself, but I emphasise that what I had said to that litigant, also applies to them.
The applicant was one of a number of self-represented litigants spoken to by the Court that day.
When this matter was eventually mentioned, the issue of the s 368 certificate was discussed. On my notes, I then raised the issue of the statement of claim with the applicant. According to my notes (which were checked against the recordings for that day), I said to the applicant:
This statement of claim needs to be well and truly refined because, quite frankly, it is full of irrelevancy. And what really needs to be put in the SOC (statement of claim) is, number 1, what is the workplace right that you had. Secondly, how did you exercise that workplace right. And thirdly, what it was you say was done because of the exercise of the workplace right. Now, obviously, that is that you were dismissed by that letter that you have attached to your application. But that’s what is needed here in the statement of claim.
Now, you’ve also got to understand here with the statement of claim that whilst it is that you must prove that you had a workplace right, and that you exercised that workplace right, once it is that you have established a connection between the exercise of that right and the adverse action, that’s all you need to prove. Because once that has happened, then it is for the University to show how it is, or why it is, that they made the decision and to prove to me that they did not make the decision because of your exercise of the workplace right. That’s all there is to it.
Your statement of claim appears to be a huge manifesto, as to how it is that EDI obsessions are ruining the Australian education system. The problem is that that’s not what this case is about. This case will only be about whether or not you have shown that you exercised a workplace right, and if so, how that connected to your dismissal. And it will be about whether or not Monash University has proven to me that your dismissal, or the adverse action, was done because the ultimate decision maker had as their reason for doing so, something that was not a prohibited reason. That’s it.
People look for all sorts of things that are going on behind the scenes. None of that is relevant to me at all. It doesn’t matter if Monash have unleashed an education system which is an anathema to most good thinking Australian people. But, if they dismissed you, and they can show to me it wasn’t because you exercised a workplace right, then that’s all that matters. Even if I were of the view that what it is they were doing were harmful to Australia culture, that’s not the test here. And this case is not a soap box for you to be able to somehow prove these things.
And you keep talking about Dr Ridd; you look at the first paragraph of my judgment in Dr Ridd’s case, and I wrote that some people think this case is about A, some people think it’s about B, and some it’s about C; it’s about none of those things. It was whether there was a clause in an enterprise bargaining agreement that overrode the code of conduct. Simple legal question. Okay. So, do not stray from the actual question that needs to be asked and to be answered.
There is a lot that you have put in this statement of claim that is just irrelevant to the question that I need to decide. But that’s something for you to look at by the time that the matter comes back before me.
Having given the applicant this warning, I allowed him to file an amended statement of claim if he wished to do so. He did so on 14 February 2025. I did not look at the amended statement of claim until during the next mention of the matter on 10 March 2025.
10 March 2025
On this day, all matters were conducted by telephone because of Cyclone Alfred not allowing entry into the Courthouse in Brisbane. Again, there were many matters before me that day and I, as usual, gave an explanation in the same terms to the unrepresented litigants as to the pitfalls of self-representation. On that day, I also dealt with another self-represented litigant who had not pleaded his matters properly in his statement of claim.
When the applicant’s matter was mentioned, I have noted that I said to him:
Dr Kirkham, you would have heard what I said to one of the previous applicants that appeared before me today, about the need to actually get to the nub of what he is talking about, and the fact that in his – what he thought passed for a statement of claim – there were a lot of irrelevant matters that had nothing to do with his claim. You heard that, didn’t you?
The applicant replied:
Yes. I don’t think I have done anything irrelevant in my claim. It is the number of contraventions that reflect the length.
I said to the applicant:
You say that, but can I tell you that I have never seen, in all my years, a statement of claim that goes for 174 pages. Are you telling me that every single word in that 173 pages is absolutely necessary, is totally relevant, and is what it is you are saying is what you are alleging are contraventions against you and the FW Act?”
The applicant said:
Yes. The number of contraventions is enormous. If you divide it by the number of contraventions it is incredibly concise. It also sets out issues of having preparing the pleadings because of a lack of discovery I am doing my best to bring what is an enormous amount of contraventions of the FWA. There are so many different ways they have breached intellectual freedom.
I said to the applicant:
Unless it is that you are saying that your intellectual freedom is a workplace right, then, it might cause some trouble.”
You’ve got footnotes in a statement of claim. I’ve never seen footnotes in a statement of claim. This reads as if it is a treatise and an argument. That should not be in a statement of claim.
