FEDERAL COURT OF AUSTRALIA

Bilal v Ampol Limited [2025] FCA 1189

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth):

(a)    prayer 2 of the originating application filed on 20 March 2025 be dismissed together with paragraphs 11 and 12 of the statement of claim filed on 20 March 2025; and

(b)    the originating application be dismissed in so far as it involves claims for relief in respect of detriment alleged to have been caused by conduct engaged in by one or more of the respondents by reason of the applicant making a disclosure or proposed disclosure as contemplated within Part 9.4AAA of the Corporations Act 2001 (Cth) where that conduct was engaged in before the relevant disclosure, or proposed disclosure, was made.

2.    The statement of claim be struck out in its entirety.

3.    The applicant serve a proposed amended statement of claim on the respondents by 4.00 pm on Thursday, 6 November 2025.

4.    The respondents convey their consent or opposition to the filing of the proposed amended statement of claim by 4.00 pm on Thursday, 13 November 2025.

5.    To the extent the respondents oppose the filing of the proposed amended statement of claim, the applicant is to apply for leave to amend by 4.00 pm on Tuesday, 18 November 2025.

6.    To the extent the respondents consent to the filing of the proposed amended statement of claim, the applicant is to be granted leave to file it in the form proposed.

7.    The matter be listed for case management hearing at 10.15 am on Thursday, 20 November 2025.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1 The applicant (Mr Bilal) was employed by the second respondent (Ampol Australia) in the period from 10 July 2023 to 6 September 2023 (when his employment was terminated).  In these proceedings, by way of an Originating Application and Statement of Claim (SOC) each filed on 20 March 2025, Mr Bilal claims that Ampol Australia, the first respondent, and the third respondent (the Respondents) each contravened the “whistleblower” protections contained in Part 9.4AAA of the Corporations Act 2001 (Cth) (the Corporations Act).

2 By an interlocutory application filed on 2 May 2025, the primary relief sought by the Respondents is an order pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and/or r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules) that the Originating Application and SOC be summarily dismissed.

3 In the alternative, the Respondents seek:

(a)    pursuant to r 16.21 of the Rules, that the SOC be struck out; and

(b)    either:

(i)    an order pursuant to s 32AB of the FCA Act, transferring these proceedings to the Federal Circuit and Family Court of Australia (FCFCOA) to be heard with three other proceedings commenced by Mr Bilal, or

(ii) an order pursuant to r 30.11(d) of the Rules requiring the present proceedings be heard together in this Court with the FCFCOA proceedings.

4 Mr Bilal has also commenced separate proceedings in this Court (NSD617/2025) against EML NSW Limited and two of its employees alleging, inter alia, contraventions of Part 9.4AAA of the Corporations Act (the EML Whistleblower Proceedings). EML was relevantly the corporate entity responsible for managing Mr Bilal’s workers compensation entitlements, which were claimed in relation to the termination of his employment with Ampol Australia. The respondents in the EML Whistleblower Proceedings also applied for summary judgment and/or strike out of the claims made by Mr Bilal against them.  Many aspects of Mr Bilal’s claims against the Respondents in these proceedings rely upon the same or similar apparent substratum of alleged facts as to alleged “qualifying” disclosures in the EML Whistleblower Proceedings: see Bilal v EML Limited [2025] FCA 1190 (EML Judgment).

5 The Respondents’ primary contentions may be summarised as follows:

(a)    insofar as the alleged whistleblowing contraventions took issue with the dismissal of Mr Bilal from his employment with Ampol Australia, Mr Bilal’s claims in this respect cannot be maintained by reason of the statutory bar against “multiple actions” being brought by a person in relation to their dismissal as contained in Part 6-1 of the Fair Work Act 2009 (Cth) (the FW Act) in circumstances where Mr Bilal has already commenced separate “general protections” proceedings under the FW Act in the FCFCOA (being, SYG1728/2023, SYG853/2024, and SYG452/2025) (the FCFCOA Proceedings);

(b)    in any event, Mr Bilal’s claims as to whistleblowing contraventions under Part 9.4AAA of the Corporations Act do not have reasonable prospects of success and otherwise do not disclose a cause of action;

(c)    further and alternatively, Mr Bilal’s claims against the first and third respondents have no reasonable prospects of success or do not disclose a cause of action against them; and

(d)    alternatively, the SOC should be struck out as it is embarrassing, frivolous and vexations and discloses no reasonable cause of action.

