FEDERAL COURT OF AUSTRALIA

Kluck v Carpendale Agri Pty Ltd [2025] FCA 705

ORDERS

THE COURT ORDERS THAT:

1.    The claim for interlocutory relief in the amended application dated 23 April 2025 be dismissed.

2.    Costs reserved.

3.    The matter be listed for case management on a date to be fixed.

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

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTION

1    The Applicant has commenced proceedings against the Respondent, Carpendale Agri Pty Ltd, seeking relief under the Fair Work Act 2009 (Cth) (FWA), other relief regarding the constitution of Carpendale, and certain declarations.

2    Relevantly, the Applicant also seeks interlocutory relief until the trial of this matter. This relief can be summarised as:

(a)    first, that the Applicant’s employment be reinstated and that Carpendale be restrained from terminating the Applicant’s employment until further order or final determination of the proceeding; and

(b)    secondly, in relation to certain property, Carpendale be restrained from dispossessing the Applicant:

(i)    from the Homestead where the Applicant lives with his family; and

(ii)    of two vehicles (being a Ute and Prado, defined below)

until further order or final determination of the proceeding.

3    There are two main inquiries, as was explained in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65]. First, whether the Applicant has a prima facie case, and secondly, determining where the balance of convenience lies.

4    As detailed below, the Applicant sold his farming business to Laguna Bay Agricultural No 1 Pty Ltd (Laguna Bay) and entered into an employment agreement dated 28 January 2022 as Executive Director (Employment Agreement) with Carpendale. As part of his employment, the Applicant (and his family) continued to reside in the Homestead and have the use of the two vehicles. As part of the Business sale, the Circular (defined below) provided that an ‘earn-out’ or bonus entitlement was agreed and would be paid in certain circumstances.

5    In the circumstances explained below, the Applicant has been given a notice terminating his employment. The Applicant disputes that the termination notice was validly given and therefore seeks the interlocutory relief until trial.

6    For the reasons given below, although I am satisfied that the Applicant has a prima facie case, the balance of convenience, particularly once the appropriate form of final relief is considered, does not lie in reinstatement.

7    As such, the Applicant’s claim for interlocutory relief must be dismissed.

RELEVANT LEGAL PRINCIPLES – INTERLOCUTORY INJUNCTION

8    The relevant principles to be applied on an application for an interlocutory injunction are well settled and were explained in O’Neill at [65]-[71]. However, it is sufficient to only set-out [65] and [71]:

Interlocutory injunctions

[65]    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.” By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

…

[71]    However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff’s claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is “[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried”. That was followed by a proposition which appears to reverse matters of onus:

“So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”

(Emphasis added.)

Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

[footnote references omitted]

9    To this can be added the observations of the Full Court in Warner-Lambert Co LLC v Apotex Ltd (2014) 311 ALR 632; [2014] FCAFC 59 at [68]-[72] as follows (without again re-stating [65] from O’Neill):

The relevant principles

[68]    There was no dispute between the parties as to the test that the primary judge was required to apply in deciding whether to grant or withhold the interlocutory relief sought by Warner-Lambert. There are two inquiries that must be undertaken when determining whether an applicant should be granted an interlocutory injunction. The first relates to the strength of the applicant's claim to final relief. The second relates to the balance of convenience or, as it is sometimes expressed, the balance of the risk of doing an injustice by either granting or withholding the interlocutory relief sought.

[69]    The principles to be applied in determining whether or not to grant interlocutory relief were considered by the High Court in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46 (O’Neill), including by Gummow and Hayne JJ at [65]-[72]. Gleeson CJ and Crennan J agreed at [19] with the explanation of the relevant principles in those paragraphs. In O’Neill Gummow and Hayne JJ stated at [65]: …

…

[70]    Whether an applicant for an interlocutory injunction has made out a prima facie case and whether the balance of convenience favours the grant of such relief are related questions. It will often be necessary to give close attention to the strength of a party’s case when assessing the risk of doing an injustice to either party by the granting or withholding of interlocutory relief especially if the outcome of the interlocutory application is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages, or an award of compensation pursuant to the usual undertaking, are likely to be inadequate.

[71]    It is also not in dispute that the decision of the primary judge to grant or withhold the interlocutory relief sought by Warner-Lambert required the primary judge to exercise a judicial discretion. As the High Court explained in House v R (1936) 55 CLR 499 at 504-5:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

10    Relevantly, the Full Court recently provided the following explanation in StarTrack Express Pty Ltd v TMA Australia Pty Ltd [2023] FCAFC 200 (O’Callaghan, Stewart and Button JJ) at [54]:

[54]    In cases where the grant of interlocutory relief would be tantamount to the grant of final relief, the strength of the prima facie case will often attract particular scrutiny. But the strength of an applicant’s prima facie case may still be relevant in other cases as the grant of interlocutory relief may still be warranted even if the balance of convenience is finely balanced where the prima facie case is relatively strong. Likewise, the grant of interlocutory relief may be warranted where the applicant has a strong case on the balance of convenience, but its prima facie case (while made out) is less compelling: see Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464 at 472 (Woodward J, with whom each of Smithers J and Sweeney J agreed); Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at 261 [67] (Dowsett, Foster and Yates JJ). Similarly, in GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; (2013) 305 ALR 363 at 384-85 [81(j)], the Full Court (Bennett, Jagot and Griffiths JJ) observed that “the question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience because they involve related inquiries and the apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance”.

