FEDERAL COURT OF AUSTRALIA
Rolfe v Pinnacle ACT Pty Ltd [2025] FCA 638
File number(s): ACD 18 of 2024
ACD 19 of 2024Judgment of: KENNETT J Date of judgment: 18 June 2025 Catchwords: PRACTICE AND PROCEDURE - pleadings – where the cross-respondents have not plead to certain allegations in their respective statements of cross-claim, relying on self-incrimination and penalty privilege – whether the cross-respondents have a bona fide apprehension, based on reasonable grounds, of exposure to conviction or penalty – whether there is a “real and appreciable risk” of proceedings being instituted by the relevant authorities if the cross-respondents plead to the allegations Legislation: Corporations Act 2001 (Cth) ss 180, 181, 182, 183, 1317H, 1317J
Criminal CodeAct 1995 (Cth) Sch (s 478.1)
Evidence Act 1995 (Cth) s 75
Fair Work Act 2009 (Cth) ss 340, 361
Federal Court Rules 2011 (Cth) rr 16.02, 16.07, 16.08
Cases cited: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412
Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; 164 FCR 32
Chardon v Bradley [2017] QCA 314
Connelly and Harris & Anor v McGrath & Anor [2019] QSC 304
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543
Deloitte Touche Tohmatsu (a firm)vSadie Ville Pty Ltd (as trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23; 144 ACSR 1
EFM Logistics v David Weerden & Ors [2019] VSC 100 at [11] (Garde J); Dale v Clayton Utz (a firm) (No 2) [2014] VSC 517
Le Roi Homestyle Cookies Pty Ltd (in liquidation) v Gemmell [2013] VSC 452
Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211; 209 FLR 197
Police Service Board v Morris (1985) 156 CLR 397
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
QC Resource Investments Pty Ltd (In Liq) v Mulligan [2016] FCA 813
Quinlan v ERM Power Limited & Ors [2023] QSC 80
R v Associated Northern Collieries (1910) 11 CLR 738
Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547
Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (a firm) (No 3) [2018] FCA 1107; 357 ALR 695
Sorby v Commonwealth (1983) 152 CLR 281
Division: Fair Work Division Registry: Australian Capital Territory National Practice Area: Employment and Industrial Relations Number of paragraphs: 38 Date of hearing: 18 March 2025 Counsel for the Cross-Claimants: M Follett KC with P Bindon Solicitor for the Cross-Claimants: HR Legal Counsel for the Cross-Respondents: S Meehan SC with T Wong Solicitor for the Cross-Respondents: MV Law ORDERS
ACD 18 of 2024
BETWEEN: PINNACLE ACT PTY LTD (ACN 165 487 669)
Cross-Claimant
AND: SCOTT ROLFE
Cross-Respondent
ORDER MADE BY:
KENNETT J
DATE OF ORDER:
18 JUNE 2025
THE COURT ORDERS THAT:
1.Paragraph 3 of the cross-respondent’s defence to the statement of cross-claim be struck out.
2.In accordance…
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- AGLC
- Rolfe v Pinnacle Act Pty Ltd [2025] FCA 638
- Case
- [2025] FCA 638
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the respondents had a bona fide apprehension, based on reasonable grounds, of exposure to conviction or penalty. The court had to assess whether there was a "real and appreciable risk" that proceedings would be instituted by relevant authorities if the respondents were to plead to the allegations. The respondents argued that answering the allegations would expose them to criminal liability under s 184 of the Corporations Act 2001 (Cth), as well as potential civil penalties under s 1317H of the same Act. The court needed to balance the respondents' privilege against self-incrimination and penalty privilege with the obligations under the Federal Court Rules 2011 (Cth) to plead to allegations in a cross-claim.
In determining the matter, the court found that the respondents did not have a legitimate apprehension of being exposed to a conviction or penalty if they were to plead to the allegations. The court reasoned that the respondents had not demonstrated a real and appreciable risk of criminal or civil proceedings being instituted against them. Consequently, the court held that the respondents were required to plead to the allegations as mandated by the Federal Court Rules. The privilege claims were rejected, and the respondents were ordered to file an amended defence that properly addresses the allegations in the cross-claim. The court also ordered that the paragraph in the respondents' defence claiming privilege be struck out.
The final orders of the court were that paragraph 5 of the respondents' amended defence to the amended statement of cross-claim be struck out, and that the respondents file a defence which pleads to the allegations in the amended cross-claim in accordance with the Federal Court Rules. Costs were reserved.
