Federal Court of Australia

Zirk-Sadowski v University of New South Wales [2025] FCAFC 64

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application dated 6 October 2024 be dismissed.

2.    The appeal be dismissed.

3.    Within 14 days of these orders, the first respondent is to notify the chambers of the presiding judge of its position on costs.

4.    In the event that the first respondent opts to make herein any application for costs:

(a)    it shall, within 14 days of giving notice in accordance with order 3, file and serve submissions of no more than three pages in support of that application;

(b)    the appellant shall, within 14 days of receipt of any such submissions, file and serve submissions of no more than three pages in opposition thereto; and

(c)    subject to objection by any party, the court will determine that application on the papers.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    I have had the benefit of reading in draft the reasons of Snaden J. For the reasons that his Honour gives I agree that the appeal and the appellant’s interlocutory application within the appeal should be dismissed. I agree with the orders that his Honour proposes.

Associate:

Dated:    14 May 2025

REASONS FOR JUDGMENT

SNADEN J:

2    The first respondent (“UNSW”) is a well-known university. The appellant, Dr Zirk-Sadowski, is one of its former employees. He was dismissed from his employment on 6 July 2018.

3    The present matter proceeds by way of appeal from two judgments of this court, which are particularised below. For the reasons that follow, it should (and will) be dismissed, as should (and will) a related interlocutory application that Dr Zirk-Sadowski has filed.

4    In explaining why, it is necessary to illuminate in some detail the matters to which the impugned judgments pertain, and other matters that bear upon the resolution of the appeal and the related interlocutory application made within the context of it. That is a difficult task to complete in a condensed form but what follows is my attempt to that end.

Background

5    On 19 May 2022, Dr Zirk-Sadowski filed with the second respondent (the “FWC”) an application against UNSW under s 365 of the Fair Work Act 2009 (Cth) (the “FW Act”), by which he claimed that his dismissal 1,413 days earlier had been effected in contravention of pt 3-1. That application was filed 1,392 days after the expiry of the deadline that s 366(1)(a) of the FW Act established for that purpose. In order that he might prosecute his application, Dr Zirk-Sadowski first required that that deadline be extended pursuant to s 366(1)(b).

6    That question—whether or not Dr Zirk-Sadowski should have an extension of time within which to make his application under s 365 of the FW Act—was the subject of a hearing that took place before the FWC on 5 July 2022. At that hearing (and having earlier foreshadowed it), Dr Zirk-Sadowski moved not only for the extension of time that he required but also for “…confidentiality orders prohibiting the publication of names and addresses of persons appearing in the hearing and matters contained in documents before the Fair Work Commission”.

7    Both questions were determined against Dr Zirk-Sadowski; the former by means of a decision made ex tempore at the hearing of 5 July 2022 (hereafter, the “Confidentiality Decision”) and the latter by means of a decision made on or about 8 August 2022 (hereafter, the “Extension Decision”). Written reasons regarding both were published on 8 August 2022: Dr Jan Zirk-Sadowski v The University of New South Wales [2022] FWC 2086 (Yilmaz Commr; hereafter, the “Commissioner’s Reasons”).

8    Dr Zirk-Sadowski then applied under s 604(1) of the FW Act for permission to appeal from both decisions. A full bench of the FWC declined that permission and, on 14 October 2022, published reasons for doing so: Dr Jan Zirk-Sadowski v The University of New South Wales [2022] FWCFB 188 (Catanzariti VP, Young DP and Lee Commr; hereafter, the “Full Bench Decision”).

9    On 11 November 2022, Dr Zirk-Sadowski made an application to this court for prerogative relief relating to all three of the FWC’s decisions. The six-page originating application records that relief was to be sought under s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act”). That section—perhaps in combination with s 562 of the FW Act—is the orthodox source of this court’s jurisdiction to review decisions of the FWC.

10    Ultimately, however, Dr Zirk-Sadowski’s quest found expression in a much more expansive amended originating application dated 22 June 2023. Intending no disrespect to Dr Zirk-Sadowski—who appears to have prepared it himself (or, in any event, without competent professional assistance)—it is difficult to make much sense of that document. It is 39 pages long, and presents as a sprawling narrative that references all manner of circumstances, many of which have no obvious or presently material connection to any of the FWC decisions of which Dr Zirk-Sadowski sought judicial review. Under the heading “orders sought”—which appears on page 30 of 39 of that document, following a lengthy recitation of 38 non-consecutively-numbered “Grounds of application”—Dr Zirk-Sadowski records prayers for relief that extend over more than seven pages and that appear to contemplate relief in the form of (amongst other things) damages under the Workers Compensation Act 1987 (NSW) (quantified in the sum of $2,292,790.71), a declaration relating to his “intellectual property rights”, an injunction to prohibit some kind of contravention of the Public Interest Disclosure Act 2013 (Cth), the imposition of a “fine” for “copyright infringements” and the imposition of penalties “…for offences in relation to…the Migration Act 1958 [(Cth)]”.

11    By a judgment dated 16 May 2024, Dr Zirk-Sadowski’s application was dismissed: Zirk-Sadowski v University of New South Wales (No 3) [2024] FCA 515 (Anderson J; hereafter, the “Primary Judgment”). The learned primary judge gave the parties (or, at least, Dr Zirk-Sadowski and UNSW) a short period of time to file written submissions on the question of costs.

12    On 12 June 2024—before the issue of costs was resolved—Dr Zirk-Sadowski filed a notice of appeal, by which he sought to have the Primary Judgment set aside. Various forms of orders were thereby sought, many (and perhaps all) of which approximated what was sought as before the primary judge.

13    Having successfully defended Dr Zirk-Sadowski’s application, UNSW pursued him for its costs. On 26 July 2024, that application succeeded: Zirk-Sadowski v University of New South Wales (No 4) [2024] FCA 813 (Anderson J; hereafter, the “Costs Judgment”).

14    A few hours prior to the pronouncement of that (costs) judgment, Dr Zirk-Sadowski filed (or attempted to file), in this (appeal) proceeding, an interlocutory application, by which he sought orders as follows, namely:

1.    The proceedings with the file no. VID/680-2022 be stayed.

2.    An order finding a reasonable apprehension of bias and determining that Anderson J will not be involved in issuing the judgment on costs in the matter no. VID/680-2022.

15    For reasons that needn’t be explored now, that procedural excursion did not interfere with the pronouncement of the Costs Judgment. Instead, Dr Zirk-Sadowski’s interlocutory application was made the subject of a brief hearing that took place on 5 August 2024. There, Dr Zirk-Sadowski pressed for a stay of the Costs Judgment. Ultimately, that issue fell to one side upon UNSW’s proffering of an undertaking that it would not take any steps to enforce the Costs Judgment until the hearing and determination of the present appeal. Upon the giving of that undertaking, the court made a series of unremarkable case-management orders.

16    One of them was to the effect that Dr Zirk-Sadowski should have leave to file an amended notice of appeal. That followed from an exchange between he and the court during the hearing of 5 August 2024, whereupon it became clear that Dr Zirk-Sadowski wished (as any appellant in his position inevitably would) to have set aside on appeal not only the Primary Judgment but also the related Costs Judgment.