6 For the reasons that follow, I am satisfied that the part of Mr Bilal’s claims as pleaded in the SOC at [11] and [12] should be summarily dismissed by reason of the statutory bar in Part 6-1 of the FW Act.  Mr Bilal’s claims that involve a significant temporal disconnect between the taking of detrimental conduct and the making of disclosures should also be summarily dismissed.  The balance of the SOC should otherwise be struck out in its entirety.  As for the claims that have been struck out, Mr Bilal is to replead his claim and serve a proposed amended statement of claim on the respondents, and, if no consent is given to its filing, I will hear and determine his application for leave to amend.

2.    APPLICABLE PRINCIPLES

7 I recently summarised the principles that govern applications for summary dismissal or strike out, as well as the circumstances in which leave may be granted to replead a defective pleading: see Kitoko v Sydney Local Health District [2025] FCA 914. For convenience, I summarise the essential principles below.

2.1    Summary dismissal

8 Section 31A of the  FCA Act empowers the Court to summarily dismiss a proceeding where it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding, or part of the proceeding.  This power may be exercised even if the Court does not conclude that the proceeding or part thereof is “hopeless” or “bound to fail”.

9 Section 31A(2) and (3) relevantly provide as follows:

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

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

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

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

10 As the plurality in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 stated at [53] (Hayne, Crennan, Kiefel and Bell JJ), s 31A departs radically from earlier tests, such as those considered in General Steel Industries v Cmr of Railways [1964] HCA 69; 112 CLR 125 (Barwick CJ).  The effect of s 31A is to lower the bar that was fixed by previous authorities for obtaining summary judgment.  It is not necessary to demonstrate that a claim is “hopeless” or “bound to fail” for it to have no reasonable prospects of success: Spencer at [17]–[26] (French CJ and Gummow J).  The following principles emerge from the joint judgment of Hayne, Crennan, Kiefel and Bell JJ in Spencer at [58]–[60]:

(a)    no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content;

(b)    in many cases where a party has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A;

(c)    nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim; and

(d)    the Federal Court may exercise power under s 31A if, and only if, it is satisfied that there is “no reasonable prospect” of success.

11 A practical judgment is required to be made: Spencer at [25] (French CJ and Gummow J).  The moving party bears the onus of persuading the court that an order should be made: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46] (Reeves J).  The determination of a summary dismissal application does not require “a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial” and instead requires “a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial…”: Cassimatis at [46].

12 While there are no “hard and fast” rules the moving party is likely to succeed on its persuasive onus if it is able to demonstrate that the applicant’s success in the proceeding relies upon a question of fact that can be truly described as “fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials”: Cassimatis at [47]. Conversely, it is unlikely to succeed where there appears to be “a real question of fact to be determined between the parties” and this is “more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty”: Cassimatis at [47].  A real question of fact is also more likely to exist where the question(s) of fact concerned are complex.

13 As a general principle, the moving party on an application for summary dismissal is likely to succeed where the applicant’s success in the proceedings “relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial”: Cassimatis at [48].  The moving party would be unlikely to succeed if the applicant’s success in the proceedings relies upon “a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel”: Cassimatis at [48].

14 The Court has a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially: Cassimatis at [50].

2.2    Strike out

15 Rule 16.21 of the Rules provides that:

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

(a)     contains scandalous material; or

(b)     contains frivolous or vexatious material; or

(c)     is evasive or ambiguous; or

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

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

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

16 It is to be borne in mind that there is a distinction between an application for summary dismissal, which is directed to the underlying prospects of success of the proceedings, whereas a strike out application is directed to the sufficiency of the pleadings or equivalent documentation: Abela v Minister for Home Affairs [2021] FCA 96 at [8] (Abraham J) (citing Spencer at [23] (French CJ and Gummow J)).  Where the evidence shows that a person may have a reasonable cause of action or a reasonable prospect of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21 of the Rules but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: Abela at [9] (citing Spencer at [23]).

17 Rule 16.21 needs to be considered in the light of r 16.02, which provides, amongst other things, that a pleading must identify the issues that the party wants the Court to resolve, state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against it at trial (but not the evidence by which the material facts are to be proved) and must not fail to disclose, relevantly, a reasonable cause of action appropriate to the nature of the pleading or otherwise be an abuse of process of the Court.  An applicant must plead the “material facts necessary for the purpose of formulating a complete cause of action, and … it is not sufficient simply to plead a conclusion drawn from unstated facts”: McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 at [23] (Weinberg J).  The material facts must be pleaded with a sufficient degree of specificity to convey to the other party the case which that party has to meet and a bare conclusion is ordinarily not a proper allegation: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; 217 ALR 226 at 235 (Beaumont J).

