Federal Court of Australia

Conradsen v Carpentaria Land Council Aboriginal Corporation (No 2) [2025] FCA 292

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to file a notice of appeal from the primary judgment is allowed.

2.    The applicant’s interlocutory application seeking the admission of new evidence is dismissed.

3.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

Introduction

1    The applicant seeks an extension of time to file a notice of appeal from the judgment in Conradsen v Carpentaria Land Council Aboriginal Corporation [2022] FedCFamC2G 679 delivered on 19 August 2022.

2    By that judgment, the primary judge dismissed the applicant’s claim that his employment had been unlawfully terminated by the respondent in contravention of s 340 of the Fair Work Act 2009 (Cth) (the FWA).

3    For reasons that will follow, I allow the applicant an extension of time to file his notice of appeal. In the remainder of these reasons, I will refer to the applicant as “the appellant”.

4    The appellant seeks to admit fresh documentary evidence in the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). The application to admit fresh evidence will be dismissed.

5    The appeal will also be dismissed.

The primary judgment

6    On 19 August 2020, the appellant filed an originating application in the Federal Court of Australia seeking relief against the respondent, an incorporated Land Council, which was a service provider for a number of Prescribed Bodies Corporate. A Prescribed Body Corporate is established to hold native title rights and interests in trust following a determination of native title.

7    By order of Logan J dated 4 September 2020, the proceeding was transferred to the Federal Circuit Court of Australia (as it then was).

8    The appellant alleged that the respondent had contravened s 340 of the FWA by terminating the appellant’s employment because he had exercised his workplace right to make complaints in relation to his employment. The appellant pleaded at paragraphs 11(a)-(aaa) of his Statement of Claim that he had made 49 complaints in relation to his employment.

9    The appellant had been employed as a project officer on a probationary basis since 21 November 2019. The appellant’s employment was terminated on 1 May 2019, at the end of the probation period.

10    The decision to terminate the appellant’s employment was made by Ms Amini-Yanner, the respondent’s Chief Executive Officer (CEO). In doing so, Ms Amini-Yanner accepted the recommendation of the respondent’s Principal Legal Officer, Mr Murphy. A briefing note by Mr Murphy expressed concerns about the adequacy of the appellant’s communication skills and his ability to focus on and carry out his role. Ms Amini-Yanner deposed that she agreed with Mr Murphy’s recommendation and that, when she made the decision, she was not aware of any grievance raised by the appellant about his employment.

11    The hearing before the primary judge took place from 16 to 25 November 2021. The appellant was self-represented at the trial before the primary judge. The witnesses gave evidence in chief by way of affidavit and they were cross-examined.

12    The primary judge referred to the leading authorities concerning s 340 of the FWA. These included the judgment of the Full Court in Alam v National Australia Bank Ltd (2021) 288 FCR 301 (Alam) where the Full Court held at [14]:

Several matters bearing upon the application of s 361 in relation to s 340 are settled:

(a)    in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken;

(b)    the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action;

(c)    an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason;

(d)    the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action;

(e)    the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding;

(f)    while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition;

(g)    the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action, but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action;

(h)    even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption;

(i)    the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; and

(j)    adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.

[Citations omitted; emphasis original.]

13    The primary judge observed that for the appellant’s claim to be proven, the appellant must have asserted and established that:

    he exercised a workplace right or the rights as pleaded in his Statement of Claim;

    the conduct complained of in fact occurred; and

    the action constituted adverse action pursuant to s 342(1) of the FWA.

14    His Honour observed at [18] that if these matters were established by the appellant, it was for the first respondent to prove, on the balance of probabilities, that it was not motivated by a proscribed reason.

15    The primary judge, at [29] of his reasons, stated that because of the number of alleged complaints made by the appellant, “the Court will abbreviate its findings by the use of two short form phrases, designed to identify such findings”. His Honour then referred to the first phrase, “failure by applicant to properly plead adverse action”, which was explained as being where the appellant had failed to allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it was said the action was taken. The second phrase “objective fact not established” was where the appellant, having alleged that adverse action was taken because of a particular circumstance, had failed to establish the existence of that circumstance as an objective fact. This description must be understood as encompassing a failure by the appellant to establish that he had in fact made his alleged complaint.

16    The primary judge then dealt with each alleged complaint in turn. The pattern of the reasons was to first explain the nature and circumstances of each complaint the appellant alleged he had made. His Honour then assessed the appellant’s evidence and the evidence of the person to whom the complaint had been alleged to have been made and made findings in respect of the alleged complaint.

17    The primary judge did not “accept that the applicant was a credible witness” and described the appellant’s evidence concerning various alleged complaints as “implausible”, “evasive”, and “bizarre, illogical and nonsensical”. Ultimately, his Honour found that only two of the alleged complaints had in fact been made.

