Young v Accenture Australia Pty Limited (No 2) - Amended Statement of Claim Struck Out with Leave to Replead

Original Word Document (139.2 KB) Federal Court of Australia

Young v Accenture Australia Pty Limited (No 2) [2026] FCA 444

| File number(s): | NSD 494 of 2024 |
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| Judgment of: | GOODMAN J |
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| Date of judgment: | 16 April 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – application for summary judgment or the striking out of the whole or part of an amended statement of claim – summary judgment not appropriate – amended statement of claim struck out with leave to replead |
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| Legislation: | Corporations Act 2001 (Cth), s 1317AC

Fair Work Act 2009 (Cth), ss 340, 545, 546

Federal Court of Australia Act 1976 (Cth), s 31A

Federal Court Rules 2011 (Cth), rr 16.02, 16.21, 26.01 |
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| Cases cited: | Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; (2021) 287 FCR 388

Australian Agrivision Pty Ltd v Wolstenholme (Trial) [2026] FCA 130

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169

DRA Global Limited v Naude [2026] FCA 94

Lal v Royal Australasian College of Physicians [2025] FCA 348

Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127; (2015) 237 FCR 534

Mpinda v Fair Work Commission [2022] FCA 1111

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

Quach v Commissioner of Taxation [2019] FCA 1729; (2019) 168 ALD 130

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45

Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348

Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

ThoughtWare Australia Pty Limited v IonMy Pty Ltd [2023] FCA 906

Weddall v Rasier Pacific Pty Ltd [2023] FCA 59

Herzfeld P and Prince T, Interpretation, (3 rd ed Lawbook Co, 2024)

Lewison K and Hughes D, The Interpretation of Contracts in Australia, (2 nd ed Lawbook Co, 2025) |
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| Division: | Fair Work Division |
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| Registry: | New South Wales |
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| National Practice Area: | Employment and Industrial Relations |
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| Number of paragraphs: | 98 |
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| Date of hearing: | 29 April 2025 |
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| Counsel for the Applicant: | Mr D Mahendra with Mr L Meagher |
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| Solicitor for the Applicant: | DPR Legal |
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| Counsel for the Respondent: | Ms K Eastman SC with Mr M Watts |
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| Solicitor for the Respondent: | Norton Rose Fulbright Australia |
ORDERS

| | | NSD 494 of 2024 |
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| BETWEEN: | DONNA ALICIA YOUNG

Applicant | |
| AND: | ACCENTURE AUSTRALIA PTY LIMITED

Respondent | |

| order made by: | GOODMAN J |
| DATE OF ORDER: | 16 april 2026 |
THE COURT ORDERS THAT:

1. The amended statement of claim be struck out.

2. The applicant has leave to file and serve a further amended statement of claim within 28 days of the date of these orders.

3. The respondent’s interlocutory application filed on 31 July 2024 otherwise be dismissed.

4. The question of costs of that application be reserved.

5. The proceeding be listed for further case management at a time to be agreed in consultation with the Associate to Goodman J.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

| A.    Introduction | [1] |
| B.    the ASOC | [7] |
| C.    Summary dismissal application | [59] |
| C.1    Legal framework | [60] |
| C.2    The case in contract | [67] |
| C.3    FW Act case | [83] |
| C.4    Conclusion | [84] |
| D.    Strike out application | [85] |
| F.    Conclusion | [96] |
REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1 On or about 31 October 2017, the applicant was employed by the respondent pursuant to a written contract of employment bearing that date (Employment Agreement). The applicant worked for the respondent, including in the role of Employment Relations Lead in the respondent’s Human Resources Division until 9 February 2024, when the respondent notified the applicant that her employment was terminated with effect from that day.

2 The applicant commenced this proceeding by filing an originating application seeking, inter alia, damages for breach of contract; and an order pursuant to s 545 of the Fair Work Act 2009 (Cth) (FW Act) for compensation for the loss that she claimed to have suffered because of alleged contraventions by the respondent of s 340 of the FW Act by taking adverse action against the applicant because she exercised a series of workplace rights. The applicant also seeks an order pursuant to s 546 of the FW Act for the imposition of a pecuniary penalty upon the respondent, payable to the applicant.

3 The originating application was supported by a statement of claim.

4 On 22 May 2024, the respondent’s solicitors wrote to the applicant’s solicitors suggesting various deficiencies in the statement of claim and on 9 July 2024, the applicant filed an amended statement of claim (ASOC).

5 The respondent seeks, by an interlocutory application, an order for the summary dismissal of the ASOC; alternatively orders for the striking out of all or parts of the ASOC.

6 For the reasons set out below, an order for summary dismissal is inappropriate but the amended statement of claim should be struck out, with leave to replead.

B.    The ASOC

7 The ASOC is 52 pages in length. It comprises 95 paragraphs, with many of those paragraphs having multiple sub-paragraphs.

8 Relevant personnel mentioned in the ASOC include:

(1) the following employees of the respondent:

(a) Ms Claire and/or Dorothy Aldous;

(b) Ms Lauren Burmeister;

(c) Mr Peter Burns, Chief Executive Officer (CEO) (as at 3 February 2023 and 23 January 2024);

(d) Ms Lisa Crennan, Managing Director

(e) Mr Bob Easton, CEO (as at 5 December 2019);

(f) Ms Michelle Hoey;

(g) Ms Emelia Khoury;

(h) Ms Sarah Kruger, Human Resources Managing Director;

(i) Ms Marroun Nader, Employment Law Counsel and Director;

(j) Ms Claire McCaffery, Human Resources Market Unit Head;

(k) Ms Samantha Randall, Chief Financial Officer;

(l) Mr Iain Warner, General Counsel;

(2) the following employees of Accenture plc:

(a) Mr Calvin Bao, Lawyer (Corporate Investigation Division), situated in the People’s Republic of China;

(b) Ms Xinping Chen, Lawyer (Corporate Investigation Division), situated in the Republic of Singapore;

(c) Mr Matthew Farej, Global myTE Lead;

(d) Ms Margret Smith, Senior Managing Director and Global Geographic Services Lead;

(3) the following lawyers who were partners in or working for Norton Rose Fulbright:

(a) Ms Melinda Bell;

(b) Ms Abigail McGregor; and

(c) Ms Queenie Mok.

9 In what follows in [11] to [58] below:

(1) the allegations pleaded at ASOC [19] to [55], [66] to [70], [72] to [79], [80], [81] to [82], [83], [85], [86], [88] and [89] have been re-organised chronologically, as much as possible, as an aid to understanding the case sought to be presented. Those paragraphs have otherwise been reproduced largely in the form pleaded;

(2) those allegations have been supplemented by some limited documentary evidence tendered on the application as to the express terms of the Employment Agreement;

(3) defined terms correspond the definitions used in the ASOC; and

(4) it is to be remembered that the allegations described below are simply allegations, which are taken at their highest for the purpose of this application. The respondent has not yet filed a defence and the Court is not, on this application, making any determination as to the veracity or otherwise of the allegations made in the ASOC.

10 Other parts of the ASOC are not reproduced in [11] to [58] below for reasons that will become apparent.

11 On 31 October 2017, the applicant and the respondent signed the Employment Agreement. The express terms of that agreement include:

1. Accenture Policies

10.1     Accenture’s policies can be found on the “Accenture Policies” website. You must familiarise yourself with these policies as soon as reasonably practicable after you have been given access to the website. In particular, you should read Accenture’s Code of Business Ethics.

10.2     Accenture’s policies do not form part of this employment contract, and are not binding on Accenture. However, they contain directions from Accenture, and non-compliance may result in disciplinary action up to and including termination.

…

1. Performance and Conflicts of Interest

12.1    You must fulfil your duties and responsibilities to Accenture faithfully, honestly and in a professional manner and devote your full time and attention to Accenture’s business.

…

12.3    You must not make disparaging comments about the Accenture Group, its clients, Business Associates, officers, or employees (including via social media). You must use your best efforts to promote and protect the business of the Accenture Group and act in its best interests.

…

1. Confidential Information, Ownership of Works, Moral Rights

…

15.8    You agree that you will comply with all relevant policies and guidelines of Accenture regarding the protection of Confidential Information and intellectual property, including, without limitation, Accenture’s Confidentiality Policy (AP 69), Intellectual Property Policy (AP 91) and Open Source Software Policy (AP 314) as amended at any time. To the extent that there is any inconsistency between the terms of any such policies and guidelines and the terms of this Agreement, this Agreement will prevail.

…

1. Suspension

17.1     For the purpose of investigating any matter, including potential misconduct, Accenture may direct you not to perform any duties and not to attend the workplace or contact employees, clients or other persons. You will receive your full pay for any such period of suspension. However, you must remain available and contactable by Accenture during any such period to assist with the investigation or any work questions.