11    Therefore, the assessment of the first consideration, being that the prima facie case must be made on the basis of the evidence as is before the Court, requires the Court to determine whether it is more probable than not that at the trial the Applicant would succeed. That is, the assessment must consider whether the Applicant has demonstrated a sufficient likelihood of success to justify the preservation of the status quo, pending the trial. The consideration of the requisite strength of the probability of success, in terms of the Applicant’s claim to final relief, depends on the nature of the rights asserted and the practical consequences likely to flow from granting the injunction sought. The second consideration, related to the first, is whether the balance of convenience favours the grant of such relief. That is, the inconvenience or injury the Applicant, in the circumstances of this case, would be likely to suffer if the injunction was refused outweighs or is outweighed by the injury or inconvenience which Carpendale would suffer if the injunction was granted. Ultimately the decision to grant or withhold interlocutory relief requires an exercise of judicial discretion.

12    Finally, in addition to the balance of convenience and the discretion to be exercised, the Court should also consider any delay in bringing the application for urgent interlocutory relief: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing Co New South Wales Ltd (1987) 76 ALR 633 at 638. Delay, of itself, can be a sufficient reason for rejecting urgent interlocutory relief: Carlton & United at 638-639; Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd (2016) 266 IR 185; [2016] FCA 1582 at [97]-[98]; Workplace Institute Limited v IBM Australia Limited (2019) 147 IPR 13; [2019] FCA 1339 at [68]-[71]. Furthermore, any delay must be adequately explained: Network Ten Ltd v Fulwood (1995) 62 IR 43 at 47.

13    Of course, each case must turn on its own facts and in the context of the particular legal controversary. In Williment v Commissioner of Taxation (2010) 190 FCR 234; [2010] FCA 8080 at [17]-[18], Perram J held a 16-day delay to be a “very substantial delay”, whereas in Capcoal Management at [96], Katzmann J held that a 16-day delay was “insubstantial”. It is the consideration of the delay in all of the particular circumstances, not the actual number of days of delay, that is determinative.

14    It is clear that in all cases, an applicant seeking an interlocutory injunction is required to act promptly. What will be “prompt” will depend on the particular circumstances, including the facts of the case and the nature and circumstances of the matters involved.

BACKGROUND

15    I make the following observations regarding the background and other relevant matters to this application for interlocutory relief without making any final findings of fact. In this context, I also observe that none of the deponents who provided affidavit evidence were cross-examined. Final findings will be for determination after the trial and after the evidence is properly tested. However, it is relevant to make these observations to assess the two main inquiries which I need to consider on this application for interlocutory relief.

16    The Applicant, via entities he controlled, operated a business known as Carpendale Farms (the Business) from approximately 2007 up until the sale to Laguna Bay. The Business premises is located on the Gore Highway in Goondiwindi. For the time that the Applicant operated the Business he resided at the Mayfair Homestead (the Homestead) with his wife and two sons. The Homestead is located approximately 10 kilometres from the Business premises.

17    Pursuant to a document entitled the “Carpendale Sale Deed” dated 3 December 2021, entities controlled by the Applicant sold the Business and all of the assets (including farming equipment) and undertakings to Laguna Bay. It is a lengthy and complicated purchase agreement and it is not relevant for the purposes of this application to construe this agreement. The sale was completed in January 2022. Some or all of the consideration received was used to pay outstanding debts of the Applicant and related entities.

18    On 26 January 2022, entities controlled by the Applicant and Carpendale Equipment Pty Ltd entered into a document entitled “Deed of Transfer and Share Subscription”, which relates to the transfer of equipment.

19    On 28 January 2022, the Applicant and Carpendale entered into an “Employment Agreement”. As part of that Employment Agreement, the Applicant was provided with the use of a Toyota Landcruiser Ute (Ute) and Toyota Landcruiser Prado (Prado). Further, the Applicant contends he was also entitled to continue to reside in the Homestead.

20    Without seeking to describe all of the provisions of the Employment Agreement, the Applicant’s position was that of “Executive Director”. Further, the Employment Agreement contained a termination clause as follows:

17    Termination of employment

In the event that either you or the Company decides to terminate your employment, the notice of termination that each party must give to the other in writing is 3 calendar months. If the Company terminates your employment, it may choose to make a payment to you in lieu of part or all of this notice period. During any period of notice, the Company may:

(a)    require you to not attend work and/or perform lessor or alternative duties;

(b)    require you not to have any contact with any employees, investors or business associates of the Company or any Related Company other than normal social contact; and/or

(c)    exclude you from all or any part of the Company’s and any Related Company’s premises.

The Company may also terminate your employment immediately and without notice if you engage in any conduct that would give the Company the right to summarily dismiss you at law, including but not limited to where you engage in serious misconduct, refuse or fail to comply with any lawful and reasonable direction given by the Company, engage in conduct that would brin the Company into disrepute, materially neglect your duties and/or commit any serious or persistent breach of this agreement.

On termination of your employment, the Company may off-set any debt, obligation or liability you owe to the company against your entitlements on termination.

If, on termination of your employment, you are a director or secretary of the Company or any other Related Company, you must resign office as director or secretary (as applicable). With effect from termination of your employment, you irrevocably appoint any director of the Company to be your attorney and in your name and on your behalf to execute any document and do any thing necessary to effect your resignation as a director or secretary of the Company or any other Related Company.

21    In addition, the Applicant was to be issued with a Manager Redeemable Preference Share (the Preference Share), pursuant to a document entitled “Circular resolution of members” (the Circular). The Applicant referred to this as an “earn-out”, as this agreement was part of the Business sale. The Circular is not signed and the Applicant has not been issued with the Preference Share.