18    The primary judge’s findings included:

    The appellant had failed to adequately plead adverse action in respect of the complaints pleaded in paragraphs [11] (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (q), (r), (s), (t), (u), (v), (w) (x), (y), (z), (aa), (bb), (cc), (dd), (ff), (gg), (ii), (jj), (mm), (nn), (oo), (pp), (qq), (rr), (ww), (xx) and (zz) of his Statement of Claim;

    The appellant had failed to establish that he had made any “complaint” for the purposes of s 341(1)(c) of the FWA with respect to the complaints pleaded in paragraphs [11](a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (q), (r), (s), (t), (u), (v), (w) (x), (y), (z), (aa), (bb), (cc), (dd), (ff), (gg), (ii), (jj), (ll), (mm), (nn), (oo), (pp), (qq), (rr), (tt), (uu), (vv), (ww), (xx) and (zz) of his Statement of Claim;

    The appellant had only established that he had made a “complaint” for the purposes of s 341(1)(c) of the FWA with respect to the complaints pleaded in paragraphs [11](p) and (ss) of his Statement of Claim;

    The appellant had withdrawn reliance on the complaints pleaded in paragraphs [11](ee), (hh), (kk), (yy) and (aaa) of his Statement of Claim.

19    The primary judge found that, in contrast to the appellant, Mr Murphy was a “logical and sensible” and “credible” witness. His Honour also found that Ms Amini-Yanner was a “logical, thoughtful and intelligent witness of credit”.

20    The primary judge accepted Ms Amini-Yanner’s evidence that she had agreed with Mr Murphy’s recommendation that the appellant’s employment should be terminated because she agreed that his style of communication was inappropriate for a person in his position, that he was not the right person for the role, and that she was unaware of any complaints he had made when she made the decision. The primary judge concluded that:

38    Ms Amini-Yanner clearly did not believe that the applicant had the capacity to effectively communicate with the Waanyi stakeholders, and the Court finds that that was the reason why she terminated the applicant’s employment. She was unaware of the making of any complaints by the applicant, but even if she had been, the Court finds that the making of any such complaint would not have constituted a substantial and operative reason for her to terminate the applicant’s employment.

39    The Court further finds that the making of the found complaints to Mr Murphy by the applicant did not constitute the substantial and operative reason for Mr Murphy’s recommendation to Ms Amini-Yanner that the applicant’s employment be terminated. Mr Murphy impressed the Court as being a down to earth person who was unimpressed by the applicant’s confusing use of language and obtuse manner in the context of even the simplest of communications. The Court finds that Mr Murphy had the respondent’s and the Waanyi stakeholders’ best interests in mind when making his recommendation to Ms Amini-Yanner to terminate the applicant’s employment.

21    One other aspect of the reasons that should be mentioned is the primary judge at [37] referred to the evidence of Ms Arnold, whom his Honour described as, “an indigenous person employed by the respondent who was experienced in dealing with Aboriginal people on country”. Ms Arnold gave evidence that the appellant’s communication style gave her concerns about whether he could effectively communicate with the respondent’s Indigenous stakeholders.

22    The primary judge held that the decision to terminate the appellant’s employment was not made for any prohibited reason and, accordingly, that the proceeding would be dismissed.

23    The primary judge also noted that, prior to handing down the judgment, his chambers had confirmed with each party that they were satisfied that all interlocutory applications filed in the proceeding had been dealt with at the hearing. This is relevant because the applicant suggested in his oral submissions that his Honour had failed to deal with his interlocutory application regarding an alleged contempt of Court. However, it is apparent that his Honour dealt with all the interlocutory applications he was asked to deal with.

The application for an extension of time

24    An appellant must file a notice of appeal within 28 days after the date of the judgment or orders appealed from: r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules). The time for appealing from the primary judgment expired on 16 September 2022.

25    On 25 September 2022 at 10.34 pm, the appellant lodged an application for an extension of time to file the notice of appeal and a supporting affidavit. The appellant raises the following matters in explanation of his delay in filing a notice of appeal:

(a)    he incorrectly thought that the correct procedure was to file the notice of appeal in the Federal Circuit and Family Court of Australia (FCFCOA);

(b)    on 16 September 2022 at 3.43 pm, within the time for filing an appeal, he attempted to file a notice of appeal and an application for waiver of court fees on the eLodgment portal of the FCFCOA, and received an eLodgment confirmation for filing;

(c)    on 19 September 2022, he became aware that the attempted lodgement in the FCFCOA was unsuccessful;

(d)    on 20 September 2022, he phoned the registry of the FCFCOA and was advised to change the eLodgment categories of the documents, which he subsequently did;

(e)    on 21 September 2022, the appellant received an email from the FCFCOA advising that he had filed the incorrect document in the incorrect court and would need to file new proceedings in the Federal Court;

(f)    22 September 2022 was a public holiday in Australia as a national day of mourning for Queen Elizabeth II; and

(g)    23 September 2022 was a public holiday in Victoria, where the appellant then lived, for the AFL Grand Final.

26    The appellant deposes that the difficulties he had in filing the notice of appeal within the required time are due to the fact that he is a self-represented litigant with limited litigation experience, suffering personal illness, adjusting to a new job which commenced on 9 August 2022 and caring for a person who was suffering from post-traumatic stress disorder.

27    Section 25(1AA) of the Federal Court Act provides that the appellate jurisdiction of the Court in relation to an appeal from a judgment of the FCFCOA (Div 2) may be exercised by a single Judge of the Court. Section 25(2)(b) provides that application for an extension of time within which to institute an appeal to the Court, will also generally be heard and determined by a single Judge.

28    In Parker v R [2002] FCAFC 133 the Full Court (Spender, O’Loughlin and Dowsett JJ), referring to Wilcox J’s decision in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349, identified at [6] the following principles as relevant to an application for an extension of time within which to appeal:

1.    applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The appellant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

2.    action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question of whether an acceptable explanation for delay has been furnished;

3.    any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4.    however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5.    the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

29    As the Full Court observed at [10] and [13], the purpose of the Court’s discretion to extend time in order to avoid injustice and to enable substantive justice to prevail over technical default.

