Federal Court of Australia

Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd [2025] FCA 1021

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s interlocutory application filed on 14 April 2025 to join Mr Terrence Harmse as an applicant to this proceeding be dismissed.

2.    The Applicant’s interlocutory application filed on 28 April 2025 to enjoin the firm of solicitors representing the First to Fourth and Sixth to Tenth Respondents from acting in this proceeding be dismissed.

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    Pursuant to an amended originating application and amended statement of claim (ASOC) filed on 11 March 2025, Ms Holly Grofski is pursuing a consolidated claim for relief under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) and under the whistleblower protection provisions of Part 9.4AAA of the Corporations Act 2001 (Cth) arising from alleged adverse action against her by some of the Respondents in relation to her employment at the Coppabella Coal Mine in central Queensland.

2    On 4 March 2025, Ms Grofski and Mr Terrence Harmse separately filed a claim and statement of claim in the Supreme Court of Queensland seeking relief under ss 275AA and 275AB of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act). Their application to transfer that proceeding to this Court is pending.

3    On 14 April 2025, Ms Grofski filed an interlocutory application to join, inter alia, Mr Harmse to the proceeding in this Court as a second applicant. She filed a further interlocutory application on 28 April 2025 seeking an order to restrain MinterEllison, the solicitors for the First to Fourth and Sixth to Tenth Respondents, from continuing to act as solicitors on the record for those Respondents in this proceeding.

4    I dismissed both applications following the hearing on 23 July 2025. These are my reasons for so doing.

BACKGROUND

5    Ms Grofski is a former employee of Peabody Energy Australia PCI Mine Management Pty Ltd (PEA), the First Respondent, the operator of the Mine. Ms Grofski was employed as a Production Operator, operating heavy mining haul trucks at the Mine. She was also a Safety Representative.

6    The Second Respondent, Peabody Energy Corporation, was the parent company of PEA. The Eighth, Ninth and Tenth Respondents are subsidiaries of Peabody.

7    The Third to Seventh Respondents are natural persons who held senior management positions at the Mine during the relevant period and who are alleged to have made decisions and taken actions detrimental to Ms Grofski.

8    The Fifth Respondent is separately represented by Allens in this proceeding.

9    Ms Grofski’s employment was terminated on 23 May 2024. She alleges this was the culmination of a series of escalating retaliatory actions taken against her in response to her exercising workplace rights and making protected disclosures.

10    Mr Harmse worked at the Mine as a labour hire worker employed by Workpac Pty Ltd, who contracted with PEA. Mr Harmse has not commenced proceedings in this Court. In his proposed draft statement of claim, Mr Harmse alleges that the First, Second, Fifth, Ninth and Tenth Respondents took adverse action against him, in breach of ss 340 and 351 of the FW Act, in response to his exercise of workplace rights between July and September 2024.

Application for Joinder

11    The Federal Court Rules 2011 (Cth) deal with the issue of joinder. In her written submissions, Ms Grofski relied on rr 9.02 and 9.05.

12    Rule 9.02 provides:

Joinder in proceedings involving common questions etc.

(1)     Two or more persons may be joined (as applicants or respondents) in any proceeding:

(a)     if separate proceedings by or against each of them would give rise to a common question of fact or of mixed fact and law; or

(b)     if all rights to relief claimed in the originating application are in respect of, or arise out of, the same transaction or series of transactions; or

(c)     by leave of the Court.

(2)     Leave under paragraph (1)(c) may be granted before or after the originating application is filed.

(3)     If 2 or more persons are joined under subrule (1), the Court may at any stage of the proceedings order that proceedings by or against any party or parties be conducted separately.

(Emphasis added.)

13    As was submitted by the Respondents, all of whom took the same position on the question of joinder, the focus of r 9.02(1)(a) is on a commonality as between the relevant factual questions to be determined.

14    Rule 9.02(1)(b) focuses on the relevant transaction or series of transactions, and whether all rights to relief flow from the same such transaction or transactions.

15    Rule 9.05 provides:

Joinder of parties by Court order

(1)     A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

(a)     ought to have been joined as a party to the proceeding; or

(b)     is a person:

(i)     whose cooperation might be required to enforce a judgment; or

(ii)     whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)     who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

…

(Emphasis added.)

16    The relevant question in this case is whether, in order to pursue his foreshadowed claim under the FW Act, Mr Harmse is properly characterised as a second applicant in Ms Grofski’s extant proceeding, or whether he should commence his own separate proceeding.