17    On 9 August 2024, Dr Zirk-Sadowski filed an amended notice of appeal. It is that document that stands as the originating process that underlies these reasons and the appeal to which they relate. Like its counterpart before the primary judge, the amended notice of appeal is difficult to decipher. It begins by recording that the appeal is brought against the whole of the Primary Judgment and the Costs Judgment, as well as what is referred to as the “…judgment of the Federal Court given on 5 August 2024 in the [present] matter VID520/2024”. It then identifies the “Grounds of Appeal”, which it is convenient now to replicate (errors original):

The primary judge erred by ignoring principles at hand to grant the relief sought in the amended originating application and/or in the concise statement. This is among others associated with the following facts:

Main Ground 1: The Primary Judge failed to identify jurisdictional error on the part of the Fair Work Commission in relation to the following:

i.    That the appellant’s claim was not statute barred insofar as the Form F8 – General protections application involving dismissal involved claims for relief which did not involve unfair dismissal.

ii.    That the Commission at first instance and on appeal failed to give proper, genuine and realistic consideration to the merits of the appellant’s claim.

iii.    That the discretion exercised by the Commission at first instance and on appeal miscarried in relation to

1.    Extending time to prosecute the general protections claim which was other was prima facie statute barred as being out of time.

2.    The granting of permission to appeal to the Full Bench of the Commission.

iv.    That the Commission failed to afford comity to the Personal Injury Commission of New South Wales (“PIC”).

v.    Further and or in the alternative, that the Commission failed to take into account, as a legally mandatory and relevant consideration, the approach taken to the related litigation in the PIC.

vi.    That the Commission failed to exercise jurisdiction over the components of the matter before it which were not statue barred.

Main Ground 2: The Primary Judge failed to give effect to s.118 of the Constitution by giving full faith and credit to the New South Wales Personal Injury Commission Act 2020 and other legislation applying in the PIC such as the Victim’s compensation rights.

Main Ground 3: The Primary Judge failed to give adequate reasons.

18    Thereafter, the amended notice of appeal develops into an imposing maze of allegations. Over some 14 pages, reference is made to all manner of topics, very few of which appear to have anything more than a tangential connection to any suggestion that the court ought, at first instance, to have granted Dr Zirk-Sadowski relief under s 39B of the Judiciary Act (or otherwise).

19    The amended notice of appeal concludes with the heading “Orders sought”, after which follows some two pages of proposed relief (which, again, traverses matters as diverse as statutory damages, copyright infringement, the refunding of court fees and the imposition of penalties under the Migration Act 1958 (Cth)).

20    On 3 October 2024, Dr Zirk-Sadowski affirmed an affidavit that was filed (some weeks later), apparently in support of his amended notice of appeal. No leave was granted to that end and it is not apparent with what use it is proposed that the court on appeal should approach it. It suffices to say—once again intending no disrespect to Dr Zirk-Sadowski—that the affidavit does not obviously marry with the grounds of appeal that he hopes to agitate. It does not obviously do much more than attest to the service and/or exchange of documents and other communications. Including what is incorporated in its annexure, it extends to 3,777 pages.

21    A few days later (on 6 October 2024), Dr Zirk-Sadowski lodged in this appeal proceeding an interlocutory application, by which he seeks various forms of relief, including in the form of default judgment and the making of freezing orders. That application was not initially accepted for filing. Instead, it was the subject of orders made in the present appeal on 15 October 2024, the effect of which was to accept it for filing and refer it for resolution to the court as presently constituted. It suffices for now merely to advert to that application having been made. Attention will shortly return to its content.

22    At Dr Zirk-Sadowski’s request (which UNSW did not oppose), the appeal and the interlocutory application just referred to (hereafter, the “6 October Application”) stand to be resolved on the basis of the written submissions that the parties have filed (that is to say, without an oral hearing).

23    With that lengthy summation of relevant background complete, attention may now turn to the substantive matters that fall for consideration.

The appeal from “…the judgment of…5 August 2024”

24    Dr Zirk-Sadowski’s amended notice of appeal purports to impugn the procedural orders that were made herein on 5 August 2024 (above, [14]-[15]). It is to be recalled that those orders were made in the course of (or consequential upon) the disposition of his interlocutory application to have the Costs Judgment stayed.

25    I should pause at this juncture to observe, at the risk of repetition, that Dr Zirk-Sadowski was given leave to file an amended notice of appeal so that he might seek to impugn the Costs Judgment as well as the Primary Judgment. No suggestion was made at the hearing of 5 August 2024 that there could or might be any attempt to impugn anything else, including the orders in which that hearing culminated.

26    Regardless, something should be said about the nature of Dr Zirk-Sadowski’s application to stay the Costs Judgment. As has been noted, it was advanced—and properly so—in this (appeal) proceeding. Whether the additional relief for which he moved (in the form of a finding of bias—see above, [13]) was also appropriately sought via that same application is less clear; but what is inescapably plain is that what was sought was sought by way of relief in the present appeal. Necessarily then, the determination of Dr Zirk-Sadowski’s application on 5 August 2024 involved the exercise of the court’s appellate jurisdiction; specifically, jurisdiction that was exercisable by a single justice of the court pursuant to s 25(2B)(ab) and (c) of the Federal Court of Australia Act 1976 (Cth).

27    This court does not have any jurisdiction to hear appeals from judgments of that nature. Insofar as it invites the court now to interfere with those orders, the amended notice of appeal is self-evidently incompetent and cannot (and will not) be entertained. Even were it otherwise, it is incompetent for the further reason that Dr Zirk-Sadowski would require leave to appeal the interlocutory ruling (as s 24(1A) of the Federal Court Act 1976 (Cth) requires) and none has been sought.

28    Nothing more need be said about that aspect of the amended notice of appeal.

The 6 October Application

29    The 6 October Application extends across a comparatively modest six pages. It is divided into four “sections”, each of which identifies multiple species of relief that are claimed. In total, 12 forms of relief are identified, which Dr Zirk-Sadowski summarises at the conclusion of the document (under the heading, “Conclusion and Prayer for Relief”) as follows:

Conclusion and Prayer for Relief

In light of the foregoing, I respectfully request the following interlocutory orders:

•    Review and correction of the Registrar’s decisions related to the eBook of Authorities, interference with filings, removal of the first Respondent’s address, and issuance of corrected invoice receipts.

•    Default judgment or summary judgment against the first Respondent based on procedural default.

•    Freezing orders and ancillary orders to protect critical financial and intellectual assets.

•    Orders addressing apprehended bias and enforcing procedural compliance by both Respondents.

I also seek any other interlocutory relief the Court deems appropriate to ensure a fair and just resolution of the issues in this appeal.

30    In support of his 6 October Application, Dr Zirk-Sadowski filed written submissions dated 29 October 2024, to which occasional reference will be made in the analysis that follows. To that end, it is convenient to address separately each of the four “sections” of the 6 October Application and the constituent claims that are inherent in them.

Section 1: “Review of the Registrar’s Powers”

31    “Section 1” of the 6 October Application reads as follows (emphases original):

1.    Order Sought Regarding eBook of Authorities

I seek an order declaring void the Registrar's decision rejecting my request to issue the sealed lodged eBook of Authorities in the matter VID/520-2024. The Registrar issued a sealed copy of the eBook for the second Respondent during the primary proceedings, and I request that a sealed copy of my eBook of Authorities also be issued, as evidenced by the Affidavit dated 03 October 2024 (Annexure JZ-1). This request is supported by the authority in Sanders v Snell [1998] HCA 64.

2.    Interference with Filing of Interlocutory Application

I seek an order reviewing the Registrar's actions, which prevented the filing of my interlocutory application dated 25 July 2024 (Annexure JZ-1, pp. 121 and 524-526). This application sought a review of the Registrar’s powers in relation to costs. The interference resulted in delays in the case, and I seek any such orders the Court deems necessary in relation to the Registrar’s powers in the matter VID/520-2024.

