Federal Court of Australia

Howard v Chevron Australia Pty Ltd [2025] FCA 650

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth), the claim outlined in the applicant’s originating application for relief in respect of conduct said to have been engaged in in contravention of s 348 of the Fair Work Act 2009 (Cth) be dismissed.

2.    Pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth), the applicant’s concise statement dated 3 December 2024 be struck out in its entirety.

3.    Pursuant to r 16.21(2) of the Federal Court Rules 2011 (Cth), the applicant’s concise statement dated 3 December 2024 be removed from the court file.

4.    On or before 18 July 2025, the applicant file and serve an amended concise statement.

5.    The respondent’s interlocutory application dated 10 January 2025 be otherwise dismissed.

6.    The applicant pay the respondent’s costs of and incidental to its interlocutory application dated 10 January 2025 in an amount to be assessed in default of agreement in accordance with the court’s costs practice note (GPN-costs).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant, Mr Howard, is a former employee of the respondent’s. He was dismissed from his employment in August 2024, apparently after a lengthy period in which he was stood down from work for what the respondent (“Chevron”) identified as a medical reason (or potential medical reason).

2    By an originating application dated 17 October 2024, Mr Howard moves the court for various species of relief under the Fair Work Act 2009 (Cth) (the “FW Act”). That application is supported by a concise statement dated 3 December 2024, to the content of which it will be necessarily soon to advert.

3    By an interlocutory application dated 10 January 2025, Chevron moves for relief in the nature of summary judgment, dismissing Mr Howard’s application on the basis that it does not disclose a reasonable cause of action. In the alternative, it seeks to have Mr Howard’s concise statement struck out. In either eventuality, it also seeks an order that Mr Howard pay its costs, including on an indemnity basis. It is to that interlocutory application that these reasons pertain.

4    I am satisfied that it is appropriate to give judgment in favour of Chevron on one of the claims that Mr Howard hopes to agitate. There are other aspects of his claim that, although not yet properly articulated, he should have a further opportunity to set out. I am also satisfied that it is appropriate to award Chevron its costs of the application, but not for those costs to be assessed on an indemnity basis. There shall be orders accordingly.

the case at present

5    Mr Howard has, to date, acted on his own behalf without legal assistance. Perhaps for that reason, his originating application assumes a somewhat unorthodox form. It is entitled, normally enough, “Originating application under the Fair Work Act 2009 alleging discrimination”. Under the heading, “Details of claim under the Fair Work Act”, the following basic allegations are recorded (errors original):

The Applicant claims that:

1.    SECTION 351 DISCRIMINATION - Discrimination in form of singling out applicant on abnormal activity for having a beer at bar/ Submitting medical which has now been denied knowledge of which means its still discrimination/bullying harassment. HR REP Tanya Dixon refused to run a proper investigation even after I had provided medical certificates & returned to site & completed my swing

2.    SECTION 342 MEANING OF ADVERSE ACTION The Applicant suffered adverse action in the form of: (a) having his employment injured and having his position altered to his prejudice through stand down and the issuing of warnings; and (b) having been dismissed. 20. The Applicant submits that the adverse action was taken within the meaning of section 342(1) of the FW Act, due to the Applicant's complaints and inquiries that he exercised, in contravention of s 340(1) of the FW Act, as well as due to his disability, in contravention of s 351 of the FW Act

3.    SECTIONS 340 AND 341 WORKPLACE RIGHTS 1. Under section 340(1)(a) of the Fair Work Act 2009 ('FW Act'), a person must not take adverse action against another person because that person has a workplace right, has or has not exercised a workplace right or proposes or proposes not to exercise a workplace right. Right to make a complaint about the substance found in my luggage & to raise the bully harassment I faced from Tanya Dixon/ another employee.

4.    SECTION 348 COERCION - Using Coercive control - using patterns of abusive behaviours over time in a way that creates fear & denies liberty & autonomy. Standing an individual down when he raises his work place right by hiding behind medical, 3rd party’s to avoid looking into the individual circumstances, punishing the applicant constantly to provoke fear in applicant in raising his voice to be heard. Gas lighting applicant by playing negligence so that if the applicant becomes the slightest bit aggressive in response the respondent can call out the behaviour & blame mental state, maturity etc:

6    Attached to the originating application is a lengthy set of typed notes, which appear to serve as Mr Howard’s recitation of various events and which contain various modes of commentary about their significance. It will be necessary to return to those notes momentarily.