22    However, for the purposes of the interlocutory application, Carpendale accepts that the Applicant had an entitlement to that Preference Share. The Preference Share entitled the Applicant to a payment in the event that Carpendale sold the Business for a price which exceeded an internal rate of return (IRR) specified in the Circular (the Preference Share Payment). The benefit of the Preference Share Payment, however, will only be realised by the Applicant if he remained an employee at the relevant time.

23    In this context, it is necessary to briefly consider the following events:

(a)    a (possible) sale of the Business to Regatta Capital Management Australia Pty Ltd (Regatta); and

(b)    the (purported) termination of the Applicant’s employment with Carpendale.

24    These two matters are contentious. To be clear, the observations regarding these matters are not a final determination on any of the issues that may pertain to these matters. These observations are solely for the purpose of considering whether the Applicant has established a prima facie case for relief, in accordance with the principles outlined above.

(a)    (possible) Business Sale to Regatta

25    In or around October 2024, Regatta made an approach to purchase the Business and its assets and undertakings. The Applicant suggests that the sale to Regatta is for approximately $100 million. If that sale completes, the Applicant calculates that his Preference Share Payment, should he have remained an employee, would be between $5-$8 million. The Applicant does not give any direct evidence of how he knows of the sale to Regatta or the terms of that sale.

26    A director of Carpendale says that a sale to Regatta is not substantial or imminent. The director provides copies of text messages with the agent, from September 2024 to 18 March 2025, which do not indicate that a sale is imminent. The director provides further evidence that, as at 30 April 2025, the agent has had no further contact from a representative from Regatta since the text messages.

27    The director states that he spoke to the “agent managing the sale”. This may indicate that the Business remains for sale and an agent has been appointed to assist with that process. That is, although a sale to Regatta may not be imminent, a sale is still being pursued. The director also states that, at the date of the affidavit, “no such sale is imminent, nor do I have any expectation of one occurring.” This, it was submitted, was not simply that there was no such sale to Regatta being imminent, but that there was no sale at all, being imminent. The evidence is unclear.

(b)    (purported) Termination of employment

28    The Applicant states that his role as Executive Director was changed to “General Manager Farms and Development” in February 2024. However, he submits that this was a mere title change and that his role, duties and work did not change. On 20 February 2025, the Applicant states that he was asked to attend a meeting wherein representatives of Carpendale advised him that his employment would be terminated “because we are going to change direction on how we are running”. The Applicant received a letter stating that Carpendale was terminating his employment effective from 5pm on 21 February 2025. The Applicant also gives evidence that he was told that the termination was not because of his farming performance. The termination notice was also accompanied by a demand to vacate the Homestead and to return the Ute and the Prado.

29    One of the directors of Carpendale says that by early 2024 there was concern about the Applicant’s conduct, performance, leadership, and compliance with workplace health and safety obligations. A letter dated 14 February 2024 is provided by Carpendale addressed to the Applicant, outlining these concerns. The letter states, in summary, amongst other matters, that to implement the intensive conduct and performance plan that had been provided, he was also given the position description of General Manager Farms and Development. The director also refers to a written performance plan dated 15 February 2024 for the Applicant.

30    The director gives evidence that Carpendale engaged a management consultant in October 2024, who brought further matters of concern regarding the Applicant to the directors’ attention. It is not necessary for the purposes of this interlocutory injunction application to detail those concerns. It is sufficient to note that there are contemporaneous documents commencing in February 2024 which raise matters of concern regarding the Applicant’s performance of his duties. That is prior to any alleged sale of the Business.

31    The directors of Carpendale terminated the Applicant’s employment on 20 February 2025, which was effective from 21 February 2025.

(c)    Matters since the (purported) termination

32    On 20 February 2025, the Applicant’s solicitors sent a letter to the Respondent referring to the “purported” and “immediate” termination of the Applicant’s employment, contending it was inconsistent with the terms of his Employment Agreement. Reference is made to clause 17 of the Employment Agreement and it is contended that the clause did not permit termination for ‘convenience’ but required a lawful ground for termination. The Applicant’s solicitors stated that the Applicant did not accept the termination and elected to affirm the contract. It was also alleged that the purported termination was for an improper purpose to avoid any Preference Share Payment pursuant to the Circular. The letter also alleged that the termination constituted adverse action under the FWA.

33    A further letter was sent by the Applicant’s solicitors dated 21 February 2025, stating, amongst other matters, that they held instructions to seek urgent relief from the Supreme Court by way of an order restraining any steps being taken to enforce the actions undertaken by Carpendale.

34    On 21 February 2025, solicitors for Carpendale responded, disagreeing with the requirements of clause 17 of the Employment Agreement. It is observed that Carpendale had chosen to pay the Applicant three calendar months’ pay in lieu of notice. Carpendale strongly denied any unlawful reason for the termination and relied on the concerns it had expressed over the past 12 months concerning the Applicant’s performance of his role as General Manager Farms and Development. The letter accepted that at the meeting, the Applicant had been told he was a “good farmer”. However, that did not mean he was a “good leader or manager”. Carpendale denied any attempt to avoid its obligations and completely rejected any assertion that the decision to terminate was for an improper purpose to circumvent any payment in relation to the Preference Share. Carpendale also noted the alternative offer made to the Applicant, regarding the Applicant resigning and receiving additional benefits if he did, which included a mobile phone, an additional two months in the homestead and the Prado. A Notice to Leave (Notice) was also issued from Carpendale to the Applicant, requiring him to vacate the Homestead. The Notice required vacation by 21 March 2025.