A statement of claim is setting out fact, fact, fact and then how those facts constitute a contravention of a particular section of the Fair Work Act. It is not an argument to try and persuade me that it does, because that is what we do when we present evidence, and that is what we do when we have arguments.
A statement of claim is simply – as it was in the last person’s case, he just had to say right, I was employed, this was my workplace right, I exercised my workplace right, this is how I was then prejudiced because of that; that’s a contravention, there we go. It was a very simple task. You’re telling me you need 173 pages, replete with footnotes, to set out what your case is.
That’s fine, if that’s what you want to say, because, as I’ve said to you, you are deemed to know what it is that you are doing. And, if it is that that is what you are wanting to do, then I’ll listen to Mr Avallone’s application, if he wishes to make one, that this is a statement of claim that needs to be struck out.
And if there is one word of it that needs to be struck out, because it is either irrelevant or it is just an argument and not a statement of claim, then what you’ve just told me, that everything in there is relevant and needed in a statement of claim, then, what you’re saying will be incorrect.
And if it is incorrect, and they’ve had to expend money to do that, you may very well be the subject of a costs order made against you.
Now, I want you to understand those things. I don’t want you saying at the end that no one told me about this, no one told me that this is how I had to do a statement of claim, no one told me that there were consequences if I’ve gone far too far, and I haven’t done what I am supposed to do.
I am telling you now that there can be consequences. Now it may be that you can convince me that every word in that 173 pages is absolutely necessary for you to make your claim. I don’t know because I haven’t gone through all 173 pages, and I haven’t heard from you, and I haven’t heard from Mr Avallone. But I need you to understand there is no action without consequences. You are the one who says that everything in that document is needed and none of it is fluff, or argument, or something that makes absolutely no addition to what is needed in SOC.
The applicant said:
Yep. I think it is all needed for a court to be able to understand what is going on and it is complicated. I’m not going to pretend it isn’t. I try not to be like an academic in this respect. The matter is complicated, and I’ve done my best to do that.
But what is a great impediment of what I have is that Monash have three versions of why I was dismissed for example, there has been no discovery, so I would like some – actual discovery so I can tidy up my claim. That’s the issue I raise.
In part two, the issue with proceedings, one appalling instance is that the government in Victoria, one of the defendants in this claim, have the freedom of information jurisdiction in Victoria, and that has quite significant consequences for my obtaining documents. There are certain things you can obtain under the freedom of information regime that you cannot obtain under discovery in a Court.
But the case management issue isn’t the format of this document. There are some more fundamental issues in this case. I am doing my best to write about it without having all the materials, which of course makes it longer than it probably needs to be, because I am having to do every alternative because I have got three different versions as to why I was dismissed, which is an inordinate waste of my time, trying to deal with this rather than just putting my cards on the table and disclosing what actually happened.
So, I have done my best, but it isn’t an easy thing to do. There are also an inordinate amount of contraventions under the FWA because they have simply just adopted EDI. I can bring any detriment that happened in the workplace that I was affected by in the last five years I was there. So that is why I have brought additional claims.
I then took the applicant to parts of his amended statement of claim to illustrate that the document was a series of submissions. I said:
I’m just having a look. Paragraph eight – “the remainder of these submissions are structured as follows.” A statement of claim is not a submission, and you’ve treated it as a submission. It is quite obvious that you have treated this as a submission, and you said “no, no, no I haven’t” but you actually use the word “submission” yourself.
The applicant then enquired:
So, you’re saying that I cannot file submissions with my claim?
I replied:
A statement of claim is not a submission. A statement of claim is a setting forth of the allegations that demonstrate that there is a cause of action that has been established.
You’re making submissions. If you want to make submissions, it goes into a totally different document. I am having a look at your “Part 2: preliminary matters concerning proceedings”. That’s got nothing to do with a statement of claim. I can tell you that’s going to be struck out straight away. That’s got nothing to do with your statement of claim.
What you have got to show to me is that everything you have put in here is relevant. I have already given you some sort of preliminary views just looking at this as I am going through.
You are going to convince me that it is relevant, and you know there are consequences if you can’t. And you still want to go ahead with it. That’s fine. You’re entitled to do that. No one is going to stop you from having your day in Court. But what I am saying to you is, as long as you realise that there are consequences to your actions.
This is not an opportunity to do and say whatever it is you want. You have to do things within the rules. You say you are doing things within the rules. That’s fine. If I find that they aren’t within the rules, then there are consequences. So long as you understand that, that’s all that matters.