…

1. Termination

19.1     After the successful completion of your probation period, either you or Accenture may terminate your Employment at any time by giving the other party one month’s prior written notice. Alternatively, Accenture may terminate your employment immediately by making a payment in lieu of part or all of the notice period. …

…

19.3    Nothing in any policy or procedure or statement issued or implemented by Accenture will limit or affect Accenture’s right to terminate your Employment as set out above.

19.4     Accenture may immediately terminate your Employment, without notice or pay in lieu, if you engage in any serious misconduct, commit any serious or persistent breach of this Agreement, or Accenture’s policies or engage in conduct which in the opinion of Accenture may bring Accenture or its business into disrepute.

…

1. Gen e rally

26.1    This Agreement represents the entire agreement between you and Accenture regarding your Employment and replaces all previous arrangements and understandings.

26.2    You warrant that in entering into this Agreement, you have not relied on any statement about its subject matter, except as provided in this Agreement.

26.3    The parties will perform any further act reasonably required to give effect to their obligations or preserve the rights set out in this Agreement.

26.4    Termination of the Employment for any reason will not affect any continuing obligations under this Agreement including those obligations dealing with litigation assistance, confidential information, intellectual property and post-employment restrictions.

26.5    If a provision of this Agreement is invalid or unenforceable in a jurisdiction: it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.

26.6    You acknowledge that you have had sufficient time to review the contents of this Agreement and if desired seek legal advice, and that you fully understand the contents of this Agreement.

(bold emphasis in original)

(The applicant relies upon five terms that she alleges are implied in the Employment Agreement. These are discussed at C.2 below. She does not allege that the express terms have been breached, but does contend that the express terms provide part of the context in which the implied terms arise.)

12 The respondent’s role included conducting, managing and supervising the conduct of internal investigations of alleged acts and omissions of employees of the respondent located throughout Australia, including investigations into potential misconduct by employees of the respondent (ASOC [3]).

13 On 5 December 2019, at an Employee Relations briefing, the applicant, with the support of her immediate superior Ms Kruger and Ms Nader informed Mr Easton that:

(1) in light of recent advice from external counsel Baker & McKenzie, the respondent’s then overtime recording and payment system – which involved computer software known as myTE and an overtime payment model known as the Overtime Bonus Recognition Model – carried a risk of historical breaches of employment law and should be fixed and improved; and

(2) such fixing and improvement could include the introduction of a pre-approval requirement for employees who were required to and wished to work overtime, to claim and be paid such compensable overtime, as distinct from electing to work discretionary (non-compensable) overtime (ASOC [66]).

14 On 9 December 2019, and because Ms Nader had another commitment and could not attend and make a presentation, the applicant made an oral and written presentation to the board of directors of the respondent titled “Employee Risk”, during which the applicant:

(1) reported on health and safety incidents at the respondent’s workplaces during the previous two quarters, including 180 non-formalised notices of expressed distress related to work, including for expressed fatigue and perceived misconduct, 28 incidents of disrespectful behaviours and one formalised notice of perceived unhealthy working environment involving high pressure and culture of blame; and

(2) informed the board, on the topic of Modern Award Compliance, that it was advisable for the respondent to: (a) overhaul its then Bonus Recognition Model and policy; (b) establish an approvals process for compensable overtime – noting that without one, overtime costs were estimated to become up to 12 times more expensive (from $500,000 to $6 million); (c) establish a Time Off in Lieu procedure which would assist in reducing employee burnout from working excessive overtime hours; (d) establish a procedure for “ghosting claims”, to ensure consistency and to mitigate class action risk, noting that the proposed new overtime procedure would give rise to claims of direct and indirect instruction with regard to time recording. The applicant also advised that there was a risk of past technical breaches of Modern Awards by the respondent, but management would work with legal counsel to argue against underpayment risk – which risk could result in six years of back payments to affected employees with a rough cost estimate of up to $40 million (ASOC [67]).

15 On 8 January 2020, the applicant sent to Mr Easton and other members of senior management a draft new written Flexible Work and Wellbeing Policy of the respondent, which the applicant later circulated to Mr Easton, Ms Kruger and Ms Nader by email dated 13 January 2020, as part of a document titled “Modern Award Compliance Brief”. On page 2 of this Brief, the applicant noted that discretionary (non-compensable) overtime was worked by employees for perceived career progression / personal work ethic reasons, and referred to a proposal that for eligibility for wage payment as compensable overtime, such compensable recorded overtime, as distinct from discretionary recorded overtime, would be required to be directed or pre-approved by management (ASOC [68]).

16 The next events occurred between 26 March 2020 and 14 April 2020 and are pleaded as follows:

70.    Between 26 March 2020 and 14 April 2020, the Applicant caused an exchange or participated in an exchange of emails between or involving Ms McTaggart, Mr Farej, Ms Nikki Wakeling, Legal Counsel, Ms Lisa Crennan, Managing Director and Mr David Dirmish, Managing Director in which complaints and inquiries were made regarding the delay by Mr Farej and his team in implementing changes to the myTE platform to accommodate the new overtime procedure under the proposed Flexible Work and Wellbeing Policy. This included an email from the Applicant to Ms Crennan dated 8 April 2020 escalating the complaint, given Mr Farej’s obfuscation in relation to the requests that had been made to him. Mr Farej’s conduct impacted the capacity of the Applicant to duly discharge her duties.

70A.    The Applicant was able to make a complaint about the delay by Mr Farej and his team by reason of the impact it had on the performance of her duties and Policy 1000 which enabled the Applicant to raise her concerns with management.

71.    The matter raised at paragraph 70 above by the Applicant amounts to a complaint and inquiry in relation to her employment. The Applicant thereby exercised a workplace right as defined at s.341(1)(c)(ii) of the FW Act …

(This is pleaded as the exercise of the “ first workplace right ”.)

17 On 25 August 2020, the applicant sent an email to Mr Farej (copied to Ms Kruger and Ms Crennan) providing a detailed explanation to Mr Farej, in response to his objections, as to why the respondent proposed to move from the Global myTE standard for overtime compensation approval, including demonstrating the respondent’s commitment against unsafe working hours being worked by employees. The email included a “process flow” diagram explaining the proposed changes, including the introduction of a new computer software platform by the respondent named myTimeOff, while retaining the existing myTE platform (ASOC [72]).

18 On 1 September 2020, the applicant provided to Ms Smith, Mr Farej, Ms Crennan, Ms Kruger and others (collectively the Global Steering Committee for the proposed new Flexible Work and Wellbeing Policy, which became known as Policy 1611), “pre-reading meeting materials” titled “ANZ’s proposed overtime model”, in which the applicant complained that under the existing overtime model, affected employees of the respondent could be directed to work 19 per cent in excess of ordinary hours and receive no additional compensation above their annual salary. The applicant also pointed out by these materials that there was a risk of potentially commercially harmful media attention should the status quo remain. She also complained by these materials that the respondent had managed a number of disputes in relation to long working hours which had been difficult to manage due to the lack of governance around approvals, requests and necessity to work overtime (ASOC [73]).

19 On or about 31 March 2021, at a meeting of the respondent’s myTimeOff Steering Committee including Ms Randall, Ms Kruger and Ms Crennan, the applicant complained about the level of compliance by employees with the new myTimeOff platform which had commenced in February 2021. The applicant noted to those present at that meeting that there was the technical ability in the respondent’s computer systems to identify which employees had potentially claimable overtime hours recorded in myTE – and to send a “ping” reminder with a link to myTimeOff to those employees to remind them to input, and claim in myTimeOff, all potentially claimable overtime hours recorded in myTE. The applicant’s proposal was rejected by the Steering Committee (ASOC [74]).

20 Between about June 2021 and May 2023, the applicant regularly informed, and made complaints and/or inquiries to members of the respondent’s Human Resources Leadership Team and other members of the respondent’s senior management, concerning the disparity between the number of overtime hours recorded by employees in the myTE system and the lower number of overtime hours claimed by employees as compensable overtime in the myTimeOff system (ASOC [75]).

21 In or about April 2022, the applicant expressed to her superiors, including Ms Kruger and Ms Crennan, her concerns about aspects of a proposal to integrate the myTimeOff platform with the Global myTE platform, including that excessive working of overtime hours would increase after integration, due to overtime approvals being thereafter capable of being granted by persons other than the relevant project managers. In response, by an email dated 21 April 2022 from Mr Farej to the applicant and others, Mr Farej stated: “I’ve heard there is resistance to converting to the global solution which is not aligned to what was previously decided in the T&E Steering Committee. I’d like to ensure we have your active support and engagement. If needed, we can reconvene a kickoff call with all of the stakeholders on the effort. Thanks!” The applicant responded by an email of the same date, advising: “I will arrange an initial call for you and I (sic) to talk through the latest context – from both the myTE capability perspective; and ANZ’s requirements and employee experience perspectives” (ASOC [76]).