30    In Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819, the plurality of the High Court observed at [12] that the factors relevant to an extension of time include the length of the delay, the reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.

31    It can be accepted that the delay in filing of nine days is relatively short.

32    While the appellant sought, in part, to explain his delay by personal ill-health, caring responsibilities and his engagement in a relatively new position of employment, he has not sought to explain exactly how these matters affected his ability to file the notice of appeal. However, the appellant’s explanation that he misunderstood which court he was required to commence the appeal is more cogent. It may be noted that, although the appellant has a law degree and some legal experience, he is not a practicing lawyer. I accept that his mistake as to the correct court in which to file his notice of appeal provides a reasonable excuse for his delay.

33    The appellant deposed that after he received the email from the FCFCOA on 21 September 2022 advising that he had filed the incorrect document in the incorrect court he, “spent those days and the adjoining weekend correcting the eLodgment filing to meet the requirements of the Brisbane registry”. The respondent submits that the delay was used for an improper purpose of creating a voluminous notice of appeal. The respondent relies on a comparison of the appellant’s first proposed notice of appeal, which was filed in the FCFCOA on 16 September 2022, and the notice of appeal that was lodged in this Court on 25 September 2022. I do not give any weight to the respondent’s submission since it would have been open to the appellant to amend his notice of appeal under r 36.10 of the Rules even if it had been filed within time.

34    I am satisfied that the appellant’s explanation for his delay, the comparatively short length of that delay and the absence of any specific prejudice weigh in favour of granting an extension of time to file the notice of appeal. Although the grounds of the proposed appeal are not strong, I am satisfied that it is appropriate to grant the extension of time.

Application to admit fresh evidence

35    The appellant has filed an application seeking the admission of further evidence pursuant to s 27 of the Federal Court Act. It appears that the further evidence he wishes to adduce is contained in his affidavits of 1, 6, 15 and 20 May 2024 and possibly an affidavit of Tonya Murray affirmed on 29 June 2024. The application is opposed by the respondent.

36    Section 27 of the Federal Court Act provides that, in an appeal, the Court may in its discretion receive further evidence, which may be taken by affidavit.

37    The manner in which a party may apply to the Court for the admission of fresh evidence in an appeal is prescribed by r 36.57 of the Rules, which relevantly provides:

36.57    Further evidence on appeal

(1)    A party may apply to the Court to receive further evidence on appeal.

(2)    The application must be filed at least 21 days before the hearing of the appeal and must be accompanied by an affidavit stating the following:

(a)    briefly but specifically, the facts on which the application relies;

(b)    the grounds of appeal to which the application relates;

(c)    the evidence that the applicant wants the Court to receive;

(d)    why the evidence was not adduced in the court appealed from.

…

38    The principles relevant to applications to adduce further evidence on appeal were conveniently summarised in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] as follows:

(1)    The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.

(2)    The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that the proceedings do not miscarry.

(3)    The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of “fresh evidence”.

(4)    The following two considerations will normally be relevant to the exercise of the discretion:

(i)    the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and

(ii)    the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence;

(5)    The interests of third parties and the public at large may outweigh a party’s interest in the finality of litigation…

39    This summary was reproduced with approval by the Full Court in Veale v Coleman (2024) 304 FCR 182 at [7]; see also CKT20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 294 FCR 318 at [32]-[34].

40    Importantly, the power is not to be used to obliterate the distinction between original and appellate jurisdiction: Frigger v Trenfield (No 3) [2023] FCAFC 49 at [152].

41    The further affidavits relied on by the appellant depose to or annex material that was in existence but was not before the primary judge, as well as material generated since the hearing. The material is not directly relevant to the matters in issue before the primary judge. In particular, the material is not directly relevant to the crucial issues of: (a) whether the appellant made the complaints he alleges he made; and (b) whether the respondent demonstrated that the making of such complaints was not a substantial and operative reason for the termination of his employment. For example, the appellant proposes to tender a great deal of material concerning: the control allegedly exerted over the respondent by Ms Amini-Yanner’s husband and his alleged bullying and other conduct; photographs showing the uniforms worn by the respondent’s staff; information about weather conditions; staff profiles; financial reports; examples of the appellant’s work while employed by the respondent; images from the respondent’s Facebook page; and text messages between the appellant and a witness he wished to call. I am unable to see that these documents could realistically have made any difference to the primary judge’s determination of the issues, including the crucial questions of the credibility of Mr Murphy’s and Ms Amini-Yanner’s evidence.

42    To the extent that the further evidence was in existence before the trial, I am not satisfied that the appellant has demonstrated he was unaware of the evidence, nor that he could not, with reasonable diligence, have become aware of this evidence prior to or during the trial before the primary judge.

43    I am not satisfied that any of the further evidence is such that, had it been adduced at trial, the result would very probably have been different.

44    The appellant’s interlocutory application filed on 9 May 2024 seeking the admission of new evidence will be dismissed.