35    On 21 February 2025, solicitors for the Applicant responded, disagreeing with all of the matters raised on behalf of Carpendale, particularly his work performance concerns. Furthermore, the Applicant did not accept the validity of the Notice.

36    On 21 February 2025, the solicitors for Carpendale responded further, stating that they were seeking instructions.

37    On 25 February 2025, the Applicant’s solicitors followed up Carpendale’s solicitors.

38    On 28 February 2025, the Applicant’s solicitors received a further substantive response from Carpendale’s solicitors. Relevantly, it stated that Carpendale did not dispute that while the Applicant remained an employee, he was entitled to the Preference Share Payment (as herein defined), if the sale resulted in an IRR of 12%. Carpendale’s solicitors observed that even if a sale eventuated whilst the Applicant was employed, the projected IRR was below the required threshold for any Preference Share Payment to be paid. The letter reiterated the requirement for the Applicant to vacate the homestead by 21 March 2025.

39    In response, on 28 February 2025, the Applicant’s solicitors wrote further, denying the valid termination of the employment contract and that none of the property would be returned or the Homestead vacated, until the issue of the contract termination had been determined.

40    On 3 March 2025, Carpendale’s solicitors wrote further, demanding the return of certain property pursuant to clause 16 of the Employment Agreement. That clause, so it was contended on Carpendale’s behalf, allowed Carpendale to demand the return of property which belonged to Carpendale at anytime during the course of his employment or on the termination of his employment.

41    On 3 March 2025, the Applicant’s solicitors responded, maintaining his previous position and asserting that the Applicant continued to be employed. There was no engagement with the reference to the requirements of clause 16 of the Employment Agreement.

42    On 11 March 2025, the Applicant’s solicitors asked whether Carpendale’s solicitors had instructions to accept service. This was responded to on the same day, advising that such instructions were held.

43    On 14 March 2025, Carpendale’s solicitors wrote noting the repeated threats to commence proceedings, but that no proceedings have yet been filed. The letter detailed the current position, as advanced by Carpendale.

44    On 18 March 2025, the Applicant’s solicitors responded in detail. The letter explained that instructions were now held to seek orders of the Court and that proceedings were to be served the next day.

45    On 20 March 2025, the Applicant’s solicitors wrote further advising that they held instructions to commence proceedings in the Federal Court for the following:

3.    Our client has instructed us to issue proceedings in the Federal Court of Australia, for, among other things:

(a)    pursuant to s 545 of the of the Fair Work Act 2009 (Cth) (FWA), on an urgent interlocutory basis, and on a final basis, an order for reinstatement of our client;

(b)    a declaration that your client has contravened s 340(1)(b) of the FWA by taking adverse action against our client to prevent our client from exercising a workplace right (the details of which are below);

(c)    compensation payable to our client for your client’s contravention of the FWA;

(d)    penalties against your client for your client's contravention of the FWA;

(e)    an order for specific performance of the Constitution of Carpendale Agri Pty Ltd (Carpendale Agri), as amended by the Circular Resolution of Members Agreement (Agreement), for the issue of the Manager Redeemable Preference Shares in accordance with clauses 4.1.10 and Schedule 1;

(f)    a declaration that our client is the holder of Manager Redeemable Preference Shares in Carpendale Agri;

(g)    an order pursuant to s 175 of the Corporations Act 2001 (Cth), that your client lodge a notice of correction of the share register of Carpendale Agri with ASIC; and

(h)     damages and / or equitable compensation in lieu of specific performance.

46    The letter also detailed the basis on which “adverse action” was claimed to have been engaged in against the Applicant by Carpendale.

47    These proceedings were commenced on 21 March 2025.

A PRIMA FACIE CASE

The Applicant’s Submissions

48    The Applicant’s Amended Originating Application seeks final relief on the following two bases. First, relief under the FWA, and secondly, relief that the Circular be specifically performed, damages in lieu of that specific performance, and declarations regarding the Employment Agreement, the Notice and the demands to return property.

49    In relation to the relief sought by the Applicant under the FWA, the Applicant submits that he has a prima facie case, described as a “compelling circumstantial case”, because:

(a)    his employment was terminated to avoid him exercising a workplace right, namely, his entitlement to be paid an amount in relation to the performance of his work; and

(b)    the notice to termination requests the return of property (being the Prado and the Ute) and vacation of the Homestead, which is in breach of an implied term of good faith and fair dealing in the Employment Agreement.

50    The Applicant submitted that there were no jurisdictional issues with the proceedings being in the Court as opposed to the Fair Work Commission.

51    The Applicant commences his submissions in relation to this aspect of his case with the relevant statutory framework, being the FWA. Pursuant to s 323(1) of the FWA, an employer must pay an employee amounts payable to the employee in relation to the performance of work. The Applicant refers to and relies on Note 2 in that provision in relation to amounts including “Incentive-based payments and bonuses”, if they become payable during a relevant period. The Applicant refers to and relies on Australian Rail, Tram and Bus Industry Union v Pacific National Executive Services Pty Ltd [2025] NSWIC 3 at [21] to support the proposition that while s 323(1) of the FWA operates upon an existing obligation on an employer to pay, the provision itself imposes a statutory obligation to pay that requires the amount in question to be paid in full, in money and at least monthly: Australian Rail at [21].

52    This provision, the Applicant submits, extends to preventing any short payment of moneys payable to an employee for the performance of work: Australian Rail at [61]. That is, the Applicant submits, it extends to amounts payable “in relation to the performance of work” (emphasis added): Australian Rail at [65]. As such, so the Applicant contends, it would include the Preference Share Payment.