Doesn’t matter if you are doing your best or you are doing your worst. It is or it isn’t. There are no degrees of that. Doesn’t matter if you have been totally honest in what you are doing or if you are trying to scandalise things. Doesn’t matter. What you’ve written is what you’ve written.
You have said it is a proper statement of claim, and the other side is saying well it isn’t, but if it is you are relying on it, they are going to make an application. I understand why they may be making an application just on the face of what I have seen in the very first few pages.
The applicant did not bring to the attention of the Court that he needed assistance, nor did he make any application for an order about the procedure to be followed. He did not tell the Court that he had any “doubt about the procedure”. Whilst he made claims that he needed discovery before he could complete his claims, this was in the context of wanting to make even more claims against the respondents and not to ensure that he had correctly made the claims already presented in his pleading.
The strike out application
I made orders which timetabled the filing of a strike out application, written submissions by the main respondents, written submissions by the union respondent, written submissions by the applicant and finally, “reply” submissions by the main respondents.
The submissions for the main respondents were heavily critical of the format of the statement of claim and detailed the reasons why they submitted that the statement of claim was contrary to the Rules and contrary to the way matters are considered in proceedings that have commenced upon pleadings.
The most extraordinary claims were then made by the applicant in his submissions.
Rule 1.08
The applicant, in effect, submitted that any deficiencies in his statement of claim were partly due to the fact that he had asked for assistance and had not been given any assistance by the Court or by anyone else. At paragraph 8(h) and paragraph 10, the applicant submitted that he had:
identified some difficulties when he refiled and therefore wrote indicating the additional assistance that they needed by way of a Rule 1.08 application, which remains unaddressed by the Court;
the applicant also seeks orders under FCC Rule 1.08 given the various doubts about the procedure that he has raised both in this document and in his Applicant Notice.
There is no mention of any application pursuant to r 1.08 in any of the applicant’ s filed material until 13 May 2025. The applicant claims that he raised this issue in his “applicant notice”, but apart from the original application, Form 2 and statement of claim filed on 22 July 2024, his amended statement of claim filed on 14 February 2025 and his outline of submissions filed on 13 May 2025, the applicant has filed no other material.
None of the previous material filed before his outline of submissions mentioned any application for assistance or any questions about procedure, let alone a request for a r 1.08 application. There was no mention of any r 1.08 application on 10 March 2025 when the applicant was given ample opportunity to raise any matter that he wished to raise.
Rule 1.08 states that:-
Applications for orders about procedures
A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:
a. the procedure is not prescribed by the Act, these Rules or by or under any other Act; or
b. the person is in doubt about the procedure.
In any event, the Court explained the problems to the applicant on both 2 December 2024 and 10 March 2025. The applicant did not tell the Court that he had any doubt about the procedure, nor did he ask any questions about the procedure.
To suggest that the Court has failed the applicant because it did not address a r 1.08 application is arrant nonsense.
Pleadings
Because this matter was being commenced by way of pleadings, the respondents, quite rightly, pointed out that there needed to be precision with the pleadings so that they could be properly answered. In reply to this submission, the applicant claimed that he had never wanted to begin the matter by pleadings and therefore, any criticism of what he had filed, did not hold water because the matter should never have been one that commenced with pleadings.
But it was the applicant himself who filed the statement of claim as a separate document. Counsel for the respondents submitted that the correspondence with the registry shows that the applicant had attempted to file a document attached to his Form 2. That document was titled” Statement of Claim”.
The registry contacted the applicant, by email, and asked him whether he wanted the document simply as an attachment to the Form 2 (which would mean it would not be a formal “statement of claim”) or whether he wished to file it as an actual statement of claim. The applicant chose the latter and the statement of claim was duly filed that same day. The applicant did not deny this sequence of events.
This means it was the applicant who made the decision to commence proceedings by way of pleadings. When I heard the matter on 2 December 2024, I told the applicant that there were many problems with the statement of claim that he had filed and that I envisaged that the respondents would be making submissions about this. I told the applicant that, because there would be a new s 368 certificate being filed, I would allow the applicant to file an amended statement of claim, if he so wished, having regard to the issues concerning his present statement of claim.
The applicant chose to file an amended statement of claim on 14 February 2025. When he appeared before me on 10 March 2025, the applicant did not say anything about his not wanting to commence proceedings by pleadings, notwithstanding that he knew that the respondents were going to file a “strike out application” and that he would have to answer their submissions.
If the applicant truly did not wish to commence proceedings by pleadings, he would not have filed a statement of claim in the first place and would not have filed an amended statement of claim and he certainly would have raised his concerns to me on 10 March 2025 before I set the strike out application for a two-day hearing.