3.    Review of Registrar’s Removal of First Respondent from Part A Index

I request that the Court review the Registrar’s decision to remove the first Respondent's address from the Part A Index. The first Respondent’s address was initially included in the draft submitted by the Appellant, next the Registrar requested removing that information. The affidavit (Annexure JZ-1) shows that this action interfered with the proceedings and created procedural irregularities.

4.    Correction of Invoice Receipts

I request an order directing the Registrar to issue corrected invoice receipts using the Appellant's correct Notice of Address for Service, as the current invoices reflect an incorrect address. This issue is referred to in the correspondence on page 583 of the Appellant's Affidavit dated 03 October 2024 and my letter to the Court attached to this application.

5.    Review of Registrar’s Authority Regarding Sealed eBook of Authorities

As indicated in the correspondence of 02 October 2024, the Registrar's refusal to issue the sealed hyperlinked copy of the eBook of Authorities unless ‘unique circumstances’ are present conflicts with established Court practice notes. I seek a determination on the lawfulness of the Registrar's actions and whether the powers have been appropriately exercised in this appeal by means of any possible Declaration with possible directions that may please the Court.

32    The references to “JZ-1” and other documents are references to material that is annexed to Dr Zirk-Sadowski’s affidavit of 3 October 2024.

33    It is apparent that the first and fifth orders proposed by the 6 October Application are related, in that the first contemplates that the court might “[declare] void the Registrar’s decision rejecting [Dr Zirk-Sadowski’s] request to issue the sealed lodged eBook of Authorities” and the fifth seeks “a determination on the lawfulness of the Registrar’s actions [regarding the eBook of authorities]”.

34    Correspondence annexed to Dr Zirk-Sadowski’s 3 October 2024 affidavit records attempts by the court’s registry staff to assist him with the filing of an electronic book of authorities. Contrary to the premise that appears to underlie proposed orders 1 and 5, there was never any decision made by registry staff to reject Dr Zirk-Sadowski’s “request to issue the sealed lodged eBook of Authorities in [his] matter”. It is apparent that there was a series of emails exchanged about difficulties that attended the lodging of Dr Zirk-Sadowski’s volume of authorities (difficulties that appear to be related to its size and the presence within it of various “hyperlinks”), and that attempts were made to explain those difficulties to Dr Zirk-Sadowski.

35    None of that has any bearing on the present application and there is no proper basis upon which this court now might entertain relief of the kind for which Dr Zirk-Sadowski moves.

36    By proposed order two, Dr Zirk-Sadowski seeks an order “reviewing the Registrar’s actions, which prevented the filing of [Dr Zirk-Sadowski’s] interlocutory application dated 25 July 2024”. The relevant correspondence demonstrates that Dr Zirk-Sadowski foreshadowed that, upon being notified of its being listed, he would file an application seeking a stay of the Costs Judgment. A registrar then gave him some assistance concerning how he might go about filing such an application. Thereafter, Dr Zirk-Sadowski suggested that his application had been “unlawfully rejected by the Registrar”.

37    Again, this is a pointless distraction. The course of which Dr Zirk-Sadowski sought to avail himself was indulged. He was able, as he wished, to move the court for a stay of the Costs Judgment. That was the subject of the hearing that transpired on 5 August 2024.

38    There is no proper basis upon which to make—and, much less is there any practical benefit in making—proposed order two. Nothing in Dr Zirk-Sadowski’s written submissions in support of the 6 October Application assists in identifying one.

39    Proposed orders three and four are so vaguely articulated as to defy meaningful consideration. The written submissions that Dr Zirk-Sadowski filed in support of the application do not relevantly assist. Without needing to decide as much, the proposed orders very much appear to dwell upon the same kinds of irrelevant or trivial matters as those that are the subject of the remainder of “Section 1”. Save so to observe, they ought not to be indulged.

Section 2: “First Respondent’s Default and Request for Summary Judgment”

40    “Section 2” of the 6 October Application reads as follows (emphases original):

6.    Order for Default Judgment

I seek an order granting the relief sought in the Amended Notice of Appeal as it relates to the first Respondent, based on their non-compliance with Rule 36.07 of the Federal Court Rules 2011. The first Respondent failed to file their Notice of Address for Service within 14 days of being served, as evidenced in my Affidavit dated 03 October 2024 (Annexure JZ-1). This order is sought under the authority of Sanders v Snell [1998] HCA 64, Searson v Salmon [2014] FCA 748, and Sanko Steamship Co Ltd v Australia Gloria Energy Group Pty Ltd [2012] FCA 798.

7.    Request for Summary Judgment

In the alternative, I seek a summary judgment under Rule 36.11(2)(e) and Section 31A of the Federal Court of Australia Act 1976, due to the procedural defaults of the first Respondent (Rule 36.07) and the second Respondent (Rule 22.04). Granting this summary judgment will streamline the proceedings, uphold efficiency and justice, and resolve the core issues early in the appeal, in accordance with Section 37M of the Federal Court of Australia Act 1976, also because the respondents did not file any Notice of Contention.

41    Dr Zirk-Sadowski contends—and it is not in dispute—that UNSW did not file a notice of its address for service within the timeframe prescribed by r 36.07 of the Federal Court Rules 2011 (Cth) (the “FCA Rules”). It is the case that that notice was attended by minor delay occasioned by an equally minor error on the part of UNSW’s solicitors. That error was acknowledged and has been rectified.

42    To entertain a request for default judgment in those circumstances would involve a departure from the judicial function so profound and obvious as to warrant no further comment. Proposed order six ought not to be made.

43    Precisely the same observations may be made in respect of proposed order seven (which is advanced in reliance upon the same default). There is no proper basis upon which to make an order in that form and the written submissions that Dr Zirk-Sadowski advanced do not assist in identifying one.

Section 3: “Freezing Orders”

44    “Section 3” of the 6 October Application reads as follows (emphases original):

8.    Request for Freezing Orders

Alternatively, I seek freezing orders to protect key assets, as detailed in my Affidavit dated 03 October 2024 (Annexure JZ-1). These freezing orders are necessary to safeguard:

•    Manuscripts: Intellectual property and manuscripts included in Part A of the Appeal Book in VID680-2022, which are at risk of unauthorized use or dissemination.

•    Self-insuring funds: Weekly payments that are currently not being made, despite legal obligations. These payments should be made based on the documentation regarding my disability status, as detailed in the Affidavit dated 03 October 2024 and Annexure JZ-1, along with the relevant legal requirements and facts presented in relation to this matter.

The freezing orders are sought under Rule 7.32 of the Federal Court Rules 2011, to prevent the dissipation or misuse of these assets pending the resolution of this case.

9.    Request for Ancillary Orders

I also seek ancillary orders under Rule 7.33 of the Federal Court Rules 2011 to elicit critical information from the first Respondent regarding intellectual property assets and financial records, including but not limited to workers compensation payments and other sources of income from 01 July 2018 to the present. These documents are essential to support the freezing order application.

Additionally, I request any further relief deemed necessary to protect these assets, including an order prohibiting the publication or dissemination of the scientific manuscripts without my explicit authorization.