18 Further, as Perry J said in Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 at [19]:

(5)     A party who pleads a condition of mind, including knowledge, must state in the pleading particulars of the facts on which the party relies: FCR r 16.43(1) and (3). Equally, if a party pleads that another party ought to have known something, particulars of the facts and circumstances on the basis of which it is said that that other party ought to have acquired the knowledge must be pleaded: FCR r 16.43(2). For example, it might be pleaded that a party knew or ought to have known a given fact because it received a particular communication: Young Investment Group at 540 [10].

(6)     Furthermore, in line with the seriousness of such an allegation, a party who pleads (relevantly) misrepresentation must state in the pleading particulars of the facts on which the party relies: FCR r 16.42. As Foster J held in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3 with respect to a statement of claim alleging misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) (the predecessor provision to s 18 of the ACL):

In this connection it is important to remember that, as Fox J said in Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; 35 ALR 79 at 86:

Section 52(1) is a comprehensive provision of wide impact, which does not adopt the language of any common law cause of action. It does not purport to create liability at all; rather does it establish a norm of conduct, failure to observe which has consequences provided for elsewhere in the same statute, or under the general law.

It necessarily follows that when the section is sought to be used in litigation as the foundation of a cause of action or claim for some specific form of relief, it is imperative that the factual basis upon which the section is alleged to be brought into play must be stated with appropriate clarity in a statement of claim. This is, of course, a fundamental principle of pleading.

2.3    Leave to replead

19 If a Court determines that a pleading should be struck out on one of the grounds articulated in r 16.21 of the Rules, a party may apply to the Court  for leave to amend its pleading where such leave is required (that is, where r 16.51 does not apply): r 16.53(1)–(2).  The principles that apply to an exercise of discretion to grant leave to amend a pleading pursuant to r 16.53 were set out, albeit in relation to the precursor in the (now repealed) Federal Court Rules 1979 (Cth) (the 1979 Rules), in Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 36 (Lindgren J; Lockhart and Tamberlin JJ agreeing) and Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; 176 FCR 66 at [22] (Kenny J).  Generally, either in the case of an amendment to an originating process or a pleading, leave will be refused where the amendment would be obviously futile because it would not disclose any reasonable cause of action, seeks to raise a case that is misconceived in point of law, is embarrassing, or is otherwise liable to be struck out: Research in Motion at [22]–[23]; Allstate Life Insurance at 36; SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48] (Gleeson J); Saffari v Latitude Financial Services Australia Holdings Pty Ltd [2024] FCA 573 at [18] (Perry J).  The Court must exercise its discretion to grant leave to amend in accordance with the overarching purpose in s 37M of the FCA Act: see Latitude Financial at [17] and the cases there cited.

3.    MAKING SENSE OF THE SOC

20 One of the difficulties in addressing the Respondents’ contentions and Mr Bilal’s response to them is that the SOC fails to adhere to basal principles of pleading in substantial respects.  I have endeavoured to make sense of the claims pleaded in the SOC, as set out  below.

21 At one level, irrespective of their merits, the skeletal aspects of Mr Bilal’s claims appear to be as follows:

(a)    Mr Bilal was employed by Ampol Australia from 10 July 2023 to 6 September 2023;

(b)    during his employment, he either made or proposed to make various disclosures to “Ampol” about matters of seriousness which would (if accepted) qualify for protection under Part 9.4AAA of the Corporations Act;

(c)    after his employment was terminated, he made further disclosures to “Ampol” and the Australian Securities and Investments Commission (ASIC) which would also qualify for protection under Part 9.4AAA;

(d)    “Ampol” engaged in conduct that caused detriments to him including in the steps taken by “Ampol” to terminate his employment and the eventual termination of that employment, and in the assessment of a workers’ compensation claim made by him and its management by both “Ampol” and “EML”;

(e)    the relevant conduct was engaged in by “Ampol” because “they believed or suspected that the [Mr Bilal] made, may have made, proposed to make, or could make a disclosure that qualifies for protection under Part 9.4AAA of the Act in relation to Ampol, its related bodies corporate, or their officers or employees”; and

(f)    he has suffered various forms of loss and damage by reason of “Ampol’s” contraventions of Part 9.4AAA.

22 Viewed in this way, and if the SOC was pleaded in a way that conformed with fundamental rules of pleading, it is possible to see some of the claims that Mr Bilal might be able to maintain as a matter of law (putting to one side the merits of those claims and their factual basis). However, rather than adhering to the statutory elements of Part 9.4AAA of the Corporations Act, or abiding by the rules of pleadings including those specified in the Rules, the SOC instead betrays these fundamental precepts.  Before turning to address why this is so, it is necessary to explain the structure and content of the SOC (as best as I can).