But his actions in the hearing illustrated that this was not a genuine concern. If it were, the applicant would have conceded that his statement of claim should be struck out and that he should be allowed to restart the proceedings with a revised Form 2. But this was not his mission; the applicant still steadfastly claimed that his amended statement of claim did disclose a cause of action.
Any suggestion that the applicant had not wanted to begin these proceedings through pleadings is nothing more than a recent invention.
Even if the applicant had not wished to have these proceedings dealt with by pleadings, it is inevitable that he would have been ordered by the Court to particularise the causes of action under the FW Act with the same precision that was needed in pleadings. This is because the applicant is asking for compensation and pecuniary penalties in excess of $7.5 million. To expect any respondent to defend such a claim that has no precision or particularisation, is contrary to the interests of justice.
Far too much time was wasted on the applicant attempting to provide the Court with some other way upon which he could bring proceedings that copied from other jurisdictions that do not require such particularisation. This was not what the hearing was about; the hearing was about whether the amended statement of claim should be struck out or not. The arguments of the applicant were nothing more than a distraction designed to somehow divert the Court’s attention from the true issue at hand.
The statement of claim
This document almost defies proper description.
The document is set out as if it were an academic paper. It is replete with footnotes and submissions, and it is, unfortunately, bereft of any particularisation of factual allegations.
The first three sections
The document begins with a form of introduction in which the applicant describes the Dean of the IT department, and the University itself, in a manner which could only be described as a “rant”. The greatest example of this is the following sentence that appears in paragraph 7 of the statement of claim.
It might be apt to say that the University was practically farting contraventions here, there and everywhere, although the result is a lot more poisonous than a fleeting bad smell.
There is simply no room in a proper statement of claim for any expression that is phrased in this manner. It is puerile and childish and does not take the complaint forward in any meaningful way.
The second section of the document is concerned with the dispute that the applicant has with the second respondent, National Tertiary Education Union (NTEU), and is primarily focused upon the union’s decision (according to the applicant) not to support him.
The applicant makes a number of claims that the second respondent has contravened s 50 of the FW Act but, does not particularise any acts that the second respondent has undertaken so as to make clear what the contravention act is. For example, the applicant alleges that the second respondent
has been promoting attacks on intellectual freedom, especially against individuals with gender critical views such as myself. These are further “intellectual freedom” contraventions”. These included “each and every promotion of “EDI”, woke ideology and so forth, provided in motions and policy documents” as well as “watering down intellectual freedom in exchange of other concerns as part of the 2024 enterprise agreement.
For the rest of the second section, the applicant rails against the Andrews government in Victoria and quotes articles critical of the “corrupt practices” of that government. The applicant claims that there has been a shutdown of freedom of information access in Victoria.
The applicant complains about the University paying lawyers to defend the respondent individuals in the present application. He claims that each payment of salary, and all legal fees, to each of the individual respondents is a contravention of the FW Act.
The applicant also criticises the FWC.
In the third section of the document, the applicant explains why he has alleged thousands of contraventions. Firstly, the more contraventions that are alleged, the more the maximum amount allowable for pecuniary penalties is increased. Therefore, the higher pecuniary penalty that is awarded by the Court, the greater the impact upon the deep pockets of the respondents.
The other reason for the large number of contraventions alleged is (at paragraph 20b) “the possibility, or perhaps inevitability, of judicial activism on appeal”. In the footnotes, the applicant makes a number of scurrilous accusations about members of the judiciary whom he regards as being “left leaning”.
The fourth section
The fourth section of the document has the title “Equity, Diversity and Inclusions Contraventions”. In effect, the applicant complains that a policy of EDI is a discriminatory policy which contravenes s 351 of the FW Act.
At paragraph 29, the applicant wrote that
it is further contended that one does not have to prove each contravention specifically, when there is a policy that means it is inevitable that a certain number will have been committed; rather, the exercise is estimating the most likely number of contraventions.
The applicant claimed that he was “white”, “British”, “non-indigenous”, “male”, “young” (under the age of 36), “imputed with Conservative political beliefs”, “working class background”, has an association with “persons with a disability”, “atheist”, “member of a trade union” and “an academic”. The applicant claimed that all these attributes have meant that he has been a target for EDI policy.
At paragraphs 50, 69, 76, 81, 90 and 96, the applicant makes various claims that talk vaguely of actions are perpetrated by the applicant and the resulting detriment that he suffered. I will talk more about these particular paragraphs later in these Reasons.