7    On 29 November 2024, a registrar of the court made unremarkable case management orders, which included provision for the filing and service of concise statements. Mr Howard complied with them by filing his concise statement of 3 December 2024. The same notes as are attached to Mr Howard’s originating application are also attached to his concise statement. The main body of that document, however, is substantially shorter and may be replicated in full (errors and emphasis original):

[(a) The important facts giving rise to the claim:]

-    Attempted to be framed by planting drugs in my hand luggage. Reported multiple times & different avenues, investigation ignored.

-    Bullying/Harassment, Coercive control at the hands of Tanya Dixon.,

-    Medicals completed, cleared for site. After 2week swing, false accusations of behaviour while on site. Chevron failed duty of care. Ignored multiple requests for an explanation.

-    Damages, unable to approach or trust in a workplace.

[(b) The relief sought from the Court (and against whom):]

Compensation of mistreatment from Chevron

[(c) The primary legal grounds for the relief sought:]

Bullying harassment, discrimination, Workplace Rights, Adverse Action, Collusion. False statement in mediation stating Chevron had no evidence of myself submitting medical subscription. Not willing to put any accusations in writing, Respondent lawyer in first mediation meeting suggested I would struggle to last any longer in my career, causing more psychological damage.

[(d) The alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage:] $4,000,000.00

Loss of wages, Lifetime career. Roster. Confidence in a work environment. Workplace damages, Finding a new work path, with education and skills.

8    On 10 December 2024, Chevron’s solicitors wrote to Mr Howard about his concise statement. Again, it is convenient to replicate that correspondence in full (reference omitted, emphases original):

Dear Mr Howard

WAD317/2024: Howard v Chevron Australia Pty Ltd

As you know, we act for Chevron Australia Pty Ltd (Chevron) in the above proceedings (Proceedings).

The purpose of this letter is to put you on notice of the deficiencies in your Concise Statement filed on 3 December 2024 (Concise Statement).

Rule 16.02(1)(d) of the Federal Court Rules 2011 requires that a pleading, such as a concise statement ‘state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial…’.

We are instructed to make the following contentions in relation to the deficiencies with your Concise Statement:

1    Your Concise Statement fails to appropriately set out the material facts giving rise to your claim. Section (a) of the Concise Statement is a series of assertions that cannot sensibly be responded to by Chevron.

2    Your Concise Statement also fails to set any legal grounds for the relief sought. It fails to identify any provisions of legislation alleged to have been contravened, nor does it outline the facts that relate to each element of such contraventions.

3    For example, if you allege that Chevron has contravened section 340 of the Fair Work Act 2009 (Cth) (FW Act), your Concise Statement should set out, in relation to each alleged contravention of section 340:

(a)    The adverse action which you say was taken against you by Chevron;

(b)    The workplace right that you had, had exercised, or did not exercise, which you assert was the reason for the adverse action; and

(c)    The material facts that gave rise to the contravention.

4    Similarly, if you allege that Chevron has contravened section 351 of the FW Act, your Concise statement should set out, in relation to each contravention of section 351:

(a)    The adverse action which you say was taken against you by Chevron;

(b)    The protected attribute set out in section 351 which you say is relevant to you, and because of which you say adverse action was taken; and

(c)    The material facts that gave rise to the contravention.

5    We also note that a Concise Statement should be no longer than 5 pages in length. The attachments to your Concise Statement are not proper pleadings and should be removed.

It follows from the above that Chevron cannot reasonably be expected to be able to file a Concise Statement in Response. Indeed, as presently filed the Concise Statement does not disclose any cause of action under the FW Act or any other legislation.

You may amend your Concise Statement by filing an amended Concise Statement with the Federal Court (Court). We note that this can be done one time without leave from the Court, after which leave is required. It is a matter for you as to whether you wish to do this.

However, if we do not receive an amended Concise Statement, or an indication from you that you propose to file an amended Concise Statement by 5pm on 17 December 2024, Chevron will file an application with the Court for summary judgment, or an application for the whole or part of your application to be struck out, without further notice.

Chevron will rely on this letter in relation to its costs, including in respect of claims for indemnity costs if it becomes necessary for Chevron to bring an application for summary judgment or to strike out defective parts of your application, and that application is successful.

In this regard we note that section 570(2) of the FW Act is engaged if, by your unreasonable acts or omissions, you cause Chevron to incur costs. We contend that by [sic] if you fail to take this opportunity to amend your Concise Statement, you will be engaging in unreasonable conduct.

