Federal Court of Australia

Forshaw v Qantas Airways Limited (No 2) [2024] FCA 446

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 31 October 2023 be dismissed.

2.    Within 21 days of these orders, the parties are to:

(a)    confer and, if possible, agree upon orders for the timely case management of the proceeding; and

(b)    advise the court of their agreement or otherwise, as the case may be.

3.    Costs be reserved.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an originating application dated 25 October 2022, the applicant, Ms Forshaw, moves the court for relief principally in the form of declarations and penalties for what she alleges was conduct engaged in by her employer, the respondent (“Qantas”), in contravention of various provisions of pt 3-1 of the Fair Work Act 2009 (Cth) (the “FW Act”).

2    Ms Forshaw’s application is supported by an amended statement of claim dated 22 December 2022 (the “ASOC”). By an interlocutory application dated 31 October 2023, she now seeks leave pursuant to r 16.53 of the Federal Court Rules 2011 (Cth) (the “FCA Rules”) to file a further amended statement of claim. That application is supported by an affidavit affirmed by Ms Forshaw’s solicitor, Ms Jessica Dawson-Field, on 31 October 2023.

3    The present interlocutory application follows from a ruling made in August 2023 upon an application by Qantas to have parts of the ASOC struck out: Forshaw v Qantas Airways Limited [2023] FCA 957 (hereafter, “Forshaw No 1”; Snaden J). That application partially succeeded; and the present application—and, more particularly, the proposed further amended statement of claim (hereafter, the “Proposed FASOC”)—stands as Ms Forshaw’s attempt to address the matters that led the court to strike out parts of her existing pleading.

4    Qantas opposes the granting of the relief for which Ms Forshaw now moves. It maintains that the Proposed FASOC remains materially deficient. That point of debate was the subject of a hearing on 7 February 2024, at which the parties made helpful oral submissions additional to the equally helpful written submissions filed in advance of it. Following that hearing, Ms Forshaw’s solicitors wrote to the court indicating her desire to incorporate a further amendment into her Proposed FASOC. For reasons that will emerge, it is unnecessary to say anything further about that correspondence.

5    Respectfully, the Proposed FASOC remains objectionable, in that parts of it remain embarrassing and, in material respects, fail to disclose an arguable cause of action. For the reasons that follow, the interlocutory application of 31 October 2023 must and will be dismissed.

The legislative framework

6    Before addressing the substantive changes that have been incorporated into the Proposed FASOC, something should be said about the nature of the causes of action that Ms Forshaw hopes to prosecute against Qantas. On that front, it suffices to replicate what was set out in Forshaw No 1 (at [4]-[11]), namely:

4    The ASOC purports to charge Qantas with having contravened two provisions of pt 3-1 of the FW Act, namely ss 340 and 351. It is prudent to map out those sections and others that pertain to them.

5    Part 3-1 of the FW Act is entitled, “general protections”. Amongst other things, it serves to prohibit identified species of conduct when engaged in for identified reasons. Of present relevance is the concept of “adverse action”. Sections 340 and 351 both prohibit (in different ways) the taking of “adverse action” that is actuated by proscribed reasons.

6    Relevantly, s 342(1) identifies as follows the circumstances in which an employer is understood to take “adverse action” against an employee:

7    Conceptually, “adverse action” includes threats to take action of the kind referred to in s 342(1) of the FW Act: FW Act, s 342(2).

8    Section 340 of the FW Act is concerned to prohibit the taking of adverse action against a person because of (amongst other things) his or her possession of a “workplace right”. For present purposes, it is unnecessary to set out what is contemplated by the statutory conception of “workplace right”. It suffices, instead, to record the injunction to which s 340(1) gives effect:

340 Protection

(1)     A person must not take adverse action against another person:

(a)     because the other person:

    (i)     has a workplace right; or

(ii)     has, or has not, exercised a workplace right; or

(iii)     proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)     to prevent the exercise of a workplace right by the other person.

9    Section 351 of the FW Act prohibits adverse action (or types of adverse action) that is taken for other reasons. It provides, relevantly:

351 Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

...

10    Section 361 of the FW Act looms large for present purposes. It provides as follows:

361 Reason for action to be presumed unless proved otherwise

(1)     If:

(a)     in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)     taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

11    Section 793 of the FW Act serves, for identified purposes, to attribute to bodies corporate certain types of conduct and states of mind. It provides as follows:

793 Liability of bodies corporate

Conduct of a body corporate

(1)     Any conduct engaged in on behalf of a body corporate:

(a)     by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)     by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)     If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

Meaning of state of mind

(3)     The state of mind of a person includes:

(a)     the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

…

(5)     In this section, employee has its ordinary meaning.

The proposed FASOC

7    In the form that it assumed prior to the ruling in Forshaw No 1, the ASOC advanced three broad claims against Qantas, described in the headings of that judgment as the “s 340 contraventions”, the “Workplace Culture Plea” and the “Specific s 351 Pleas”.

8    The s 340 contraventions focused upon discrete allegations of conduct that were attributed to identified Qantas employees. Ms Forshaw alleged that that conduct and the state or states of mind that attended it were attributable to Qantas by operation of s 793 of the FW Act; and that, by reason of that process of attribution, Qantas should be understood to have engaged in conduct in contravention of s 340(1) of the FW Act.

