Kirkham v Monash University

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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

  1. 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”).

  2. The applicant took the matter to the Fair Work…

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Details
Case
[2025] FedCFamC2G 818
Decision Date

CaseChat Overview and Summary

In Kirkham v Monash University, the applicant, Kirkham, sought to bring a claim against Monash University, alleging adverse action in the workplace. The Federal Court was tasked with determining whether the application to strike out the statement of claim should be granted due to its format and the absence of a disclosed cause of action. The Court was also required to decide if Kirkham could successfully prosecute his claim. The case hinged on whether the statement of claim complied with the Federal Court Rules and if it adequately identified a workplace right that had been exercised and adverse action taken against Kirkham. The Court found that Kirkham had not demonstrated a cause of action, as he failed to identify a workplace right exercised, particularise how he exercised that right, and detail how he was subjected to adverse action beyond his dismissal. The Court was concerned about the potential misuse of its processes for personal vendettas and determined that Kirkham had no reasonable prospect of successfully prosecuting his claim.

The Court, therefore, struck out the statement of claim in its entirety and dismissed the application. The decision was made in the interests of justice to prevent the misuse of the Court's processes and to protect the privacy of the parties involved. The Court also suppressed the file to prevent the information from becoming public and being used for ridicule or denigration of the respondents. The Court indicated it would address the issue of costs separately and would add the outcome of such an application to the orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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