Yours faithfully

Hall & Wilcox

9    On 11 December 2024, Mr Howard replied by email to that correspondence (and copied in various others, including staff from the court’s Perth registry). It is unnecessary to replicate that correspondence in full. Instead, it suffices to note that Mr Howard:

(1)    denied that his concise statement contained the deficiencies to which Chevron had alluded;

(2)    described the correspondence of 10 December 2024 as “wasting mine & everyone else’s time”;

(3)    made what Chevron interprets as (but what Mr Howard denies was) a threat toward one of its solicitors;

(4)    gave a “final warning” that any additional “reject[ion]” of his concise statement would “be met with a servier [sic] response”; and

(5)    urged that Chevron (or its solicitors) “choose [their] next decision wisely”.

10    The email correspondence also made other statements that it is beneath the dignity of the court to repeat.

11    Two days later, Mr Howard exchanged emails with the court’s Perth registry concerning a second version of his concise statement (which has not been filed and is, in any event, materially identical to the original). Amongst other things, he alleged that he was the victim of a deliberate attempt “…to create a catch 22 & delay the case further”.

12    Some of the correspondence that Mr Howard has sent and received regarding this matter has found its way onto his Facebook page. Save to acknowledge it, it is unnecessary that much need be said about that reality. It suffices to note that some of what was posted was posted together with various forms of commentary, much of which was critical of Chevron and this court. Amongst other things, Mr Howard’s posts made claims about Chevron “pay[ing] off the law firms, federal courts in rigged colluded case”. Other posts were critical—and, so Chevron suggested, defamatory—of other individuals, whom it is unnecessary to identify.

Principles to be applied

13    Section 31A of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”) provides as follows:

31A Summary judgment

…

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

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

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

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

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

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

(5)    This section does not apply to criminal proceedings.

14    An equivalent source of power is to be found in r 26.01(1) of the Federal Court Rules 2011 (Cth) (the “FC Rules”), which provides as follows:

26.01 Summary judgment

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

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

…

15    There is no controversy about the principles that should guide the court in its determination of an application for summary judgment. Applications of that kind are concerned with substance rather than form: Shumack v Commonwealth [2009] FCA 775, [14] (Rares J). The court is concerned to ascertain whether (relevantly for present purposes) an applicant has a reasonable prospect of successfully prosecuting a cause of action that is sought to be pressed. In doing so, it is not constrained by the terms in which the cause of action is expressed and may, instead, consider matters that extend beyond the pleadings: Qualify Me Pty Ltd v Get Me Qualified Australia Pty Ltd [2016] FCA 192, [24] (Markovic J). As Lindgren J put it in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298, 309 [47]: “…the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts”.

16    In Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55, Logan J observed (at [9]):

…The expression “no reasonable prospect of success” may very well be one of those which, like “unacceptable risk”, also warrants a warning against “striving for a greater degree of definition than the subject is capable of yielding”: cf M v M (1988) 166 CLR 69, at 78. The expression appears in a power conferred on a court which exercises the judicial power of the Commonwealth. That context serves to remind one that access to [a] court which is asked to conduct a hearing according to law of a matter in the exercise of that judicial power is an important feature of our system of government. Attempts to secure that ought not peremptorily to be terminated save in clear cases, i.e. in cases which, on judicial assessment, can be seen, truly, to have no reasonable prospect of success. Further, and at the risk of stating the obvious, what falls for assessment is a “prospect”. On what is before the court on the hearing of the application under s 31A, which may well not comprise the whole of the evidence that the parties come to lead at trial, is there a reasonable prospect?...

17    Rule 16.21 of the FC Rules concerns applications to strike out pleadings. Relevantly, it reads as follows, namely:

16.21 Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

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

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

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

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

18    In Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206, [7]-[11], Wheelahan J had occasion to summarise the objective to which pleadings are directed:

7    The purposes of pleadings are well known. A pleading is a document that defines the issues to be decided in a proceeding. Part 16 of the Rules provides for the content of pleadings generally including, in r 16.02, the requirement to state the material facts necessary to give an opposing party fair notice of the case to be made at trial. Part 16 also specifies how certain matters or things should be dealt with in pleadings (for example facts, references to documents or spoken words, conditions precedent, admissions and denials), and matters that in certain pleadings must be expressly pleaded. It is the function of pleadings to set out material facts, not the evidence that proves those facts: see r 16.02(1)(d).

8    The rules of pleading are calculated to avoid trial by ambush, and to promote the precise identification of the issues that are before the court: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). Therefore, in any proceeding the purposes of pleadings include enabling the opposing party to have fair notice of the case that must be met at trial, and enabling the Court to know what issues are to be determined.

…

10    To the extent that the rules of pleading are concerned with fairness, they are an emanation of the requirements of procedural fairness. As with the rules of procedural fairness generally, pleadings are about affording practical justice, and are not an end in themselves: cf the observations of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137.