23 The SOC follows an apparent structure, which Mr Bilal confirmed and addressed during his oral submissions before me.  That structure appears to be as follows:

(a)    paragraphs 3 to 4 appear to refer to allegations of disclosures qualifying for protection under Part 9.4AAA of the Corporations Act in the period up to and including Mr Bilal’s termination from employment on 6 September 2023;

(b)    paragraphs 5 to 8 appear to refer to allegations of disclosure qualifying for protection under Part 9.4AAA of the Corporations Act in the period after the termination of Mr Bilal’s employment and specifically on 27 November 2024, 5 December 2024, 8 December 2024, and again on 8 December 2024;

(c)    paragraph 9 appears to allege contraventions of s 1317AC(1) and refers to detriment said to have been suffered by Mr Bilal in respect of the period leading up to the termination of his employment because of the disclosures alleged in paragraphs 3 to 4 and paragraph 10 appears to make corresponding allegations but involves a claim made under s 1317AD(1);

(d)    paragraphs 11 and 12 follow the same approach as paragraphs 9 and 10 but appear to be focussed upon detriment arising from the act of termination;

(e)    paragraph 13 appears to allege contraventions of s 1317AC(1) and refers to detriment arising from the Respondents having made false or misleading representations relating to Mr Bilal’s apparent claims for workers’ compensation because of the disclosures alleged in paragraph 3 to 8 and paragraph 14 appears to make corresponding allegations but involves a claim made under s 1317AD(1);

(f)    paragraphs 15 and 16 follow the same approach as paragraphs 13 and 14 but appear to be focussed upon detriment arising from the alleged concealment of information, provision of false or misleading information, and procurement or inducement of others to do the same;

(g)    paragraph 17 appears to relate to the basis of a claim for exemplary damages; and

(h)    paragraphs 18 to 24 identify the relief sought as set out in the originating application.

24 Although the above structure might appear to follow a coherent path seeking to address the necessary elements for causes of action alleging multiple contraventions of s 1317AC(1) and s 1317AD(1), the pleadings are not in fact coherent at all. It is necessary to explain why.

25 The protection afforded to whistleblowers under the Corporations Act has been considered in several recent decisions of this Court: see Mount v Dover Castle Metals Pty Ltd [2025] FCA 101; 339 IR 1 at [124]–[153] (Katzmann J); Reiche v Neometals Ltd (No 2) [2025] FCA 125; 338 IR 312 at [58]– [100] (Feutrill J); Jackson v Heart Research Institute Ltd [2025] FCA 301 at [209]–[232] (Raper J); Australian Securities and Investments Commission v TerraCom Ltd (No 3) [2025] FCA 1017 at [17]–[22] (Jackman J). Although the decisions in Reiche and Mount v Dover are under appeal, I do not perceive any error in their Honours’ general description of the legislative framework.

26 Mr Bilal makes claims under both s 1317AC(1) and s 1317AD(1). The text of each of these provisions is broadly the same, however the focus is slightly different. Section 1317AC (headed “Victimisation Prohibited”) is a prohibition, the contravention of which is an offence and gives rise to a liability for the imposition of a civil penalty. Section 1317AD (headed “Compensation and other remedies”) identifies the circumstances in which a Court may make an order for compensation or other relief under s 1317AE. The burden of proving the elements of these provisions differs.

27 In order to establish a contravention of s 1317AC(1), an applicant must prove that:

(a) a respondent engaged in conduct;

(b) this conduct caused the applicant detriment (within the meaning of s 1317ADA);

(c) when the respondent engaged in that conduct, it believed or suspected that the applicant made, may have made, proposed to make or could make a disclosure that qualifies for protection under Part 9.4AAA; and

(d) that belief or suspicion was the reason or part of the reason for the conduct.

28 In order to establish a claim under s 1317AD(1), the Court must be satisfied that:

(a)    a respondent engaged in conduct that:

(i) caused detriment to the applicant; or

(ii) constituted the making of a threat to cause any such detriment;

(b) when the respondent engaged in that conduct, the respondent believed or suspected that the applicant made, may have made, proposed to make or could make a disclosure that qualifies for protection under Part 9.4AAA; and

(c) that belief or suspicion was the reason or part of the reason for the conduct.

29 Both s 1317AC and s 1317AD focus on disclosures that “qualify” for protection. Whether a disclosure qualifies for protection relies on several interlocking provisions within Part 9.4AAA.  Section 1317AA defines the circumstances of a “qualifying disclosure”. This section identifies three categories of disclosure recipients: (1) ASIC, APRA, or another prescribed Commonwealth authority; (2) an “eligible recipient”; and (3) a legal practitioner.  In summary, a disclosure to a recipient falling in the first two categories will qualify for protection where:

(a) the applicant (as the “discloser”) was an “eligible whistleblower” (within the meaning of s 1317AAA) in relation to a “regulated entity” (within the meaning of s 1317AAB): ss 1317AA(1)(a) and 1317AA(2)(a);

(b) the applicant made a disclosure to a prescribed body or an eligible recipient in relation to the regulated entity: ss 1317AA(1)(b) and 1317AA(2)(b); and

(c) the applicant had reasonable grounds to suspect that the disclosed information concerns misconduct, or an improper state of affairs or circumstances, in relation to the regulated entity: s 1317AA(4). The applicant must subjectively possess grounds for such a suspicion and those grounds must objectively be reasonable.

