Federal Court of Australia

Kennedy v State of Queensland [2025] FCA 836

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth), the cause of action purported to be pleaded by paragraphs 6, 60, 61, 63 and 64(e) of the applicant’s statement of claim be dismissed.

2.    The applicant’s interlocutory application filed on 16 June 2025 be dismissed.

3.    Costs be reserved.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

INTRODUCTION

1    Before me are two competing interlocutory applications filed in relation to the discrimination case brought by Ms Belinda Kennedy against the State of Queensland and two of its employees within the Department of Justice and Attorney General (respondents).

2    In the first application, filed by the respondents on 13 June 2025, the respondents seek an order pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (Rules) that certain paragraphs of the applicant’s statement of claim filed on 23 January 2025 (SOC) be struck out, or alternatively an order pursuant to r 26.01 of the Rules that the proceeding be partially dismissed in relation to the cause of action pleaded at those paragraphs of the statement of claim, on the basis that the pleading fails to disclose a reasonable cause of action (dismissal application).

3    In the second application, filed by the applicant on 16 June 2025, the applicant seeks an order pursuant to r 16.53 of the Rules permitting amendments to the SOC, namely to two of the six paragraphs which were impugned in the dismissal application (amendment application).

4    For the reasons that follow, the cause of action purportedly pleaded by paragraphs 6, 60, 61, 63 and 64(e) of the SOC must be dismissed pursuant to r 26.01 of the Rules. Consequently, there is no utility in allowing the proposed amendments to the SOC.

Background

5    By her originating application filed on 23 January 2025, the applicant brings various claims against the respondents pursuant to ss 28AA(1), 28B, 28M, 105, 106 and 109 of the Sex Discrimination Act 1984 (Cth) (SD Act), as well as a claim against the State for damages for breach of her contract of employment (the Damages Claim).

6    In the SOC, the Damages Claim was pleaded at [6] as arising from an implied term of the applicant’s employment contract that the State would ensure the health and safety of the applicant while she was in its employ. It was alleged at [60], [61] and [63] of the SOC that the applicant suffered personal injury as a result of the alleged breaches by the State of that implied term, with damages sought for the alleged breaches at [64(e)] of the SOC.

7    The respondents subsequently, by letter dated 21 May 2025, notified the applicant that they held concerns regarding the formulation of the Damages Claim in the SOC, including because the implied term pleaded at [6] was not an implied contractual or tortious duty known to law. The parties exchanged correspondence on the subject in the weeks that followed. On 10 June 2025, the applicant agreed that she would re-plead [6] and [60] of the SOC in relation to the content of the implied contractual term.

8    The applicant did not, however, concede the respondents’ other objection, namely that the applicant is not entitled to pursue the Damages Claim having regard to ss 237 and 275 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act). Those provisions prohibit the commencing of common law claims for damages for work-related personal injury unless the person meets certain criteria. As such, the respondents argue, the Damages Claim will be statute-barred if either of those limitations apply. It was conceded that the applicant does not meet the relevant criteria.

9    The dismissal application has been brought in circumstances where the respondents submit that the presence of the Damages Claim would have a direct impact upon the length and complexity of the matters to be resolved at trial, particularly because it will dictate the evidence that will need to be adduced by the parties.

10    The amendment application has been brought to address the parties’ now-agreed position as to the appropriate content of the implied contractual term. In particular, the applicant seeks to put on an amended statement of claim (ASOC) which amends [6] so as to allege that it was a term of the applicant’s employment contract that the State would take reasonable care to provide the applicant with a safe place of work and a safe system of work while she was in its employ. The applicant also seeks to amend [60] such that the alleged breaches by the State align with the amended wording of the implied term.

11    In correspondence sent to my Associate on 26 June 2025, Crown Law, the respondents’ representatives in this matter, confirmed that although they accepted that the reformulated paragraphs [6] and [60] of the proposed ASOC plead a duty which exists at law, they maintained their contention that those paragraphs, as well as paragraphs [7], [61], [63] and [64(e)] of the SOC, ought to be struck out or dismissed because the applicant is not entitled to bring the Damages Claim at all.