11    Overlying the requirements of r 16.02 is the overarching purpose of the civil practice and procedure provisions of the Court that is referred to in s 37M of the Federal Court of Australia Act. The overarching purpose is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible. Parties and their lawyers are required to act consistently with the overarching purpose, and the Court must exercise any procedural powers in a way that best promotes the overarching purpose. The Court’s powers under s 37P of the Act to give effect to the overarching purpose are extensive, and include the power to strike out, amend, or limit any part of a party’s claim or defence.

19    Ordinarily, a litigant against whom relief is granted under r 16.21 of the FC Rules will be afforded an opportunity to re-plead the case that he or she hopes to press: Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1102, [46] (O’Callaghan J). Especially will that be so where the court can “…discern the germ of a case concealed within inadequately drafted pleadings”: Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081, [89] (Flick J).

20    In approaching the present application, I am conscious that Mr Howard should not be disadvantaged by the fact that he is self-represented. At the hearing of the respondent’s interlocutory application, it was very clear to me—more so even than might usually be presumed—that this matter is very important to him. His submissions (like those of his father, who assisted him at the hearing) were courteous and thoughtful but they conveyed an unmistakeable commitment to the view that Chevron has treated him egregiously and in a manner that should self-evidently be liable to relief; and that any non-acceptance of that view reflects some nefarious objective consistent with corruption (whether on Chevron’s part or otherwise). As obvious as Mr Howard’s passion is, the court’s duty is to ensure that the matter proceeds in a manner that is fair to all parties: Hamod v New South Wales [2011] NSWCA 375, [309]-[310] (Beazley JA, with whom Giles and Whealy JJA agreed). That requires that attention be focused upon the overarching purpose to which s 37M of the FCA Act gives voice.

Summary judgment

21    It is plain from Mr Howard’s originating application that he hopes to press three statutory causes of action. The first alleges that Chevron subjected him to adverse action in contravention of s 351 of the FW Act; the second alleges that Chevron subjected him to adverse action in contravention of s 340(1) of the FW Act; and the third alleges that Chevron took action against him in contravention of s 348 of the FW Act (specifically, with intent to coerce him into engaging in industrial activity).

22    I will return to the state of the pleadings momentarily. For present purposes, it suffices to note that the observations that are contained in this section of these reasons arise from the helpful submissions that Mr Howard and his father made during the course of the hearing of the respondent’s interlocutory application. During that hearing, the court attempted to explore with Mr Howard how it was that he put each of the three causes of action that find expression in the originating application. Intending no disrespect—and acknowledging, again, the limitations under which self-represented applicants inevitably labour—Mr Howard’s explanations were not always clearly articulated. Occasionally they were tinged by exasperated tones, as though the subjects of exploration were so obvious as not to require elaboration.

23    Be that as it may, what follows is my summation of the matters that Mr Howard was able to explain, and how those explanations should bear upon my determination of Chevron’s interlocutory application. It is convenient to separate the observations according to the three causes of action that are in play.

Discrimination

24    Section 351(1) of the FW Act provides as follows, namely:

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, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

25    In order that an applicant might establish an entitlement to relief in respect of conduct that is said to have been engaged in in contravention of s 351(1), he or she must demonstrate at least two things: first, subjection to adverse action; and, second, that the reasons for which that adverse action was visited included that he or she possessed an attribute or attributes referred to in s 351(1).

26    Presently, it is apparent that Mr Howard considers that he was subjected to adverse action at least in the form of his being stood down from his employment and, ultimately, in his dismissal. There is little doubt that both would qualify as “adverse action” within the meaning that s 342 of the FW Act ascribes to that concept. It may be that there are other instances of Chevron’s conduct towards him that Mr Howard stigmatises as “adverse action”. At the hearing of Chevron’s interlocutory application (and also in the typed notes that are appended to his concise statement), Mr Howard referred to having been “singled out” by Chevron; and there was some suggestion that Chevron’s request that he subject himself to examination by its nominated doctor was (or might have been) an example of that.

27    What is less clear is how Mr Howard links his subjection to adverse action to an attribute that s 351(1) of the FW Act proscribes. Such evidence as there is at this early juncture suggests that Mr Howard has been diagnosed with attention deficit hyperactivity disorder (or “ADHD”), for which he has been prescribed (but, apparently, does not take) medication. At the hearing of Chevron’s interlocutory application, Mr Howard explained that his “singling out” seemed to start from the point that he brought that diagnosis to Chevron’s attention (which appears to have been in or around April 2023).