9    The Specific s 351 Pleas were similar, save that the conduct to which they pertained was said to be conduct engaged in by Qantas in contravention of s 351(1) of the FW Act.

10    By the so-called “Workplace Culture Plea”, Ms Forshaw sought to hold Qantas to account for what she described as “a workplace that was hostile to women”. That state of affairs was said to exist “[b]y reason of the matters pleaded in [various earlier paragraphs of the ASOC] (or any combination of the matters pleaded in those paragraphs)”. It was then said that that “workplace that was hostile to women”—which was then defined as Qantas’s “Sexist Culture”—had the effect of injuring Ms Forshaw in her employment and discriminating against her relative to Qantas’s male employees. There were then allegations that, “[b]y creating the Sexist Culture, failing to prevent the existence of the Sexist Culture and / or allowing the Sexist Culture to continue, Qantas took adverse action against Ms Forshaw within the meaning of s.342 of the FW Act”; and that it did so “[i]n contravention of s.351 of the FW Act…because of Ms Forshaw’s sex”.

11    By the ruling in Forshaw No 1 (and for the reasons there given), the court resolved to strike out discrete parts of “the s 340 contraventions” and the “Specific s 351 Pleas”, and all of the “Workplace Culture Plea”.

12    The Proposed FASOC maintains the same three species of claim. The changes that it incorporates stand, for the most part, as Ms Forshaw’s attempt to identify particular instances of conduct that are said to have visited the “adverse action” of which she complains; and to identify the individual Qantas officers, agents or employees that engaged in that conduct.

13    Chief amongst those changes in the Proposed FASOC is a new paragraph, 4A, which reads as follows:

4A     Throughout Ms Forshaw’s employment, the board of directors for Qantas (Board) and the Chief Executive Officer for Qantas (CEO), the Chief Financial Officer for Qantas (CFO) and the CEO’s direct reports (Direct Reports) (collectively or separately) were responsible for implementing and maintaining an inclusive and diverse workplace culture at Qantas and a workplace that is free from discrimination and sexual harassment.

Particulars

1.     The Qantas Inclusion and Diversity Policy 2019 provides that:

a.     the Group Management Committee (consisting of the CEO, CFO and the CEO’s Direct Reports) is accountable for delivering initiatives and measures to provide an inclusive and diverse workplace culture at Qantas and a workplace that is free from discrimination and sexual harassment; and

b.     The Board Nominations Committee is responsible for overseeing the implementation and ongoing monitoring of the Group Inclusion and Diversity Strategy, which is designed to provide an inclusive and diverse workplace culture at Qantas and a workplace that is free from discrimination and sexual harassment

2.     Predecessor policies provide obligations to similar effect.

3.     Further particulars to be provided following discovery.

14    Thereafter, the Proposed FASOC navigates a similar path to that which the ASOC charted: it identifies a number of discrete episodes of conduct involving Qantas employees, each of which is characterised by commentary or representations that could fairly be impugned as sexist (assuming, for now, that they occurred). Some of that conduct is then said to have been the subject of complaints made by Ms Forshaw, which are later said to have been the reason (or part of the reason) for Qantas’s having taken what is described as various instances of adverse conduct against her. That conduct is said to have been engaged in in contravention of “s 340” of the FW Act (most likely s 340(1)).

15    En route to that conclusion, the Proposed FASOC explains how it is that the conduct and states of mind of Qantas’s employees can and should be attributed to Qantas. In its current form (maintaining the changes that are tracked from the ASOC), paragraph 65 reads as follows:

Conduct of officers

65.     By reason of s.793 of the FW Act: Qantas is liable for

(a)     the conduct of the Board, CEO, the CFO, the Direct Reports, Captain Darryl Brick, Michael Hodge, Brad Calvert and Malcolm Campkin-Smith as pleaded in this statement of claim is taken to be the conduct of Qantas; and

(b)     the state of mind of each of the individuals on the Board, the CEO, the CFO, the Direct Reports, Captain Darryl Brick, Michael Hodge, Brad Calvert and Malcolm Campkin-Smith as pleaded in this statement of claim is attributed to Qantas

The conduct of:

(c)     Captain Brick pleaded in this statement of claim was within the scope of his actual or apparent authority for and on behalf of Qantas;

(d)     Michael Hodge pleaded in this statement of claim was within the scope of his actual or apparent authority for and on behalf of Qantas;

(e)     Brad Calvert pleaded in this statement of claim was within the scope of his actual or apparent authority for and on behalf of Qantas; and

(f)    Malcolm Campkin-Smith pleaded in this statement of claim was within the scope of his actual or apparent authority for and on behalf of Qantas.