12    At the hearing of the applications, the respondents’ objection to paragraph [7] of the SOC was withdrawn. Both parties also resiled from any reliance, one way or the other, on the decision of Rares J in Leggett v Hawkesbury Race Club Ltd (No 3) [2021] FCA 1658; 317 IR 1.

The Dismissal Application

Relevant principles

13    The principles governing applications made under rr 16.21 and 26.01 of the Rules are well-settled and need not be restated at length. It is trite law that the powers conferred by those provisions must be exercised by the Court in the way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth): Karlsson v Griffith University [2022] FCA 591 at [45].

14    In respect of the power to summarily dismiss a proceeding (or part thereof) under r 26.01, it is uncontroversial that its exercise requires caution and a practical judgment as to whether the claim has a more than fanciful prospect of success: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [22]-[27] and [49]-[60]. In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J identified (at [29(d)]) that an application for summary dismissal is likely to succeed if the moving party can demonstrate to the Court that an applicant’s success in the principal proceeding relies upon a question of law that is straightforward and confined, or trite in the sense that it is well-settled on authority, such that the question may be resolved summarily without the necessity of conducting a full trial.

15    Where, as is the case here, the relevant ground for the summary dismissal application is that the claim discloses no reasonable cause of action, summary dismissal will only be ordered where the claim is “so obviously untenable that it cannot possibly succeed”: SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 at [29]. That test is more stringent than one requiring that there be “no reasonable prospects of success” (Prior at [31]), as a reasonable cause of action will exist where there is some chance of success if regard is had only to the allegations in the pleadings: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; 203 FCR 325 at [43].

16    The applicant submitted that, if the respondents’ position as to the Damages Claim being statute barred by the WCR Act is accepted, then the appropriate power to be exercised is the power to summarily dismiss that claim under r 26.01, the issue not being a “pleading deficiency” liable to being struck out under r 16.21: see eg, Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; 252 ALR 41 at [3]-[7]; White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [50].

Is the Damages Claim a reasonable cause of action?

Nature of the Damages Claim

17    It was common ground between the parties that the Damages Claim is a common law claim for damages arising from an alleged work-related personal injury. It was also uncontroversial that, but for the arguments based on the effect of the WCR Act, the Court would have jurisdiction to hear the Damages Claim.

18    As to the implied term pleaded at paragraph [6] of the proposed ASOC, the applicant submitted that it is “not controversial” that, at common law, an employer has a duty of care to take all reasonable steps to provide an employee with a safe system of work, such duty requiring the employer to “establish, maintain and enforce such a system” (see eg, Kozarov v Victoria [2022] HCA 12; 273 CLR 115 at [82]-[83]; Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120; 163 FCR 62 at [324]-[326]). As I have already observed, the respondents no longer cavil with the formulation of the relevant duty as stated in the amended paragraph [6] of the proposed ASOC.

Limitations on claims for damages under the WCR Act

19    The respondents argued that the applicant is not entitled to bring a claim for damages under the common law, whether in contract or tort, for an alleged work-related personal injury unless she remains entitled to do so under the WCR Act.

20    The respondents submitted that the relevant “gateway” for a worker to seek common law damages for work-related personal injury is s 237(1) of the WCR Act, which in summary provides that the only persons who are entitled to seek such damages are either the worker themself, if they have met certain requirements, or a dependant of the worker, if the injury results in the worker’s death and certain requirements are met. Section 237(5) declares that subsection (1) “abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker”. The respondents drew attention to the decision of the Queensland Court of Appeal in Watkin v GRM International Pty Ltd [2006] QCA 382; [2007] 1 Qd R 389 where at [19]-[23] Keane JA, with whom McMurdo P (at [1]) and Cullinane J (at [30]) agreed, held that s 237 exhaustively describes those persons who may seek damages for a work-related personal injury, and that s 237(5) denies to a person who does not meet those descriptions any entitlement to seek damages for such injury. It was accepted that the applicant does not meet the descriptions under s 237(1).