53    The Applicant then relies on s 340 of the FWA, which provides protection. Importantly from s 340 are the concepts of “adverse action” and a “workplace right”. The Applicant relies on s 341 that a person has a “workplace right” if the person is entitled to the benefit of a “workplace law”. The “workplace right”, the Applicant submits, has a forward-looking dimension and can relate to a future event or contingency: Qantas Airways Limited v Transport Workers’ Union of Australia (2023) 278 CLR 571; [2023] HCA 27 at [34] and [35]. The “workplace law” relied on by the Applicant is the stand-alone obligation to pay: see ss 12, 323 and 341 of the FWA.

54    The Applicant summarises his argument as follows:

(a)    Carpendale had a statutory obligation, which should not be narrowly construed, to pay the Applicant pursuant to s 323 of the FWA. The Preference Share Payment is payment “in relation to” the performance of work, as it is only payable while he is employed and is an “incentive-based payment” or “bonus”;

(b)    therefore, this statutory obligation is a “workplace law” and as such, the Applicant has a “workplace right”, which is protected by s 340 of the FWA;

(c)    by terminating the Applicant’s employment on 20 February 2025, Carpendale took “adverse action” against the Applicant, within the meaning of s 342(1) of the FWA;

(d)    that adverse action was taken to prevent the Applicant from enforcing his workplace right, being the Preference Share Payment.

55    The Applicant submits that he has a reasonable circumstantial case arising from the chronology of events, being as follows:

(i)    the Preference Share Payment was agreed to as part of the Business Sale, which provided for a payment to the Applicant if he remained employed and the Business is sold (and a particular IRR is achieved on the sale);

(ii)    in or around October 2024, discussions commenced with Regatta to sell the Business for $100 million (Carpendale’s evidence was that the offer was $87.8 million);

(iii)    the Applicant would be entitled to between $5-$8 million pursuant to the Circular for the Preference Share Payment;

(iv)    on 20 February 2025, before the sale completes, Carpendale issued the Applicant with the Notice, waived the notice period, and ended his employment immediately; and

(v)    Carpendale’s position is that the Applicant is not entitled to the Preference Share Payment because he is no longer employed.

56    The Applicant observes that he is in a difficult, perhaps unenviable position, because he is not privy to the internal discussions of Carpendale.

57    Furthermore, the Applicant specifically denies the alleged conduct which Carpendale relies on prior to the termination. The Applicant submits that there were no performance issues or concerns regarding his work.

58    In this context, the Applicant submits that the Court ought to have regard to s 361 of the FWA, which reverses the onus of proof concerning adverse action. The Applicant refers to and relies on the decision of Ryan J in Police Federation of Australia v Nixon (2008) 168 FCR 340; [2008] FCA 467 at [69], notwithstanding s 361(2) of the FWA.

59    In relation to the second aspect of the relief sought by the Applicant, the submission relies on an implied term of good faith and fair dealing. That is, the Applicant contends that the Employment Agreement would, by operation of law or by fact, have such a term implied. This is an issue which the Applicant contends is not settled: Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 at [107].

60    However, the Applicant refers the Court to matters involving a franchise contract and observes that the Full Court held that an implied duty of good faith applied in that case: Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd (2015) 237 FCR 534; [2015] FCAFC 127.

61    Such a term is plainly necessary, according to the Applicant, to prevent the Respondent from terminating the Employment Agreement without an honest and legitimate reason.

62    The Applicant submits that on the hearing of this interlocutory application, such matters ought not be determined. However, the Applicant contends that the fact that such a position is reasonably arguable is sufficient for the Court to grant interlocutory relief.

The Respondent’s Submissions

63    The Respondent takes no issue with the proceedings being in the Court as opposed to the Fair Work Commission.

64    The Preference Share Payment is, the Respondent submits, no more than a contingent and conditional benefit. It is not a “benefit of…a workplace law, [or] workplace instrument” within the meaning of s 341(1)(a) of the FWA. The Respondent contends that the Preference Share Payment cannot be “transformed” into a workplace law. The Respondent relies on the words in s 323 that “amounts” have not become due and payable.

65    Furthermore, the Respondent relies on s 361(2) to submit that the reversal of the onus of proof does not apply on this interlocutory application.

66    The Respondent contends that the Applicant’s argument regarding the termination and the Preference Share Payment is mere speculation. The Respondent refers to and relies on the evidence on this application of the directors of Carpendale.

67    Carpendale submits that if the evidence stays the same, there is no chance at the trial that the Applicant could succeed. As such, the Respondent submits that the Applicant has not established a prima facie case under the FWA.

68    Carpendale submits similarly on the implied terms case, that it rises no higher than a speculation.

Consideration

69    In Qantas, Kiefel CJ, Gageler, Gleeson and Jagot JJ described the operation of s 341(1)(a) of the FWA as follows at [34]-[35]:

[34]    The reference in s 341(1)(a) to a person having a workplace right if the person is entitled to the benefit of a workplace law or workplace instrument is sufficiently broad to encompass a present entitlement under a workplace law or workplace instrument to receive a benefit at some future stage of the employment relationship on the occurrence of an expected event or on the occurrence of a contingency. In this way, s 341(1)(a) has a forward-looking dimension. For example, s 108 provides that an employee who engages in an eligible community service activity, such as jury service or volunteer bushfire fighting, “is entitled to be absent from his or her employment” in certain circumstances. An employee “has” a workplace right in the nature of an entitlement to the benefit of s 108, although the circumstances for asserting that entitlement have not arisen and may never arise.