16    The Proposed FASOC then proceeds under the heading “Contraventions of s 351 of the FW Act”. Paragraphs 80A to 80D contain what is proposed to be a revised articulation of the “Workplace Culture Plea” to which reference is made in Forshaw No 1. It is prudent to reproduce those paragraphs in full (again maintaining the mark-up that delineates them from the form that they assumed prior to that ruling):

80A.     By reason of the matters pleaded in paragraphs 5 to 8A, 9 to 9E, 10, 21 to 25, 26, 32(f), 40 to 47, 51 to 52, 54, 55 and 59 above (or any combination of the matters pleaded in those paragraphs), the Qantas workplace in which Ms Forshaw was employed was a workplace that was hostile to women in that it was and is a workplace:

a)     that is characterised by discriminatory conduct so severe and pervasive that it interfered with Ms Forshaw’s ability to perform her role;

b)     that is characterised by employees making disparaging comments about women including comments that:

(i)     demonstrate hostility or negativity towards women taking maternity leave or having flexible workplace arrangements;

(ii)     include allegations and demonstrate resentment that women were progressing their careers at Qantas by reason of gender and not merit; and

(iii)     demonstrate hostility or negativity towards diversity and inclusion policies and initiatives;

c)     that is an intimidating, offensive, threatening or humiliating work environment to women;

d)     where a woman's psychological well-being is adversely affected because of their gender;

e)     where female pilots were more likely than male pilots to experience sexual harassment by a colleague;

f)     where female pilots are more likely to reported experiences of sexual harassment than male pilots;

g)     where female pilots were twice as likely to report experiences of bullying than male pilots; and / or

h)     where female pilots are held to a higher standard than their male counter-parts and / or have unablebeen unable to progress their careers as quickly as their male counterparts.

(Sexist Culture)

80AA     By reason of paragraph 4A above and the matters identified in paragraph 80A above, the Board, the CEO, the CFO, and the Direct Reports (collectively or separately) failed to prevent the existence of the Sexist Culture and / or allowed the Sexist Culture to continue in that the Board, the CEO, the CFO, and the Direct Reports (collectively or separately):

(a)     failed to implement adequate policies and training to prevent the conduct and matters identified in paragraph 80A above;

(b)     failed to ensure that employees of Qantas were adequately trained and educated so as to prevent the conduct and matters identified in paragraph 80A above; and

(c)     failed to take appropriate action to address the matters raised in the Broderick Review.

80B     The Sexist Culture Ms Forshaw suffered adverse action within the meaning of s.342(1)(b) and (d) by reason of the conduct pleaded in 80AA above in that it had the effect of:

(a)     injuring Ms Forshaw in her employment with Qantas; and /or

Particulars

1.     Ms Forshaw was denied the quiet enjoyment of her profession;

2.     Ms Forshaw was subjected to improper conduct in the performance of her duties;

3.     Ms Forshaw was required to perform at a higher standard during training compared to her male counter-parts without being awarded better results;

4.     Ms Forshaw suffered stress, anxiety and humiliation;

5.     Further particulars provided below in respect of the specific conduct engaged in by each of Captain Brick, Michael Hodge, Brad Calvert and Malcolm Campkin-Smith.

(b)     discriminating against Ms Forshaw compared to male employees of Qantas.

Particulars

1.     Ms Forshaw was denied the quiet enjoyment of her profession;

2.     Ms Forshaw was subjected to improper conduct in the performance of her duties;

3.     Ms Forshaw was required to perform at a higher standard during training compared to her male counterparts without being awarded better results;

4.     Ms Forshaw suffered stress, anxiety and humiliation;

5.     Further particulars provided below in respect of the specific conduct engaged in by each of Captain Brick, Michael Hodge, Brad Calvert and Malcolm Campkin-Smith.

…

80C     The reason the conduct pleaded in 80AA above had the effect pleaded in paragraph 80B above was because of Ms Forshaw’s gender. By creating the Sexist Culture, failing to prevent the existence of the Sexist Culture and / or allowing the Sexist Culture to continue, Qantas took adverse action against Ms Forshaw within the meaning of s.342 of the FW Act.

80D     In contravention of s.351 of the FW Act, the adverse action pleaded in 80C above was taken because of Ms Forshaw’s sex. By reason of the matters pleaded in paragraph 65 above, the conduct of the Board, the CEO, the CFO, and the Direct Reports, is taken to be the conduct of Qantas and by reason of the matters pleaded in paragraph 80C above, Qantas contravened s.351 of the FW Act in that Ms Forshaw suffered adverse action because of her gender.

17    The Proposed FASOC then takes aim at some of the discrete instances of conduct earlier identified (which, collectively, stand as the “Specific s 351 Pleas” to which Forshaw No 1 refers). It is said that that conduct is attributable to Qantas, that it amounted to adverse action as against Ms Forshaw under s 342(1) of the FW Act, and that it was engaged in (including by Qantas) because Ms Forshaw is female. In each case, it is said that Qantas acted in contravention of s 351 of the FW Act.

Leave to amend

18    For present purposes, there is nothing at the level of principle concerning when the court might or might not grant leave to amend a pleading that is controversial. In Caason Investments Pty Ltd v Cao (2015) 236 FCR 322, 326-327 [19]-[21] (Gilmour and Foster JJ, Edelman J dissenting), the majority observed:

[19]    The power of the Court to grant or refuse leave must be exercised in the way that best promotes the Court’s overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible…

[20]    The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings… The object of the Court is not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy …

[21]    Leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs…

19    The principles regulating the striking out of a pleading are similarly well-settled. In Uber Technologies Incorporated v Andrianakis (2020) 61 VR 580 (Niall, Hargrave and Emerton JJA), the Victorian Court of Appeal endorsed (at 599-600 [50]) the following summary of principle that was enumerated in Wheelahan v City of Casey (No 12) [2013] VSC 316, namely (reference omitted):

…

(b)    the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;

(c)    the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;

(d)    as a corollary, the pleading must be presented in an intelligible form — it must not be vague or ambiguous or inconsistent. Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;

(e)    the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;

…

(g)    a pleading which contains unnecessary or irrelevant allegations may be embarrassing — for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;

(h)    it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;

…

(o)    the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and

(p)    if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.