The fifth section
This section would seem to carry the crux of the complaints that the applicant has made. It is titled “Intellectual Freedom Contraventions”.
The applicant begins this section by speaking of the importance of intellectual freedom and that it is, to use my words, a suit of armour to protect the ideas of an academic.
The applicant claims that any breach of intellectual freedom is an adverse action. The applicant claims that he does not have to plead that he is the victim of a breach of intellectual freedom but only needs to show that he was affected by that breach to be able to prove a contravention of s 50 of the FW Act.
The applicant then proceeds to formulate a very convoluted structure that he claims allows him to illustrate how he is affected, in any number of ways, by breaches of intellectual freedom. The applicant then goes on to identify 40 different classes of breaches of intellectual freedom. Many of those classes have subclasses or ancillary classes. Realistically, it is a criticism of almost every aspect of how the applicant perceives the way University is run, and the problems says that he had with the University.
All of these issues, the applicant claims, boil down to the University breaching intellectual freedom.
The sixth section
In this section, titled “Probation Process and Dismissal”, the applicant contends that there is an implied term to the enterprise agreement that an academic cannot be subject to unfair dismissal and therefore an enhanced version of the normal test applies, and a breach must therefore be a contravention of s 50 of the FW Act. So, if the dismissal was harsh, unfair or unreasonable, this will constitute a breach of s 50 of the FW Act.
The applicant contends that cl 65 of the Enterprise Agreement is inconsistent with the FW Act he submits that process is subordinate the fundamental principle of intellectual freedom.
In paragraph 221, the applicant summarises that he was dismissed because of his attributes that led to s 351 discrimination, his past use of intellectual freedom, his association with Action Lab, not associating with the Dean and complaining about the University breaching industrial laws.
The applicant refers to the “first probation hearing” and the “second probation hearing” but gives no explanation as to what these where or how they came about. More importantly, he gives no context as to where these hearings sit in the scheme of his dismissal.
The seventh section
This section is titled “Remedies and Contraventions Sought” and has some of the more extraordinary outcomes sought in an action under the FW Act.
The applicant sought maximum penalties against all respondents noting that “bankruptcy for an individual in many of these cases is an insufficient penalty, so anything above that does not impact the punitive character of the punishment.” The applicant justifies the maximum penalty because the conduct of the respondents is “a grave assault on the public interest and fundamental values of a Western democratic society making it at the highest level of seriousness”.
The applicant sought an order requiring personal payment from each of the individual respondents. He sought an order prohibiting access to superannuation for each of the individual respondents. He sought an order limiting any access to support or payments from other individuals including “in kind”. The applicant said this should be in the form of a maximum total income order.
The applicant sought an injunction prohibiting the individual respondents from working in an academic environment or holding any kind of academic title ever again, as well as injunctive relief prohibiting them from ever exercising any public role or function ever again.
The applicant claimed compensation for injury to his feelings, as a result of the discrimination and mistreatment, in the sum of $750,000 minimum.
The applicant claimed that he had completed a considerable amount of work towards his future research because he understood that he had a permanent job. He claims $250,000 as the cost of this work already completed.
The applicant claims that his future economic loss is $3.5 million.
The applicant also asked the Court to order the dismissal of all EDI appointments and all non-legitimate academic staff. The applicant has asked the Court to categorise all employment contracts of the individual respondents as “non est factum”. The applicant asked the Court to declare each of the individual respondents as a “corrupt public official” and for the Court to institute a worldwide bar on any of those individuals holding themselves out to be an academic. The applicant also wanted the “improper” titles (such as Professor or Associate Professor) to be removed.
The applicant asked this Court to reinstate him and to promote him to Associate Professor. It also asked the Court to order the reorganisation of the NTEU.
Appendix A purported to list the parties by mixing s 550 of the FW Act with s 363 and s364 of the FW Act.
Rules of Court
This Court utilises the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Pursuant to r 1.04, the overarching purpose of the Rules is
to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Rule 1.06(2) states that if these Rules are
insufficient or inappropriate, the court may apply the Federal Court Rules”. Subsection (3) of that Rule states that “without limiting subrule (2), the provisions of the Federal Court Rules, set out in Schedule 1, apply, with necessary changes, to general federal law proceedings.
Rule 1.07 states that the Court may dispense with compliance with any of these rules at any time.