[35]    Thus, a person can have a workplace right, comprising an entitlement to the benefit of a workplace law or workplace instrument, within s 341(1)(a), even though the person’s capacity to exercise the workplace right may depend on accrual over time or on the occurrence of a future event or contingency. The broad scope of s 341(1)(a) is confirmed by the Explanatory Memorandum, which states that “[a] benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing (eg, long service leave)”.

[emphasis added, footnote references omitted]

70    Therefore, that the Applicant’s entitlement to the Preference Share Payment has not yet arisen, at least on a prima facie basis, would not mean that his claim may not be a workplace right.

71    The workplace right relied on is the separate statutory entitlement for payment under s 323 of the FWA. Relevantly, that section provides:

323    Method and frequency of payment

(1)    An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)    in full (except as provided by section 324); and

(b)    in money by one, or a combination, of the methods referred to in subsection (2); and

(c)    at least monthly.

Note 1:    This subsection is a civil remedy provision (see Part 4-1).

Note 2:    Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a)    incentive-based payments and bonuses;

(b)    loadings;

(c)    monetary allowances;

(d)    overtime or penalty rates;

(e)    leave payments.

72    The word “payable” is significant in subsection (1) and in Note 2. The ordinary meaning of the word “payable” would be an amount owed, or due, that is already outstanding. However, in interpreting this provision, the text must be read in context, which would include s 341(1)(a). Carpendale submitted that Note 2 was referring to amounts which had already fallen due. The parties’ submissions at the hearing of this interlocutory application did not delve into the relevant authorities or the legislative history and context of the provision to determine the meaning of the word “payable”.

73    The Applicant relied on the following passages from Australian Rail:

[21]    This Court only has power to order the relief sought if the employer was required to pay the amount under the Fair Work Act or a fair work instrument.

[22]    These were not payments said to arise under a fair work instrument. Rather it was accepted that if payments were due, they arose pursuant to individual contracts of employment.

…

[25]     Whether s 323(1) of the Fair Work Act imposes a statutory obligation to pay the contractual sums claimed (assuming they were in fact payable) depends on two related questions. First, whether s 323(1) itself imposes a statutory obligation to pay amounts within the meaning of s 545(3). Second, whether s 323(1), by requiring payment “in full” and “in money”, does more than proscribe “in kind” compensation, and by so doing creates a civil penalty for any failure to pay a contractually obligated payment for work done.

[26]    As to the first issue, I am assisted by the decision of Halley J in Euro Car Parts Pty Ltd v Cannon (“Euro Car Parts”). There the respondent contended that s 323(1) does not create a standalone payment obligation under the Fair Work Act for the purposes of s 545(3), and therefore there was no amount the company was required to pay under the Fair Work Act. Reliance was placed on the reasoning of the plurality in Qantas Airways Ltd v Flight Attendants’ Association of Australia (“Qantas Airways”) at [67]-[68]. Halley J rejected that argument, coming to the conclusion that there was nothing in the reasoning of the plurality which contradicted the conclusion of Bromberg J in Australian Education Union v Victoria (Department of Education and Early Childhood Development) (“Australian Education Union”) at [265], namely that while s 323(1) operates upon an existing obligation on an employer to pay, it itself imposes a statutory obligation to pay that requires the amount in question to be paid in full, in money and at least monthly. I agree with that conclusion and adopt it.

…

[61]     While the context set out above confirms that s 323 is at least intended to make an unauthorised deduction from pay a civil penalty offence, a natural and ordinary reading of the section gives it a wider effect. As Buchanan J concluded in Wollongong Coal and Halley J concluded in Euro Car Parts, s 323 does not only prohibit deductions other than those permitted in s 324. The plain meaning of the words “in full” is that s 323 creates a statutory obligation to pay the amount payable to an employee in relation to the performance of work each month. While the context, identified above, is consistent with a narrower view of the effect of the section, it is not inconsistent with the section also having the wider effect identified. In other words, the context does not require a departure from the natural and ordinary meaning of the words. The section not only addresses the mischief of unauthorised deductions for ‘in kind’ benefits but extends to preventing any short payment of moneys payable to an employee for the performance of work.

[63]    In conclusion, while giving due deference to the considered views of Colvin J and Manousaridis J in Wilkinson and Coote, I prefer the conclusions of Jessup J, Buchanan J and Halley J in Murrihy, Wollongong Coal and Euro Car Parts respectively, which are consistent with the plurality in Qantas Airways: namely, that s 323 identifies and provides for the enforcement of an obligation to pay wages “in full” and “monthly”, and by so doing creates a civil penalty for a failure to pay a contractually obligated payment for work done.

[64]    Accordingly, if the employees who were locked out were in fact entitled to be paid wages for the period of the lockout, then the failure to pay those wages in full, in money and within the month would have constituted a contravention of s 323(1).

[65]    Before turning to the next issue there is one further matter to address in respect of s 323(1). Pacific National’s written submissions filed before hearing contended that there were in any event no amounts “payable to the employee in relation to the performance of work” because the employees had not performed any work to which the subsection could relate. This argument was withdrawn during the hearing, in my view correctly. Section 323 is not limited to payments for work done but extends to amounts payable “in relation to the performance of work”. Hence, as noted earlier, amounts payable for annual leave, long service leave and referable to a period when an employee was unable to work due to COVID-19 restrictions, have all been held to be amounts “payable to the employee in relation to the performance of work”. The RTBU’s application does concern amounts payable in respect of the performance of work, notwithstanding it was work that the employer prevented the employees from doing.