22 The next event occurred on 3 February 2023 and is pleaded as follows:

79.    On 3 February 2023, the applicant sent a presentation to the Chief of Staff of the respondent’s Chief Executive Officer, Mr Peter Burns, for presentation to the Executive Committee of the Respondent. The presentation included:

79.1.     a complaint that the Respondent’s Employee Relations and Health, Safety & Wellbeing Team was approximately one quarter of the size of comparative teams in other Australian organisations, and that the applicant’s 4 person team supports every area of Australia and New Zealand in all aspects of Employee Relations, and Health, Safety & Wellbeing (including high caseloads); as well as engaging in client work, and developing and implementing initiatives for the Market Unit; and

79.2.     the Applicant noting that if the Applicant’s team was of a similar size to other organisations of a similar risk profile in Australia and New Zealand, this would equate to an Employee Relations, and Health, Safety & Wellbeing team of 15.5 full-time equivalents (rather than its existing 4 person team); and

79.3.     the Applicant complaining that such additional resources were required for her to duly discharge her duties.

(This is pleaded as the exercise of the “ s econd w orkplace r ight ”.)

23 The next event occurred on 5 April 2023 and is pleaded as follows:

80.    By an email from the Applicant to Mr Farej dated 5 April 2023, the Applicant complained that Mr Farej’s team was going to come back to Ms Kim Harris, Senior Manager and the Applicant with details on the impacts arising from the differences in approaches between myTimeOff and my TE for the aspects of the build which appear not to match. The Applicant noted that she needed the information on the discrepancies and respective impacts, so in the absence of it, discussions with the Respondent’s senior leadership regarding any changes were yet to take place and therefore she could not properly attend to her role. …

(This is pleaded as the exercise of the “ third workplace right ”.)

24 Between 25 May 2023 and 17 October 2023, the respondent received a report or reports from one or more of the respondent’s employees or employees of Accenture plc (or of one of its subsidiaries other than the respondent) regarding the applicant’s knowledge of the differences between the number of overtime hours that had been recorded by the respondent’s employees in myTE and the number of hours claimed as compensable overtime by the respondent’s employees in its myTimeOff platform pursuant to Policy 1161 (ASOC [19]).

25 On 31 May 2023 the applicant sent an email to Ms Crennan, Ms Randall, Ms Nader and Ms McCaffery – in response to a chain of emails from 25 May 2023 commencing with an email from Mr Farej referring to the respondent’s overtime recording and claiming system and which referred to “Donna’s definition” of “claimed” in relation to approvals of compensable overtime by the respondent under Policy 1611, and followed by an email from Ms Crennan to Ms Randall and her assistant also dated 25 May 2023 in which Ms Crennan stated: “We are being flagged as difficult, dragging this out for another year ..”. – in which the applicant advised that: “.. our Overtime Policy 1611 which underpins our myTimeOff system went through rigorous examination with external counsel. The relevant sections are pasted below for your convenience” (ASOC [81]).

26 Between about 15 August 2023 and 17 October 2023, the respondent received a report or reports from one or more of its employees, or from one or more employees of Accenture plc, regarding alleged conduct of the applicant:

(1) arising from, related to, or connected with an email dated 11 August 2023 (11 August email) which had been authored and emailed by Ms Burmeister to Ms Hoey and to the applicant (ASOC [20]); and

(2) during conversations between the applicant and one or both of Ms Burmeister and Ms Khoury on or about 15 and 17 August 2023 and (in the alternative, or) a conversation between the applicant and Ms Hoey on or about 21 August 2023, arising from, related to, or connected with the 11 August email (ASOC [21]).

27 Between the end of August 2023 and 28 September 2023, the respondent decided to conduct an investigation and appointed Norton Rose and Accenture plc’s Corporate Investigation division (including from that division Ms Chen and Mr Bao to conduct an investigation (Investigation), including:

(1) investigating the introduction and operation of myTimeOff, with a view to identifying whether it was fit for purpose and the extent of potential liability arising from its implementation; and

(2) specific issues that had allegedly been raised with respect to the conduct of the applicant following the alleged escalation of alleged concerns relating to the operation of myTimeOff and any potential liability in that regard as part of the respondent’s transition to myTE (Concerns) (ASOC [22]).

28 The next event occurred in or about August 2023 and is pleaded as follows:

82.    In or about August 2023, the Applicant raised with Ms Nader (who since 25 May 2023 had become a member of the board of directors of the Respondent) and Ms Nicola Coe, HR Lead for new Accenture acquisitions, via email and in a meeting concerns around the need for a legal review by Ms Nader or another employment lawyer of Modern Award coverage in the context of new business acquisitions, rather than relying on the Applicant’s junior, overworked and inexperienced Employee Relations team members to review this issue, who had no legal qualifications…

(This is pleaded as the exercise of the “ fourth workplace right ”.)

29 On 27 September 2023, the applicant was required to attend a meeting at 10:00am the following day with five lawyers representing the respondent (ASOC [23]) being the other invitees to that meeting, namely Ms Chen, Mr Bao, Ms McGregor, Ms Bell and Ms Mok. The purpose of that meeting was not disclosed to the applicant and she was not provided with an agenda (ASOC [25]). She was also not offered any (or any adequate) opportunity to arrange for the attendance of a lawyer or other person to represent or assist her at that meeting (ASOC [26]).

30 Between 27 September 2023 and 15 January 2024, the applicant co-operated fully with the respondent, Ms Chen and Mr Bao and with Ms McGregor, Ms Bell and Ms Mok in relation to their conduct of the Investigation (ASOC [40]).

31 On 28 September 2023, the applicant attended a meeting with Ms Chen, Mr Bao, Ms McGregor, Ms Bell and Ms Mok (ASOC [26]).

32 During that meeting:

(1) the applicant was:

(a) informed by Ms Chen that she had to keep everything confidential;

(b) questioned by Ms Bell for a total time of approximately 90 minutes;

(2) Ms Bell on behalf of the respondent suggested that the applicant was “the architect” of myTimeOff; and

(3) in response to a question from the applicant as to whether she was the subject of what seemed to her might be an investigation, Ms Bell said words to the effect that the applicant would be asked later about how she responded to a concern raised about myTimeOff and was not at this stage the subject of or the target of an investigation, but if that changed the applicant would be notified (ASOC [27] to [28]).

33 Following that meeting and immediately before commencing her scheduled leave that evening, the applicant prepared and sent an email dated 28 September 2023 to Ms Chen and Mr Bao with 10 attachments, explaining and providing details of the myTimeOff system and regarding communications made to employees by the respondent’s CEO and others in relation to using myTimeOff, including regarding how to claim payment for pre-approved and directed overtime hours worked by the respondent’s employees (ASOC [29]).

34 Between 28 September 2023 and 9 February 2024, the applicant, to the knowledge of, acquiescence of and in accordance with the requirements, of the respondent:

(1) continued to perform her duties as Employee Relations Lead to the best of her ability;

(2) was not stood down or suspended from her role as Employee Relations Lead pending the outcome of the Investigation;

(3) was not directed not to perform any duties under clause 17.1 of the Employment Agreement or otherwise;

(4) was not directed not to attend the workplace under clause 17.1 of the Employment Agreement or otherwise;

(5) was not directed not to contact employees or clients of the respondent or other persons under clause 17.1 of the Employment Agreement or otherwise;

(6) continued to lead her six person Employee Relations team comprising three sub-groups being Employee Relations, Health, Safety and Wellbeing and Corporate Functions Human Resources;

(7) continued to lead, work with and communicate on a regular basis, and often on a daily or near-daily basis, with Ms Burmeister and Ms Khoury;

(8) continued to work with, communicate on a regular basis with and report to the respondent’s Ms McCaffery;

(9) by an email from the applicant to Ms Chen dated 2 November 2023, informed the respondent that:

(a) there were ongoing risks of non-compliance by the respondent with Modern Award penalty rate payment obligations owed to its employees;

(b) the preferred course of risk mitigation would be to implement a time recording product such as Replicon, with whose vendor the applicant had met that week, and whose product builds in Modern Award compliance assurance to automatically flow through to payroll;

(c) the myTE system going forward does not guarantee compliance by the respondent with its Modern Award obligations, the respondent was currently awaiting another myTE build for new penalty rates from 16 September 2023 for employees under the Professional Employees’ Award, the timeframe for implementation the respondent’s Human Resources division had been given was June 2024, and once implemented, there would be no automation to payroll;

(10) continued working on risk mitigation matters relating to overtime underpayment and “wage theft” matters including producing content in November 2023 for the respondent’s Board of Directors’ Risk Review meeting which, with a focus on health and safety and working hours, included a presentation on data integrity issues from myTE with a recommendation to consider an alternative/additional time recording product;

(11) attended, by invitation, the Board of Directors’ Risk Review meeting on 1 December 2023 and presented to the Board of Directors for about 40 minutes on health, safety and well-being matters, misconduct investigations and on data integrity issues from myTE with a recommendation to consider an alternative/additional time recording product;

(12) continued working, including in collaboration with her colleagues employed by the respondent, on the respondent’s response to and initiatives arising out of the Australian Senate Inquiry into the Management and Assurance of Integrity by the Consulting Services; and

(13) on 14 December 2023 was paid a performance bonus by the respondent in an amount of about $25,000 (ASOC [41]).