30 In relation to second element of s 1317AD(1), it has been argued that the provision implicitly requires that a disclosure has in fact been made (ie, not just possible or proposed disclosures). It has been held, however, that in the absence of such an express requirement in the text of the provision, and in light of the purpose and context of Part 9.4AAA, including the surrounding provisions, actual disclosure is not a pre-condition to establishing a contravention under s 1317AC(1) or a claim pursuant to 1317AD(1) for relief under s 1317AE: see Reiche at [69]–[73].

31 In relation to the third element of s 1317AD(1), it has been held that a proscribed belief or suspicion is unlikely to be “part of the reason” for engaging in detrimental conduct where the belief or suspicion is incidental and is not a substantial and operative factor in the reason for engaging in the detrimental conduct: Reiche at [95]–[100] (citing General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 (Mason J; Gibbs, Stephen and Jacobs JJ agreeing); see also Jackson v Heart Research Institute Ltd [2025] FCA 301 at [227] (Raper J).  

32 Elements of ss 1317AC(1) and 1317AD(1) focus on the state of mind of a respondent. That is, the Court must be satisfied that a respondent had a particular belief or suspicion when it engaged in the detrimental conduct. It is well established that an applicant must specifically plead the basis upon which it is alleged that the motive, intent, or other state of mind was held by a respondent.

33 The burden of proving each of the elements in s 1317AC(1) falls on the applicant: Reiche at [40].  In contrast, for s 1317AD(1), the burden of proof first falls on the applicant who must adduce or point to evidence that suggests a reasonable possibility that the respondent engaged in conduct that caused detriment: s 1317AD(2B)(a).  Once this is shown, the burden shifts and the respondent must then disprove the applicant’s claim: s 1317AD(2B)(b).  As Feutrill J observed in Reiche (at [68]), the effect of this provision appears to be that each of the elements in s 1317AD(1) are taken to be satisfied unless the respondents can adduce evidence which, on the balance of probabilities, disproves the elements.

34 The SOC in the present case does not conform with a sensible and meaningful articulation of the essential elements of contravention.  Paragraph 3 of the SOC is expressed as follows:

During his employment with Ampol, the Applicant, pursuant to section 1317AA(2) of the Act, made disclosures qualifying for protection under Part 9.4AAA of the Act, to eligible recipients, pursuant to section 1317AAC(1) of the Act, in relation to Ampol, its related bodies corporate, or their officers or employees. At the time of making these disclosures, the Applicant had reasonable grounds to suspect that the disclosed information concerned misconduct or an improper state of affairs or circumstances in relation to Ampol, its related bodies corporate, or their officers or employees. The disclosed information concerned matters such as, but not limited to, fraudulent or deceptive hiring practices, breaches of employment contract and law, workplace health and safety hazards, improper use of position to gain an advantage for oneself or another person, and victimisation of the Applicant for the purpose of section 1317AC of the Act. The disclosed information also concerned matters that, under Ampol and its related bodies corporate’s Whistleblower Policy, were classified as reportable conduct, including but not limited to dishonest or unethical behaviour, harassment, or bullying.

35 It will be immediately apparent that this paragraph betrays fundamental rules of pleadings. It contains rolled up allegations and does not separate the pleading of material facts into separate paragraphs: see r 16.02(1)(a) of the Rules. It is conclusory in that it asserts conclusions of fact and law rather than identifying the material facts upon such conclusions are based. For example, it assumes the premise that the disclosures qualified for protection without disclosing the essential factual and legal integers upon which such conclusion is to be founded. It does little more than repeat the statutory text of s 1317AAC(1).  It further makes allegations that Mr Bilal held reasonable grounds to suspect conduct on the part of the Respondents of a serious nature (making allegations of fraud and other unlawful conduct) without specifying any basis upon which such reasonable grounds could be held. It asserts that disclosures were made without disclosing to whom they were made, what in substance was disclosed, or at what point the disclosure occurred in the eight week period in which Mr Bilal was employed. Further, the allegations are framed with the words “such as, but not limited to” which is embarrassing and fails to give the Respondents fair notice of the case to be made against them at trial: r 16.02(1)(d).