21    Separately, the respondents identified that s 275 of the WCR Act requires that a worker give notice, within the specified period of limitation, to the employer before commencing a proceeding seeking damages for a work-related personal injury. It was not disputed that the applicant has not met that requirement.

Impact of State statutory restrictions on claims in federal jurisdiction

22    In correspondence dated 22 May 2025, the applicant accepted that the relevant provisions of the WCR Act “contain threshold restrictions on curial access which would debar the Applicant from pursuing a common law claim for damages in the Supreme Court of Queensland.” In other words, the applicant accepts the correctness of the respondents’ position in State jurisdiction.

23    The applicant disputes, however, that the same applies with respect to federal jurisdiction. The applicant argued that the WCR Act does not apply to the Court’s exercise of federal jurisdiction either by its own force or through the operation of the Judiciary Act 1903 (Cth). The result, the applicant contended, is that in exercising federal jurisdiction the Court may apply the common law to determine the Damages Claim notwithstanding the limiting provisions of the WCR Act.

24    By contrast, the respondents argued that because s 237 applies personally to the applicant as a worker subject to the WCR Act, the restrictions apply with the full force of State law regardless of whether the applicant’s claims are brought in State or federal jurisdiction.

25    In that regard, the respondents relied on the reasoning of the High Court in Rizeq v Western Australia [2017] HCA 23; 262 CLR 1. There, at [32], Kiefel CJ said:

Section 79 of the Judiciary Act is directed to courts. Its purpose is to fill the gaps created by a lack of Commonwealth law governing when and how a court exercising federal jurisdiction is to hear and determine a matter and the inability of a State law to apply directly to that court whilst exercising federal jurisdiction. In such a case it is necessary that s 79 adopt the State provision and apply it.

(Emphasis added.)

26    That point, as to the application of a State law to the Court’s exercise of federal jurisdiction, was further elucidated by the majority (Bell, Gageler, Keane, Nettle and Gordon JJ), who explained at [63] that:

The incapacity of a State Parliament to enact a law which governs the exercise of federal jurisdiction by a court, whether it be a federal court or a State court, explains the necessity for s 79 of the Judiciary Act and is the key to understanding the nature and extent of its operation. Section 79 is a law, enacted under s 51(xxxix) of the Constitution, which serves to ensure that the exercise of federal jurisdiction is effective. The section fills a gap in the law governing the actual exercise of federal jurisdiction which exists by reason of the absence of State legislative power. The section fills that gap by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of federal jurisdiction. The section has no broader operation.

(Emphasis added.)

27    Their Honours went on to summarise the position as follows (at [103]):

Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws. What State laws relevantly cannot do within the limits of State legislative capacity is govern the exercise by a court of federal jurisdiction. A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised. A State law cannot in that sense “bind” a court in the exercise of federal jurisdiction, and that is the sense in which that word is used in s 79 of the Judiciary Act. The operation of s 79 is limited to making the text of the State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction.

(Emphasis added.)

28    Writing separately, Edelman J identified, at [123], that:

… it is accepted that State laws which do not fall within s 79(1) will usually apply of their own force. Indeed, some decisions simply relied upon the relevant State law operating either by its own force or through the effect of s 79. In Pedersen v Young (1964) 110 CLR 162 at 165, Kitto J said that the “received opinion as to the operation of ss 79 and 80” was that “subject to the Constitution and to the laws of the Commonwealth, all Queensland laws must be treated as binding in this Court, as federal law if not by their own force”.

(Emphasis added.)