20    As a “general principle”, then, leave to amend a pleading “…should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for”: Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2010] FCA 494, [8] (Stone J).

Application

21    With those principles stated, attention should turn to the nature of the amendments contained within the Proposed FASOC. As I did in Forshaw No 1, I shall commence that analysis by focusing upon the “Workplace Culture Plea” contained within paragraphs 80A to 80D of the Proposed FASOC.

The Workplace Culture Plea

22    Qantas’s complaints about the Workplace Culture Plea in the Proposed FASOC are multi-faceted. To begin, it complains that paragraph 80A suffers from the same want of clarity that plagued it when it assumed the form that it assumed prior to being struck out. It is said that the “…addition of alleged generalised and wholly unparticularised ‘characteristics’ of the alleged workplace in paragraphs 80A(a) to (h) do not cure the defects”.

23    That is most certainly so. It is to be remembered that, in Forshaw No 1, I accepted that paragraph 80A of what was then the ASOC was “inherently indistinct”. It was objectionable because it was vague and conclusory (and, therefore, embarrassing). By the amendments incorporated into the Proposed FASOC, there can be no doubt that Ms Forshaw has at least attempted to flesh out the vague assertion from which her ASOC formerly suffered (namely, that she was employed within a “workplace that was hostile to women”). For the most part, though, that has been done by introducing constituent characteristics that are equally nebulous or conclusory (or both).

24    Paragraph 80A(a) is a good example. Held up as a regard in which Ms Forshaw’s “workplace” ought to be understood as one that “was hostile to women”, it maintains that that “workplace” was “characterised” by “discriminatory conduct” that was “so severe and pervasive” that its result was that “Ms Forshaw’s ability to perform her role” was “interfered with”. Every aspect of that assertion is vague. What was the discriminatory conduct? What made it severe and pervasive (or what made it so)? How was Ms Forshaw’s ability to perform her role constrained? When might conduct be said to “characterise” a workplace?

25    Paragraph 80A(c) is in the same category. It posits that Ms Forshaw’s workplace was “a workplace that was hostile to women” because it constituted (and still constitutes) “an intimidating, offensive, threatening or humiliating work environment to women”. Again, the difficulties with that assertion are manifest. Intimidating how..? Offensive how..? How, I ask rhetorically, could any employer faced with an accusation like that sensibly respond to it?

26    The same criticisms attach to paragraph 80A(d) and 80A(h). The former alleges that the workplace in which Ms Forshaw was employed was one “where a woman’s psychological well-being is adversely affected because of [her] gender”. It can safely be assumed that the reference there to “a woman” is intended as a reference to more than one of Qantas’s female employees. Perhaps it is intended as a reference to all of them. But what is meant by “psychological well-being” being “adversely affected” is anything but clear. Affected how..? What is the “higher standard” referred to in 80A(h)? What is the career progress referred to? Should that subparagraph be understood to assert that there are no female employees who have “progress[ed] their careers” (whatever that might mean in practice) as quickly as any of their male counterparts; or that, on average, it takes female employees longer than it takes male employees to achieve certain (as yet unidentified) things?

27    Despite its size and undoubted resources, Qantas cannot fairly be expected to know with any precision—and certainly not the precision to which it is entitled—what it is that is hoped to be pressed against it. Nor can the court. Paragraph 80A of the Proposed FASOC purports to take an inherently uncertain and conclusory concept—“a workplace that was hostile to women”—and define it with others that are equally conclusory and just as uncertain.

28    The case that Ms Forshaw hopes to advance against Qantas is not to be tried in the court of public opinion, where the vibe or gist might suffice and the inconveniences of procedural fairness might more readily be dispensed with. Rather, it will be tried in a court of record, in which the weight of precedent rightly requires that litigants, no matter their size or resources, be afforded—and be entitled jealously to insist upon—a precise and intelligible articulation of the case that is pressed against them. Paragraph 80A of the Proposed FASOC is a very clear example of failure in that regard.

29    But, as with its predecessor, the problems with the Workplace Culture Plea do not end there.

30    Paragraph 80A serves merely to stand as a description of a state of affairs. It is that state of affairs that is later said (at paragraph 80B) to inhere in the injury or discrimination that is claimed to constitute the adverse action to which Ms Forshaw says that she was subjected. It is in paragraph 80AA of the Proposed FASOC that Ms Forshaw attempts to identify the conduct—that is to say, the acts or omissions that are ultimately attributable to Qantas—that she says brought about that state of affairs.