Orders
Orders of the court
1. Paragraph 5 of the cross-respondent’s amended defence to the amended statement of cross-claim be struck out.
2. In accordance with the Federal Court Rules 2011 the cross-respondent file a defence which pleads to the allegations in the amended cross-claim.
3. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
On 24 May 2024 Pinnacle filed a notice of cross-claim in each proceeding. Pinnacle sought declarations of breach by each of the Rolfes of his duties under ss 180 to 183 of the Corporations Act 2001 (Cth) (the Corporations Act), duties under the general law and his employment contract. Pinnacle also sought compensation under s 1317H of the Corporations Act, equitable compensation and damages for breach of contract. The allegations supporting these prayers included what was referred to as the “orchestrated absence” and the “orchestrated deletion of data”, each of which formed part of the alleged serious misconduct which Pinnacle had relied on in terminating the Rolfes’ employment. The Rolfes have filed defences to Pinnacle’s cross-claims but have not pleaded to the allegations concerning the orchestrated absence and orchestrated deletion of data in the manner required by rr 16.02, 16.07 and 16.08 of the Federal Court Rules 2011 (Cth) (the Rules). Their defences adopt the formula:… the Cross-Respondent does not plead or otherwise respond to the matters alleged in relation to the claim that he contravened the Corporations Act and claims privilege against self-exposure to penalty.(Emphasis in original.) On 16 January 2025, Pinnacle filed an interlocutory application in each proceeding seeking orders that:(a)the paragraph of his defence by which the cross-respondent claimed privilege and declined to plead to allegations against him be struck out; and (b)the cross-respondent file an amended defence to the cross-claim that traverses the relevant allegations in accordance with the Rules. Because the claims by the Rolfes are very similar, and Pinnacle’s claims against them focus on conduct said to have been “orchestrated” between them, it is not necessary to distinguish between the two proceedings in these reasons. The Rolfes no longer rely on any form of privilege in relation to the “orchestrated absence” allegations and accordingly seek leave to file amended defences to the cross-claims which respond to those allegations. However, they maintain their reliance on the privilege against self-exposure to a penalty (penalty privilege) in response to the orchestrated deletion of data allegations. They also seek to invoke the privilege against self-incrimination (self-incrimination privilege) as a basis for resisting pleading to those allegations.The allegations The orchestrated deletion of data allegations can be summarised, taking the pleading against Mr Scott Rolfe as an example, as follows.(a)As part of his employment with Pinnacle each of the Rolfes was issued with two laptops with specified asset numbers.(b)As part of their roles each of the Rolfes had access to information confidential to Pinnacle and necessary for its business operations (including a technical bid for a critical infrastructure project with the Australian Capital Territory (ACT) Government).(c)On 23, 24, 28, 29 and 30 March 2023 Mr Rolfe accessed Pinnacle’s network and deleted a large number of emails, a large number of OneDrive documents and folders, and 8 Sharepoint files.(d)On 28 March 2023 Mr Timothy Rolfe accessed Pinnacle’s network and deleted a large number of emails together with one folder and 86 files from OneDrive.(e)On 29 March 2023 Mr Jaks of Pinnacle issued to each of the Rolfes a direction in writing (inter alia) not to do any work during his period of absence and not to access Pinnacle’s IT systems or network.(f)Late on 29 March and on 30 March 2023, in breach of this direction, Mr Rolfe accessed Pinnacle’s network and deleted around 82,000 emails.(g)On 4 April 2023 the Rolfes’ access to Pinnacle’s systems was suspended. Later that day each of them attempted to access those systems.(h)Each of Mr Timothy Rolfe (on 13 April 2023) and Mr Rolfe (on 14 April 2023) removed all company data from one of the laptops in his possession and attempted to restore it to its factory settings. These laptops were then returned to Pinnacle but the other laptops were not.(i)Each of the Rolfes had previously stored company documents in a Dropbox account outside Pinnacle’s storage system and then deleted them from that account.(j)Pinnacle has been unable to restore or retrieve company files that were stored in and deleted from the laptops or the Dropbox accounts.(k)On the basis of these allegations it is said that the Rolfes “orchestrated with each other to undertake the deletion of company information over the same period from around 23 March 2023 to around 12 May 2023”. Self-incrimination privilege and penalty privilege