I request that the Court direct the first Respondent to produce documents, as authorized by Rule 7.33. These documents should include all relevant financial records from 01 July 2018 to the present, specifically relating to workers compensation payments. This includes, but is not limited to, the following:

•    Tax returns

•    PAYG payment summaries

•    Assessment notices

•    Tax stamps

•    Depreciation schedules

•    Receipts

•    Wage slips

•    Bank statements

•    Cheque butts

•    Loan documents

•    Credit card statements

•    Any other documents relating to the receipt of workers compensation or other income

These ancillary orders are essential to fully inform the Court and ensure the protection of the assets at risk.

45    Proposed order eight seeks a freezing order to protect “intellectual property and manuscripts”, and weekly payments in relation to Dr Zirk-Sadowski’s asserted “disability status”, which he contends are not being made. Proposed order nine seeks an ancillary order to elicit certain documents that appear to relate to Dr Zirk-Sadowski’s disability payments. Dr Zirk-Sadowski relies upon rr 7.32 and 7.33 of the FCA Rules, which state as follows:

7.32 Freezing order

(1)    The Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.

(2)    A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

…

7.33 Ancillary order

(1)    The Court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the Court considers appropriate.

(2)    Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes:

(a)    eliciting information relating to assets relevant to the freezing order or prospective freezing order;

(b)    determining whether the freezing order should be made.

46    The relevant principles guiding the court in the making of freezing orders are well established. They were summarised recently by Feutrill J in UFC Enterprise Morley Pty Ltd v UFC Enterprise Northbridge Pty Ltd [2024] FCA 1396, at [13]:

13    … These may be summarised as follows:

(1)    The language of r 7.32 of the Rules reflects what has been considered to be a general power of the Court to grant a Mareva injunction under s 23 of the Federal Court of Australia Act 1976 (Cth): Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 622-623 (Deane J).

(2)    As a general proposition, a freezing order may be granted if the applicant demonstrates a prima facie or good arguable case for final relief and the circumstances are such that there is a danger of the respondent absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with so that there is a danger that the applicant, if it gets judgment, will not be able to get it satisfied: Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; 273 ALR 194 at [8] (Kenny J) and the authorities there cited.

(3)    The reference in r 7.32 to a ‘danger’ that a judgment or prospective judgment will go wholly or partly unsatisfied is a reference to a risk of that outcome. The risk must be real or substantial as opposed to a remote or speculative or theoretical possibility. The applicant must prove facts from which the Court can infer the existence of a real or substantial risk on the balance of probabilities: Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [2018] WASCA 174; 53 WAR 201 at [42]-[43] (Buss P, Murphy and Mitchell JJA) and the authorities there cited.

(4)    It is not necessary to establish that judgment will be unsatisfied unless a freezing order is made. Nor is it necessary to demonstrate that a respondent has a positive intention to frustrate a judgment. However, there must be facts from which ‘a prudent, sensible commercial’ person can ‘properly infer a danger of default if assets are removed from the jurisdiction’. That may include facts concerning a lack of available information about a respondent: Hua Wang Bank Berhad at [9]-[12] (Kenny J) and the authorities there cited. See, also, Severstal Export GmbH v Bhushan Steel Ltd [2013] NSWCA 102; 84 NSWLR 141 at [59]-[60] (Bathurst CJ, Beazley P and Barrett JA agreeing); Trans Global Projects at [45].

(5)    The mere fact of removal or danger of removal of assets from the jurisdiction will not necessarily give rise to a danger or risk that a judgment will go unsatisfied. In this regard, it is necessary to take into account any reciprocal regimes for the registration and enforcement of judgments and other means by which a judgment may be enforced: Trans Global Projects at [47]-[48]; Severstal Export at [63]-[65].

(6)    Ultimately, it is a question for evaluation by the Court as to whether the degree of the danger or risk is sufficient to justify an order in the terms made. In making that evaluative assessment, the Court will bear in mind that a freezing order is a drastic remedy which imposes a severe restriction on a respondent’s right to deal with its assets, and that the purpose of the order is not to provide security for a judgment which the applicant hopes to obtain and fears might not be satisfied: Trans Global Projects at [44] and the authorities there cited.

47    The insurmountable difficulty that Dr Zirk-Sadowski here faces arises from the wholesale absence of any identifiable basis upon which the court—at all, let alone now on appeal—might be concerned that its judgment will go relevantly unsatisfied unless orders of this kind are made.

48    The present case is about whether or not either or both of the Primary Judgment and the Costs Judgment are attended by error. Dr Zirk-Sadowski’s submissions in support of freezing and ancillary orders are misconceived. There is no basis upon which the court might properly entertain orders of those kinds. They should not be made.

Section 4: “Procedural and Legal Fairness”

49    “Section 4” of the 6 October Application reads as follows (emphases original):

Alternatively, I seek:

10.    Order to Address Apprehended Bias and Procedural Fairness Concerns

I seek an order reviewing the primary judge’s refusal to provide reasons for using the term “inadequacy” in relation to the material I submitted. The lack of reasoning raises concerns about apprehended bias and procedural fairness, as documented in my affidavit and correspondence dated 01 July 2024 (Annexure JZ-1) and as is shown in the affidavit dated 03 October 2024. The primary judge’s refusal to offer an explanation undermines the impartiality of the decision-making process and may lead to perceptions of bias or misconduct, especially that no reasons were given neither in the main judgment of the primary proceedings nor in the costs judgment.

11.    Order to Enforce Procedural Compliance by Respondents

The first Respondent failed to file a Notice of Address for Service as required under Rule 36.07, and neither Respondent has filed a Notice of Contention, despite the intellectual property relief sought. I seek an order compelling both Respondents to comply with these procedural requirements and enforcing consequences for their continued non-compliance.

12.    Alternatively, I seek an order that, should the Court find a breach of the above-mentioned Rules, such breach be deemed Contempt of Court under Rule 5.24 of the Federal Court Rules 2011. This order would address any violation of the procedural rules and ensure that appropriate sanctions are imposed for actions that undermine the integrity of the Court's processes.

50    Proposed order ten charges the primary judge with exhibiting (or otherwise acting so as to create an apprehension of) bias as against Dr Zirk-Sadowski. That is a topic to which I shall later return. For now, it suffices to note that, to the extent that the charge against his Honour might have any foundation, it should be pressed as a ground of appeal. Perhaps that was Dr Zirk-Sadowski’s intention (and, in that respect, I note that the amended notice of appeal makes numerous references to the issue, although not within the “main grounds” that are referred to below). The question of bias needn’t be addressed here in the context of the 6 October Application.

51    Proposed orders 11 and 12 are trivial. I have already addressed the delayed filing by UNSW of its notice of address for service. It is the case that both respondents have filed notices in that regard and nothing further need be said about them. There is no basis upon which the court might now entertain orders compelling them to do what has already been done.

52    It is the case that neither respondent has filed a notice of contention. Neither was obliged to. Indeed, the suggestion that the FWC might do so is, to say the least, difficult to reconcile with the principle established in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35-6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ). Frankly, the idea that this court might entertain relief compelling parties to file notices of contention now is absurd.

53    No less absurd is the idea that their failure to file (or promptly file) the processes to which Dr Zirk-Sadowski adverts should lead them to the pointy end of quasi-criminal contempt of court allegations. That is not a suggestion that the court should indulge.

54    Proposed orders 11 and 12 should not be made.

The Amended Notice of Appeal and the Primary Judgment

55    I do not propose to recite in full the grounds—or what have been advanced as the “Detailed grounds”—upon which Dr Zirk-Sadowski seeks to impugn the Primary Judgment and the Costs Judgment. As has been stated—and, again, intending no disrespect—that part of the amended notice of appeal is largely incomprehensible and to repeat it would needlessly lengthen these reasons.