29    His Honour went on to make important observations as to the operation of s 79 of the Judiciary Act, including the distinction which needs to be drawn between laws which are “binding on a court” and those which are “binding on a person”, saying (at [200]-[204]):

[200]     The submissions on this appeal did not need to, and did not, address a number of difficult issues which still remain in relation to the operation of s 79(1) … Another issue is the boundaries of laws which regulate an authority to decide. It will not always be a simple exercise to determine whether a State law is one which is binding on a court, involving the regulation of the court’s authority to decide (ie regulation of the court’s exercise of existing powers), or whether the law is one which is binding on a person or persons. However, at the core, some simple examples can be given. Laws concerning procedure, evidence, and the competency of witnesses all regulate the general manner of the court’s authority to decide over its subject matter. In relation to State courts, they are laws which explain how State courts’ powers should be exercised. They are not concerned with the rights or duties of persons. …

[201]    Another example of a law which regulates the subject matter of a court’s authority to decide is a law which limits the time within which an action can be brought … These laws are expressly recognised in s 79(3)(a) of the Judiciary Act. And the High Court of Australia has given regular recognition of laws which limit the time in which an action can be brought as laws which can fall within s 79(1) of the Judiciary Act.

[202]    Laws which limit the time in which an action can be brought are an example of laws which concern when a court can adjudicate upon rights falling within a particular subject matter. The limitation laws do not “bar” a person’s rights. Instead, they provide a defence which precludes an effective adjudication upon those rights. …

[203]    Apart from laws which regulate the subject matter dimension of the court’s authority to decide, s 79(1) will also apply to laws which regulate the personal dimension of the authority to decide such as laws which determine the persons who can appear before the court. So, in Macleod for instance, s 79 was needed to engage the operation of s 206A(2) of the Justices Act 1902 (WA). Section 206A(2) was a law concerned with the persons who could bring an appeal. Similarly, laws giving a court the power to stay proceedings are laws which regulate the authority to decide over the persons before the court.

[204]    On the other hand, laws which regulate a court’s authority to decide will not usually include the general corpus of law which establishes the rights, privileges, powers, immunities, duties, disabilities, and liabilities of persons. …

    (Citations omitted.)

30    The applicant argued that one did not need to consider s 79 of the Judiciary Act, because s 80 answered the point in her favour.

31    The relevant provisions of the Judiciary Act provide as follows:

79     State or Territory laws to govern where applicable

(1)     The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

…

(3)     This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following:

(a)     limiting the period for bringing the suit to recover the amount;

(b)     requiring prior notice to be given to the person against whom the suit is brought;

(c)     barring the suit on the grounds that the person bringing the suit has charged someone else for the amount.

…

80     Common law to govern

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

32    The starting point, the applicant says, is that identified by the High Court majority of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 where, at [53], their Honours said that “strictly the question that arises in matters of federal jurisdiction does not involve any choice between laws of competing jurisdictions, but identification of the applicable law in accordance with s 79 and s 80 of the Judiciary Act”.

33    The applicant relied on the majority decision of the High Court (Gleeson CJ, Gummow, Hayne and Heydon JJ) in Blunden v Commonwealth [2003] HCA 73; 218 CLR 330 in support of a submission that, because the WCR Act makes no change to the common law duty to take reasonable care to provide an employee with a safe system of work, s 80 of the Judiciary Act means that the common law (unmodified) governs this Court’s exercise of federal jurisdiction. The applicant referred specifically to their Honours’ statement (at [16]) that, in determining what the applicable limitation law was in respect of a negligence claim brought against the Commonwealth that arose in international waters, the “inquiry directs attention, in the first instance, to s 80”, particularly to the qualifying words “So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment …”. The majority rejected the plaintiff’s claim that the common law applied “in its pristine form” without modification by any applicable statute (at [35]).

34    Mr Blunden had argued that the opening words of s 80 condition the operation of the balance of the section upon two circumstances: (1) that “the laws of the Commonwealth” are not applicable; (2) that the provisions of “the laws of the Commonwealth” are insufficient to carry them into effect or to provide adequate remedies or punishment. He argued that the phrase “the laws of the Commonwealth” in the opening words of s 80 includes the common law in Australia and is not confined to statute law. Consequently, as the Australian common law was not insufficient in any way and supplied the lex loci delicti, it was unnecessary to consider the balance of s 80, or the Limitation Act. In rejecting that argument, their Honours held, at [29]:

Here, the expression is to be read with the section in which it appears, taken as a whole. The text of s 80 speaks on the one hand of the common law in Australia and on the other hand of the modification thereof by the Constitution and statute law. The phrase “the laws of the Commonwealth” in the opening words of s 80 plainly identify statute law.