At Schedule 1, there is a list of Federal Court Rules 2001 (Cth) (“FCR”) that apply. As the Rules of this Court do not deal with “pleadings”, the FCR, that do apply to “pleadings”, apply in this Court. According to FCR 16.02(1) a pleading must:
(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and
(b) be as brief as the nature of the case permits; and
(c) identify the issues that the party wants the Court to resolve; and
(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved;
The amended statement of claim, filed in this matter, did none of those things. I will expand on this later in these Reasons.
FCR 16.21 states that 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.
It is this Rule that the respondents have invoked in launching this application in a proceeding.
While it is the overall remit of this Court to act “as informally as possible”, justice still needs to be done. As I have already noted, the applicant is seeking a payment of over $7.5 million. In those circumstances, it behoves the Court to insist on there being a level of particularity sufficient for the respondents to understand the case against them.
The applicant began these proceedings by way of pleadings (even though he now has attempted to shy away from that position) and therefore the observations made by the Full Court in Sabapathy v Jetstar and Ors [2021] FCAFC 25, at paragraph 42 are apposite:
while provision might be made for some level of informality in every case in (this 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.
What can be ascertained from the statement of claim?
While it is that the applicant has repeated many of his claims, the gist of his concerns is that the University has, by itself, and through the agency of the other respondents, embarked upon “woke” policies in which “groupthink” is the norm and any deviation from groupthink is not tolerated. This extends to EDI policies where tokenism is the overriding factor in appointments, promotions and allocation of resources.
The applicant himself summed up his cause at paragraphs 248 to 250 of his statement of claim where he wrote:
This is an unusual case. It reflects the scale of the wrongdoing. The result is that “American” scale financial penalties are a possible outcome.
Most importantly, it asked the question as to what sort of society we would like Australia to be. Do we want a liberal democratic society, where our University’s (sic) are engaged in the pursuit of truth? Do we want to be a society based on integrity, or one that rewards the greed of public officials who abuse their power? One would have thought that “right” and “wrong” would be straightforward in this case, despite the attempts to deflect from wrongdoing by asserting that this is all “equity, diversity and inclusion”. The truth is that it is simply a systematic abuse of official power, that now needs to be properly punished.
To protect the legitimate Australian public from anyone else getting these ideas again, considerable penalties required (sic). It would be a good start towards repairing the Australian University Sector and restoring it to its former glory.
It is obvious that this matter is a crusade for the applicant. He may have a very legitimate gripe. However, the Industrial Law jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is not the appropriate forum to either test the legitimacy of that gripe, nor to grant the sort of relief sought by the applicant.
There has been no identification of where the “EDI policies” of the University are housed; that is, where is it written that such policies actually exist at the University. There is simply an assertion that the policies exist.
As I pointed out during the hearing, the applicant has not pleaded what the “intellectual freedom”, contained in the enterprise agreement, actually entails. The applicant presented the Court with 800 pages of other material (this was eventually made an exhibit). These had to be broken up into three different components. At page 11 of the third component, the intellectual freedom clause (cl 10.2) of the enterprise agreement is reproduced.
Clause 10.2.1 states:
Without derogating from or limiting the employment obligations of staff, including the obligations to comply with reasonable and lawful directions and request, the parties to the agreement (who are the University and the NTEU) are committed to act in a manner consistent with the protection and promotion of intellectual freedom.
Clause 10.2.2 describes aspects of intellectual freedom which include the rights of staff to:
•participate in public debates and express opinions about issues and ideas related to the discipline area or areas of professional expertise and about the institution within which they work or higher education issues more generally
•make other comment outside their discipline or areas of professional expertise as long as they do so on their own behalf and do not claim to represent the University
•express unpopular or controversial views, but this does not mean the right to harass, vilify or defame or intimidate
•to pursue critical and open enquiry and to freely discuss, teach, assess, develop curricula, publish and research
•participate in professional and representative bodies, including unions, and engaged in appropriate community service
•express opinions about the operations of the University and higher education policy more generally
The complaint made by the applicant is that the University (and the NTEU) have not committed to act in a manner consistent with the protection and promotion of intellectual freedom because they have implemented “EDI policies”. The applicant contends that any form of EDI policy is an anathema to intellectual freedom. According to the applicant, this means that the intellectual freedom clause of the enterprise agreement has been breached and therefore s 50 of the FW Act has been contravened.
The corollary of this assumption is that every time an EDI policy was invoked, this constituted a contravention of s 50 of the FW Act. Whilst this would not directly involve the applicant, he claims that he, nevertheless, is affected by the contravention because it further weakens the intellectual freedom bestowed upon him by the enterprise agreement. This is why there needs to be the huge number of contraventions of which the applicant complains.