56    Instead, I shall address Dr Zirk-Sadowski’s grounds by reference to the helpful written submissions that he filed in support of them. They appear to mirror (or largely mirror) the substantially shorter “Grounds of Appeal” section of the amended notice of appeal (above, [16]), which I take to be the best and most convenient summary of the contentions that Dr Zirk-Sadowski advances.

“Main Ground 1: Jurisdictional Errors by the Fair Work Commission”

57    By his written submission in support of the appeal, Dr Zirk-Sadowski identified “six primary jurisdictional errors”, about which he contended as follows:

i. The Appellant’s Claim Was Not Statute-Barred

•    The FWC incorrectly deemed the appellant's entire claim as statute-barred. The appellant’s Form F8 – General Protections Application involving dismissal included claims for relief beyond unfair dismissal, particularly claims relating to breaches of general protections under the Fair Work Act when they interact with provisions of the public interest disclosure rights. These claims were not subject to the same statutory time limits as unfair dismissal claims. The FWC’s failure to recognize this distinction resulted in the unjust dismissal of legally viable conclusions.

ii. Failure to Consider the Merits of the Appellant’s Claim

•    The FWC failed to give proper, genuine, and realistic consideration to the merits of the appellant's general protections claim. Procedural fairness requires decision-makers to engage with the substance of the claims before them. In this case, the FWC dismissed the appellant's claim without adequately addressing the appellant’s substantial arguments, resulting in a jurisdictional error that the primary judge did not correct.

iii. Miscarriage of Discretion in Extending Time and Granting Permission to Appeal

•    The FWC improperly exercised its discretion in two key areas: denying the appellant an extension of time to prosecute the general protections claim and improperly failing to consider evidence on the appeal to the Full Bench of the Commission. The appellant’s claim was not statute-barred. The FWC had the authority to extend the time limit based on considerations such as fairness and the merits of the case. Its failure to do so constitutes a miscarriage of discretion. Similarly, the FWC’s decisions failing to consider evidence during the appeal to the Full Bench were not based on sound legal reasoning, further compounding the jurisdictional errors.

iv. Failure to Afford Comity to the Personal Injury Commission of New South Wales (PIC)

•    The FWC failed to afford comity to the Personal Injury Commission (PIC) of New South Wales. Comity between tribunals requires decision-makers to consider relevant rulings from other tribunals that deal with similar issues or facts. In this case, the PIC’s findings were directly relevant to the appellant’s claims, yet the FWC failed to take these findings into account. This resulted in inconsistent and unjust outcomes, which the primary judge failed to correct in relation to the non-publication order of his Honour Judge Gerard Philips which was ignored by the FWC. During the personal injury proceedings a substantive injury was determined with the assessment of 23% whole person impairment.

v. Failure to Consider Related Litigation in the PIC

•    The FWC failed to take into account the approach taken in related litigation in the PIC, which is a legally mandatory consideration. This omission further undermined the fairness of the decision-making process. By disregarding the PIC's findings, the FWC failed to act consistently with established legal principles, leading to a jurisdictional error that the primary judge did not address.

vi. Failure to Exercise Jurisdiction Over Components Not Statute-Barred

•    The FWC did not exercise its jurisdiction over components of the appellant's claim that were not statute-barred, particularly those relating to breaches of general protections under the Fair Work Act interacting with public interest disclosure rights. This failure to properly exercise jurisdiction over the legally viable portions of the claim was yet another jurisdictional error that was left uncorrected by the primary judge.

58    None of those contentions is well-founded and I can address each in short compass. Before doing so, something should be said about the court’s task on appeal. It is trite to observe that I am here concerned with the identification of error on the part of the primary judge. If his Honour should be understood to have concluded incorrectly that the FWC decisions that Dr Zirk-Sadowski seeks to impugn were not products of jurisdictional error as alleged, then it will follow that Dr Zirk-Sadowski will have identified appellable error that the court should now correct. Conversely, if his Honour should be understood to have reckoned correctly that no such error transpired, then it will follow that there is no error now for this court on appeal to correct. Either way, though, the focus of the court now must be upon the FWC decisions. That observation made, I turn to consider the contentions that Dr Zirk-Sadowski advances.

59    Dr Zirk-Sadowski asserts that his “claims relating to breaches of general protections…were not subject to the same statutory time limits as unfair dismissal claims”. Respectfully, that is not so. A general protections suit in which a person claims to have been dismissed in breach of pt 3-1 of the FW Act must be commenced within 21 days of that dismissal: FW Act, s 366(1). That was the species of claim that Dr Zirk-Sadowski advanced by means of the “Form F8” that he filed with the FWC on 19 May 2022. Indeed, it is the sole species of claim under that part of the FW Act that can only be commenced by application to the FWC.

60    The same (21-day) timeframe regulates the making of valid unfair dismissal claims under pt 3-2: FW Act, s 394(2). To the extent that he maintains to the contrary, Dr Zirk-Sadowski is mistaken. His submissions on this front do not identify any basis upon which to impugn any of the FWC’s decisions in the way that he seeks to impugn them.

61    As to the asserted want of “proper, genuine and realistic consideration” by which Dr Zirk-Sadowski maintains that the FWC’s decisions are tainted, it is difficult to know precisely what is said not to have been properly, genuinely or realistically considered. The complaint appears, instead, to be no more than that the FWC was wrong not to agree with the propositions that Dr Zirk-Sadowski had advanced (specifically, about whether or not an extension of time and confidentiality orders ought to have been granted). Having read the FWC decisions carefully, it is not apparent to me that anything that Dr Zirk-Sadowski advanced went relevantly unconsidered. The worst that might be said of them is that a different decision was available; but it is not the function of this court, either at first instance or now on appeal, to say so.

62    Even assuming that Dr Zirk-Sadowski advanced before the FWC sound arguments in favour of the relief for which he moved, it would not follow merely from its conclusions against him that the FWC decisions were products of jurisdictional error. This aspect of Dr Zirk-Sadowski’s argument cannot be accepted.

63    Similar observations may be made in respect of Dr Zirk-Sadowski’s submission that the FWC’s discretion miscarried when it decided not to grant an extension of time or permission to appeal. How that might be so has not been identified. To the extent that Dr Zirk-Sadowski maintains that his “claim was not statute-barred” (which I interpret to mean was not subject to the 21-day time limit in respect of which no extension was granted), there is no need to repeat what has already been said about that.

64    There was no discretionary error on the part of the FWC and Dr Zirk-Sadowski’s contention in that regard must be rejected.

65    As regards Dr Zirk-Sadowski’s contention that the FWC “failed to afford comity to the Personal Injury Commission (PIC) of New South Wales”, it is difficult to know how that failure is said to have manifested. The context underlying that contention is not apparent, nor is it clear what the FWC was asked to do or not do. It is plain that the FWC was alive to the fact that Dr Zirk-Sadowski had been involved in a personal injury claim brought in New South Wales. The Commissioner’s Reasons expressly refer to that reality. Beyond that, however, it is not apparent whether or how the FWC was asked to “afford comity” in the way about which Dr Zirk-Sadowski now complains.

66    None of that matters much. Even assuming that the FWC might have been well advised to take account in some way of things that transpired in another tribunal, it is not apparent to me—which is to say that Dr Zirk-Sadowski has not explained—how its failure to do so might reflect jurisdictional error. I do not consider that it does.