The grounds of appeal

45    On 22 April 2024, the appellant lodged an amended draft notice of appeal. The grounds of appeal are as follows:

Ground 1. – Error of witness identification that fundamentally undermines the final reasoning of the judgment; error of “glaringly improbable” rulings based on what the primary judge describes in the embedded transcripts at the end of the judgment as “no direct evidence” and “speculation”; judgment fell into error in respect of the Alam at [14] broad inquiry.

Ground 2. – Errors from applying “blanket rulings… global categories… from another trial, where the primary judge had presided in the previous matter with the same Respondent Counsel; the primary judge never identified the matter or it’s cause of action.

Ground 3. Errors from the total omission of the primary judge to cite or apply or make reference to, any lawful characterisation of a s 341(1)(c) complaint or inquiry, resulting in failure to apply Alam at [14(a)&(b)] settled principles.

Ground 4. Grave errors from the total omission by the primary judge to cite, reference or apply any law in respect of workplace bullying; the pleaded 53 complaints and inquiries are in relation to repeated unfounded acts and omissions of workplace bullying; failure to apply the Alam at [14(a)&(b)] settled principles that require the primary judge to identify the particulars and circumstances of workplace bullying as they relate to the facts and pleadings.

Ground 5. Errors from the primary judge relieving himself of the task of applying full consideration to all the complaints or inquiries, in a glaringly improbable judgment substantially reliant on credibility.

Ground 6. Part A – Errors from incorporating a superseded “2 Parts to the Inquiry” test; improvising and applying “short form phrasings” that fall into the error of emphasising pleadings over procedural fairness; narrowing of the broad factual inquiry.

Ground 6. Part B – The primary judge fell into error in respect of the inquiry as to whether the decision to act adversely was the result of “indispensable contributions” and the “material effect” of prohibited reasons of a group.

46    The amended draft notice of appeal also contains submissions concerning each ground. In addition, the appellant filed written submissions and made oral submissions in support of his grounds at the hearing.

Consideration

Ground 1

47    In his written submissions, the appellant summarises his first ground as follows:

Ground 1. The judgment discharges the s 361 presumption on a basis that the Respondent speculated without direct evidence that the Appellant might not have an ability to communicate with Indigenous people. Because there was no evidence for this the judgment gives prominence to an Appellant witness misidentified as Indigenous. This misidentified witness provided no direct evidence and, her evidence has a focus on irrelevant and contradicted personal opinions about doubling the Appellant.

48    It is common ground that the primary judge at [37] described Ms Arnold as an “indigenous person”, when there was no evidence that she is in fact Indigenous. His Honour appears to have confused Ms Arnold with another employee, Ms Arnol. The appellant submits that the judgment was, “reliant on speculative and irrelevant evidence including that of the misidentified…witness”, and that the mistake, “brings the s 361 finding down to the level of ‘glaring improbability’”. It is said to follow that the Court can, “exercise its appeal jurisdiction confidently on the basis that a finding ought to have been made that the Respondent was not able to discharge the s 361 statutory presumption”.

49    The appellant accepts that for the Court to overturn the primary judge’s conclusion that the respondent discharged its onus of proof under s 361 of the FWA, based, as it was, on findings that the evidence of Ms Amini-Yanner and Mr Murphy was credible, it would be necessary to determine that the conclusion was “glaringly improbable” or “contrary to compelling inferences”: see Fox v Percy (2003) 214 CLR 118 at [29].

50    The appellant’s argument must be that the primary judge’s error in respect of Ms Arnold’s race is so grave as to affect his Honour’s findings upon the credibility of the evidence of Ms Amini-Yanner and Mr Murphy. However, nothing turns on this minor factual error. It is most unlikely that Ms Arnold’s race bore upon the primary judge’s acceptance of her evidence that she had concerns about the appellant’s ability to communicate with Indigenous people. As his Honour observed at [37], Ms Arnold was, “experienced in dealing with Aboriginal people on country”, and it was that experience which enabled her to form a view about the appellant’s ability to communicate with the respondent’s stakeholders. In any event, the error could not realistically have affected his Honour’s assessment of the evidence of Ms Amini-Yanner and Mr Murphy. In particular, the primary judge’s acceptance of Ms Amini-Yanner’s evidence that she terminated the appellant’s employment because she regarded his communication skills as unsatisfactory, in circumstances where she was unaware of any complaints made by the appellant, cannot be impeached as “glaringly improbable” or “contrary to compelling inferences”. His Honour’s error in describing Ms Arnold as Indigenous was immaterial.

51    It may also be noted that the appellant submits in support of his first ground that, “a finding ought to have been made that Ms Arnold’s evidence was unreliable because Ms Arnold was in a category of vulnerable persons and was a current employee of the Respondent that was not a safe workplace”. The appellant then makes a number of allegations about the conduct of various employees and other persons associated with the respondent. These allegations do not seem to me to affect the question of whether there was any error by the primary judge in accepting Ms Arnold’s evidence, not in accepting the evidence of Ms Amini-Yanner and Mr Murphy.

Ground 2

52    The appellant summarises his second ground as follows:

Ground 2. The primary judge applied templated objections that escalated in application through the 9 day hearing. The objections were templated from an unidentified matter the primary judge and Respondent Counsel had in common. The error was compounded by objections by the evidentiary discretion not being used in the context of a legally non compliant workplace.

53    Prior to the hearing, the respondent provided the appellant with schedules of objections to the affidavits he proposed to rely upon. The objections were described by broad labels such as “irrelevant”, “scandalous”, “hearsay”, “speculation” and opinion”.