36 When confronted with these myriad issues, Mr Bilal submitted that all such information was contained in the particulars.  That argument fails to appreciate the fundamental rule that it is the pleading and not the particulars that must contain material assertions of fact and law: r 16.02(1)(d) of the Rules; Goldsmith v Sandilands [2002] HCA 31; 190 ALR 370 at [2] (Gleeson CJ) citing Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712–713 (Scott LJ); see also Dymocks Book Arcade Pty Ltd v Capral Ltd (formerly Alcan Australia Ltd) [2011] NSWSC 1423 at [27]–[30] (Ward J). Even if I were prepared to ignore the label of “particulars” and to treat the paragraphs as if they were pleadings of material fact, this would not cure the defects. The particulars are as problematic as paragraph 3 itself. The particulars are relevantly drafted as follows:

By way of example:

1.     The Applicant was hired based on representations made by the Respondents and signed an employment contract with Ampol dated 4 July 2023, which specified his role as a permanent Lead Mobile Developer and provided for a commencement date of 10 July 2023. However, the Respondents did not utilise him in this capacity, giving rise to a reasonable suspicion of deceptive and fraudulent conduct.

2.     Based on information and direct observations, the Applicant became aware that the Respondents imposed a strict probation period on certain new hires, despite the absence of such a clause in their employment contracts. This raised serious concerns about multiple forms of systemic misconduct, including breach of contract, workplace health and safety hazards, misrepresentation of workplace rights, and potential general protections violations.

3.     Based on information and direct observations, the Applicant had reasonable grounds to suspect that the Respondents imposed unpaid overtime requirements on employees, including work on public holidays and weekends.

4.     Based on his professional experience, information obtained and direct observations, the Applicant reasonably suspected that a group of employees or contractors acting under the control or direction of the Respondents were engaging in improper conduct by favouring certain consultancy companies for developer resourcing. This conduct appeared to be aimed at securing personal or familial benefits, ensuring their continued employment with the Respondents, or creating opportunities for career advancement or promotions.

5.     From July to September 2023, the Applicant made disclosures of information to his line managers, including the Engineering Manager and the Technology Manager, regarding, but not limited to, the imposition of unpaid overtime, fraudulent and deceptive conduct in his hiring by Ampol, and workplace health and safety issues, including psychosocial hazards. The precise roles and authorities of these individuals across Ampol and its related bodies corporate are subject to discovery. On information and belief these recipients were eligible recipients pursuant to section 1317AAC(1)(a) of the Act in relation to Ampol or its related bodies corporate.

6.     From mid-August 2023 until the end of his employment in early September 2023, the Applicant submitted a request through the Respondents’ formal HR system to speak confidentially with a senior manager to disclose important matters of concern. Instead of facilitating a meeting with a senior manager, the Copy and paste particulars

37 The problems with these particulars are manifold:

(a) first, as already noted above, to the extent they contain allegations of material fact, they do not adhere to the rule that material facts must be pleaded;

(b) second, contrary to r 16.02(1)(d), the “particulars” do not to give the Respondents fair notice of the case they have to meet – for example:

(i) in paragraph 1 of the particulars, Mr Bilal asserts that while he was hired as a “permanent Lead Mobile Developer”, the Respondents “did not utilise him in this capacity, giving rise to a reasonable suspicion of deceptive and fraudulent conduct”, which is a serious allegation and is made without identifying any of the necessary facts or particulars as required by r 16.42; and

(ii)    in paragraph 4 of the particulars, Mr Bilal asserts that he formed a view “Based on his professional experience, information obtained and direct observations” – none of which are relevantly identified by Mr Bilal – that “the Respondents were engaging in improper conduct by favouring certain consultancy companies for developer resourcing”; and

(c)    third, contrary to r 16.02(2)(d), the particulars are introduced with the words “by way of example” which is vexatious and embarrassing.

38 The fundamental defects and inadequacies in paragraph 3 of the SOC are replicated throughout the balance of the SOC.  Paragraph 4 asserts that Mr Bilal proposed to make disclosures to Ampol Australia. Again, this paragraph does not identify material facts by separate paragraphs and is conclusory. The same problems that afflict paragraph 3 infect paragraph 4 and its particulars.

39 Paragraphs 5, 6, 7 and 8 of the SOC are also conclusory and have similar problems, but these paragraphs are also problematic for the additional reason that they all relate to disclosures made or proposed either to ASIC (paragraphs 5 and 8) or to the Respondents (paragraphs 6 and 7), which post-date Mr Bilal’s with Ampol Australia. I will return below to the significance of Mr Bilal’s response to this matter.