67    Similar observations apply in respect of the suggestion that the FWC “…failed to take into account the approach taken in related litigation”. Expressed in terms, the contention is vague to the point of meaninglessness. It is not apparent what is meant by the reference to the “approach taken in related litigation”, nor how it might be constituted as a “legally mandatory consideration”. In any event—and as has been noted—the FWC was alerted to Dr Zirk-Sadowski’s having been involved in personal injury proceedings in New South Wales. How it might be said that there was something about that that went relatively unconsidered has not been explained. Again, I discern no error in how the FWC addressed that issue.

68    Insofar as concerns Dr Zirk-Sadowski’s contention that the FWC “…did not exercise its jurisdiction over components of [his] claim that were not statute-barred”, I needn’t repeat what has already been said. To the extent that Dr Zirk-Sadowski has general protections claims that do not relate to his dismissal, the FWC has no exclusive jurisdiction and could not be said to have failed to exercise it. The claim that was filed with the FWC pertained to Dr Zirk-Sadowski’s dismissal from his employment with UNSW. In order that he might prosecute it, he required an extension of time and that is what the FWC addressed. Again, I discern no error of jurisdiction in the manner in which it approached that question.

69    None of the contentions inherent in “Main Ground 1” is made good.

“Main Ground 2: Failure to Give Effect to Section 118 of the Constitution”

70    By his written submission in support of the appeal, Dr Zirk-Sadowski contended that the primary judge “…failed to give effect to section 118 of the Constitution, which mandates that ‘full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every state’”. His submissions proceed to break that contention into two parts, namely:

i. Failure to Give Full Faith and Credit to the PIC Act

•    The Personal Injury Commission Act 2020 (NSW) is directly relevant to the appellant’s case, yet the primary judge did not afford the required deference to the findings of the PIC. The PIC had already ruled on matters that were directly related to the appellant's claim before the FWC, and full faith and credit should have been given to these rulings. By failing to do so, the primary judge breached section 118 of the Constitution, resulting in inconsistent and unjust outcomes.

ii. Breach of Constitutional Mandate

•    The failure to apply section 118 undermined the legal coherence and consistency that the Constitution seeks to protect. The appellant’s rights under the Personal Injury Commission Act 2020 were not recognized or upheld by the FWC or the primary judge, leading to a denial of justice. The Court ought to correct this breach of constitutional duty to ensure that full faith and credit is given to relevant legislation and proceedings.

71    The contentions advanced on this footing appear to be related to the “comity” contention addressed in the context of “Main Ground 1”. To that extent, it is unnecessary—and much less am I able—to say more than has already been said.

72    Insofar as a contention is now advanced to the effect that “the primary judge breached section 118 of the Constitution”, it cannot be accepted. It pays to repeat the function of this court on appeal: at issue is whether either of the judgments of the primary judge was attended by appellable error. That turns upon whether or not his Honour erred by not discerning jurisdictional error on the part of the FWC, or otherwise by not affording Dr Zirk-Sadowski the relief for which he had moved. To charge his Honour now with constitutional breach appears to extend beyond that remit and into the realm of separate allegation as yet untried at a primary (which is to say, non-appellate) level. It is not apparent to me how this court, on appeal, could sensibly determine what Dr Zirk-Sadowski seeks to advance. All the more is that so given the limitations imposed by s 78B(1) of the Judiciary Act (which I needn’t now particularise).

73    The contention that the primary judge contravened s 118 of the Constitution is without merit.

“Main Ground 3: Failure to Provide Adequate Reasons”

74    By his written submission in support of the appeal, Dr Zirk-Sadowski contended that the primary judge “…failed to provide adequate reasons for the decision to dismiss the claim”. That headline claim reflects the equally summary articulation contained within the amended notice of appeal. Neither articulation identifies the issues in respect of which the primary judge is said not to have provided adequate reasons.

75    Nonetheless, Dr Zirk-Sadowski’s written submissions proceed to add some flesh to those proverbial bones. Indeed, more than half of that document is directed to that suggestion. Replicating what is there said would not be efficient; instead, in the reasoning that follows, I shall attempt to distil Dr Zirk-Sadowski’s main contentions and explain why none can be accepted.

76    Dr Zirk-Sadowski complains that the “…primary judge’s decision lacked sufficient reasoning on several critical issues, particularly the jurisdictional errors and the failure to apply section 118 of the Constitution”. Additionally, he maintains that there “…was no adequate explanation as to why the Commission’s failure to apply section 366(2)(e) of the Fair Work Act was not considered a jurisdictional error, nor was there an adequate explanation for the failure to afford comity to the PIC”.

77    As his reasons make clear, the primary judge laboured under the same comprehension difficulties that plague the court in this appeal. His Honour noted (Primary Judgment, [6]):

6    The Applicant, in his AOA, Outline of Submissions dated 1 August 2023 and 21 September 2023, in his oral submissions at the hearing on 9 April 2024, and various other material he filed, has made wide-ranging claims which challenge the substance of each of the three FWC decisions. Although it is clear that the Applicant challenges the correctness of each of the decisions and the findings made, the AOA and the Applicant’s submissions generally lack clarity and are difficult to follow. It is difficult to articulate, with any particular level of precision, the specific bases on which the Applicant challenges the FWC decisions, and it is therefore equally difficult for UNSW to respond with any particular degree of specificity to the range of matters the Applicant seeks to raise. By way of illustration, the AOA, which spans over some 36 pages and which begins clearly enough by articulating that it relates to a review of the FWC decisions, is split across parts headed “Details of claim”, “Material facts giving rise to the claim”, “Grounds of application” and “Orders sought”, each of which makes reference to several, often unrelated, assertions regarding the FWC decisions, and refer to several authorities and pieces of legislation where it is generally unclear as to how the Applicant intends to rely upon them. There appears to be little discernment between the different grounds of review which the Applicant seeks to raise and therefore the grounds of review overlap to a large degree. It is also generally unclear which of the particular FWC decisions the Applicant raises each ground of review in relation to.

78    Thereafter, the primary judge set about identifying, “as best [he] was able to”, the grounds of review that he perceived that Dr Zirk-Sadowski wished to advance. Some 20 such grounds were listed, each of which was then addressed in varying degrees of detail. His Honour then moved, of his own volition, to consider whether there might be any other bases upon which to impugn the FWC decisions with which Dr Zirk-Sadowski took issue. In that regard, his Honour was careful to assess the considerations that had led the FWC not to grant the confidentiality orders and extension of time for which Dr Zirk-Sadowski had moved, ultimately concluding that his own analysis did not reveal jurisdictional error.

79    Respectfully, Dr Zirk-Sadowski’s complaint about the adequacy of his Honour’s reasons is without substance. I have already addressed the import of s 118 of the Constitution. The suggestion that his Honour ought to have addressed in his reasons a submission that is, in itself, without merit cannot be accepted. There is nothing about s 118 of the Constitution that bore upon the exercise of the FWC’s jurisdiction to do as it did; and, that being so, there was nothing about it that warranted real estate within the primary judge’s reasons.

80    Similar observations apply in respect of the “comity” submission. It is not apparent that that was a matter that Dr Zirk-Sadowski advanced before the primary judge; but, even assuming that it was, it was not one that warranted particular consideration within his Honour’s reasons.