28    Intending no disrespect, it remains unclear to me precisely how Mr Howard intends to put that Chevron subjected him to any conduct that was engaged in in contravention of s 351(1) of the FW Act. Nonetheless, I am not prepared to foreclose now upon the possibility that there might be a cause of action upon which he could potentially succeed at trial. There is, to descend to a colloquialism, a sniff of a case that Mr Howard might potentially prosecute. If it is to be alleged that Chevron took action against him because he has ADHD, then it is not difficult to see how that might—I say might—be fashioned into a case alleging contravention of s 351(1) of the FW Act.

29    Plainly, I should not wish, by that suggestion, to be understood to suggest that any such allegation would necessarily succeed. It is unnecessary at the present juncture to express any view on that and I do not do so.

30    Instead, it suffices to record that I am not presently satisfied that Mr Howard lacks a reasonable prospect of succeeding on an action alleging a breach or breaches of s 351 of the FW Act. In the absence of such satisfaction, it is not appropriate to grant relief in the form of summary judgment on that aspect of Mr Howard’s case.

Workplace rights

31    Mr Howard’s originating application foreshadows a claim to relief on the basis that Chevron took action against him in contravention of s 340(1) of the FW Act. Amongst other things, that provision prohibits employers from taking “adverse action” against employees because, or for reasons that include that, they possess, have exercised or propose to exercise a “workplace right” or “workplace rights”.

32    Section 341 of the FW Act identifies the circumstances in which a person may be understood to possess a workplace right. Relevantly for present purposes, it provides:

341 Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

…

(c)    is able to make a complaint or inquiry:

…

(ii)    if the person is an employee—in relation to his or her employment.

    …

33    There is no material controversy about what does or does not constitute a “complaint or inquiry” that a person is “able to make…in relation to his or her employment”. In PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225, 252-3 [134]-[139], I made (ultimately in dissent but not on these points) the following relevant observations, which I adopt for present purposes:

134    In order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the FW Act refers, it must pertain, as a matter of substance, to its maker’s employment. That being so, it is necessary to consider whether either or both of the Termination Complaint and the Misleading Conduct Complaint were of that nature: that is, were they complaints or inquiries that pertained to Mr King’s employment?

135    That requires analysis at two levels: first, did each of the Termination Complaint and the Misleading Conduct Complaint qualify as a “complaint or inquiry”; and, second, did each arise “in relation to [Mr King’s] employment”?

136    The Macquarie Dictionary relevantly defines “complaint” and “inquiry” respectively as follows:

complaint

...

1.    an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding.

2.    a cause of grief, discontent, lamentation, etc.

…

inquiry

…

2.    the act of inquiring, or seeking information by questioning; interrogation.

3.    a question; query.

– phr 4. make inquiry (or inquiries), to request information: to make inquiries at the office.

137    A “complaint”, then, is a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable: see, in that vein, Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; 314 ALR 346 (Dodds-Streeton J; hereafter, “Shea”), this court had occasion to consider what might qualify as a “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act. Dodds-Streeton J there observed (at [29]) that:

… in the context of s 341(1)(c)(ii) of the [FW] Act:

(a)    a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)    the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)    the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]

(d)    the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii)…

I respectfully adopt her Honour’s reasoning. I note that the second of the four propositions to which her Honour adverted in the passage above was the subject of some consideration on appeal: see Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159 at [12] (Rares, Flick and Jagot JJ). Whilst the full court did not appear to adopt Dodds-Streeton J’s implication of good faith, they did not reject it and the appeal was decided on other issues: see, on that score, Environmental Group Ltd v Bowd (2019) 288 IR 396 at [144] (Steward J). That is a question that does not arise for consideration in the present context. There is, in my view, no doubt that Mr King’s complaints were genuinely advanced (in the sense that he considered himself well-founded to complain about the states of affairs to which they pertained) and the appellants did not contend otherwise.

138    Whether a complaint or inquiry qualifies as a complaint or inquiry made “in relation to…employment” depends upon the subject matter that is sought to be agitated. It is not necessary that a complaint be directly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [64] (Katzmann J); Shea at [631] (Dodds-Streeton J). In Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468 at [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.

139    That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd [2016] FCA 19 at [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, Environmental Group Ltd v Bowd (2019) 288 IR 396 at [126] (Steward J)).

34    Much has been said by this court about the circumstances in which a person might be understood to have been “able to make” a complaint or inquiry of the kind to which s 341(1)(c) of the FW Act refers. In Messenger v Commonwealth [2022] FCA 677, I referred to some of the authorities that have considered that concept, before summarising (at [150]) the position by which I was then (and now remain) bound, namely:

…in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

35    To succeed in an action for relief in respect of conduct that is said to have been engaged in in contravention of s 340(1) of the FW Act, it is necessary that an applicant demonstrate at least two things: first, subjection to adverse action; and, second, that the reasons for which that adverse action was taken included (relevantly) that the applicant possessed, exercised or proposed to exercise a workplace right or workplace rights.

