Federal Court of Australia

Gunawardena v Boeing Aerostructures Australia Pty Ltd (No 2) [2025] FCA 1090

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s oral application that the respondent be restrained from continuing to engage its solicitors in this proceeding is dismissed.

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

REASONS FOR JUDGMENT

(Ex tempore, revised)

WHEELAHAN J:

1    The applicant is self-represented. The background to this proceeding was set out in Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206, being my reasons for ordering that the applicant’s statement of claim be struck out and making provision for her to re-plead. The claims arise out of the respondent’s termination of the applicant’s employment on 24 October 2023. At that point, the applicant had been employed by the respondent for a little over 10 months. The applicant has filed an amended statement of claim, although there were antecedent draft pleadings that were the subject of further disputation before that document was filed. The respondent has filed a defence, and on 13 August 2025 the applicant filed a reply.

2    The applicant’s claims are extensive. They include claims that the respondent took adverse action against the applicant because she exercised a workplace right, although they are by no means so limited. Embedded within the applicant’s amended statement of claim are claims that she was covered by the Boeing Aerostructures Australia (Port Melbourne) Enterprise Agreement 2022 (the EA) and that it applied to her. The respondent denies that the applicant was covered by the EA. The nature of that denial has been elaborated upon in a written submission of counsel for the respondent. Essentially, the respondent’s position is that the applicant’s position did not come within the coverage clause of the EA.

3    By letter to the respondent’s solicitors dated 12 August 2025 the applicant claimed that the solicitors had a conflict in acting for the respondent in this proceeding. The applicant claimed that there was a real and sensible possibility that the duty of the solicitors to act in the best interests of the respondent may conflict with their own interests in defending prior work, reputation, or avoiding potential criticism or liability. That was because, so the applicant claimed, that the present proceeding concerns the validity, interpretation, or effect of the EA in which the respondent’s solicitors were directly involved, and that their prior work, advice, and conduct were liable to be scrutinised in this proceeding. The applicant relied on the terms of r 12.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, which provides –

12.1    A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.

4    The respondent’s solicitors responded to the applicant’s claim that there was a conflict by letter dated 15 August 2025. They rejected the applicant’s claim that they may have a conflict of interest, describing it as being without substance and entirely misconceived. They added that none of the partners of the respondent’s solicitors or lawyers acting for the respondent in this proceeding had any involvement in the enterprise bargaining for the EA, and that all partners and lawyers who were involved were no longer with the firm.

5    By a letter to the Court dated 15 August 2025 the applicant requested that the Court address the potential conflict of interest at the next case management hearing, which was scheduled for today. The applicant annexed to the letter her correspondence with the respondent’s solicitors on this question, together with other documents in the nature of web pages from the respondent’s solicitors’ website and a LinkedIn page of a former partner of the respondents’ solicitors.

6    I determined to treat the applicant’s raising of the matter at the case management hearing as an oral application for an injunction to enjoin the respondent from further engaging Corrs Chambers Westgarth (Corrs) as their solicitors in this proceeding: see Federal Court Rules 2011 (Cth), r 17.01(3). I received into evidence the applicant’s letter to the Court dated 15 August 2025, together with a copy of the EA which was an annexure to an affidavit of an employee of the respondent, Chandima Asantha Welungoda, affirmed 1 September 2025.

7    For the purpose of this application, I make the following findings –

(1)    The EA is a non-greenfields single enterprise agreement that was approved by the Fair Work Commission on 27 April 2022. It has a nominal expiry date of 30 June 2025.

(2)    I infer from the fact of its approval that the EA was made when the employees who were to be covered by the EA voted upon it: see Fair Work Act 2009 (Cth), s 182(1).

(3)    Corrs acted for and advised the respondent in relation to the enterprise bargaining that led to the making and approval of the EA. In particular, Mr John Tuck and Mr Christopher Leong were individual lawyers who acted for the respondent in relation to the EA.

(4)    Mr Tuck is no longer a partner at Corrs, having left in December 2024, and is now a partner at King & Wood Mallesons. Nor is Mr Leong an employee of Corrs, having left Corrs by December 2024.

(5)    The EA contains a coverage clause in clause 3.1 which provides that the EA covers and applies to employees of the respondent engaged in its operations at 226 Lorimer St, Port Melbourne whose terms and conditions of employment are covered by the EA.