31    Anticipating the objections raised in respect of it, Ms Forshaw submits that 80AA of the Proposed FASOC should suffice as a statement of who, within Qantas, should be understood to have brought about the “Sexist Culture” that is the subject of paragraph 80A. To identify by name the specific “human actors” and the specific conduct in which each of them engaged would, she says, be “…an impossible task in circumstances where [she] cannot know the inner-workings of [Qantas] and which person failed to perform a specific function.” Ms Forshaw’s submission continues:

Given the statutory framework, it would make a mockery of s.361 of the Fair Work Act 2009 to require an Applicant, who may not know the inner-workings of a corporate respondent to identify the individuals within a group of people who may or may not have undertaken certain tasks or made decisions. For example, an applicant alleging that she was terminated by reason of pregnancy may not know the identity of the decision maker(s) within a corporate respondent. In the recent litigation involving the TWU v Qantas which has recently been the subject of a decision in favour of the Union by the High Court, the union did not know the identity of the decision maker and did not plead the name of any decision maker in its application.

32    Some reliance was also placed on the observations of Mason J in General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605 (“Bowling”). Speaking of a predecessor to s 361(1) of the FW Act, his Honour in that case noted (at 617) that:

…the plain purpose of the provision [is to cast] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.

33    Ms Forshaw maintains, at least to a degree, that the conduct of individual Qantas officers that resulted in the tolerance of or failure to prevent the “Sexist Culture” described in paragraph 80A of the Proposed FASOC is peculiarly within Qantas’s knowledge.

34    Ms Forshaw’s submission may be understood as an attempt to address what was said (at [33]-[46]) in Forshaw No 1. There, the court was concerned to address what was then paragraph 80C of the ASOC, by which Ms Forshaw accused Qantas of creating, tolerating or failing to prevent the existence of a workplace that was hostile to women. For ease of reference, it repays to replicate some of the court’s observations, namely:

33    …[T]he creation of, tolerance of and/or failure to prevent the existence of a workplace that was hostile to women is attributed solely to Qantas. The ASOC does not plead any material facts that are capable of establishing that attribution (whether by application of s 793(1) of the FW Act or otherwise). Who it was that is said to have done or not done the things that resulted in the creation, tolerance or failure that is alleged is wholly unexplained, as is the nature of their agency or relationship to the alleged corporate wrongdoer. Neither Qantas nor the court can know how it is put that Qantas did or did not do the things that it is said to have done or not done.

34    Counsel for Ms Forshaw sought to answer that criticism in two ways. First, he submitted that the creation, tolerance or failure is necessarily to be inferred from what is pleaded at paragraph 80A of the ASOC: in other words, that it may be said, by reason of its existence, that a workplace that was hostile to women was created, tolerated or not prevented. Second, he contended that s 361(1) of the FW Act serves to relieve his client of any need to identify the human agents whose conduct is to be attributed to Qantas. I shall address each contention in turn.

35    There is a logical attraction to the first contention but, ultimately, it is circular. Qantas is entitled to know not merely what the state of affairs that is said to have existed was; but also how it is said to have existed as a consequence of conduct properly attributable to it. It is no answer to say that, because the state of affairs existed, it should necessarily follow that Qantas created, tolerated or failed to prevent it. Perhaps that might be so; but so to find would require the establishment of other material facts, none of which is pleaded. Moreover, the facts that might suffice to establish the creation of the state of affairs to which 80A of the ASOC refers may or may not be the same facts by which Qantas is said to have tolerated or failed to prevent it. It cannot be left to Qantas to guess what those other facts might be. Nor is it under any obligation to identify them itself, even assuming that it is well placed (or, perhaps, better placed than Ms Forshaw) to do so. Qantas is entitled to know the material facts by reason of which Ms Forshaw intends to attribute to it the conduct that paragraph 80C alleges. Ms Forshaw is obliged to plead them.

36    It might be accepted that those conclusions present difficulties for Ms Forshaw—indeed any applicant. It may well be the case that Ms Forshaw’s proper basis for pleading that Qantas created, tolerated or failed to prevent what it is said to have created, tolerated or failed to prevent arises only from the existence of what she says was created, tolerated or not prevented. Perhaps it will be difficult for her to identify the human agents through whose conduct—whether acts or omissions—the court might find that Qantas created, tolerated or failed to prevent the state of affairs to which she points.

37    Three responses spring immediately in answer to that proposition. First, that difficulty is not a basis upon which the court might properly deny Qantas its entitlement to know, with precision, the case that is mounted against it (including in connection with how conduct is to be attributed to it). Second, Ms Forshaw has had available to her a raft of processes under the Rules by which she might, if she needed to, obtain answers to any such difficult questions. Third, in circumstances where, as here, it is to be alleged that particular conduct was at least partly actuated by an identified reason, it is difficult (though perhaps not necessarily impossible) to see how an applicant might have a proper basis for saying so in the absence of knowing by whom that conduct was undertaken.

38    I turn, then, to the application of s 361(1) of the FW Act. Counsel for Ms Forshaw submitted that, by operation of that provision, his client is not obliged to identify the human agents by whose conduct Qantas might be said to have done or not done the things that paragraph 80C of the ASOC attributes to it. The effect of that section, he contended, is that it suffices for Ms Forshaw simply to allege as she has; and that it then falls to Qantas to address it as best it can.

39    That contention is plainly wrong and I reject it…

…

43    …[N]either of s 361(1) of the FW Act or r 16.03(2) of the Rules operates to relieve an applicant in a general protections matter of his or her obligation to prove (and, therefore, properly to plead) that a respondent’s conduct was at least partly animated by a reason or state of mind that pt 3-1 relevantly proscribes...