36    At least for the purposes of assessing the appropriateness of summary judgment—and for reasons already explored in the context of s 351 of the FW Act—I am satisfied that Mr Howard has a prospect of establishing that he was subjected to adverse action within the meaning that s 342 of the FW Act gives to that concept. Might he, then, be able to establish that at least one of the reasons why that action was visited upon him was that he had made a complaint or inquiry that he was relevantly able to make in relation to his employment?

37    Again, with due respect, the answer to that question is much more difficult to ascertain. It was, again, the subject of exploration with Mr Howard during the hearing of Chevron’s interlocutory application. Mr Howard was at pains to explain that his subjection to adverse action arose (he says) because, at least in part, he made a complaint to his employer about having been the victim of an attempt to frame him (in a way that I needn’t particularise at this juncture). Additionally, he referred to complaints that he made about having been subjected to instances of “bullying and harassment”.

38    It is not apparent to me—and certainly not with requisite precision—what complaints or inquiries Mr Howard says that he made, or when, or to whom. Moreover, none of the material presently before the court suffices to identify a complaint or inquiry that Mr Howard can be understood to have been relevantly “able to make” for the purposes of s 341(1)(c) of the FW Act. It is, to say the least, most unclear how he intends to maintain this aspect of his matter.

39    Nonetheless, as with the case that is pressed under s 351(1) of the FW Act, I am not prepared to accept that Mr Howard lacks a reasonable prospect of being able to establish (if or when he can properly allege) that he was subjected to adverse action in contravention of s 340(1) of the FW Act. It is open to Mr Howard to allege (if it is the case) that he made complaints or inquiries (whether to Chevron or otherwise), that they concerned subject matters that were sufficiently allied to his employment, that they were complaints or inquiries that he was relevantly “able to make” and that he was subjected to adverse action because (or for reasons that included that) he had made them. If that is the case that he advances, it cannot be said that he lacks the requisite prospect such that relief in the form of summary judgment might now be appropriate.

Coercion

40    Mr Howard’s originating application asserts an entitlement to relief in respect of conduct in which Chevron is said to have engaged in contravention of s 348 of the FW Act. Section 348 of the FW Act provides (and, at relevant times, provided) as follows:

348 Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

41    Section 347 of the FW Act identifies the circumstances in which a person might be understood to engage in industrial activity. It is unnecessary to replicate its terms here.

42    The following observations are difficult to make in a way that does not suggest criticism. I have attempted to frame them as respectfully as possible, and it is my hope that they will be received constructively and without offence.

43    It is plain that Mr Howard’s case under s 348 of the FW Act is misconceived, and fundamentally so. Section 348 is directed toward conduct that is engaged in to secure industrial outcomes, such as union membership or the promotion of a bargaining agenda. From my exploration with him of the case that he seeks to prosecute, it is apparent that Mr Howard’s complaint is not aligned with anything at which the section is aimed. Mr Howard was unable to identify any “industrial activity” into which he says that Chevron attempted to coerce him. Nor could he articulate with any precision specific instances of conduct in which he says that it engaged to that end.

44    Instead, it became apparent to the court—and, indeed, is apparent from the nature of the allegations contained in the typed notes that are appended to the concise statement—that Mr Howard considers that Chevron has subjected him to forms of “coercive control” and “gaslighting”. I should not wish to be understood to doubt (or, indeed, to offer any view about) those allegations, such as they are. Nonetheless, two things are clear: first, that the conduct that Mr Howard relevantly attributes to Chevron in that (coercive control or gaslighting) context has not been clearly articulated; and, second (and in any event), that there is no apparent connection between it (whatever it might have been—or might still be) and any desire on Chevron’s part to secure Mr Howard’s engagement in “industrial activity”.

45    What, precisely, Mr Howard means by “coercive control” or “gaslighting” is not immediately clear to me. It may or may not be actionable in some way; and, plainly, without an understanding of what is alleged and why, it is impossible to say one way or the other whether it is. But what can be said with absolute certainty is that there is nothing about it that is actionable by operation of s 348 of the FW Act.

46    That being so, it is apparent that Mr Howard lacks any reasonable prospect of succeeding on a claim for relief relating to conduct engaged in in contravention of s 348 of the FW Act. I accept that it is appropriate to grant Chevron relief in the form of summary judgment on that part of Mr Howard’s originating application.