17    In her oral submissions, Ms Grofski placed emphasis on the matters referred to in r 9.05(1)(b)(iii). She submitted that, absent joinder, “identical issues now in this Court and in the Supreme Court matter, including my own, if not joined will be potentially litigated piecemeal.” She submitted that the two claims involved a single controversy. It must be observed that Ms Grofski’s submission is premised on her assumption that she will be granted leave to further amend the originating application and to file yet another amended statement of claim.

18    It is necessary to understand the claims made by Ms Grofski and those proposed to be made by Mr Harmse respectively.

19    There is no doubt that both claims invoke causes of action under the FW Act. Only Ms Grofski claims under the Corporations Act. She presently pleads no claim in this Court under the CMSH Act but does so in the Supreme Court proceedings. No claim for whistleblower protection is made by Mr Harmse.

20    Turning then to the respective allegations under the FW Act and the CMSH Act. Relevantly for present purposes, Ms Grofski seeks (ASOC at [119]) declarations pursuant to s 545(1) of the FW Act that the Respondents contravened ss 340(1) and 342(1) by taking unlawful adverse action in response to her exercising her workplace rights, in summary by:

1.    excluding her from a Safety Committee Meeting on 14 March 2024;

2.    forcing her to complete an incident report on 16 March 2024;

3.    standing her down on 19 March 2024;

4.    issuing her with a First Performance Improvement Notice on 10 April 2024;

5.    attempting to issue her with a Disciplinary Notice on 16 April 2024;

6.    standing her down on 10 May 2024;

7.    issuing her with a Show Cause Notice on 10 May 2024;

8.    terminating her employment on 23 May 2024; and

9.    failing to prevent ongoing retaliation.

21    In his affidavit filed on 27 June 2025, Mr Harmse stated (at [13]) that, from 11 July 2024, he “repeatedly raised a range of coal mine safety issues, especially machine cabin standards.” He annexed as Annexure 1 to that affidavit what he described as “a copy of my FASOC claims I intend to plead if joined, and the my [sic] Supreme Court Claims transferred to join QUD 661/24.” The annexure is in the following terms:

22    The draft statement of claim foreshadowed by Mr Harmse (Annexure TH1 to his affidavit filed on 14 April 2025) pleads, relevantly:

[4] Mr Harmse was employed by Workpac;

[10] Between July and September 2024, he exercised certain workplace rights under the CMSH Act and the FW Act;

[8] (sic) His site access was revoked on or about 18 October 2024; and

[9] (sic) The adverse action was taken because he exercised a workplace right and/or because of discrimination on the basis of a disability (Parkinson’s disease).

23    Ms Grofski submits that the requirements of r 9.02 are satisfied, as both she and Mr Harmse raised concerns about the dust-exposure hazards in machine cabins at the Mine, each stood for election as a Site Senior Health Representative, and they both allege they were subject to retaliatory action. So much may be accepted. However, no common question of fact, or question of mixed fact and law, has been identified.

24    The facts pertaining to Ms Grofski’s dismissal all occurred prior to 23 May 2024. The facts pertaining to Mr Harmse’s exclusion from the Mine all occurred between July and October 2024, well after Ms Grofski’s employment had ceased. The extent to which similar questions of law might fall to be determined in the resolution of their individual claims is not to the point. Similar questions of law fall to be determined in every case concerning claims brought under the same statutory provisions, whether that be the FW Act or the CMSH Act, or any other statute for that matter. In this case, there is simply no common question of fact that falls to be determined, and hence no common question of mixed fact and law. Nor do the claims for relief arise out of the same transaction or series of transactions.

25    Notably, Ms Grofski was employed by the First Respondent; Mr Harmse was not, nor does he proceed against his employer, Workpac. Both complained about dust issues, but at different times. Ms Grofski alleges that adverse action was taken against her by the Fifth Respondent; Mr Harmse makes no specific allegation against the Fifth Respondent in his proposed statement of claim. Ms Grofski is pursuing a claim under the whistleblower protections in the Corporations Act; Mr Harmse is not. Mr Harmse is pursuing a claim for discrimination under s 351 of the FW Act; Ms Grofski is not. Ms Grofski alleges that after exercising her workplace rights, she experienced adverse action in the form of dismissal, injury in her employment and alteration of her position to her detriment; Mr Harmse alleges that after exercising his workplace rights, he experienced adverse action in the form of exclusion from the work site, being given misleading reasons for his exclusion, and prejudicing of his employment conditions due to unreasonable scrutiny, intimidation and workplace hostility.