All of this may be very interesting, but it does not disclose an actual cause of action. It is an extremely general claim with no specificity to it whatsoever. There is also no specificity as to how any of the respondents have engaged in these contraventions.
Should the statement of claim, filed on 14 February 2025, be struck out?
In looking at the statement of claim as a whole, it becomes very clear, almost immediately, that it has well and truly departed from what a statement of claim ought to contain.
The document does not have consecutively numbered paragraphs that each deal with a separate matter. Instead, there are many allegations rolled up in different paragraphs. There are references and ideas that are mentioned elsewhere in the document so that it is difficult, if not impossible, to know what aspect of the complaint is being dealt with in particular paragraphs.
The document is not brief. The sheer size of the document (173 pages) cannot be simply explained as existing “because there are so many contraventions”. The document is prolix. When the applicant made submissions during the course of the hearing, he was verbose and rambling as well as being non-responsive to the issue at hand. This document mirrors the applicant’s verbal approach.
The document does not identify the issues that the court needs to resolve. The document asserts that the University employs EDI policies but does not identify the wording of such policy, or where it is to be found. The document asserts that, as a matter of fact, any EDI policy must necessarily offend, or be counter to, intellectual freedom. There is a bald assertion that, therefore, any implementation of EDI policy must be considered as a contravention of the FW Act. But there is no identification of a workplace right, how it was exercised by the applicant, what was the result of that exercise and how that exercise has a logical connection to the adverse action committed by the employer.
Those observations are also illustrative of how the document fails to state the material facts upon which the claim is based so as to allow the respondent fair notice of the case that they are supposed to meet.
In summary, this document has not complied with any of the requirements needed for a proper statement of claim. On that basis alone, the striking out of the whole of the statement of claim would be justified.
Added to those matters, is the fact that the statement of claim is scandalous in the way that it describes the third and fourth respondents particularly. It is vexatious because it attempts to discover every decision made by the University and to put that decision through a lens of the “implementation of an EDI policy” and then claim that it is a contravention of the FW Act.
The document is evasive, and it does not disclose any cause of action. It is designed to cause maximum embarrassment and prejudice to the University. When the proposed remedies are taken into account, it can be said that the purpose of this document was “an abuse of the processes of Court”.
As I noted earlier, while the applicant would not concede that his statement of claim filed on 14 February 2025 did have deficiencies, he spent a great deal of time submitting to me that the Rules were inefficient as far as self-represented litigants were concerned. He said, ad nauseam, that the system where pleadings are needed for self-represented litigants, simply does not work. He submitted that no self-represented litigant could successfully travail the maze through which the Rules insist litigants must run. He, instead, devised his own plan as to how complaints, such as his, should progress through the Courts.
No matter how much the applicant rails against “the system”, the applicant has failed to understand that if he wishes to litigate through this system, that he must comply with requirements of the system. The applicant does not seem to grasp the concept that the Court is in charge of its own processes and those processes have been set down, very thoroughly, by a combination of statute and past authority. I must therefore ignore the applicant’s submissions on the legitimacy of compliance with the Rules.
Having come to those conclusions, the only proper course open to the Court is to strike out the whole of the statement of claim.
What, if anything, can be salvaged from the statement of claim?
Having gone through the statement of claim, there are the makings of a cause of action found in the following paragraphs.
At paragraph 50, the applicant contends that the University utilised an EDI policy so that persons who came from Arab countries would not be able to undertake PhD studies and that “they sought to try and make me change marks…so that the final student would fail to be admitted into the PhD program”.
At paragraph 69, the applicant contends that, because he was associated with Action Lab, he was dismissed by the University.
At paragraph 76, the applicant claims that he was working for “disability rights”. He claimed that because of this work, he was discriminated against by the University.
At paragraph 81, the applicant claims that he was given an unfavourable resource allegation. He claims that colleagues who did not have “oppressor characteristics” (such as being white, male, English et cetera) were given more resources which meant that he had to do more work than they did.
At paragraph 90, the applicant claims that, because of his gender, he was made to work in a difficult working environment.
At paragraph 96, the applicant claimed that he was paid less for the work that he did because of his gender, age and ethnicity and that persons, ostensibly doing the same work as he was doing, who were not male, white, young or English, were being paid more than he was being paid.
At paragraph 221, the applicant “contended that I was (really) dismissed for one or more reasons prohibited in the FW Act, for all the reasons that can be inferred in this document”. He said that this included his being white, male, English and having certain political views. He said that he was dismissed because of his past exercise of intellectual freedom and other workplace rights. He said that his association with Action Lab, early career academics and law academics also led to his dismissal. The applicant claimed that s 772 of the FW Act also prohibited his dismissal.