40 Pausing here, it is apparent that each of the disclosures and proposed disclosures pleaded in paragraphs 3, 4, 5, 6, 7, and 8 of the SOC are asserted by Mr Bilal, in an entirely conclusory way, to be “disclosures qualifying for protection”. Further, the content of the disclosures pleaded at paragraphs 5 and 6 involve serious allegations of racial discrimination and fraud. These allegations are made without any proper articulation of the relevant material facts.

41 Paragraph 9 asserts a series of detrimental conduct that Mr Bilal says amounts to essentially orchestrating a pretence for the termination of his employment but the paragraph suffers from all of the same vices suffered by the other paragraphs. It is drafted as follows:

9.     The Respondents contravened section 1317AC(1) of the Act because:

1.     The Respondents engaged in conduct by orchestrating and implementing a pretextual and constructive dismissal process to remove the Applicant from his employment with Ampol; and

2.     The Respondents’ conduct caused detriments to the Applicant; and

3.     When the Respondents engaged in the conduct, they believed or suspected that the Applicant made, may have made, proposed to make, or could make a disclosure that qualifies for protection under Part 9.4AAA of the Act in relation to Ampol, its related bodies corporate, or their officers or employees, as set out in paragraphs 3-4; and

4.     The belief or suspicion referred to in the preceding paragraph was the reason, or part of the reason, for the conduct.

The detriments known to the Applicant at the time of pleading are:

1.    Loss of employment and income pursuant to section 1317ADA(a) of the Act

2.     Injuries sustained in employment pursuant to section 1317ADA(b) of the Act

3.     Psychological harms and injuries pursuant to section 1317ADA(f) of the Act

4.     Damage to reputation pursuant to section 1317ADA(h) of the Act

5.     Damage to financial position pursuant to section 1317ADA(i) of the Act

6.     Loss of career pursuant to section 1317ADA(j) of the Act

7.     Loss of future prospects pursuant to section 1317ADA(j) of the Act

8.     Loss of enjoyment of life pursuant to section 1317ADA(j) of the Act

9.     Permanent impairments pursuant to section 1317ADA(j) of the Act

10.     Costs of treatment and management of injuries and psychological harms pursuant to section 1317ADA(j) of the Act

11.     Costs of domestic services due to injuries and psychological harms pursuant to section 1317ADA(j) of the Act

42 There are numerous problems with such a pleading: they are conclusory in nature, they rehearse the text of the statute without identifying the material facts, and they do not identify the facts said to give rise to the requisite knowledge the Respondents are alleged to have had. Further, Mr Bilal here again makes serious allegations, asserting that the Respondents combined to orchestrate and implement a course of action causing detriment.

43 The particulars to paragraph 9 are drafted as follows:

PARTICULARS:

By way of example:

1. The Respondents’ HR collaborated with the Applicant’s Direct Manager to compile a list of unfounded reasons to justify the Applicant’s dismissal, disregarding procedural fairness and legitimate performance considerations.

2. The Respondents’ HR organised meetings under the pretext of investigating the Applicant’s grievances. These meetings included individuals implicated in the misconducts disclosed by the Applicant. Instead of addressing the misconducts, the Respondents used these meetings to gather evidence to support a dismissal, reframing the disclosures as isolated and unfounded personal grievances.

3. The Applicant was assigned menial tasks and, without prior notice, forced into a public argument with a junior developer in front of individuals involved in the misconducts. The group, largely composed of non-qualified personnel, was positioned to judge the outcome. Despite expressing discomfort, the Applicant was compelled to proceed, resulting in significant humiliation.

4. The Applicant’s Manager Once Removed held a one-on-one meeting where he unjustifiably blamed the Applicant for baseless issues he knew to be inaccurate and made veiled threats of dismissal.

5. The Respondents considered suspending the Applicant as part of their process, further demonstrating their intent to harass, undermine, and pressure him into resigning.

44 The problems with these particulars are the same as described above. They begin with the words “by way of example” which is vexatious and embarrassing. They do not fairly disclose to the Respondents the case they are required to meet. They contain material facts which should be pleaded, not particularised, including serious allegations about a dishonest condition of mind without stating the facts upon which such an allegation may be substantiated—again, r 16.42 explicitly requires a party who pleads fraud, misrepresentation, unconscionable conduct, etc, to state in the pleading particulars of the facts upon which a party relies and r 16.43 requires a party who pleads a condition of mind to state the facts upon which a party relies in support of the relevant condition of mind.