54    On the second day of the hearing, the primary judge dealt with the respondent’s objections to the appellant’s proposed evidence. The following exchange occurred between the respondent’s counsel and the primary judge:

MS MOODY: Can I say your Honour may well make global rulings about categories of objections and that may well serve to cut down my objections.

HIS HONOUR: We have experience in that Ms Moody.

MS MOODY: We do.

HIS HONOUR: When I say that, Mr Conradsen, Ms Moody and I had a bit to do with each other in another trial that went for a long time so she understands what I mean by – I understand what she means by this blanket category objections.

55    The primary judge then proceeded to rule upon the objections. What his Honour meant by the expressions “global rulings” or “blanket category objections” was that, in some cases, the respondent’s ground of objection covered a number of different paragraphs of the same affidavit or similar types of evidence given in other affidavits. For example, his Honour ruled that evidence of all complaints made by the appellant to agencies, such as workplace health and safety, after his employment was terminated was irrelevant and therefore inadmissible. His Honour also upheld the respondent’s objections to a number of paragraphs on the basis that they were hearsay. His Honour also ruled that the appellant’s evidence relating to the involvement of Ms Amini-Yanner’s husband in the running of the respondent was not irrelevant and was admissible as part of the overall factual matrix, which led the respondent to then withdraw a large number of other similar objections.

56    The appellant’s complaint seems to be that there was a denial of procedural fairness stemming from the primary judge’s “global rulings” or “blanket categories” because his Honour did not identify the case that was the source of the template for objections. The appellant also complains of the scale of the objections taken by the respondent, including that there were three updates of their schedule of objections subsequent to the initial document being filed, on the basis that he was self-represented and had very limited litigation experience.

57    The appellant appears to rely upon the requirement of procedural fairness that an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision being made: see Kioa v West (1985) 159 CLR 550 at 629. He seems to submit that he ought to have been given an opportunity to read the previous case his Honour referred to so that he could understand what his Honour meant by “global rulings” or “blanket categories”.

58    However, I do not accept that the appellant was denied procedural fairness by the non-disclosure by the primary judge of the name of the case. What the primary judge meant by the expressions used was apparent from his Honour proceeding to make rulings in relation to categories of objections. That was most apparent when ruling against the respondent’s objections to evidence that his Honour accepted to be relevant to the factual matrix. The appellant was given a fair opportunity to make submissions in opposition to those made by the respondent’s counsel.

59    Nor am I satisfied that there was any denial of procedural fairness by reason of the evolving nature of the objections made by the appellant. The objections had been substantially made known to the appellant prior to the hearing. The appellant, in my opinion, had a fair opportunity to deal with those objections.

60    In oral submissions, the appellant indicated that his complaint was that these “blanket rulings” meant, “the discretion to let things in wasn’t exercised”. This seems to be a submission that his Honour failed to consider each objection on its individual merits. However, it has not been demonstrated that anything turned on the approach taken by his Honour. For example, his Honour ruled that all of the appellant’s evidence of complaints to investigative bodies after his termination was irrelevant, and it has not been demonstrated that considering the complaints one by one would have made any difference.

61    The appellant also seems to argue that documents that were ruled inadmissible ought to have been admitted into evidence because the principles in Board of Bendigo Regional Institute of Technical and Further Education v Barclay 248 CLR 500, and those in Alam at [14] and [59], indicate that a broad inquiry is involved and the relevant provisions of the FWA should be interpreted broadly. In Alam, the Full Court held at [59] that:

(a)    in the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved;

(b)    a complaint is more than a mere request for assistance and should state a particular grievance or finding of fault;

(c)    it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words;

(d)    instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it; and

(e) the characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

62    The appellant submits as follows:

It is submitted that the rejection of contextual evidence of systemic non compliance was a narrowing of evidence contrary to the broad inquiry of the settled principles of Alam at [14] and, the Alam at [59] characterisation of a complaint or inquiry. This was also an error of law in not exercising the Uniform Evidence Act discretion broadly in the context of a violent workplace, threats, witness interference, intimidation and retaliation, given the impact this has on willingness of employees to record risks and hazards and the total breakdown of lawful compliance. It was also an error in law for being contrary to the explanatory memoranda of the FW Act and the case law that provides that the protections of the FW Act are to be read broadly.

63    The appellant seems to suggest that an unduly narrow interpretation of the expression “complaint or inquiry” resulted in evidence being ruled inadmissible. However, the appellant has not explained why that was so.

64    The appellant gives the following examples of documents that were not admitted under what he submits to be an unduly narrow interpretation of “complaint or inquiry”:

(a)    Documents concerning a telephone call when the “line manager” terminated the appellant’s employment, which was rejected on the basis that they were “post employment”.

(b)    Emails from a witness, Ms Sexton, to the line manager about a succession of workplace bullying incidents alleged by Ms Sexton, culminating in a meeting with the CEO and Deputy CEO where Ms Sexton communicated she was “threatened, intimidated, bullied”, “spoken over the top of”, and “blamed”.

(c)    WorkSafe Queensland compliance notices dated 21 July 2020 involving a review of the respondent’s records back to 2016, confirming that the respondent was not compliant in workplace design controls to ensure a safe workplace.

(d)    An affidavit of the appellant concerning his complaints or inquiries and applications immediately provided to Worksafe Queensland after the alleged adverse action.