Strike-out

47    From some of the observations made so far, it might be apparent that I have struggled to appreciate what it is that Mr Howard hopes, by this action, to prosecute. I have no doubt that Chevron (via its agents and advisers) labours under the same difficulty. To the extent that he maintains that its confusion is feigned or otherwise confected to disguise some ongoing hostility toward him (or worse), Mr Howard’s criticisms are unfounded.

48    I have accepted that there is some prospect that Mr Howard possesses causes of action that he might be at liberty to prosecute in the proper way. I do not accept that he has articulated them to a standard upon which the court is duty bound to insist. On the contrary, Mr Howard’s concise statement is quite obviously deficient; and deficient precisely in the ways that Chevron articulated in its correspondence of 10 December 2024.

49    If he is properly to articulate causes of action that allege breaches of ss 340(1) and 351(1) of the FW Act, Mr Howard will need to set out—in a logical, allegation-by-allegation way that does not require Chevron or the court to interpolate—the discrete instances of conduct and the discrete state or states of mind that are said to accumulate in a way or ways that establish his entitlement to relief. He will need to do that within the body of his concise statement. He cannot expect merely to attach his own notes and leave it to Chevron—and, indeed, to the court—to work out what the boundaries of his claim are or why it is that he states the conclusions that he states.

50    Insofar as concerns his prosecution of a case for relief in respect of conduct in which he alleges that Chevron engaged in contravention of s 351(1) of the FW Act, Mr Howard will need to identify (that is to say, to allege) the adverse action that he says was taken against him (most obviously—but without limitation—the decisions to stand him down from and then terminate his employment). Again, that will need to be done discretely, on an allegation-by-allegation basis. It will also be necessary to identify the proscribed attribute by reason of which he alleges that each instance of that conduct was engaged in. Insofar as that attribute inheres in some physical or mental disability, he will need to identify (which is to say, again, that he will need to allege—not seek to prove, but allege) what it is and how it is that he says that Chevron was made aware of it. Those are the essential integers of a claim based on a contravention of s 351(1) and they will need to be identified.

51    Insofar as concerns the prosecution of a case for breach of s 340(1), it will be necessary for Mr Howard to identify, discretely and in a way that is properly particularised (as to times, places, people and subject matters) how it is that he should be understood to have advanced complaints or inquiries, how it is that they pertained to his employment and how it is that they were complaints or inquiries that he was “able to make”; such that they each satisfy the description set out in s 341(1)(c) of the FW Act. He will need to identify (ie allege) the adverse action that he says was taken against him because or for reasons that included that he made whatever those complaints or inquiries are said to have been.

52    Chevron invites the court to infer—not least from his summary rejection of the matters that it set out in its correspondence of 10 December 2024—that Mr Howard will not be able to replead his case in a way that satisfies the usual conventions that I have set out above. Perhaps history will vindicate its concern; perhaps not. Mr Howard should be afforded the benefit of the doubt. It may be that the court is more disposed to accepting that any failure to re-plead his case properly should be understood to reflect that there is no case that lends itself to proper articulation. That suggestion (if it is to be made) can be dealt with at a later point, if that need arises.

53    In the meantime, Mr Howard’s concise statement should be struck out in its entirety and I will make an order to that effect. Mr Howard shall have 28 days within which to file and serve an amended concise statement. In the event that he might require more time in that regard, he is at liberty to apply for it.

Related relief under r 16.21(2)

54    Chevron seeks related orders that the existing concise statement be removed from the court file pursuant to r 16.21(2) of the FC Rules. It is said that the concise statement—and, in particular, the typed notes that are appended to it—contain material that is scandalous, vexatious or ambiguous, or otherwise constitutes an abuse of the court’s processes.

55    That is not a difficult submission to accept and, indeed, Mr Howard did not attempt much in the way of resistance to it.

56    The typed notes appended to the concise statement contain all manner of allegations that are definitively scandalous or otherwise appear designed to vex Chevron or certain of its officers. It is unnecessary that I should particularise them; it suffices to observe that there is no doubt that the manner in which the concise statement or the notes are expressed suffices to engage r 16.21(2) of the FC Rules.

57    It is appropriate that the existing concise statement be removed from the court file and I will order accordingly. I am conscious that Mr Howard’s notes remain appended to his originating application. That is not a reality that bears upon this aspect of my decision.

Costs

58    Chevron moves for an order requiring that Mr Howard pay its costs of the interlocutory application, including on an indemnity basis. In order that the court might entertain such an application, it must first establish that the limitation imposed by s 570 of the FW Act does not apply. That section provides as follows:

570 Costs only if proceedings instituted vexatiously etc.

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

Note:    The Commonwealth might be ordered to pay costs under section 569.

A State or Territory might be ordered to pay costs under section 569A.