35    Similarly, the applicant sought to argue that there is no insufficiency in the Australian common law of contract relating to breach of a duty of care owed to a worker. However, the applicable law in the exercise of the necessary federal jurisdiction is by s 80 directed to be the common law in Australia as modified by, relevantly, the statute law in force in Queensland. That statute law includes the WCR Act which, in its Objects in Pt 2, states that the main provisions of the scheme provide, inter alia, regulation of access to damages for injuries sustained by workers in their employment (s 5(2)(b)).

36    To the extent that the applicant sought to argue that her claim for damages was not brought “under the WCR Act” and so remained one at common law only, that submission must be rejected. Section 10(1) of the WCR Act provides that the meaning of damages is “damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages …” (emphasis added). Similarly, there is no basis for the applicant’s submission that s 10(2) creates a “carve out” from the provisions of Ch 5 of the WCR Act such that she is entitled to pursue a claim for damages at common law without regard to those provisions. Although the submission was not entirely clear, the applicant seemed to contend that, by virtue of s 10(2), the Damages Claim is not a claim for “damages” within the meaning of the WCR Act if it is picked up by s 80 of the Judiciary Act, being a law of the Commonwealth.

37    Section 10(2) provides:

(2)    A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under–

(a)    another Act; or

(b)    a law of another State, the Commonwealth or of another country.

That section excludes from the definition of “damages” any indemnity an employer may seek from any liability imposed on the employer by a State, Commonwealth, or international law. It does not assist the applicant.

38    As was identified by the High Court majority in Blunden, where s 80 is of no assistance the next step is recourse to s 79, but only “if it is necessary to take it to provide an answer to the particular question that arises” (at [17]). As their Honours noted, that secondary recourse is a necessary consequence of the fact that s 80 is itself one of the “laws of the Commonwealth” to which s 79 is expressly subject (at [18], citing Commonwealth v Mewett (1997) 191 CLR 471 at 522 per Gaudron J). Their Honours concluded (at [45]):

… the applicable law is to be identified by proceeding directly through s 80 to the modification of the common law respecting limitation of actions which is effected by the relevant statute law of the territory, namely the Limitation Act.

39    So too in this case, it is appropriate to proceed directly through s 80 to the modification of the common law concerning damages for the breach of contractual duty alleged by the applicant which has been effected by the WCR Act. Were there any doubt about the modification of the common law, the Court of Appeal of the Supreme Court of Queensland has dispelled it. In Phipps v Australian Leisure and Hospitality Group Ltd [2007] QCA 130; 2 Qd R 555, Muir J, in comparing s 151C of the Workers Compensation Act 1987 (NSW) with ss 237, 250 and 275 of the WCR Act, said (at [37]):

Both Acts constitute statutory schemes modifying common law rights in respect of damages claims in which the worker’s right to sue the employer for damages “remains a right sourced at common law”.

40    I observe that the modifications to the common law made by the WCR Act fall squarely within the type of laws contemplated by s 79(3) of the Judiciary Act. That is to say, if the applicant had brought her suit for damages for breach of the duty of care owed to her in contract by her employer in State jurisdiction, rather than federal, she would have been required to comply with the limitations provided for in ss 237 and 275 of the WCR Act. The common law could not apply in its pristine form in either case.

DISPOSITION

41    For these reasons, it is appropriate to grant the relief sought in paragraph 2 of the respondents’ interlocutory application filed on 13 June 2025, excepting paragraph 7 of the SOC. The applicant’s interlocutory application filed on 16 June 2025 must be dismissed.

42    I will reserve the question of costs until the determination of the substantive proceeding.

Associate:

Dated:    23 July 2025