(e)    Complaints and inquiries to the respondent, the police, and the Fair Work Commission from the appellant and colleagues in 2020 after the adverse action.

65    To the extent that the appellant refers to the alleged control of the respondent and threats of violence made by Ms Amini-Yanner’s husband, his Honour in fact ruled that such evidence was admissible as part of the factual matrix.

66    The appellant complains of the primary judge’s ruling that the appellant’s complaints to Worksafe Queensland and the subsequently issued compliance notices, were inadmissible. However, the appellant’s complaints to investigatory agencies after the termination of his employment have not been demonstrated to be relevant to the issues required to be decided by the primary judge, whatever the width of the word “complaint”.

67    The appellant asserts that the primary judge rejected evidence concerning events that predated the commencement of the appellant’s employment and events that occurred after the termination of his employment. This evidence seems to encompass allegations of bullying of other members of the respondent’s staff. That evidence was apparently to be relied on by the appellant to demonstrate that if others had been bullied, it was likely that the appellant had also been bullied. Since the issues in the case concerned, in particular, whether the appellant had made the complaints he alleged he made and whether the respondent had demonstrated that the making of those complaints was not a substantial operative reason for his termination, the primary judge was entitled to regard such evidence as irrelevant or hearsay in instances where the appellant relied on what he had been told by others. In any event, his Honour allowed such evidence to be given directly by witnesses called by the appellant, namely Ms Sexton and Ms Hanlin.

68    For these reasons, the appellant’s second ground must be rejected.

Ground 3

69    The appellant summarises his third ground as follows:

Ground 3. The judgment did not apply the law for the characterisation of a complaint and inquiry and therefore was in error in respect of the first of the principles of Alam v National Australia Bank Limited [2021] FCAFC 178 (White, O’Callaghan and Colvin JJ) at [14],[21].

70    The appellant submits that the primary judge erred in finding that all but two of the complaints or inquiries pleaded were not made.

71    It may immediately be observed that the appellant’s Statement of Claim only alleged that the workplace rights he exercised were to make complaints. He did not allege that he exercised workplace rights by making any inquiries, and is not entitled to take this new point on appeal without leave.

72    The appellant submits that the judgment is in error because there was a total omission by the primary judge to cite, refer to or apply any lawful characterisation of s 341(1)(c) of the FWA complaint or inquiry, including the characterisation provided by the Full Court in Alam at [59].

73    Although the primary judge did not specifically refer to the passage at [59] in Alam, his Honour specifically referred to other aspects of that case and may be taken to have been familiar with the case as a whole. It is not an error to fail to refer to a relevant passage from a relevant authority. Rather, the issue is whether it has been demonstrated that his Honour failed to apply, or misapplied, the principles identified in that passage. The appellant’s complaint is a broadbrush one, that each finding that no complaint was made by the appellant was wrong due to a failure by the primary judge to refer to or apply the principles in Alam. However, the appellant has made no attempt to demonstrate in what way the primary judge failed to apply, or misapplied, the principles from Alam in respect of any particular finding. I am unable to discern any such error.

74    The appellant also submits that it was an error for the primary judge to state at [26] that, “[w]hether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s 341(1)(c)(ii) of the FWA is to be considered objectively”. The appellant submits that this statement is contrary to the principles stated in Alam at [14] and [21]. In Alam, the Full Court held at [21], relevantly, that consideration of whether the making of any complaint or inquiry was a substantial or operative reason for the adverse action, requires consideration of whether the appellant had made the complaints or inquiries alleged. That passage demonstrates that whether the alleged complaints were made involves a question of fact. I do not understand the primary judge to have been intending to convey anything to the contrary. His Honour was indicating that whether the appellant had made the complaints or inquiries alleged did not depend upon the appellant’s subjective view but must be determined as a matter of objective fact. That did not involve any error.

75    The appellant’s third ground must be rejected.

Ground 4

76    The appellant summarises his fourth ground as follows:

Ground 4. The judgment did not apply any law in respect of the features of workplace bullying and therefore was in error in respect of the 2nd of the principles of Alam v National Australia Bank Limited [2021] FCAFC 178 (White, O’Callaghan and Colvin JJ) at [14],[21].

77    The appellant submits that the primary judge ought to have found that he made complaints about workplace bullying. The primary judge found at [30] in respect of the appellant’s allegation he had made complaints about the alleged bullying of staff by the respondent’s Deputy CEO, Ms Steineck, that, “[n]either was there any probative evidence of such bullying, either in relation to the applicant, Ms Sexton/Chalmers, or anyone else”. The appellant submits that this finding was erroneous, “because it does not establish the content of workplace bullying or cite, refer or apply any law of the features of workplace bullying”. These features are said to be described in:

(a)    Amie Mac v Bank of Queensland Limited [2015] FWC 774;

(b)    ss 19(3)(C) and (F) and 33 of Harmonised Work Health Safety Act 2011 (Qld); and

(c)    the SafeWork Australia Guide for preventing and responding to workplace bullying.

The appellant also submits that the finding concerning the absence of workplace bullying was against the weight of evidence.