[footnote references omitted]

74    These passages do support, at least on a prima facie basis, the Applicant’s argument that s 323 can create a separate statutory obligation. However, it is also clear that these matters of construction are not straightforward and will benefit from full argument and evidence. The evidence on this application is untested and potentially incomplete. Carpendale relies on evidence of there being no contract of sale, whereas the Applicant says there was such a contract or at least well-advanced negotiations. Of course, it is not appropriate to resolve those matters on this interlocutory application. On balance and at this stage, it does seem reasonably arguable that a contingent benefit to the Applicant may have arisen.

75    In relation to s 361(2) of the FWA, the decision of Ryan J in Nixon has been doubted. Thawley J has observed as follows in Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd [2024] FCA 805 at [64]:

[64]    In Transport Workers’ Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; 398 ALR 124 at [120], Lee J noted that the law in this respect had become “somewhat unsettled”. The views expressed by Ryan J were doubted by Snaden J in Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750 ; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 at [48]–[53] and Dixon v United Workers Union [2023] FCA 1526 at [73] at [73] . In Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [64], Mortimer J referred to competing views and determined the application without taking s 361(1) into account. ...

76    The arguments advanced by Carpendale as to the construction of s 323 of the FWA may not be as simple or as straightforward as advanced. However, having said that, there will still be difficult arguments for the Applicant to meet. These arguments arise irrespective of the construction given to s 361(2) of the FWA. As such, I will not express any view as to the correct construction.

77    In relation to the Applicant’s argument regarding an implied term of good faith and fair dealing, the law is not settled. As the Full Court observed in Marmax:

[122]     Whether an implied duty of good faith is implied by law into contracts generally has not been resolved: Barker at [42]; cf Specialist Diagnostic v Healthscope [2012] VSCA 175; (2012) 305 ALR 569 at [86]. Even so, we accept that the authorities relied upon by the primary judge would support the implication of such a term in this case.

78    To this should also be added the observations of the High Court in Barker, as referred to in Marmax. French CJ and Bell and Keane JJ held at [42]:

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

[footnote references omitted]

79    Kiefel J also observed at [107]:

[107]    The question whether a standard of good faith should be applied generally to contracts has not been resolved in Australia. Neither that question, nor the questions whether such a standard could apply to particular categories of contract (such as employment contracts) or to the contract here in issue, were raised in argument in these proceedings. It is therefore neither necessary nor appropriate to discuss good faith further, particularly having regard to the wider importance of the topic.

[footnote references omitted]

80    Further, in Marmax, from [123]-[129], the Full Court explained with reference to other authorities when it will be “necessary” to imply a term. It is clear from this that such implication could only be ascertained after a trial. However, I am satisfied that the arguments raised by the Applicant do raise a serious question to be tried.

81    As such, I am satisfied that the Applicant has established a prima facie case.

BALANCE OF CONVENIENCE

The Applicant’s Submissions

82    The Applicant seeks reinstatement of his employment and an order restraining the Respondent from seeking to have him return the Prado and Ute and to vacate the Homestead.

83    The Applicant relies on the following factors as to why the balance of convenience rests with him, such as to justify the order for reinstatement and the order restraining Carpendale from requiring the return of property:

(a)    there will be a considerable negative impact on the Applicant and his family;

(b)    the Applicant provides the only source of income for his family and he has no other means of providing for his family;

(c)    there is no other potential workplace for the Applicant within a reasonable vicinity of Goondiwindi and no other farm within the Goondiwindi region with a similar role;

(d)    the Applicant has ongoing health problems which also limits his opportunities for employment as he is unable to carry out work that is physically demanding (his role with Carpendale did not involve any heavy physical work;

(e)    the Homestead is the family home;

(f)    dispossession of the Homestead will have a negative impact on his sons;

(g)    the family will fall into financial stress as they will have to service debt and living expenses with no income;

(h)    it is integral to the Applicant performing his role that he live at the Homestead; and

(i)    the Applicant could not afford alternative accommodation for his family without this employment and living at the Homestead.

The Respondent’s Submissions

84    Carpendale submits that the balance of convenience lies in favour of not making the injunction, for the following reasons:

(a)    the prima facie case is too weak to support any injunction;

(b)    the undertaking as to damages appears worthless;

(c)    the injunction is sought until determination of the proceedings, which could be 12 months or more;

(d)    Carpendale will be put to the expense of paying the Applicant’s replacement and housing him and his family;

(e)    there is accommodation available for rent which can house the Applicant and his family;

(f)    the following factors do not support reinstatement:

(i)    there has been a loss of trust and confidence in the Applicant by Carpendale;

(ii)    the seniority of the Applicant’s position within Carpendale;

(iii)    the impact on the other employees of Carpendale; and

(iv)    disruption to the new employee, who is performing the Applicant’s role, and his family;

(g)    Carpendale has serious concerns about the Applicant’s ability to continue in his previous role, which could compromise the Business; and

(h)    even if reinstated, Carpendale could simply re-terminate the Applicant’s employment, pursuant to the Employment Agreement.

Consideration

85    In considering the balance of convenience, the Court must engage in a counterfactual analysis by comparing the prejudice and hardship likely to be suffered by the Applicant (and his family) and Carpendale where the injunction is granted or not granted.