26    In short, r 9.02 is not satisfied.

27    As to whether r 9.05 is engaged, neither claim depends on the other to facilitate the enforcement of any judgment. Further, as can be gleaned from the comparison of the factual circumstances articulated above, the factual and legal issues in respect of each claim can be appropriately determined in isolation – evidence in one claim will not be evidence in the other. These are not truly related disputes such that joinder will avoid a multiplicity of proceedings. In truth, there are two separate proceedings arising out of different matrices of fact, which are alleged to have affected Ms Grofski and Mr Harmse in different ways and who, consequently, seek different relief against the Respondents.

28    Consequently, r 9.05 is not satisfied.

29    To the extent that Ms Grofski submitted orally that Mr Harmse should be joined to her proceeding so that she may assist him in an administrative capacity, the submission must be rejected. Ms Grofski has been assisting Mr Harmse in that capacity in any event in the Supreme Court proceedings. There is no reason why that assistance could not continue regardless of joinder to these proceedings. Ms Grofski is conscious that she is not a lawyer and, as such, cannot provide legal advice to Mr Harmse. I do not accept the assertion that Mr Harmse “does not have the capacity to commence a separate Federal proceeding” (Ms Grofski’s affidavit filed on 14 April 2025 at [7(c)]; Mr Harmse’s affidavit filed on 14 April 2025 at [8]). Mr Harmse has been able to commence Supreme Court proceedings, communicate with Ms Grofski sufficiently to prepare a proposed statement of claim in the Court, and prepare affidavits. Further, he was present in Court at the hearing of these applications and the Court was told he was prepared to speak to the Court if necessary. Mr Harmse is no different from the very many self-represented litigants who pursue claims under the FW Act in this Court.

30    It is for these reasons that I dismissed Ms Grofski’s interlocutory application to join Mr Harmse to this proceeding.

APPLICATION FOR Disqualification of MinterEllison

31    Ms Grofski’s concern as to MinterEllison’s role as the solicitors on the record for all but the Fifth Respondent stems from the fact that a Partner of the firm, Ms Leyla Dixon, was engaged by the Second Respondent to undertake an investigation into the safety issues which Ms Grofski raised in the course of her employment. Ms Grofski contends that Ms Dixon’s finding that her allegations were unsubstantiated necessarily conflicts with a separate finding apparently made by the relevant State mining regulator. Mr Daniel Williams, also a Partner of MinterEllison, is also alleged to have a conflict, apparently on the basis that he was copied to emails concerning the investigation. Ms Grofski alleges that in addition to there being a material conflict of interest, there is also a risk of procedural unfairness in circumstances where Mr Williams and Ms Dixon will be required to give evidence of material facts.

32    The Court has an inherent jurisdiction to restrain solicitors from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the proper administration of justice. In reiterating that principle in Porter v Dyer [2022] FCAFC 116; 402 ALR 659 at [113]-[114], the Full Court held that the test is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice, and that the power to restrain is exceptional and must be exercised with caution. In this regard, in Finch v Heat Group Pty Ltd (No 2) [2016] FCA 791; 353 ALR 193, Pagone J said at [9]:

… It is a high test with a heavy burden imposed upon a party making the application. The jurisdiction has been described as “extraordinary and protective” (Woodgate v Leonard [2007] NSWSC 495, [37]), of an “exceptional nature” (TJ Board & Sons Pty Ltd v Castello [2008] VSC 91, [30]) and to be applied only in a “clear” case (Bransdon v Davis & Gilbert (2007) 212 FLR 28, [70]): see also GE Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th Edition) [17.20], p538. There are many reasons for a heavy burden to be satisfied by the party making such an application. One reason is that a court should not make an order that interferes with the relation between the opposing party and that party’s chosen and trusted legal practitioners. Public confidence in the administration of justice depends in part upon litigants being able to choose who they have to represent them and in whom they place their trust and confidence. The proper administration of justice is assisted by trust and confidence existing between litigants and their legal representatives. The legal practitioner plays a crucial role in conveying the client’s case to a court for adjudication and the confidence and trust of the client in the chosen legal practitioner is an essential aspect of that role. An order restraining a legal practitioner from acting for a client interferes with that role, adversely affects the client and may unjustifiably interfere with the proper conduct of the client's case. It may also have the effect of causing irreparable harm to the client’s case and is apt to undermine the proper administration of justice in all but the clearest cases. To restrain the legal practitioners from acting for a party in continuing proceedings may also confer an unjustifiable forensic advantage upon the party seeking the restraint.

(Emphasis added.)