78    The appellant’s submission focuses upon the primary judge’s findings concerning the allegation at paragraph 11(l) of the statement of claim that:

Between 27/01/20 to 30/01/20 the Line Manager was attending CLCAC Cairns. The Applicant became very uncomfortable about the loud and continuous complaints in the office by staff about the bullying of the DCEO. This was especially the case with the only Aboriginal staff member Simone Arnol. The Applicant raised his concerns face to face with the Line Manager and HR. The Applicant’s complaint used words about the likelihood of problems arising and leaking balloons.

79    The primary judge made the following findings about the appellant’s complaint:

(a)    The applicant has failed to plead any particulars of how, where, or when he allegedly made any complaint about any staff member being bullied by Ms Steineck, or of the circumstances of such alleged bullying. The only affidavit evidence about this did not constitute particulars of any alleged complaint made by the applicant.

(b)    Failure by applicant to properly plead adverse action.

(c)    There is no merit to such claim.

(d)    The Court further finds that none of the evidence establishes that any complaint was made as pleaded. The Court accepts the evidence of Mr Murphy to the effect that no complaint was made.

(e)    Neither was there any probative evidence of such bullying, either in relation to the applicant, Ms Sexton/Chalmers, or anyone else.

(f)    Objective fact not established.

[Footnote omitted.]

80    A significant issue for his Honour to consider was whether the appellant had in fact made any complaint about bullying by Ms Steineck. His Honour resolved that question by accepting the evidence of Mr Murphy that the appellant had made no such complaint. It was unnecessary for his Honour to go on to find that there was no probative evidence of bullying since the issue was not whether bullying had occurred, but whether the appellant had made a complaint of bullying. What is important for present purposes is that even if the finding of no probative evidence of bullying were wrong, it would not affect the finding that the appellant had not complained to Mr Murphy of any such bullying. Thus, the error alleged by the appellant, even if established, would not be material.

81    In any event, by the word “probative”, His Honour seems to have meant that the evidence was not sufficiently probative to establish the allegations. That finding has not been shown to be glaringly improbable or contrary to compelling inferences.

82    The appellant’s fourth ground must be rejected.

Ground 5

83    The appellant summarises his fifth ground as follows:

Ground 5. The judgment was in error for not giving equal treatment to all of the pleaded complaints and inquiries.

84    The appellant submits that his, “complaints and inquiries post-dating 14 April 202[0] were assessed and considered differently”, because the primary judge found that, “Mr Murphy had already decided to recommend that the applicant’s probationary period of employment not be confirmed”. The appellant submits that all the complaints or inquiries were to be treated as equal regardless of date.

85    The evidence of Mr Murphy, which was accepted by the primary judge, was that he had decided to recommend that the appellant’s employment not be confirmed within about two days after 14 April 2020.

86    The fifth ground concerns the primary judge’s findings in respect of the allegations of complaints made at paragraphs 11(ss), (ww) and (p) of the Statement of Claim.

87    The allegation at paragraph 11(ss) was that on 17 April 2020, the appellant made a complaint by email to Mr Murphy that Ms Steineck had threatened the appellant’s employment with, “failure to follow a direction language”, concerning an issue about whether the appellant had disclosed that he had contracted COVID-19. The primary judge accepted that the appellant had made such a complaint to Mr Murphy. However, his Honour found that Mr Murphy, “reasonably explained that he took no action to refer the complaint to HR because Mr Murphy had already decided to recommend that the applicant’s probationary period of employment not be confirmed”.

88    The primary judge’s reasoning was that the making of the complaint to Mr Murphy could not have affected his recommendation to Ms Amini-Yanner because he had already decided to recommend that the appellant’s employment should not be confirmed. It may be noted that his Honour also accepted the evidence of Ms Amini-Yanner that, “at the time she made her dismissal decision she did not have in mind, or in any way rely upon, any matter of grievance which may have been raised by the applicant with other people, about anything, because she was unaware of any such grievance”. In reasoning in such a way, his Honour did not fail to give “equal treatment to all of the pleaded complaints” as claimed by the appellant.

89    The allegation at paragraph 11(ww) of the Statement of Claim was that on 21 April 2020 the appellant sent an email to Mr Murphy suggesting that Ms Steineck soften her language, to which Mr Murphy made no response. The primary judge observed that the appellant acknowledged under cross-examination that he had not sent any such email to Mr Murphy on 21 April 2020. The appellant had then sought to identify the relevant email as one sent on 16 April 2020, but that turned out to be an email about stationery which did not contain any complaint about Ms Steineck’s language. His Honour found that the alleged complaint had never been made. His Honour also accepted that Mr Murphy did not respond to any issue about Ms Steineck that may have been raised because he had already decided to recommend that the appellant’s probationary period not be extended. In so reasoning, his Honour did not fail to give “equal treatment to all of the pleaded complaints”.

90    The allegation at paragraph 11(pp) of the Statement of Claim was that the appellant had made a complaint to Mr Murphy on 28 February 2020 about the office being too hot. Mr Murphy accepted that such a complaint had been made. The primary judge found that the issue was dealt with appropriately by Mr Murphy and the Deputy CEO. His Honour accepted the evidence of Ms Amini-Yanner to the effect that she was unaware of any complaint made by the appellant about the temperature in the Cairns office at the time that she decided to terminate the appellant’s employment, and that there was no real and substantial causal link between the fact of the making of the complaint and his later dismissal. I cannot see any basis for any allegation that his Honour failed to give “equal treatment” to the complaint at paragraph 11(pp) of the Statement of Claim.