Should the applicant be allowed to re-plead or should the matter be summarily dismissed?
The problem with all of the matters, that I have identified as having “the makings of a cause of action”, is that they still do not identify a cause of action. There has not been any identification of the actual exercise of a workplace right. Whilst the applicant has identified that he has the workplace right to express views that are protected by cl 10.2 of the enterprise agreement, he has not given any specific incidents where he has part particularly exercised that right.
In the paragraphs that I have identified as having the makings of the cause of action, the applicant has identified that he suffered adverse action in that he was dismissed or subjected to other adverse actions (being told to grade a student for reasons other than the student’s academic ability, having to work in a difficult working environment and being paid less money than others). Apart from the fact of dismissal, the applicant has given no particularity as to how he was “injured” in his employment, or had his position altered to his prejudice or how he was actually discriminated against.
The question is whether the applicant should be allowed to “re-plead” his case restricted to those matters that I have identified as having the makings of a cause of action.
I am very cognisant of the following matters.
The applicant has complained that he was dismissed unjustly. If the Court summarily dismisses the matter now, the applicant is, effectively, shut out of making any claim under the FW Act in relation to these matters. This is not something that a Court should do lightly. In this case, it should only be done if there is no alternative, in the interests of justice, than to dismiss the claim.
However, the Court has little, to no, confidence that the applicant could actually properly plead a case. The applicant would have to rely upon events and circumstances about which the applicant has had two opportunities to inform the Court and hasn’t. He has also had two opportunities to explain why that “unjust” dismissal also offends the general protections provisions of the FW Act and hasn’t. The Court is justified in, rhetorically, asking “what would change if the applicant were given a third opportunity?”
Despite the applicant’s bravado and bluster, he is really only interested in revenge upon the University and those he feels have wronged him. This is in spite of the Court explaining the raison d’être of the “pleadings regime” very specifically on two occasions previously. The applicant seems determined to try and use this Court as a means to inflict as much pain, embarrassment and derision upon the University as he possibly can. The Court is justifiably concerned about its processes being abused in this way.
Conclusion
The applicant has not shown that he has a cause of action. He has not identified a workplace right that he has exercised, he has not particularised how he has exercised that workplace right, and, he has not particularised, apart from dismissal, how he has been the subject of adverse action.
Whilst it is that I identified aspects of the statement of claim that could be said to have the “makings” of a cause of action, that is simply insufficient for the Court to be convinced that there actually is a cause of action.
The only logical result stemming from those conclusions is that the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding (r 13.13).
I am of the view that, in the interests of justice, there is no alternative other than to dismiss the claim in whole.
Given that there is no need for the applicant, or any of the respondents, to have their titles affixed to their names, I will remove those titles from the order sheet and from the schedule of respondents.
To ensure that this material does not find its way into the public domain (where the applicant, or others associated with the applicant may try and use the material for some form of ridicule or denigration of the respondents), I will order that this file be suppressed and no part of this file is to be accessible without an order of a Judge of a Chapter III Court.
Orders
I order that the statement of claim filed on 14 February 2025 be struck out in whole.
I order that the application filed on 22 July 2024 be dismissed.
I order that this file be suppressed and that no part of this file be accessible without an order of a Judge of a Chapter III Court.
I will hear the parties on the issue of costs and add the outcome of such application to these orders.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 30 May 2025
SCHEDULE OF PARTIES
BRG 443 of 2024 Respondents
Fourth Respondent:
MARGARET ELAINE GARDNER
Fifth Respondent:
MATTHEW GILLESPIE
Sixth Respondent:
SUSAN ELLIOTT
Seventh Respondent:
KIMBAL GEORGE MARRIOTT
Eighth Respondent:
MARIA GARCIA DE LA BANDA
Ninth Respondent:
JESPER KJELDSKOV
Tenth Respondent:
YIANIS VENTIKOS
Eleventh Respondent:
MICHELLE WELSH
Twelfth Respondent:
KIRSTEN MCLEAN
Thirteenth Respondent:
FIONA HUNT
Fourteenth Respondent:
IRENE VIDINIOTIS
Fifteenth Respondent:
ANGELO YOANNIS
Sixteenth Respondent:
CAROLINE KUBIS
Seventeenth Respondent:
SIMONE DE GROOT
Eighteenth Respondent:
KATHERINE KNIGHT
Nineteenth Respondent:
HELEN PURCHASE
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