35 During her leave period between 29 September and 8 October 2023, the applicant, by way of assistance to the Investigation:

(1) sent emails to Ms Chen and to Norton Rose containing additional information regarding myTimeOff and myTE; and

(2) prepared a 15 page memorandum in the form of an email, addressed to Ms Bell and copied to Ms Chen, Mr Bao, Ms McGregor and Ms Mok, titled “CONFIDENTIAL: myTimeOff information” containing sections including sections titled “Overview”, “Chronology of Events” and “Approvals Process” and attaching 54 emails, presentations and other business records of the respondent dated between 2019 and 2023 (ASOC [30]).

36 On 9 October 2023, the applicant sent that memorandum (9 October Brief) to Ms Bell, Ms Chen, Mr Bao, Ms McGregor and Ms Mok (ASOC [30]).

37 The next event occurred on or about 9 or 10 October 2023 and is pleaded as follows:

83.    On or about 9 or 10 October 2023, the Applicant sent an email to Ms Xinping Chen of the Respondent’s Corporate Investigations team complaining to the effect that:

83.1.     due to Corporate Investigations’ scheduling the said 28 September 2023 meeting on the Applicant’s last working day before her scheduled leave, the Applicant had spent most of her leave period preparing her 9 October Brief response instead of recuperating after an extremely intense working period responding to the Senate Inquiry (i.e. the Australian Senate’s Finance and Public Administration References Committee, titled “Inquiry Into Management and Assurance of Integrity by Consulting Services”) and managing the Respondent’s ongoing redundancy program involving about 100 employees, and that she was feeling fatigued; and

83.2.     she had concerns about where details of the Investigation were going to be recorded by the Respondent, because individuals the Applicant worked with may have access to such information and she did not want her reputation or future career prospects to be prejudiced by the same.

(This is pleaded as the exercise of the “ fifth workplace right ”.)

38 On 17 October 2023, Ms Chen sent to the applicant (and copied to Mr Bao, Ms McGregor and Ms Bell) an email titled “Confidential Investigation into Accenture Overtime and Flexible Work Policies and operation of myTimeOff Tool” and its annexure titled “Scope of Investigation and concerns” (collectively the 17 October Allegations) (ASOC [31]).

39 By the 17 October Allegations, the respondent:

(1) informed the applicant that Norton Rose wished to meet with her on 23 October 2023 via Microsoft Teams to discuss the Concerns;

(2) informed the applicant that while she had provided the respondent with substantive materials to date, the foreshadowed meeting represented a further opportunity for the applicant to provide Norton Rose with any information, material, evidence or documents which may be relevant to the outcome;

(3) asserted that if the alleged conduct comprising the Concerns was substantiated, it may have constituted a contravention of s 1317AC of the Corporations Act 2001 (Cth), being a criminal offence which carries a penalty of two years’ imprisonment;

(4) asserted that if the alleged conduct comprising the Concerns was substantiated, it may have constituted a contravention of the respondent’s Policy 1001 titled “Respecting the Individual” and Policy 1002 titled “Behaving Professionally”;

(5) advised that if the applicant had any questions about the Investigation, she should contact Mr Bao and the persons described in the 17 October Allegations as the investigators, namely Ms McGregor and Ms Bell;

(6) asserted that the respondent maintained that the applicant had:

(a) engaged in conduct comprising a shutdown of a review of potential non-compliance; and

(b) given an instruction to subordinate team members not to escalate concerns in accordance with process or otherwise to more senior individuals at Accenture (ASOC [32]).

40 On 24 October 2023, the applicant sent by email to Ms Chen, Mr Bao, Ms McGregor, Ms Bell and Ms Mok a 20 page written response to the 17 October Allegations (24 October Response) (ASOC [33]).

41 By the 24 October Response, as well as providing a response and explanation in writing to each of the Concerns set out in the 17 October Allegations, the applicant made complaints in writing to the respondent and Accenture plc, including complaints to the effect that:

(1) the Employee Relations operational team had 1.6 full time equivalent dedicated team members who are often bogged down in investigations work;

(2) demands on the team had increased year on year including additional compliance obligations, increasing requests from local and global leadership and most recently the Senate Inquiry and the reduction of local the Human Resources headcount as part of the global “Corporate Functions Transformation”;

(3) the applicant had not been able to hire additional staff due to globally mandated hiring freezes and Global Human Resources’ rejections of the applicant’s hiring requests, including denying another part-time employee to complement Ms Burmeister’s part-time hours;

(4) the applicant had raised on several occasions that the Employee Relations team was so under-resourced that it was a risk to the respondent in terms of being able to keep up with its compliance obligations, among other concerns;

(5) Ms Burmeister and Ms Khoury were both inexperienced in Employee Relations, including in their understanding of the need to mitigate the significant reputational risks that the 11 August email had the potential to present for the respondent;

(6) the applicant and her team were trying their best, and doing very well considering the resourcing challenges, but were tired, were struggling and the situation was not sustainable;

(7) in the applicant’s six years of conducting and overseeing misconduct investigations at the respondent, the applicant had never before heard of an investigation involving five lawyers representing the respondent, including two litigation partners from an external law firm, to investigate anyone, let alone an employee below the level of Managing Director;

(8) the applicant found the heavy-handed approach of the investigators and the Investigation to have the appearance of being designed to be intimidating and completely unnecessary to be so heavy-handed from the outset;

(9) the applicant believed that the 17 October Allegations including the Concerns, were drafted, and in the way they were drafted, to intimidate the applicant;

(10) never in her experience at the respondent had the applicant ever before seen an investigations document in the form of the 17 October Allegations provided to the subject of an investigation, containing such seemingly obvious predisposed outcomes and biases;

(11) the assertions, inferences and assumptions made by Ms Chen in the 17 October Allegations suggesting improper behaviour on the part of the applicant were unjust, offensive, inaccurate, plainly wrong, untenable and lacked proper analysis, including for all of the reasons set out in the applicant’s 24 October Response;

(12) the allegation made in the 17 October Allegations, to the effect that if the alleged conduct of the applicant was substantiated it may constitute a criminal offence on the part of the applicant, namely a breach of s 1317AC of the Corporations Act, had no application in the circumstances and was intended to threaten and intimidate the applicant; and

(13) given the attack made on the applicant’s professionalism, loyalty to the respondent, training and conduct (including regarding the lawfulness of the applicant’s conduct) in the 17 October Allegations, that despite her ongoing high workload the applicant had spent a lot of time in a compressed timeframe to prepare her 24 October Response to the 17 October Allegations, to show that the concerns raised in it were unjustified, plainly wrong, seemed to emerge from a predisposition and speak of other agendas (ASOC [34]).

42 The applicant pleads in connection with the 24 October Response that:

85.    In and by the Applicant’s 24 October Response document, the Applicant made complaints in writing to the Respondent on 24 October 2023 in relation to the Investigation, including the complaints set out at paragraph 34, including sub-paragraphs 34.1 to 34.13 inclusive, above…

(This is pleaded as the exercise of the “ seventh workplace right ”.)

43 The applicant has not received a response to her 24 October Response from the respondent, Accenture plc or Norton Rose (ASOC [35]).

44 On 25 October 2023, the applicant and her solicitor met by Microsoft Teams with Ms Chen, Mr Bao, Ms McGregor, Ms Bell and possibly Ms Mok (ASOC [36]). During that meeting, the applicant was questioned by Ms McGregor and Ms Bell for approximately three hours (ASOC [37]).

45 On 30 October 2023, the applicant and her solicitor again met by Microsoft Teams with Ms Chen and Mr Bao, Ms McGregor, Ms Bell and possibly Ms Mok (ASOC [38]). During that meeting the applicant was questioned by Ms McGregor and Ms Bell for approximately two hours (ASOC [39]).