81    As to the absence of “…explanation as to why the Commission’s failure to apply section 366(2)(e) of the Fair Work Act was not considered a jurisdictional error”, the primary judge addressed in his reasons the FWC’s efforts to address what had been advanced on that issue (Primary Judgment, [43]). It is apparent that his Honour’s view was that the FWC had properly appreciated the import of that subsection—which, I pause to note, does no more than identify a consideration of which the FWC must take account when determining whether or not to grant an extension of time under s 366(1)(b) of the FW Act—such that its decision could not, on that basis, be impugned as a product of jurisdictional error.

82    I do not accept that his Honour’s reasons in that regard were inadequate.

83    Apparently within the context of his “inadequate reasons” ground, Dr Zirk-Sadowski also complains that the FWC “…breached its own procedural rules by failing to meet the statutory deadlines for providing reasons for its decision”. It is unclear how that contention manifests as a ground of appeal upon consideration of which this court might recognise error on the part of the primary judge. I do not accept that any such error is apparent. A breach by the FWC of its own rules could conceivably—but would not necessarily—reflect jurisdictional error on its part; but it is unclear:

(1)    how any such breach is said to have transpired;

(2)    whether it was identified as a source of jurisdictional error before the primary judge; or (assuming that it was),

(3)    how it presents now as a matter that should inform the exercise of this court’s appellate jurisdiction.

84    It follows that I do not consider that there is anything in any of that that should incline me to the view that his Honour erred in a way amenable to correction on appeal.

85    Elsewhere in his written submissions, Dr Zirk-Sadowski contends that (emphases original):

The Fair Work Commission’s initial decision fell into five core jurisdictional errors, including [sic]:

1.    Failure to Address Section 366(2)(e) of the Fair Work Act.

2.    Failure to Take Into Account the NSW Commissioner of Victims Rights’ Finding.

3.    Failure to Consider the Federal Court's Finding regarding related proceedings.

4.    Failure to Address Missing Publications of Information from the PIC proceedings.

5.    Failure to Address Section 22 of the Public Interest Disclosure (PID) Act 2013, particularly its interaction with Part 3-1 of the Fair Work Act.

86    In the lengthy submissions that follow those headline suggestions, no further detail is offered (certainly not in any obvious form). It is not apparent how it is put that the matters enumerated should have inclined the primary judge to the view that the FWC’s decisions were products of jurisdictional error (I note that I have already addressed the contention about s 366(2)(e) of the FW Act).

87    Fortunately, the Primary Judgment itself offers some assistance in that regard.

88    Insofar as concerned the “NSW Commissioner of Victims Rights’ Finding”, his Honour made the following observations (Primary Judgment, [19]-[20]):

19    Ground 3 makes reference to the “personal safety” of the Applicant, arguing that the FWC failed to uphold the protection afforded to the Applicant by previous decisions of the Federal Court, the AFP, the Commonwealth Ombudsman, the NSW Personal Injury Commission, and the NSW Commissioner of Victim Rights. Again, Ground 3 fails to provide any proper grounds for review of the FWC decisions.

20    It is noted that submissions regarding the safety of the Applicant were raised and dealt with by the FWC: Primary Judgment at [9]; Confidentiality Appeal Judgment at [48]. I agree with the approach taken by the FWC in each instance. The Applicant’s submissions relating to the NSW Personal Injury Commissioner were also appropriately dealt with by the Full Bench of the FWC: Confidentiality Appeal Judgment at [35]-[36], [45]. Again, I agree with the approach taken by the Full Bench.

89    Respectfully, Dr Zirk-Sadowski’s submissions do not identify any basis upon which this court on appeal might doubt the correctness of those observations.

90    I turn, then, to the suggestion that the FWC failed to consider “the Federal Court’s Finding regarding related proceedings”. It is unclear what that is a reference to; much less so what it is that is said to have gone unconsidered by the FWC. The Commissioner’s Reasons disclose some consideration of what Dr Zirk-Sadowski appears to have described as a proceeding in this court in which he was “de-identified”. Specifically, they record as follows:

7.    The Applicant submitted that his evidence concerns his work on security data which may be classified information. He also states that prior proceedings in New South Wales, in the Federal Court and in other jurisdictions had de-identified him as a party because they had access to the material he describes as security classified. Consequently, he says, as his identity was not disclosed in the other proceedings, the Commission should do the same. There is no need to provide any detail concerning the work performed by the Applicant as this is immaterial to an extension of time application. Therefore, I do not consider it necessary to deidentify the parties.

8.    While I am not satisfied of the reasons to deidentify of the parties, I am mindful that the Applicant filed voluminous materials relating to his work, his complaints and other details which were unnecessary and/or immaterial to the matter before the Commission. I do not intend to address the material that is not relevant to the extension of time and this decision will not specify the nature of work performed by the Applicant nor provide detail of his prior proceedings against the Respondent.

91    Again with respect, Dr Zirk-Sadowski’s complaint does not obviously extend beyond the suggestion that, consistent with what had occurred in other fora, the FWC ought to have granted him the confidentiality orders that he requested. It is apparent that the FWC was alive to that contention. That it didn’t agree is not reflective of jurisdictional error. His Honour’s failure to recognise what Dr Zirk-Sadowski identifies—assuming, momentarily, that he was asked to—was not in error.

92    The significance of “Missing Publications of Information from the PIC proceedings” is not apparent. Dr Zirk-Sadowski has not explained how it should be understood to reflect jurisdictional error on the part of the FWC, nor how this court should, in respect of it, attribute error to the primary judge. It is simply not possible to decipher the contention and, on that basis, it cannot be accepted as a reason to impugn the Primary Judgment.

93    Finally, I turn to consider the suggestion that the FWC failed to “Address Section 22 of the Public Interest Disclosure (PID) Act 2013, particularly its interaction with Part 3-1 of the Fair Work Act”. In the Primary Judgment, the primary judge sought to distil Dr Zirk-Sadowski’s contentions (or what, as best he was able to determine, were Dr Zirk-Sadowski’s contentions) as follows (Primary Judgment, [7]):

(a)    The FWC failed to consider the impact of the Public Interest Disclosure Act 2013 (Cth) (PID Act) which the Applicant contends informs or otherwise impacts the Applicant’s rights in proceedings under the FW Act. In particular, the Applicant sought to make reference to s 22 of the PID Act and its interaction with Pt 3-1 of the FW Act (Ground 1);

(b)    The FWC exercised its power for an improper purpose as it knowingly contravened s 20 of the PID Act, and engaged in reprisal action in contravention of s 19 of the PID Act (Ground 2);

…

94    His Honour later turned to address what was advanced (Primary Judgment, [16]-[18]):

Ground 1

16    The Applicant has failed to clearly explain which of the FWC decisions failed to consider the impact of the PID Act, how the particular factor should have been considered by the FWC (howsoever constituted), or how it is said that the FWC was so bound by the PID Act. I do not consider that the Applicant’s allegation that the FWC’s failure to consider the impact of the PID Act provides an appropriate ground for review.

17    While it is unnecessary to do so, as the Applicant made a substantial number of submissions related to the PID Act, a few preliminary observations regarding the Applicant’s submissions are noted below:

(a)    The Applicant’s submissions regarding the PID Act appear to centre primarily around his receipt, in the course of his employment at UNSW, of a document which he claims was confidential and which he was unauthorised to receive or use. The Applicant submits that he made public interest disclosures in relation to this conduct pursuant to the PID Act to various bodies. These appear to include disclosures to the Australian Institute of Health and Welfare (AIHW), the Australian Federal Police (AFP), the Commonwealth Ombudsman and the Federal Court.