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

…

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

…

59    Chevron’s case is advanced on two related bases. First, it contends that the hurdle imposed by s 570(1) of the FW Act is cleared because of the summary and dismissive manner in which Mr Howard responded to its correspondence of 10 December 2024. It is to be recalled that, by that correspondence, Chevron identified for Mr Howard the respects in which his pleading was liable to the relief that I have resolved to grant. In doing so, it set out—much as I have above—the respects in which the existing concise statement was amenable to criticism and how Mr Howard might go about filing a replacement document that corrects those deficiencies. The correspondence was brief, respectful, well-expressed and, above all, correct.

60    Rather than engage with it, Mr Howard chose to respond in the way that he did on 11 December 2024. He submitted a revised version of his concise statement, the only change to which was that he increased the amount claimed as damages from $4,000,000.00 to $5,000,000.00. He described the Chevron correspondence of 10 December 2024 as “wasting mine & everyone else’s time”. He also proceeded to make the other statements that are alluded to above (at [9]-[10]).

61    Additionally, Mr Howard proceeded to make the public (Facebook) statements to which I have earlier referred (above, [11]-[12]).

62    Two issues arise for determination: first, should the costs that Chevron has incurred in relation to its interlocutory application be understood to have arisen from an unreasonable act or omission on Mr Howard’s part; and, second and if they do, are the circumstances that attend the incurring of those costs such as to warrant the imposition of an order for costs otherwise than on a party and party basis?

63    As to the first of those questions, I have no doubt that it must be answered in the affirmative. Counsel for Chevron described the 10 December 2024 correspondence as a “gold standard” example of how a corporate respondent should write to a litigant-in-person about pleadings concerns. Perhaps there was some poetic licence taken there; but I do not think that the description is inapt. As I have said, the letter that Mr Howard was sent was courteous, easy to understand and, above all, right. It was unreasonable for Mr Howard to react to it the way that he did. He ought to have engaged with its content and accepted the invitation that Chevron extended to him. I accept that the costs that Chevron has incurred in prosecuting its interlocutory application have been incurred as a result of Mr Howard’s unreasonable refusal to do so. It follows that the court’s discretion to make an award for costs is enlivened.

64    In Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233-4 (Sheppard J), this court observed relevantly as follows:

It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:

…

4.    In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in [Andrews v Barnes (1887) 39 Ch D 133, (Cotton, Fry and Lopes LJJ)] at 141 said the Court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in [Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397] appears to have adopted what was said by Brandon LJ (as he was) in [Preston v Preston [1981] 3 WLR 619; [1982] 1 All ER 41] at 637; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in [Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991)] “The categories in which the discretion may be exercised are not closed”. Davies J expressed (at p 6) similar views in [Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)].

5.    Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in [J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) (1993) 46 IR 301]); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in [EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59]). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.

…

65    To justify a special costs order, “…there must be conduct deserving of criticism and resulting in greater expense to the innocent party” (emphasis original): Clifton v Kerry J Investment Pty Ltd (No 2) (2020) 277 FCR 382, 389 [31] (Besanko, Markovic and Banks-Smith JJ).

66    Chevron maintains that Mr Howard’s conduct is “deserving of criticism”. In that regard, it points to the language that Mr Howard employed in his email of 11 December 2024, the hostile and discourteous interactions that he has had with its solicitors and the court to date, and the public comments that he has caused to be published on his Facebook page. Lest there be any doubt, I have no hesitation in accepting that all of that conduct is properly to be described as “deserving of criticism”. Some of it might well be independently actionable. Worthy of particular condemnation is Mr Howard’s email of 11 December 2024 (above, [9]-[10]). Even assuming (for his benefit) that it should not be construed as a threat, its terms cannot be justified by any measure of certainty that might exist in Mr Howard’s mind about how badly Chevron has treated him. Mr Howard should reflect on the language that he employed. It is to be hoped that he might permit that reflection to moderate his future interactions.

67    All of that acknowledged, I do not accept that circumstances have accumulated to a point that an order for costs on an indemnity basis is warranted. The costs that Chevron has incurred in prosecuting its interlocutory application would have been incurred regardless of the unfortunate manner in which Mr Howard chose to express himself. Inherent in an order for indemnity costs is the notion that conduct that is deserving of criticism has caused an innocent party to incur costs that it would otherwise not have incurred. I do not consider that Chevron can clear that hurdle and, that being so, it is not appropriate to make an award of costs on that basis.

68    It follows that I will order that Mr Howard pay Chevron’s costs of and associated with the prosecution of its interlocutory application on a standard (party and party) basis.

Associate:

Dated:    20 June 2025