46 The next events concern emails sent by the applicant on 22 and 30 November and 11 December 2023. These events are pleaded as follows:

86.    By emails dated 22 November 2023, 30 November 2023 and 11 December 2023 from the Applicant to Ms Xinping Chen and others, the Applicant repeatedly requested and inquired of the Respondent, given her upcoming leave scheduled to commence on 14 December 2023 and noting that the Applicant’s father had advanced cancer and that she wished to spend her leave with the mental space to focus on her family rather than Corporate Investigation’s investigation, whether the outcome of the investigation could be finalised and communicated to the Applicant by 30 November 2023 and not communicated to her just prior to the Applicant commencing leave on 14 December 2023, or alternatively communicated to the applicant on her return from leave in January 2024 (noting Corporate Investigations’ previous unreasonable behaviour in scheduling its initial 5 lawyer interview with the Applicant with less than one day’s notice on 28 September 2023, being her last work day before her scheduled leave commencing on 29 September 2023)…

(This is pleaded as the exercise of the “ eighth workplace right ”.)

47 The next event concerns an email sent by the applicant to Ms McCaffery on 11 January 2024 (11 January Complaints). The applicant pleads that:

42.    By an email dated 11 January 2024 from the Applicant to the Respondent’s Ms McCaffery (the 11 January Complaints), the Applicant made complaints to the Respondent regarding the conduct of the Investigation, under the following 5 headings:

42.1.    “Concern 1 – lack of regard for One Accenture Approach”;

42.2.    “Concern 2 – overreach and unreasonableness: I was effectively accused of potentially committing a criminal offence, which accusation was made without merit or proper evidentiary foundation”;

42.3.    “Concern 3 – why the investigation focused on the potential liability from myTimeOff with no regard as to the potential liability from myTimeandExpenses (myTE)”;

42.4.    “Concern 4 – we are working hard in HR and ANZ to care for our people – this ethos appears to have been largely disregarded by the investigators in this matter”; and

42.5.    “Concern 5 – hostile and unreasonable behaviour and communications by Corporate Investigations”.

…

88.    By an email dated 11 January 2024 from the Applicant to Ms McCaffery, the Applicant made detailed complaints regarding the conduct of the Investigation, including about the inappropriate conduct by Corporate Investigations of the Investigation and its impact on the Applicant’s health and safety, including under the headings in the said email referred to at paragraph 42 above…

(This is pleaded as the exercise of the “ ninth workplace right ”.)

48 The applicant has not received any response from the respondent, from Accenture plc or from Norton Rose to her 11 January 2024 email, other than Ms McCaffery stating in an email on or around 22 January 2024 words to the effect that the applicant’s concerns would be addressed after receipt of the applicant’s response to the Findings Letter (defined below at [51]), or any substantive response which addressed the matters raised by the applicant in the 11 January Complaints document (ASOC [43]).

49 On 15 January 2024, the applicant and her solicitor met by Microsoft Teams with Ms Chen and Ms McCaffery (15 January Meeting) (ASOC [44]). During the 15 January Meeting, Ms Chen informed the applicant that:

(1) the Investigation had been completed;

(2) the purpose of the 15 January Meeting was to inform the applicant of the findings;

(3) the purpose of the 15 January Meeting was not to debate the findings or the conduct of the Investigation or what it means for the applicant moving forward;

(4) a letter would be sent to the applicant following the meeting and the applicant should refer to the letter;

(5) one aspect of the Investigation was disclosures to Ms Hoey regarding potential underpaid overtime;

(6) after becoming aware of the disclosures, the applicant prevented the analysis from occurring;

(7) on 15 August the applicant instructed Ms Burmeister and Ms Khoury not to engage in further communications regarding the matter;

(8) on 15 August in a Teams call the applicant said she would draft an email to Ms Hoey and would reach out to individuals;

(9) the applicant closed the matter down;

(10) on 17 August:

(a) the applicant instructed that a meeting with Ms Claire Aldous be cancelled;

(b) on a Teams call with Ms Khoury the applicant told her to “drop it”, that Ms Khoury should refer people who reached out to her about the matter to the applicant, that no further work was to be done on it and that this was not our decision to make;

(11) the applicant emailed Ms Dorothy Aldous and told her communications for overtime were not to be released in their current form;

(12) on 21 August the applicant told Ms Hoey she was confident Accenture was compliant;

(13) on balance a finding had been made that the substance of the words that Ms Chen had just read out were said;

(14) with respect to the applicant’s conduct with Ms Burmeister and Ms Khoury, that on a 15 August Teams call the applicant told Ms Burmeister that she was annoyed with her and that she had caused her a problem;

(15) on 17 August the applicant told:

(a) Ms Burmeister that she should think about whether the ER team was her role and told Ms Khoury to think about promotions and what her next steps would be;

(b) Ms Burmeister that she had opened up the respondent to risk and that for her career, she needed to know she could not send emails like this;

(c) Ms Khoury in the future to speak to the applicant about such matters and not talk to anyone outside;

(16) the applicant did not develop an ongoing procedure to monitor the risk of underpayment of overtime;

(17) the applicant did not report the non-compliance risk;

(18) in light of everything, it was the respondent’s view the applicant had not met the standard of performance expected by the respondent and had engaged in inappropriate conduct in breach of Policies 1000 and 1001;

(19) the respondent’s view was that this warranted disciplinary action which may include termination of employment;

(20) there should be no retaliation against any person; and

(21) the applicant had three days to respond (ASOC [45]).

50 During and towards the end of the 15 January Meeting:

(1) the applicant expressed her shock and disbelief at the “findings” made by Ms Chen, including asking Ms Chen “retaliation against who?” to which Ms Chen responded to the effect “Lauren and Emelia” (being Ms Burmeister and Ms Khoury); and

(2) Ms McCaffery said that she had nothing to add to what had been said (ASOC [46]).

51 Following the 15 January Meeting, and on the same day, Ms McCaffery sent a letter by email to the applicant with the subject heading “Outcome of Investigation” and signed by Ms McCaffery (Findings Letter). By that email, Ms McCaffery stated that although the Findings Letter asked that the applicant respond by 18 January 2024, the applicant could provide her response by 5 February 2024 (ASOC [47]).

52 By the Findings Letter, the respondent informed the applicant that (as pleaded):

(1) it was Accenture plc’s view (in the alternative the respondent’s view) that taking into account the applicant’s response in respect of the substantiated findings and the Additional Findings, that the applicant had not met the standard of conduct and performance expected of an Employee Relations Lead;

(2) Accenture plc (in the alternative the respondent) had formed the view that the alleged conduct of the applicant described in the Findings Letter, which the Findings Letter referred to as “the substantiated findings” and “the Additional Findings” constituted misconduct;

(3) Accenture plc (in the alternative the respondent) had formed the view that the said alleged conduct of the applicant therefore constituted inappropriate workplace behaviour in breach of Policies 1000 and 1001;

(4) Accenture plc (in the alternative the respondent) had formed the view that the substantiated findings and the Additional Findings warranted disciplinary action which may include termination of the applicant’s employment;

(5) the applicant was invited to respond by 18 January 2024; and

(6) the response of the applicant was not an opportunity for the applicant to dispute the findings or re-agitate any issues / matters the applicant raised during the Investigation (ASOC [48]).

53 After receiving the Findings Letter on 15 January 2024 and from that date up to the applicant’s dismissal without notice on 9 February 2024, work which the applicant undertook in her capacity as Employee Relations Lead for the respondent included the following:

(1) hosting and leading at least four Employee Relations team meetings attended by one or both of Ms Burmeister and Ms Khoury;

(2) being the continued point of contact and subject matter expert for investigations questions from Ms Burmeister and Ms Khoury;

(3) providing continued guidance to and working with Ms Burmeister on applicable overtime penalty rates project management and a separate detailed Corporate Functions compliance table;

(4) being requested by Ms Nader to review the response to a “show cause” letter concerning an employee of the respondent;

(5) working with Ms Nader on possible approaches to manage Corporate Functions compliance issues;

(6) continued involvement in the Senate Inquiry Working Group, which included Ms McCaffery, Mr Warner, Ms Nader and others and one of whose meetings Mr Burns, was scheduled to attend on 23 January 2024, but became a late apology;

(7) planning and directing a Corporate Functions Health and Safety risk assessment;

(8) being invited to attend a Corporate Functions Leads meeting with Mr Warner, Ms Crennan, Ms McCaffery and others;

(9) meeting with the CEO of the Australian Human Resources Institute;

(10) remaining part of the Human Resources Leadership Team (HRLT), including being an active participant in a Sex Discrimination Act presentation by Ms Nader at a meeting of the HRLT;