(6)    There is a dispute raised by the pleadings as to whether the applicant was covered by the EA during the term of her employment by the respondent.

(7)    Neither the applicant nor the respondent raises any claim that brings into question the validity of the EA.

(8)    The pleadings do not raise any issue that brings into question any personal conduct of the respondent’s current or former solicitors, either individually or collectively by reference to the firm Corrs.

8    The Court has wide powers under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders as the Court thinks appropriate. Such orders may extend to any orders that are necessary to protect the integrity of the Court’s processes and the preservation of public confidence in the administration of justice. In the exercise of those powers the Court may, where the circumstances dictate, prevent legal practitioners from acting or appearing for a particular party: Grimwade v Meagher [1995] 1 VR 446. In Finch v Heat Group Pty Ltd (No 2) [2016] FCA 791; 353 ALR 193 at [11], Pagone J stated that the jurisdiction exists to ensure that the integrity of the proceeding is maintained. His Honour referred to the jurisdiction as extraordinary, and stated that the Court’s concern when considering whether to exercise that extraordinary jurisdiction is whether it is required for the due and proper administration of justice in a proceeding.

9    The principles that are applicable to an application to enjoin a party from continuing to retain its solicitors in a proceeding involve the application of an objective standard. They were summarised by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (Mumbin) in terms that were approved in Porter v Dyer [2022] FCAFC 116; 402 ALR 659 at [113] (Lee J, Besanko and Abraham JJ at [1] agreeing in substance). See also Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005 at [16] (Moore J). Subject to one comment that I make below, I adopt the following summary by Griffiths J in Mumbin at [39] –

The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:

(a)    The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).

(b)    The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see [Nash v Timbercorp Finance Ltd (In liq) [2019] FCA 957; 137 ACSR 189] at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).

(c)    Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).

(d)    This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).

(e)    This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; (2006) 237 ALR 612 at [35] per Young J).

(f)    A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VR 350 at 359 per J D Phillips J).

(Emphasis in original).

10    The one comment that I make is that it is unnecessary on this application to enter upon the question of the correct formulation of the fair-minded, reasonably informed member of the public test, and whether it is referrable to a conclusion that the hypothetical referee “might” or “would” reach: see the discussion by Lee J in Porter v Dyer at [114]. As will become apparent, the difference between the two formulations is not material to the outcome of this application.

11    The question whether the applicant was covered by the EA will likely turn on evidence relating to the terms of her contract of employment, the work that she undertook in her employment, and the terms of the EA. To the extent that the terms and conditions of the applicant’s employment were in writing, questions of contractual interpretation will arise. Contractual interpretation is an objective question which rarely involves evidence of a party’s subjective understanding, and there is no basis to think that the respondent’s solicitors could give any admissible evidence in relation to the terms and conditions of the applicant’s employment.

12    Similarly, the construction of the EA is also an objective exercise. The principles relating to the construction of industrial instruments are long-standing, and were recently summarised by the Full Court in Noorton Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FCAFC 120 at [52] (Raper, Hatcher and Younan JJ). At the heart of those principles is a focus on the language of the instrument understood in light of its industrial context and purpose. The subjective intention of the makers of the instrument, still less their advisers, is rarely relevant to the question of objective meaning: see Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377 at [63], cited in Target Australia Pty Ltd v Shop, Distributive and Allied Employees' Association [2023] FCAFC 66; 324 IR 304 at [72] (Bromberg J, Feutrill J agreeing).

13    It is difficult to conceive that the evidence of any of the respondent’s lawyers would be relevant to any question relating to coverage, and I conclude that there is no reasonable prospect that it might be relevant, or that any such evidence might be adduced. Nor is the outcome on the question of coverage a question in respect of which it has been demonstrated that there is any basis rationally to think that the respondent’s past or current solicitors have any interest in the relevant sense that might compromise their ability to discharge their professional and ethical obligations to the Court. There are no claims made in the proceeding that have any real prospect of bringing the conduct of any of the respondent’s past or present lawyers into question: cf, Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 (Middleton J).

14    The applicant’s interlocutory application is therefore dismissed.

Associate:

Dated:    4 September 2025