…

45    Section 361(1) of the FW Act does not operate to qualify, nor to relieve an applicant of, the obligation to plead with orthodox precision the case that is to be advanced against a respondent. Instead, it operates to facilitate, by means of a rebuttable presumption, the proof of one aspect of such a case (namely, the state or states of mind by which identified conduct is said to have been at least partly actuated)... Contrary to the effect of Ms Forshaw’s submission, the statutory presumption does not serve to suspend the ordinary conventions of procedural fairness so as to require that a respondent should make its own sense of a case advanced vaguely against it.

46    An applicant in a matter commenced under pt 3 1 of the FW Act must plead, in the usual way, the conduct in which a respondent is said to have engaged. In the case of corporate respondents, that endeavour necessarily requires the identification of the human actors whose conduct is said to be relevantly attributable, and of the agency or other circumstances that suffice to associate that conduct as conduct of the body corporate. Paragraph 80C of the ASOC quite obviously fails in those regards.

35    Respectfully, Ms Forshaw’s attempts to address those observations are not compelling. The two examples that she cites in that endeavour—that of a pregnant former employee and that of ground crew workers previously engaged by Qantas—are inapt. Pleadings that allege the termination of an applicant’s employment are rarely objected to. That, naturally enough, reflects the binary nature of dismissal: it is only in the rarest of cases that a respondent employer that stands accused of terminating an applicant’s employment will have occasion to query what is put against it. In the vast majority of cases of that kind, the reality of dismissal is not a live issue.

36    So to observe, though, is not to doubt that the hypothetical employer in that scenario would be entitled to further precision upon request if it were required. In the face of such a request, it would—or might—be open to an applicant to provide additional detail once he or she has had an opportunity to benefit from the various facilitative processes for which the FCA Rules provide. Be that as it may, it remains the case that an employer is entitled to know, with the usual precision, the matters that are advanced against it. That extends to those aspects of a case that concern the attribution of relevant acts, omissions and states of mind of an employer’s agents.

37    It is, then, of no moment that an employee who claims to have been dismissed by reason of pregnancy or an ability to partake of industrial activity may in some cases be able to press a general protections claim without first identifying the human officers through whom a corporate employer is alleged to have acted. Employers are not obliged to seek that clarity and there might well be forensic reasons not to. That there have been other matters in which employers have not sought to hold applicants to the conventional standards of pleading is not a circumstance from which Ms Forshaw can draw any comfort.

38    Here, of course, the adverse action that Ms Forshaw alleges is not nearly as clear cut as dismissal. The adverse action of which she complains inheres in Qantas’s alleged tolerance of and/or failure to prevent the “Sexist Culture” that is the subject of paragraph 80A of the Proposed FASOC. The acts or omissions that might or might not accumulate to points that bespeak that tolerance or failure are far less clear than what might suffice to effect the termination of a person’s employment.

39    The observations that I made in Forshaw No 1 (above, [34]) ring as true now as they did then. The Proposed FASOC does not identify—at least not with anything approximating the precision to which Qantas is entitled—the individual officers or employees of Qantas that did or did not do the things that are said to have resulted in the tolerance or failure that paragraph 80AA purports to articulate.

40    There are additional problems with paragraph 80AA. The first and most obvious concerns its rolled-up nature. It posits that each of those who, over the more than two decades that Qantas has employed Ms Forshaw, has served as:

(1)    a member of Qantas’s board;

(2)    as its CEO or CFO; or

(3)    as a direct report of its CEO,

failed in each of the three respects then identified in subparagraphs (a) through (c). Those failures are attributed to those people (whoever they might be) “separately and collectively”.

41    Couched in those terms, paragraph 80AA of the Proposed FASOC is impossible to respond to in any sensible way. Is it suggested that those who were on the Qantas board in 1999, when Ms Forshaw was first employed (and a decade before the FW Act was enacted), failed collectively with those who now report to its chief executive officer? When and by what acts or omissions? Is it suggested that there were collective failures involving people who did not work for Qantas (or otherwise occupy offices on its board) at the same time? The allegation is so patently imprecise as to defy even the most conscientious attempt at rejoinder.

42    All the more is that so when one has regard to the three species of failure that are then set out in subparagraphs (a) to (c). Each is obviously and impermissibly vague. What is meant by a failure to “implement adequate policies”? How does one “implement” a “policy”? What policies or training would have been “adequate” for present purposes? What might suffice as “adequate…educat[ion]”? What “action” was “appropriate” to address “the matters in the Broderick Review”. Qantas is left simply to guess what is meant on all of those fronts.

43    Further, paragraph 80AA of the Proposed FASOC draws back to the state of affairs described with an equal if not greater want of clarity in paragraph 80A. The result is imprecision squared. No respondent—not even one as large and well-resourced as Qantas—could possibly begin to know how to respond to what is alleged by paragraph 80AA.

44    I should say something about Bowling. The observation of Mason J (above, [32]) concerned s 5(4) of the Conciliation and Arbitration Act 1904 (Cth). That section, a predecessor to s 361(1) of the FW Act, served to create a statutory presumption as to the reason or reasons for which conduct might be understood to have transpired. His Honour’s observation concerned the evident purpose by which the enactment of the section was animated. It cannot be understood as acceptance of the proposition that the rebuttable presumption extends to the proof of—much less that it relieves of an obligation properly to allege—the conduct by reason of which an applicant claims to have been subjected to adverse action (or its statutory antecedents).