86    To this should be added the observation of the Full Court in Qantas v Transport Workers' Union of Australia (2022) 292 FCR 34; [2022] FCAFC 71 (Qantas FC) from [273]-[429] regarding reinstatement. A decision to make or refuse to make an order under s 545 of the FWA is discretionary and calls for the making of a value judgment: Qantas FC at [318]. A reinstatement order will ordinarily be apt to achieve the legislative purpose where the termination has resulted in circumstances of a contravention of the FWA: Qantas FC at [324]. However, that is not absolute: Qantas FC at [325]. To reinstate means to put back in place, which in an employment context means restoration of the terms and conditions of employment and for the employee to perform the actual work as he was before the termination: Qantas FC at [327]-[328]. One of the “compelling reasons” for refusing an order for reinstatement was the availability and appropriateness of compensation, if reinstatement was not ordered: Qantas FC at [339], [351] and [361]-[362]. Another was the inevitability that the employer would retrench the reinstated employees as soon as it could, as it would only do what it was legally required to do. Both of these considerations have relevance to the current proceedings.

87    The Applicant also (correctly) accepted that whether damages would be an adequate remedy is also part of this consideration.

88    In the particular circumstances of this case, it can be accepted that the Applicant will suffer prejudice, if a reinstatement order is not made. He and his family continue to live at the Homestead. The Applicant describes this as the family home. However, it should be noted that the Homestead was sold as part of the Business sale. As such, although the Applicant continued to reside at the Homestead, that place of residence would always cease to be available to the Applicant and his family upon his employment with Carpendale ceasing. This is also relevant to the impact on the Applicant’s family. That is, although one of his sons is in Grade 12 at Goondiwindi High School, and the other son is a special needs person who is likely to be distressed by having to move from the Homestead, this is an event which is likely to have occurred at some point as the Applicant (or entities he controlled) no longer owned that property. Even though this factor does weigh in favour of the Applicant, in terms of considering the balance, I have discounted it somewhat due to the inevitable consequence that one day, on his employment with Carpendale ceasing, he and his family would have to move from the Homestead.

89    Carpendale has also obtained information from a real estate agent in Goondiwindi which shows that there are properties available to rent in Goondiwindi.

90    To this can be added that the Applicant’s special needs son is also employed by Carpendale. The Applicant gives evidence that this son is unable to live independently and having to move will mean it is very difficult for this son to continue with this employment. A director of Carpendale gives evidence that this son continues to work for Carpendale and uses a vehicle that belongs to the Respondent to drive himself to and from work. However, that would be to and from the Homestead. There will be prejudice to the Applicant and this son if an injunction is not granted. This is a factor which weighs in favour of granting the injunction sought.

91    The Applicant also gives evidence that there is no other alternative employment within a reasonable vicinity of Goondiwindi, particularly noting his health problems. The Respondent has conducted some searches for similar positions. It is unclear from that evidence whether those positions are in or near Goondiwindi. One position appears to be in New South Wales and one appears to be in Victoria. These would not be suitable. I accept that the Applicant may have difficulty in finding employment and that he will need to obtain employment as his income is the family’s source of income. I also accept that there is an intrinsic value to work and not merely monetary reward. Of course, depending on the Applicant’s age when his employment with Carpendale came to an end, in any event, the Applicant may have always needed to find another employer. However, on any view, this factor weighs in favour of granting the injunction.

92    However, against this position of the Applicant, consideration must be given to the position of Carpendale. There is clearly a breakdown in the relationship between Carpendale and the Applicant. There is a loss of trust and confidence by Carpendale in the Applicant. To restore the Applicant to his position with Carpendale is likely to result in a significant practical impediment. It may be that a workable, viable employment relationship is unable to be restored. Carpendale has expressed that it has serious and significant concerns about the Applicant performing his role. At this stage it is unnecessary and would be inappropriate to make a finding regarding such matters. However, it does support the position that the relationship between the Applicant and Carpendale has broken down. Forcing Carpendale to reinstate the Applicant would cause prejudice to it. This factor weighs against granting the injunction.

93    Carpendale has also expressed its position that it no longer wishes for the Applicant to be a part of its Business operations and as such, while doing what it was legally required to do, it would look to end his employment as soon as possible. As was the case in Qantas FC, this is a factor which weighs against granting the injunction.

94    Carpendale has already employed another person who is currently undertaking the Applicant’s role. Therefore, there is either no work for the Applicant to undertake, or, if a reinstatement order is made, the new person hired may have no work to undertake. Either way, Carpendale may be effectively paying for two people to undertake one role. Further, Carpendale will have to accommodate the new person somewhere other than the Homestead. Once again this will cause prejudice to Carpendale and to the new person employed and also weighs against granting the injunction.

95    There are three additional matters which once considered and weighed, tilt the scales in favour of not granting the injunction sought.

96    First, there was some delay by the Applicant in commencing these proceedings. During that period Carpendale has employed a new person in the role that the Applicant was undertaking. If the Applicant had commenced proceedings sooner this may not have occurred.

97    Secondly, is the availability and appropriateness of compensation if reinstatement is not ordered. Compensatory damages (as was compelling in Qantas FC) in all the circumstances will be an appropriate form of relief for the Applicant, should he succeed at trial.

98    Thirdly, the undertaking as to damages offered by the Applicant has not been shown to be of any value. The undertaking as to damages is often referred to as “the price of an injunction”: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 at 311-312, 318-319 and 324-325; also see Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249 at 253. Although the Applicant has offered the undertaking, he has not established that the undertaking is of any value. The Applicant has not offered any security to support the value of his undertaking: see Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215 at [251]-[253]; also see Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 at [85]-[86]. The Applicant has actually given evidence that he owes a significant amount of money to his parents. Although this matter would not be determinative in and of itself, it does require consideration and weighs against the granting of an injunction.

CONCLUSION

99    I accept that the Applicant has a prima facie case. However, the balance of convenience does not weigh in favour of granting the interlocutory injunction. For these reasons, the application for interlocutory relief will be dismissed.

Associate:    

Dated:    27 June 2025