(11) at that meeting of the HRLT, advising the group, which included Ms McCaffery, that with respect to Ms Nader’s presented topic of “trauma-informed” approaches with respect to how employers manage complaints, that investigations team members outside of Australia need to be trained on the importance of being “people centric” and “trauma informed” for all participants in an investigation;

(12) being requested for advice on Accenture’s “Great Place to Work” employee engagement survey results; and in particular the Human Resource division’s significantly low engagement result;

(13) providing support to distressed Human Resources partners from the broader Human Resources division;

(14) providing policy advice to team members in the broader Human Resources division;

(15) on or about 25 January 2024, via a video call on Microsoft Teams, being requested by Ms McCaffery to develop a presentation for the upcoming board of directors meeting scheduled for 29 February 2024, which the applicant had been invited to attend;

(16) on 6 February 2024, being requested by Ms McCaffery via an email, copied to Ms Burmeister, to work with the team, meaning Ms Burmeister and Ms Khoury, to gather data for Ms McCaffery for an upcoming “ExCo” meeting. This request was notwithstanding Ms Chen, in the meeting of 15 January 2024, pressing for the applicant’s response to the Findings Letter within three days because of, in Ms Chen’s view, the alleged adverse effect on Ms Burmeister and Ms Khoury of any delay in finalising the Investigation;

(17) on 6 February 2024, attending at the respondent’s Barangaroo office and at a lunch with the respondent’s insurance broker Aon, at a nearby restaurant in Barangaroo in her capacity as the relationship contact with Aon on behalf of the respondent. During that lunch the Aon representatives discussed the upcoming panel Aon had invited the applicant to speak on at an event which was scheduled to take place on 29 February 2024;

(18) on 7 February 2024, meeting with Ms Nader via a Microsoft Teams video call. During this call, Ms Nader expressed concern regarding the possibility of Ms Burmeister being the “compliance person” in Employee Relations, because she was of the view that Ms Burmeister was too junior, required a lot of supervision and that that she did not have the right skills; and

(19) during the said meeting on 7 February 2024, discussing with Ms Nader a “show cause” letter which had been sent to an employee of the respondent and the employee’s response. The applicant said words to the effect to Ms Nader that she would review these documents and the matter as she had requested, given Ms Nader’s view that Ms Khoury was similarly too junior for such tasks. Ms Nader and the applicant also discussed in this meeting that Accenture plc’s model and external hiring freezes and rules had created this situation and that under-resourcing (and under-skilled, inexperienced team members) was an ongoing challenge (ASOC [51]).

54 On 17 January 2024, the applicant forwarded her 11 January 2024 email, setting out the 11 January Complaints, to Mr Warner (ASOC [50]).

55 The next event is a letter from the applicant’s solicitors to the respondent dated 5 February 2024. The applicant has pleaded that:

52.    By letter dated 5 February 2024 from the Applicant’s solicitors DPR Legal to the Respondent by its Chief Executive officer Mr Peter Burns, its General Counsel Mr Iain Warner and Ms McCaffery, the Applicant by her solicitors:

52.1.    made complaints to the Respondent regarding the Respondent’s and Accenture plc’s conduct and oversight of the Investigation;

52.2.    called on the Respondent to withdraw the accusation made in the 17 October Allegations that the Applicant’s conduct may have constituted a contravention of s1317AC of the Corporations Act 2001 (Cth);

52.3.    set out reasons why the so-called ‘findings’ made by Accenture plc or in the alternative by the Respondent in the Findings Letter were not established in fact, were unreasonable and why the Respondent could not have a reasonable as well as an honest state of satisfaction that the so-called ‘findings’ had been made out;

52.4.    called on the Respondent to withdraw or cause to be withdrawn the so-called ‘findings’ made by Accenture plc or in the alternative by the Respondent in the Findings Letter;

52.5    informed the Respondent that its conduct in respect of the Applicant, such conduct being set out in the letter dated 5 February 2024, had caused injury, damage, distress and humiliation to the Applicant and that the Applicant’s solicitors were accordingly preparing a claim for damages, compensation and penalties on behalf of the Applicant against the Respondent;

52.6    called on the Respondent to provide the Applicant’s solicitors with an undertaking in writing that it would not, without providing the Applicant’s solicitors 14 days’ notice in writing, issue any formal written warning to the Applicant or move to terminate the Applicant’s employment in relation to the matters set out in the Findings Letter; and

52.7    put the Respondent on notice that if such an undertaking, or an undertaking in terms proposed by the Respondent that was acceptable to the Applicant, was not provided by the Respondent by 5pm on 8 February 2024, that the Applicant would apply to this honourable Court for an interim injunction to restrain the Respondent from issuing any formal written warning to the Applicant or moving to terminate the Applicant’s employment.

…

89.    By the said letter dated 5 February 2024 from her solicitors DPR Legal to the Respondent, the Applicant set out detailed complaints regarding the so-called ‘findings’ made orally by the Respondent’s Ms Xinping Chen to the Applicant during the said 15 January Meeting and by the Respondent’s Ms McCaffery in the Findings Letter dated 15 January 2024. Further, by that letter, the Applicant requested that the Respondent provide an undertaking by 5pm on Thursday 8 February 2023 (sic – 2024) that it would not move to terminate the Applicant’s employment or issue any formal warning to the Applicant, without first providing the Applicant with 14 days’ notice of such an intention, failing which the Applicant would seek an interim injunction from the Federal Court of Australia to restrain the Respondent from such actions, pending trial…

(This is pleaded as the exercise of the “ tenth workplace right ”.)

56 The applicant has not received a response to the 5 February 2024 letter from the respondent, Accenture plc or Norton Rose (ASOC [53]).

57 On 9 February 2024, Ms McCaffery sent an email to the applicant’s personal non-work email address enclosing a letter dated 9 February 2024, signed by Ms McCaffery, containing the subject heading “Termination of Employment” (Dismissal Letter), by which the respondent notified the applicant that her employment would terminate with effect on that day (ASOC [54]).

58 By the Dismissal Letter, the respondent notified the applicant that Ms McCaffery had made the decision to terminate the applicant’s employment because the respondent, by Ms McCaffery, had formed the opinion and had made a finding that the applicant had engaged in conduct as alleged in the Dismissal Letter (ASOC [55]).

C.    Summary dismissal application

59 I turn now to the respondent’s application for an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or r 26.01 of the Federal Court Rules 2011 (Cth), that the originating application and the ASOC be summarily dismissed.

C.1    Legal framework

60 Section 31A of the FCA Act provides in so far as is presently relevant:

31A Summary judgment

(1)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is prosecuting the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

…

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

(4)     This section does not limit any powers that the Court has apart from this section.

...

61 Rule 26.01 provides in so far as is presently relevant:

26.01 Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(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

…

(4)     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 disposed of by the order.

…

62 The principles relevant to summary judgment under s 31A are well-established: see e.g., Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Reeves J) at 266 to 271 ([25] to [45]); Quach v Commissioner of Taxation [2019] FCA 1729; (2019) 168 ALD 130 at 133 to 134 12; Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [26] to 29; Mpinda v Fair Work Commission [2022] FCA 1111 at 22; ThoughtWare Australia Pty Limited v IonMy Pty Ltd [2023] FCA 906 at [46] to 52; Lal v Royal Australasian College of Physicians [2025] FCA 348 at [32] to 38; and DRA Global Limited v Naude [2026] FCA 94 at [54] to 56.

63 In Quach, Justice Jackson provided the following summary of relevant principles at 133 to 134 [12]:

The applicable principles are well established and may be summarised as follows:

(1)     It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; 302 ALR 671; 94 ACR 623; [2013] FCA 641 (Cassimatis) at [45].

(2)     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: Spencer (2010) 241 CLR 118; 269 ALR 233; [2010] HCA 28 (Spencer) at [58]; see also at [22].

(3)     As the combined effect of s 31A(2) and (3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].

(4)     The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].

(5)     Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].

(6)     Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court ‘may’ give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; 259 ALR 319; [2009] FCAFC 117 at [28].