45    So much is made clear by the terms of the section to which his Honour was referring. Section 5(4) of the Conciliation and Arbitration Act 1904 (Cth) provided as follows:

In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.

46    Immediately, it is clear that the regime under consideration in Bowling did not envisage that the statutory presumption should extend to proof of a respondent’s conduct.

47    Likewise, s 361(1) does not operate with that effect. Rather, it “…is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another”: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 [161] (Branson J—her honour was there speaking of s 298V of the Workplace Relations Act 1996 (Cth), which was in materially identical terms to s 361(1) of the FW Act). It has always been and it remains for an applicant in a general protections matter to allege with conventional precision (and, indeed, to prove) both his or her subjection to conduct that qualifies as adverse action under s 342(1) of the FW Act, and the attribute or circumstance by reason of which it is alleged that that conduct was engaged in: Transport Workers’ Union of Australia v Qantas Airways Limited (2021) 308 IR 244, 310 [215]-[216] (Lee J); Tattsbet v Morrow (2015) 233 FCR 46, 75-76 [119] (Jessup J, Allsop CJ and White J agreeing). Only once it is established that adverse action has been taken (a fact that must be pleaded and proved in the usual way) will it be presumed that it was taken for the reason alleged: Herbert v Star Aviation Services Pty Ltd [2019] FCA 239, [13] (Flick J).

48    Neither the tolerance of nor the failure to prevent the “Sexist Culture” to which Ms Forshaw points—or, more precisely, the constituent acts or omissions that might have resulted therein—are matters that are peculiarly within the knowledge of Qantas’s employees or officers. Unlike a state or states of mind—which, by definition, form peculiarly in respect of particular conduct within the conscience or consciences of those who engage in it—the acts and omissions of relevance in this matter can, like any other conduct, be interrogated as a matter of historical reality.

49    Paragraph 80AA is unambiguously objectionable. Leave to file the pleading should be refused at least for that reason.

50    Paragraph 80B of the Proposed FASOC pleads that the conduct that is the subject of paragraph 80AA was sufficient to injure Ms Forshaw in her employment, or otherwise to discriminate against her relative to her male co-workers. I confess, at the outset, some difficulty in following how that is to be put. It is not apparent at this juncture that Ms Forshaw might be thought to have suffered any injury, or to have been discriminated against, merely by reason of the existence of a workplace culture (as opposed to any instances of poor conduct that might, from time to time, be thought to reflect it, which plainly could suffice). That is something that Ms Forshaw would need to make clear at trial.

51    Nonetheless (and leaving aside what has already been said about paragraph 80AA), from a pleadings viewpoint, paragraph 80B of the Proposed FASOC seems unobjectionable. It posits that the conduct earlier alleged to have occurred (the tolerance of and failure to prevent the “Sexist Culture”) brought consequences for Ms Forshaw and that those consequences sufficed to characterise that conduct as adverse action within the meaning attributed to that phrase by s 342(1) of the FW Act. There is nothing necessarily unorthodox about that.

52    Paragraph 80C then purports to identify the proscribed reason that is said to have animated that adverse action (and, thereby, to have made it unlawful under pt 3-1 of the FW Act). It posits that the effects described in paragraph 80B of the Proposed FASOC (injury in employment and discrimination relative to male co-workers) were consequences of Ms Forshaw’s gender.

53    Qantas attacks that plea on two fronts. First, it contends that “gender” is not the same as “sex” and is not an attribute that is protected by s 351(1) of the FW Act. I can address that swiftly—and without commentary upon any distinctions that separate the two concepts. It is plain beyond doubt that Ms Forshaw means, by paragraph 80C of the Proposed FASOC, to contend that the injury and discrimination set out in paragraph 80B arose because she is a woman.

54    The bigger concern (and Qantas’s second line of attack) is that paragraph 80C of the Proposed FASOC is founded upon a misunderstanding of how pt 3-1 of the FW Act operates. Section 351(1) does not prohibit conduct that has the effect of injuring women in their employment or visiting upon them discriminatory consequences on account of their sex. It prohibits conduct that visits injurious or discriminatory impacts if, and only if, it is taken against a person because he or she possesses a prescribed attribute. It is not merely the effects of identified conduct that bring it within the realm of what is actionable under pt 3-1 (and s 351(1)) of the FW Act. The proscribed subjective motivations must also be present.

55    Paragraph 80C of the Proposed FASOC, then, is very plainly inadequate to establish any cause of action under s 351(1) of the FW Act. Nowhere does it (or any other paragraph) allege that any of the officers identified in paragraphs 4A and 80AA—that is, any of the board members, CEOs, CFOs or CEO direct reports that Qantas has engaged since 1999—did anything, by act or omission, alone or in concert, because Ms Forshaw is a woman.