91    The appellant also appears to submit that the primary judge finding erred in accepting Mr Murphy’s evidence that he decided shortly after 28 February 2020 to recommend that the appellant’s probationary period not be extended. However, this finding of credibility has not been shown to be glaringly improbable or contrary to compelling inferences. There is no basis for that finding to be overturned.

92    The appellant’s fifth ground must be rejected.

Ground 6A

93    The appellant summarises his ground 6A as follows:

Ground 6A. The judgment applied the wrong law in respect of who and why took the adverse action and, use short form phrasings contrary to the law in respect of a wide reading applying to General Protections and access to justice.

94    The appellant submits that the primary judge erred at [27] of the judgment in “narrowing the required factual inquiry to the superceded ‘2 part test’” that was applied in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014 at [120]-[123] (CFMEU v Clermont Coal). He submits that the primary judge ought to have instead applied Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at [90]-[91] (Australian Red Cross Society) and Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 (Qantas).

95    The primary judge observed at [27] that when considering the factors relevant to an assessment of what the reasoning process was in relation to the termination decision, Reeves J in CFMEU v Clermont Coal held at [122]:

I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons” was a substantial and operative reason for the decision to dismiss Mr Scott…

96    In Australian Red Cross Society, the Full Court held:

[90]    The decision of this Court in Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 (Kodak) that the absence of a proscribed purpose in the mind of a decision-maker who adopts as his or her starting point the results of an assessment and ranking of an employee by reference to certain criteria performed by others does not foreclose the issue of purpose and a proscribed purpose may still be found where such was the purpose of a person who makes an indispensable contribution to the rankings. Kodak was followed by Reeves J in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 who (at [121]-[122]) spoke in terms of a person whose reasons had a material effect on the ultimate decision or outcome.

[91]    We accept that a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose, but we do not need to formulate a precise test for the purpose of this case and consider it prudent to refrain from doing so.

97    In Qantas, the Full Court held at [221]:

The burden of Kodak on this issue, as applied in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166 and accepted in Australian Red Cross, permits, in some circumstances, the use or application by a decision-maker of material infected by a proscribed reason held by someone else involved in the decision-making process in some material way to be taken into account, in order to find that the impugned decision was made for reasons that included that proscribed reason. But it is informative to have regard to the particular circumstances in which that took place in Kodak itself, rather than be treated as an abstract principle to be deployed without a proper fact-finding process.

98    The appellant submits that the views expressed in CFMEU v Clermont Coal are “superseded” by the passages cited from Australian Red Cross Society and Qantas. However, I cannot see that the respective passages are inconsistent. In each case it was accepted that the use or application by a decision-maker of material infected by a proscribed reason held by someone else involved in the decision-making process in some material way might, depending on the circumstances, be taken into account. Nor has the appellant explained how the primary judge’s application of the cited passage from CFMEU v Clermont Coal may have led to error in the present case.

99    The appellant’s ground 6A must be rejected.

Ground 6B

100    The appellant summarises his ground 6B as follows:

Ground 6B. The adverse action was taken for a prohibited reason resulting from the material effects and significant contributions of a group. The finding of the judgment was that the adverse action was decided by the CEO on the recommendation of the line manager. The actions of the group included actions ensuring that the workplace was not compliant in processes procedures to educate all staff in respect processes, procedures to record and identify workplace risks and hazards including the psychological risk and hazard of workplace bullying.

101    The appellant submits that the primary judge erred in failing to find that the adverse action was taken for a prohibited reason resulting from the material effects and significant contributions of Mr Murphy, Ms Steineck, Ms Amini-Yanner and a HR Officer, including through their actions to ensure that the workplace was not compliant in processes and procedures with respect to workplace risks and hazards, including the psychological risk and hazard of workplace bullying. He submits that, contrary to the findings of the primary judge, the members of this group were fully aware of the complaints and inquiries made by the appellant and that was the substantial and prohibited reason for why they acted adversely towards him.

102    The findings of the primary judge which the appellant seeks to overturn were made on the basis of the credibility of the evidence of relevant witnesses. The primary judge found that Mr Murphy had made a recommendation to Ms Amini-Yanner to terminate the appellant’s employment, but that Ms Amini-Yanner was the sole decision-maker. However, his Honour found that Mr Murphy had materially contributed to the decision to terminate the appellant’s employment.

103    The primary judge found Mr Murphy’s evidence to be credible and found that the appellant’s complaints did not constitute a substantial and operative reason for his recommendation to Ms Amini-Yanner that the appellant’s employment be terminated. His Honour also found Ms Amini-Yanner’s evidence to be credible and that the reason she decided to terminate the appellant’s employment was that she did not believe he had the capacity to effectively communicate with Indigenous stakeholders. His Honour also found that Ms Amini-Yanner was unaware of any complaints by the appellant. The appellant has not shown that his Honour’s findings were glaringly improbable or contrary to compelling inferences.

104    The appellant’s Statement of Claim did not allege that Ms Steineck or any HR Officer had materially contributed to Ms Amini-Yanner’s decision to terminate his employment. Neither did the appellant make any such submission before the primary judge. It is not open to him to raise on appeal a new argument that might have been met with further evidence if it had been raised below.

105    The appellant’s ground 6B must be rejected.

Conclusion

106    I have rejected each of the appellant’s grounds of appeal. The appeal must be dismissed.

Associate:    

Dated:    3 April 2025