(7)     A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

(italic emphasis in original)

64 In Prior, Justice McKerracher explained at [29]:

Other principles that have been identified in relation to s 31A include that:

(a)     a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 per McKerracher J (at [3]), though this must now be read with Spencer (at [58]-[60]);

(b)     there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: “Sam Hawk” v Reiter Petroleum Inc (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]), cited in Buurabalayji (at [3]);

(c)     an application for summary dismissal is likely to succeed where the applicant’s success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, an application for summary dismissal is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [47]);

(d) similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant’s success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority: Cassimatis (at [ 48]); see also: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [14]-[15]): s 31A is amenable to resolving straightforward questions of law; SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]): summary judgment may still be appropriate if a question raised is of some complexity; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited): s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial;

(e)     a Court should be particularly cautious about ordering summary determination where proceedings involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing. In such circumstances the moving party, as a general principle, would need to show a substantial absence of merit on either of the question of fact or law concerned, or on the mixed question: Cassimatis (at [49]); and

(f)     if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji (at [3]). See also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

(bold and italic emphasis in original; underline emphasis added)

65 As is plain, the standard of “no reasonable prospect of successfully prosecuting the proceeding” is common to both s 31A of the FCA Act and r 26.01(1)(a) of the Rules. The standard in r 26.01(1)(a) is in effect identical to the standard in s 31A of the FCA Act and accordingly, the principles outlined above also apply to r 26.01(1)(a): Quach at 133 [11]; Prior at [27]; Mpinda at [21]; DRA Global at [54].

66 In considering the exercise of the discretion to summarily dismiss a proceeding in whole or in part, it is important to bear in mind that:

(1) the power to do so is to be exercised with caution and should not be exercised unless it is clear that there is a high degree of certainty as to the outcome of the proceeding were it is allowed to proceed to trial: Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at 131 to 132 24; and

(2) the existence of authority which appears to preclude reliance upon particular propositions of law on which the case brought depends does not necessarily provide a basis for summary dismissal. As French CJ and Gummow J explained in Spencer at 132 [25], existing authority may be overruled, qualified or further explained and summary processes must not be used to stultify the development of the law. The position may be different where the existing authority is a binding decision of the High Court of Australia.

C.2 The case in contract

67 The focus of the respondent’s case for summary dismissal was the applicant’s case in contract.

68 That case is based upon five alleged implied terms which the applicant contends were breached by the respondent.

69 Those terms are pleaded at ASOC [8] to [14] as follows:

8.    It was an implied term of the Employment Agreement that the Respondent owed the Applicant an obligation of good faith, including that the Respondent would act in good faith in its dealings with the Applicant in the context of their employer and employee relationship and that in initiating and / or conducting an internal investigation involving an assessment of the conduct and performance of the Applicant and in making findings regarding the Applicant’s conduct and performance, that the Respondent would do so reasonably and in good faith (the Implied Term of Good Faith).

Particulars

The term is implied by law

9.    The scope of the Implied Term of Good Faith included an obligation that:

9.1    in forming an opinion that the Applicant had engaged in misconduct or non-compliance with the Respondent’s policies, the Respondent was required to have a reasonable as well as an honest state of satisfaction that the Applicant had engaged in such misconduct or engaged in such non-compliance; and / or

9.2    in forming an opinion that the Applicant had engaged in misconduct warranting dismissal, the Respondent was required to have a reasonable as well as an honest state of satisfaction that the Applicant had engaged in such misconduct.

10.    It was an implied term of the Employment Agreement, that in initiating and conducting an investigation as to whether the Applicant had engaged in misconduct, or non-compliance with the Respondent’s policies, or in conduct inconsistent with the standard of conduct and performance expected of an Accenture Employee Relations Lead, that the Respondent was obliged to act reasonably (Implied Term 2).

Particulars

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 17.1, and 19.4.

11.    It was an implied term as a matter of fact, in light of the formal imposition of its policies pursuant to clause 10.2 of the Employment Agreement, that the Respondent would honour so much of those policies, as at any particular time, operated for the real and practical benefit of the Applicant and would not arbitrarily or capriciously withdraw them (Implied Term 3).

Particulars

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 17.1, and 19.4.

12.    The effect of Implied Term 3 was that in circumstances where the Respondent conducted an investigation, it was required to provide the Applicant with procedural fairness in the manner in which it reached findings and ensure that any disciplinary outcome was appropriate and applied fairly and consistently on a global basis regardless of seniority, position or contribution to the Respondent.

Particulars

Respondent’s Policy 1000 – Speaking Up and Zero Tolerance for Retaliation

13.    Further and / or in the alternative, it was an implied term of the Employment Agreement, or on its proper construction an express term, that when investigating any matter, including potential misconduct based on the alleged failure to comply with any policies (clause 10.2 of the Contract), for the Respondent to reach a conclusion or make a finding during or arising from such an investigation, that the Applicant had engaged in particular misconduct, or had not complied with any of the Respondent’s policies, it must establish in fact that the Applicant had engaged in such misconduct or non-compliance, having regard to all of the evidence (Implied Term 4).

Particulars

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 17.1, and 19.4 and / or Implied Term 3 and the Respondent’s Policy 1000 – Speaking Up and Zero Tolerance for Retaliation.

14.    Further and / or in the alternative, it was an implied term of the Employment Agreement, or on its proper construction an express term, that in order for the conduct of the Applicant to warrant or result in disciplinary action up to and including termination, arising from engaging in misconduct or non-compliance with any of the Respondent’s policies, that the Respondent had to establish in fact that the Applicant had engaged in such misconduct or non-compliance with the Respondent’s policies (Implied Term 5).

Particulars

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 19.1 and 19.4 and / or Implied Term 3 and the Respondent’s Policy 1000 – Speaking Up and Zero Tolerance for Retaliation.

(bold and italic emphasis in original)

70 The respondent submits that the implied terms are untenable.

71 As noted above, the power to summarily dismiss a proceeding is to be exercised with caution and only where there is a high degree of certainty as to the outcome of the proceeding. The need to avoid stultification of the development of the law in areas that have not been definitively decided by the High Court of Australia is also to be kept in mind.

72 I am not satisfied that the applicant’s case based upon the alleged implied terms is so devoid of reasonable prospects of success that it ought not be allowed to proceed to trial, for the following reasons.

73 First, the first implied term is expressed as an implied term requiring the respondent to act in good faith. The law with respect to the implication of such terms is, as the respondent fairly acknowledged, far from settled: see e.g., Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at 63 40, 75 to 76 ([86] to [89]) (Kirby J) and 94 156; Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at 195 to 196 42 and 214 107.

74 In Barker, the High Court of Australia held that a term of mutual trust and confidence should not be implied by law into employment contracts. In the course of doing so, the plurality (French CJ, Bell and Keane J) stated at 185 [20]:

A judicial announcement of an obligation of mutual trust and confidence, to be applied as an incident of employment contracts and applicable to employers and employees alike, involves the assumption by courts of a regulatory function defined by reference to a broadly framed normative standard. Broadly framed normative standards are familiar to courts required to apply, in common law or statutory settings, criteria such as “reasonableness”, “good faith” and “unconscionability”. However, the creation of a new standard of that kind is not a step to be taken lightly. Where the standard is embodied in a new contractual term implied in law, the bases for the implication in law of contractual terms must be considered as the first point of reference.

(bold emphasis added)

75 At 195 to 196 ([40] to [42]), their Honours explained:

40    The complex policy considerations encompassed by those views of the implication mark it, in the Australian context, as a matter more appropriate for the legislature than for the courts to determine. It may, of course, be open to legislatures to enshrine the implied term in statutory form and leave it to the courts, according to the processes of the common law, to construe and apply it. It is a different thing for the courts to assume that responsibility for themselves. The mutual aspect of the obligation cannot be put to one side by characterising its operation with respect to employees as merely a restatement of the existing duty of fidelity. It is more broadly worded than that obligation. As Jessup J observed in his dissenting judgment in the Full Court, the proposed implied duty of mutual trust and confidence might apply to conduct by employees which was neither intentional nor negligent and did not breach their implied duty of fidelity, but objectively caused serious disruption to the conduct of their employer’s business.

41    Importantly, the implied duty of trust and confidence as propounded in Malik is directed, in broad terms, to the relationship between employer and employee rather than to performance of the contract. It depends upon a view of social conditions and desirable social policy that informs a transformative approach to the contract of employment in law. It should not be accepted as applicable, by the judicial branch of government, to employment contracts in Australia.

42 The above conclusion should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts. Nor does it reflect upon the related question whether contractual powers and discretions may be limited by good faith and rationality requirements analogous to those applicable in the sphere of public law. Those questions were not before the Court in this appeal.

(bold emphasis added; footnotes omitted)

76 The above passages illustrate that the question whether a general obligation to act in good faith in the performance of contracts should be implied into contracts including employment contracts, remains open: see Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127; (2015) 237 FCR 534 at 557 122 and Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; (2021) 287 FCR 388 at 442 254. Similarly, the narrower question of whether there is an implied obligation of good faith in the exercise of contractually conferred discretions remains open.