56    Ms Forshaw’s case concept is simple enough. She seeks to hold Qantas accountable for the “Sexist Culture” that she alleges has developed through executive acquiescence or indifference. In simple terms, her suggestion is that Qantas has failed its female employees in some ways. It is, perhaps, a simple case to prosecute in the court of public opinion and perhaps it is actionable under other statutory causes; but it is yet to be shown as a case theory that can be shoehorned into the shape of something that s 351(1) proscribes. If Ms Forshaw has a basis for alleging that Qantas employees or agents have taken action against her because she is a woman, then she should say so. In its present form, paragraph 80C of the Proposed FASOC does not assist in disclosing any maintainable cause of action under s 351(1) of the FW Act. It is plainly objectionable for that reason; and leave to file the Proposed FASOC should be withheld on that (additional) basis.

57    Equivalent observations may be made about paragraph 80D of the Proposed FASOC. It purports to tie together the conduct identified in paragraph 80AA, the effects identified in paragraph 80B and the proscribed attribute identified in paragraph 80C. Given what I have said about paragraphs 80AA and 80C, paragraph 80D is unsalvageable.

58    But there is, at least potentially, a further problem.

59    Paragraph 80D of the Proposed FASOC purports to attribute to Qantas “the conduct of the Board, the CEO, the CFO, and the Direct Reports”. That attribution is said to be possible “[b]y reason of the matters pleaded in paragraph 65 above”. Insofar as concerns their conduct, paragraph 65(a) of the Proposed FASOC appears unobjectionably to mirror the effect of s 793(1) of the FW Act. That being so, the attribution of conduct alleged by paragraph 80D seems orthodox.

60    Insofar as concerns the attribution of states of mind, however, paragraph 65(b) of the Proposed FASOC travels beyond the observable limits of s 793(2) of the FW Act. Section 793(2) of the FW Act does not operate generally to attribute to bodies corporate the states of mind possessed by their agents, employees or officers. It does so only when it is necessary under the FW Act or associated rules to establish a corporate state of mind; and only then “in relation to particular conduct”. Thus, if it is necessary to do so—for example, as here, for the purposes of assessing whether s 351(1) of the FW Act has been contravened—the state of mind of a body corporate “in relation to particular conduct” can be established by showing the state of mind of the person or people who engaged in it. By s 793(2) of the FW Act, the states of mind of those people are attributed to the body corporate in relation to (and only in relation to) that conduct.

61    Paragraph 65(b) of the Proposed FASOC contemplates a general attribution to Qantas of the states of mind of the officers that it identifies. In so doing, it misstates the words and effect of s 793(2) of the FW Act.

62    It is difficult to know how (or whether, or the extent to which) that reality bears upon what is pleaded at paragraph 80D of the Proposed FASOC. By its terms, that paragraph does not purport to attribute to Qantas the states of mind of any individual agents. If Ms Forshaw is to maintain against Qantas a cause of action under s 351(1) of the FW Act, she will need to establish (at least by alleging) a corporate state of mind. Insofar as she might seek to establish one by relying upon s 793(2) of the FW Act, she will only be able to do so “in relation to particular conduct”. She will not be able to do so in the more generalised way that paragraph 65(b) of the Proposed FASOC contemplates. She will not, for example, be able to establish (at least not by application of s 793(2) of the FW Act) that Qantas proceeded with the state of mind possessed by one person to engage in conduct that was effected wholly by (or without any material influence from) somebody else.

63    During the hearing of the interlocutory application, counsel for Ms Forshaw acknowledged that it was not her intention to attribute states of mind in that generalised way; so perhaps the issue is not as significant as it appears potentially to be on the face of the Proposed FASOC. Regardless—and on the assumption that some further refining of the pleading is to be attempted—it might be something to which attentions can turn.

64    The Workplace Culture Plea remains objectionable in its proposed form. As a whole, it is embarrassing and it fails to disclose a reasonable cause of action. Although discrete elements of it might survive if looked at in isolation, the constituent parts only sensibly work as part of a whole. Nothing about paragraphs 80A to 80D of the Proposed FASOC is salvageable and the application for leave to amend must, therefore, fail.

The s 340 and 351 pleas

65    Given the observation just recorded, I propose to limit what should be said about the other causes of action that Ms Forshaw hopes to prosecute. During the course of the parties’ written and oral submissions—and, indeed, the correspondence that was exchanged prior to them—Qantas raised a small number of issues about the manner in which those pleas are (or are proposed to be) expressed. None requires any analysis here. Some were the subject of helpful clarification at the hearing; and all are (and appeared to be accepted as) what I would describe as minor and fixable. None was the focus of attention at the hearing of Ms Forshaw’s interlocutory application, which was directed almost exclusively toward the Workplace Culture Plea.

66    I am confident that, with appropriate (which is to say, continued) industry and goodwill, the parties will be able to address by themselves the discrete matters that have been identified and, in the absence of any need to (given that it won’t change the result), I don’t propose to enter upon that fray.

Conclusion

67    The interlocutory application of 31 October 2023 must and will be dismissed. I will, for now (and as requested), reserve the question of costs for determination at a later time, if indeed Qantas is minded to make an application for any pursuant to s 570(2) of the FW Act.

68    Beyond that, the parties should confer, and, if possible, agree upon and submit to my chambers such case-management directions as they feel are appropriate in light of these reasons. In the event that they are unable to agree upon any, they should, within 21 days, advise my chambers and a hearing will be convened to that (case management) end.

Associate:

Dated:    2 May 2024