Murdock v Virgin Australia Airlines Pty Ltd (No 2)

The applicants in Murdock v Virgin Australia Airlines Pty Ltd (No 2) brought proceedings against the respondents, Virgin Australia Airlines Pty Ltd, Jetstar Airways Pty Ltd, and Qantas Airways Ltd, alleging that the respondents breached various terms of the Fair Work Act 2009 (Cth) by issuing directions that employees receive vaccinations to inoculate them against COVID-19 and subsequently terminating the applicants from their employment for failing to comply with those directions. The applicants sought an interlocutory application for summary dismissal and/or strike-out of the pleadings, claiming that the pleadings were inadequate. The court was required to determine whether the pleadings were inadequate, whether leave was required to re-plead certain claims, and whether leave was also required in respect of adverse action by discrimination, coercion, and injuring the applicants in their employment.

The court concluded that numerous paragraphs of the First Amended Statement of Claim (FASC) must be struck out but that the applicants may have liberty to re-plead. The court determined that the entirety of the FASC be struck out, with liberty to the applicants to re-plead, except for the causes of action pleaded in [18]-[20] and [31]-[33], which were dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), with no liberty to re-plead. The court also concluded that the applicants should not be granted the extension sought under s 370 of the Fair Work Act 2009 (Cth), which meant that the cause of action pleaded in [16] and [17] of the FASC could not be pursued. The court granted leave for the re-pleaded case to be filed as two separate actions, one against Virgin and the other against Jetstar and Qantas (if the applicants pursued their case against Qantas). Finally, the claim brought by Mr Atsas must be dismissed. The court directed the parties to confer and supply agreed draft short minutes of order giving effect to these reasons by 12 June 2023.

In conclusion, the court dismissed the proceedings as against Mr Atsas but granted him liberty to make an application, supported by an affidavit within 14 days, seeking leave to set aside this order should he wish to be heard on the matter. The court also directed that Virgin serve a copy of the order on Mr Atsas. The court made an order under FCR r 1.32 dismissing the proceedings as against Mr Atsas. The court ordered that the parties confer and by 4pm on 12 June 2023 supply to the chambers of Justice Burley an agreed draft short minutes of order giving effect to these reasons, marked up to reflect any points of disagreement.