77 More recently, Stewart J explained in Australian Agrivision Pty Ltd v Wolstenholme (Trial) [2026] FCA 130 at [33] :

At the level of the High Court, it remains an open question as to whether there is a general obligation to act in good faith in the performance of contracts and whether contractual powers and discretions are limited by requirements of good faith and fair dealing: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 at [40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, [86]-[89] per Kirby J and [156] per Callinan J; and Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169 at [42] per French CJ, Bell and Keane JJ and [107] per Kiefel J. There are nevertheless cases where, as a process of contractual construction, courts have implied a duty to act in good faith, including in the exercise of contractual powers: see, eg, Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161; 383 ALR 688 at [268]-[269] per Bathurst CJ, Bell P and McCallum JA agreeing, where a clause giving “absolute and unfettered discretion” was held to be subject to another clause that provided for a good faith obligation.

(italic emphasis in original)

78 See also Lewison K and Hughes D, The Interpretation of Contracts in Australia, (2 nd ed Lawbook Co, 2025) at [6.15]; Herzfeld P and Prince T, Interpretation, (3 rd ed Lawbook Co, 2024) at [27.100] to [27.120].

79 Secondly, the remaining alleged implied terms do not use the expression “good faith”, but are expressed in terms which are capable of falling under that umbrella. Further, as the plurality in Barker noted at 195 to 196 [42], the exercise of contractual discretions may be limited by analogous public law considerations. In the present case, the pleaded express terms provide contractual discretions, the exercise of which the applicant seeks to put in issue.

80 Thirdly, the respondent has identified no authority suggesting that any of the implied terms is of a kind that is untenable.

81 Fourthly, to the extent that the alleged implied terms may be regarded as terms that have not previously been implied into employment contracts then, as noted above, care must be taken not to stultify the development of the law.

82 Finally, the respondent has advanced a series of arguments as to why, on the proper construction of the express terms of the employment contract, the Court should not construe the employment contract as one containing the alleged implied terms, including submissions that the alleged implied terms are inconsistent with the express terms of the employment contract and unnecessary. On one view, the arguments made, and the authorities cited, by the respondent may ultimately provide a sound basis for resisting a finding that the employment contract included such terms. However, for the reasons set out above I am unpersuaded that those arguments and authorities are sufficient to provide a basis for summary dismissal of the contractual claim.

C.3    FW Act case

83 The respondent also attacked the applicant’s FW Act case. However, that attack focussed upon the manner in which that case was pleaded, rather than upon a contention that such a case (however pleaded) had no reasonable prospects of success.

C.4    Conclusion

84 It follows that the proceeding should not be summarily dismissed.

D.    Strike out application

85 In the alternative to an order for summary dismissal, the respondent seeks an order that the whole of the ASOC be struck out pursuant to r 16.21(1) of the Rules. In the further alternative, the respondent seeks an order pursuant to r 16.21(1) that particular paragraphs of the ASOC be struck out.

86 The salient rules are rr 16.02 and 16.21.

87 Rule 16.02 provides, in so far as is presently relevant:

16.02 Content of pleadings—general

(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; and

(e)     state the provisions of any statute relied on; and

(f)     state the specific relief sought or claimed.

(2)     A pleading must not:

…

(c)     be evasive or ambiguous; or

(d)     be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)     fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     otherwise be an abuse of the process of the Court.

...

88 Rule 16.21 provides in so far as is presently relevant:

16.21 Application to strike out pleadings

(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.

89 The principles of pleading are well-established and do not require detailed analysis. It is sufficient to set out the following convenient conspectus provided by Justice Snaden in Weddall v Rasier Pacific Pty Ltd [2023] FCA 59 at [66] to [71]:

66    Rule 16.21 of the Rules provides as follows:

…

67    … it is prudent to identify some basic points of principle, none of which is presently controversial. The purpose that pleadings serve is well-understood: amongst others, they serve to identify the material facts upon which the parties intend to rely at trial and, thereby, to define the issues to be tried with clarity sufficient to enable the parties to understand—and, thereby, to have an opportunity to meet—the case or cases that are advanced against them: Dare v Pulham (1982) 148 CLR 658, 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ).

68    That fundamental objective is reflected in the terms of rr 16.02(1) of the Rules:

…

69 A “material fact” is one the proof of which is essential to the existence of a cause of action or defence that a party seeks to advance: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 246-247 (Wilson J).

70    A pleading is “embarrassing” to the extent that it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it”: Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263, 269 18. In Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905, [22]-[23], Edmonds J observed (in the context of earlier rules of the court):

Embarrassment in the context of O 11 r 16 “carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. The list is not intended to be exhaustive”: Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR 41-434.

A pleading which is internally inconsistent is embarrassing: Vasyli v AOL International Pty Ltd (NG 219/96) Lehane J, 19 August 1996, unreported. A pleading should assert the basic and constituent facts, not the evidence upon which those facts will or may be proved at trial. A pleading is defective if it simply asserts a conclusion to be drawn from the facts not stated: Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-115; and is not saved by using the words “[i]n the premises” to introduce the conclusion: Davids Holdings Pty Ltd v Coles Myer Ltd (1993) ATPR 41-227.

71    To those broad observations may be added the following, namely that:

(1)    a pleading that baldly alleges a statutory contravention by simply repeating the language employed by a relevant provision is liable to be struck out: McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409, 418 23;

(2) in a civil suit for the recovery of a pecuniary penalty, it is especially important that those accused of a contravention know precisely the case that is to be made against them: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298, 311 63; and

(3) where extensive passages within a pleading are liable to be struck out, it is within the court’s discretion to strike out the whole of the pleading and to require that the party who authored it begin afresh: Sabapathy v Jetstar Airways (2021) 283 FCR 348, 359 33.

(italic emphasis in original; underline emphasis added)

90 In Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348 at 355 and 356 ([21] to [22]) (Logan and Katzmann JJ); Flick J agreeing at 367 [90]) explained:

21    … The expression “material fact(s)” refers to the facts essential to the existence of the cause of action, that is, the fact or combination of facts giving rise to the right to sue the respondents (Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245). It does not mean all the relevant facts or circumstances. A fact is material if it is an essential element of the cause of action: Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at 13.

22 The inclusion of a substantial number of purely evidentiary or contextual matters was a distraction. Including some of those matters made the pleading unnecessarily complicated, difficult to understand, and hard to plead to. …

(italic emphasis in original; underline emphasis added)

91 In the present case most of the amended statement of claim is cast in a form which transgresses those fundamental principles. So much is plain from ASOC [19] to [55] and [66] to [70], [72] to [79], [80], [81] to [82], [83], [85], [86], [88] and [89] which are set out, with some cosmetic changes, at [11] to [58] above.

92 To these may be added ASOC [56] to [64] in which the allegations of breach of contract are set out. These nine paragraphs occupy approximately 21 pages of the ASOC, and have not been set out above. Most of those paragraphs have a series of substantial subparagraphs. For example, ASOC [57] has 17 subparagraphs (and one of those has four sub-subparagraphs); and ASOC [63] has 28 subparagraphs (several of which have sub-subparagraphs).

93 A substantial part of the ASOC identified in the previous two paragraphs – ASOC [19] to [55], [56] to [64], [66] to [70], [72] to [79], [80], [81] to [82], [83], [85], [86], [88] and [89] – fail to comply with the fundamental rules of pleading in several respects, in that:

(1) many paragraphs deal with multiple subject matters (cf. r 16.02(1)(a));

(2) the pleading is discursive and in a narrative form (cf. r 16.02(1)(b)); and

(3) most paragraphs travel (well) beyond stating the necessary material facts (cf. r 16.01(1)(d)) and contain numerous matters which appear to be evidence or submissions.

94 As a result the ASOC is likely to cause prejudice, embarrassment and delay in the proceeding if the respondent is required to respond to it (r 16.02(2)(d)).

95 In circumstances where:

(1) the remainder of the ASOC comprises some introductory paragraphs, the implied terms (ASOC [8] to [14]) and the pleading of the alleged contraventions of s 340 of the FW Act; and

(2) in so far as the remaining paragraphs concern the alleged contraventions of s 340 of the FW Act, they are derivative upon the pleading of the purported exercise of workplace rights (i.e. ASOC [42], [52], [70], [71], [79], [80], [82], [83], [85], [86], [88] and [89]), which paragraphs are to be struck out,

the appropriate course is that the whole of the ASOC be struck out and the drafting exercise begin afresh: see, e.g. Sabapathy at 359 [33]; Weddall at [71(3)].

F.    Conclusion

96 I am not satisfied that the proceeding should be summarily dismissed. However, I am satisfied that that the ASOC should be struck out in its entirety. The applicant should have leave to replead.

97 I will make orders accordingly.

98 Senior counsel for the respondent indicated that the respondent wished to be heard on the question of costs. I will reserve that question. If this is to be pursued, a timetable for brief submissions as to costs can be set.

| I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. |
Associate:

Dated:    16 April 2026

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