(b)    The PID Act was considered by Commissioner Yilmaz and the Full Bench of the FWC comprehensively: Primary Decision at [4]-[7]; Confidentiality Appeal Decision at [35], [37]-[38], [40]; Extension Appeal Decision at [46]. The application of the PID Act in the relevant decisions was clearly correct and does not provide grounds for judicial review of the decisions.

(c)    The Applicant appears to submit that the AIHW confirmed that UNSW’s use of the document was unauthorised. This is not evident from the material filed by the Applicant, including in the letter from the AIHW to the Applicant dated 12 September 2018, or in the emails dated 21 May 2018 from Mr George Bodilsen of AIHW to the Applicant.

(d)    The Applicant also referred numerous times to being “granted the status of a public interest discloser” by the AFP. In relation to this, the Applicant appears to rely on an email from the AFP to the Applicant dated 27 August 2018. Again, it is not evident from the email that any such determination was made. The email indicates that in relation to the Applicant’s disclosure, the Applicant was determined by the relevant AFP Authorised Officer to be a “Public Official”, and that the Applicant’s disclosure could be “Disclosable Conduct” for the purposes of the PID Act. However, the matter was ultimately referred to the AIHW as there was no reasonable basis to determine that the disclosure constituted an “internal disclosure” for the purposes of the PID Act for the AFP.

(e)    The Applicant also makes several references to a “determination” of the Federal Court made in relation to the PID Act. What the Applicant appears to be referring to is an email to the Applicant dated 26 July 2018 from Deputy Principal Registrar John Mathieson in his role as an authorised officer of the Federal Court for the purposes of the PID Act. The email appears to be nothing more than an initial assessment of whether the Applicant’s disclosures to the Federal Court could constitute a “public interest disclosure” under the PID Act. The email also ultimately determined that the disclosure was not made to an authorised recipient to be considered an internal disclosure and therefore, would not be allocated to an agency to handle.

Ground 2

18    The Applicant alleges various breaches of the PID Act by the FWC “decision-makers”, stating that the FWC’s knowing contravention of the PID Act meant that it exercised its power for an improper purpose. No proper basis appears on the face of the AOA or elsewhere in the Applicant’s materials to make such allegations against Commonwealth officers. The comments made above in relation to the PID Act in respect of Ground 1 above are repeated.

95    With respect, there is no error in those conclusions. Dr Zirk-Sadowski’s contentions to the contrary should be rejected.

Conclusion

96    Insofar as it seeks to impugn the Primary Judgment, the appeal should fail. The primary judge did not wrongly fail to perceive jurisdictional error in any of the forms in which Dr Zirk-Sadowski invited him to recognise it. The FWC’s jurisdiction—both as to the granting of an extension of time and as to the making of confidentiality orders—was legitimately exercised (or, at the least, was not illegitimate in any of the ways that Dr Zirk-Sadowski advances). None of his Honour’s primary conclusions was a product of error.

The Amended Notice of Appeal and the Costs Judgment

97    Although it is plain that Dr Zirk-Sadowski seeks to have the Costs Judgment set aside, it is much less clear upon what basis or bases that is said to be warranted. Although it makes several references to costs, the amended notice of appeal does not obviously identify any reason why this court, on appeal, should interfere with the Costs Judgment. The written submissions that Dr Zirk-Sadowski filed in support of the appeal are similarly (although not completely) bereft of explanation as to why that outcome should eventuate. In the analysis that follows, I have endeavoured to make as much as I can of the (with respect) confusing submissions that were advanced on this subject; and have, in any event, brought my own thoughts to bear upon whether or not there might be some basis to impugn the Costs Judgment.

98    By his written submissions, Dr Zirk-Sadowski maintains as follows:

The imposition of costs implied by the costs judgment of the primary judge is not justified by the Fair Work Act 2009 or the Public Interest Disclosure Act 2013. These legislative frameworks are designed to protect individuals raising legitimate claims in the public interest. Imposing costs on the appellant would contradict the principles embedded in these Acts. The Court should recognize that the appellant acted with reasonable cause, motivated by genuine concerns regarding employment law transparency and workers' rights. Accordingly, the appellant respectfully submits that each party should bear their own costs, the proceedings should be deemed free of costs for the appellant and the stay order should have been granted until the completion of the appeal.

99    The reference there to the stay order being granted is to be understood as a reference to what transpired at the hearing of 5 August 2024. I have already explained how that is beyond the court’s remit presently and there is no occasion now to say anything more about it.

100    It does not appear to be in dispute—and, in any event, there is no doubt—that the proceeding before the primary judge was a proceeding in relation to a matter arising under the FW Act. That being so (and as his Honour plainly appreciated), the primary judge’s power to make an order for costs was constrained by s 570 of the FW Act, which provides (and provided) as follows:

570 Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note:    The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

…

101    By the Costs Judgment, the primary judge considered that Dr Zirk-Sadowski had commenced the primary proceeding without reasonable cause and had conducted himself unreasonably so as to result in UNSW’s incurring of costs. His Honour’s reasons for so concluding appear at [10]-[22] of the Costs Judgment and I do not propose to repeat them. It suffices, instead and with respect, to record that they are unimpeachable and I adopt them as though my own.

102    Dr Zirk-Sadowski has not demonstrated any error on the part of the primary judge in relation to his conclusions that the exceptions for which s 570(2)(a) and (b) provide were, in the circumstances of this matter, engaged. There is no occasion now to set aside any part of the Costs Judgment.

Bias?

103    I return to the topic of bias, which was raised in the 6 October Application (but was not otherwise the subject of submission on the appeal). It is apparent that Dr Zirk-Sadowski has formed the view that the primary judge was either actually biased against him, or otherwise conducted himself so as to create a reasonable apprehension of bias. His written submissions, which reference the well-known principle established by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, suggest that it is the latter; and that it arises because his Honour made reference to the inadequacy of some of Dr Zirk-Sadowski’s material. I proceed upon the assumption that Dr Zirk-Sadowski seeks to impugn the Primary Judgment (at the least) on the basis that the manner in which it was determined has given rise to a reasonable apprehension of bias.

104    Allegations of bias are serious and should not lightly be put. Indeed, they are sufficiently serious that, had there been any substance to them, they would have warranted primary consideration (rather than consideration at the tail end of what is already an unreasonably long judgment): Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 611 [117] (Kirby and Crennan JJ).

105    As it is, there is no substance to what Dr Zirk-Sadowski here advances. Nothing in any of the documents that Dr Zirk-Sadowski has filed suffices to establish even the slightest suggestion that the primary judge approached the determination of the questions that were before him on anything other than their factual and legal merits. His Honour’s characterisations of the material upon which Dr Zirk-Sadowski relied were open and reflect my own conclusions about much of what has been advanced on appeal. They are not reflective or suggestive of bias in any form.

106    It is unnecessary to entertain the suggestion beyond that summary level. There was no bias, nor any reasonable apprehension thereof.

Disposition

107    The appeal should be dismissed. UNSW has asked to be heard as to costs. It should, within 14 days, advise the chambers of the presiding judge what its position on the costs of the appeal is. If they are to be sought, the court should receive short written submissions from the parties and, subject to objection, proceed separately to determine the question of costs on the papers.

Associate:

Dated:    14 May 2025

REASONS FOR JUDGMENT

MCELWAINE J:

108    I have read in draft the reasons of Snaden J. I agree with the reasons of his Honour and with the proposed orders.

Associate:

Dated:    14 May 2025