33    At the outset, it is important to observe that Ms Grofski does not merely seek to restrain Mr Williams and Ms Dixon from continuing as solicitors on the record; she seeks to restrain the entire firm of MinterEllison from so acting.

34    The affidavit of Mr Trent Matthew Forno, also a Partner of MinterEllison, filed on 13 June 2025 (Forno Affidavit) deposes to his having carriage of the matter on behalf of all the Respondents (except the Fifth Respondent) since April 2025, the matter having been transferred to him by Mr Williams for internal resourcing reasons. Ms Grofski’s interlocutory application was filed on 28 April 2025. I have no reason not to accept Mr Forno’s statement (Forno Affidavit at [5]) that the transfer of carriage was unrelated to that application.

35    Mr Forno also deposes that Ms Dixon was engaged by Peabody between May and July 2024 to make findings in respect of the various safety allegations made by Ms Grofski. Ms Dixon was supported by a junior solicitor, Ms Stella Tsakires. Mr Williams did not interview any persons for the investigation (Forno Affidavit at [6]).

36    It will be recalled that the Federal Circuit and Family Court proceedings were commenced in August 2024. On or about 27 March 2025, MinterEllison erected an information barrier in relation to all matters concerning Ms Grofski and placed Ms Dixon outside that information barrier (Forno Affidavit at [8]). Mr Williams was placed outside that information barrier on 13 June 2025 (Forno Affidavit at [9]). This means neither Mr Williams nor Ms Dixon is able to access any documents held by MinterEllison relevant to Ms Grofski’s (or Mr Harmse’s) claims.

37    As was submitted by Senior Counsel for the Respondents to this application, Ms Grofski does not contend that MinterEllison owes her any duty of confidentiality. There has been no solicitor-client relationship between Ms Grofski and MinterEllison at any time.

38    In her oral submissions in reply, Ms Grofski conceded that her application was premature because she has not yet finalised the pleading pursuant to which she wishes to prosecute her claims. As I have already said, she should not assume leave will be given to replead. In any event, on the present state of her pleading, there is no allegation made that would tend to suggest that Ms Dixon or Mr Williams would have any relevant evidence relating thereto.

39    Ms Dixon delivered the report of her investigation on 1 July 2024, well after Ms Grofski’s employment had been terminated. Ms Grofski’s Chronology, which is Schedule 2 to her written submissions, records her first interaction with Ms Dixon as having taken place on 31 May 2024, a week after her termination. There can be no suggestion in those circumstances that Ms Dixon’s investigation had any relevance to the action taken against Ms Grofski.

40    In any event, whether or not Ms Grofski’s safety allegations were or were not substantiated by an investigation has no bearing on the issue of whether the Respondents took reprisal actions against her, contrary to the FW Act, because she raised safety concerns. Similarly, in respect of her claims for whistleblower protection, the issue for determination with respect to s 1317AD of the Corporations Act will be whether one or more of the Respondents “believes or suspects that [Ms Grofski] made, may have made, proposes to make or could make a disclosure that qualifies for protection”, and “the belief or suspicion … is the reason, or part of the reason, for the detrimental conduct”. Ms Dixon’s conclusions as to the validity of Ms Grofski’s safety concerns have nothing to do with the determination of whether an alleged wrongdoer’s “belief or suspicion” about Ms Grofski’s disclosure status was the substantial and operative motivating factor for the detrimental conduct. The same analysis applies to Ms Grofski’s (as yet unpleaded) claims under ss 275AA and 275AB of the CMSH Act.

41    This is not an exceptional case in which it would be appropriate to restrain a firm of solicitors from continuing to act for its clients, particularly in circumstances where, even if it could be said that the investigation was in some way relevant to the allegations pleaded, the practitioners who were involved in that investigation have been barred from accessing any documents relating either to this proceeding or to Mr Harmse’s proceeding in the Supreme Court.

42    For these reasons, I dismissed Ms Grofski’s interlocutory application to restrain MinterEllison from acting further as the solicitors on the record for the Respondents (except the Fifth Respondent) in this proceeding.

Costs

43    Ms Grofski submitted that I should not reserve the costs of these applications, on the basis that such an order would nevertheless be “an order as to costs” within s 570 of the FW Act and I would therefore need to be satisfied that the interlocutory applications had been brought vexatiously or without due cause. I will deal with the question of costs in a holistic manner at the conclusion of the proceeding and make no determination at this point about whether or not s 570 has been engaged.

Associate:

Dated:    26 August 2025

SCHEDULE OF PARTIES