45 Paragraphs 10 appears to accompany paragraph 9 in that it asserts that the Court may make an order under s 1317AE of the Corporations Act in respect of the detrimental conduct of the respondents pleaded in paragraph 9. Paragraph 10 relevantly provided as follows:

10. Pursuant to section 1317AD(1) of the Act the court may make an order under section 1317AE of the Act in relation to the Respondents because:

1. The Respondents engaged in conduct by orchestrating and implementing a pretextual and constructive dismissal process to remove the Applicant from his employment with Ampol; and

2. The Respondents’ conduct caused detriments to the Applicant; and

3. When the Respondents engaged in the conduct, they believed or suspected that the Applicant made, may have made, proposed to make, or could make a disclosure that qualifies for protection under Part 9.4AAA of the Act in relation to Ampol, its related bodies corporate, or their officers or employees, as set out in paragraphs 3-4; and

4. The belief or suspicion referred to in the preceding paragraph was the reason, or part of the reason, for the conduct.

The detriments known to the Applicant at the time of pleading are set out in paragraph 9.

PARTICULARS:

3.    The Applicant continues to suffer ongoing detriments as a result of the Respondents’ conduct. Further particulars of these detriments will be provided as the proceedings evolve

46 Paragraph 11 is almost identical to paragraph 9 and accordingly suffers from the same defects already described. However, it differs from paragraph 9 in a few respects: it does not repeat the orchestration allegation, it identifies a further alleged detriment – the “[e]xacerbation or aggravation of the injuries [Mr Bilal] sustained in connection with his employment” – and, finally, it includes only one particular which identifies that Mr Bilal was called into a meeting without prior notice “under the guise of a ‘catch-up’” at which meeting he says he was summarily dismissed. Akin to paragraph 10, paragraph 12 asserts that the Court may make an order under s 1317AE of the Corporations Act in relation to the Respondents in respect of the detriments pleaded in paragraph 11.

47 The SOC continues to follow this general pattern. Paragraph 13, like paragraphs 9 and 11, alleges a contravention. However, on this occasion the contravention is said to arise from the Respondents having made false or misleading representations concerning Mr Bilal’s statutory entitlements under the “NSW Workers Compensation System”. The Respondents are also alleged to have abused processes within that system, and to have procured or induced others to improperly influence or interfere with decisions affecting his entitlements. Mr Bilal alleges that this conduct caused him detriment, that the Respondents believed or suspected that he had made (or might make) a protected disclosure, and that this belief or suspicion was the or a reason for the conduct. Mr Bilal then appears to restate the same detriments set out in paragraph 11. Again, the same afflictions infect this paragraph. It contains conclusory assertions without identifying the necessary factual foundation upon which such a conclusion may be built. Materials facts are rolled up in a single paragraph when they should be set out in separate paragraphs. Materials facts are introduced in the particulars when such facts must be pleaded. The paragraph also contains a serious allegation in that it asserts that the Respondents made a series of false or misleading representations. Relatedly, in the particulars to this paragraph, Mr Bilal states that the “misrepresentations included, but were not limited to” a series of matters, which is embarrassing and fails to squarely notify the Respondents of the case that they are required to meet. In addition to all of these problems, paragraph 13 appears to be temporally incoherent for the reasons foreshadowed at [39] above, namely, that it in substance alleges that the Respondents engaged in conduct causing detriment by reason of disclosures that had not been made and were not made until some 12 to 13 months later: SOC at [5]–[8], [13], Particulars to [13] at (1), (2), (4) and (5).

48 Paragraph 14 appears to serve the same function as paragraphs 10 and 12. It asserts that the Court may make an order under s 1317AE of the Corporations Act and focusses on the detriments identified in paragraph 13. This paragraph repeats the substance of paragraph 13 and is therefore problematic for the reasons already discussed, including that it involves a temporal disjunct between the disclosure and the detrimental conduct. Paragraph 14 included a single particular, by which Mr Bilal asserts that he continues to suffer ongoing detriments as a result of the Respondents’ conduct.

49 Paragraphs 15 and 16 follow the same formula as paragraphs 9 and 10, paragraphs 11 and 12, and paragraphs 13 and 14. They are problematic for the same reasons and, like paragraphs 13 and 14, appear to be temporally dissonant. As for the substantial allegation that is advanced, paragraph 15 asserts that the Respondents “engaged in conduct by concealing information from” Mr Bilal, provided him “with false or misleading information”, and procured or induced others to do the same. The detriments identified reflect those set out in paragraphs 11 and 13.

50 In paragraph 17, Mr Bilal claims exemplary damages and alleges that the “Respondents’ detrimental conduct” as alleged in paragraphs 9 to 16 was “egregious, oppressive, systemic, and prolonged” and was “undertaken with disregard for [Mr Bilal’s] statutory protections under Part 9.4AAA”.

51 In paragraphs 18 to 21, Mr Bilal seeks order for compensation pursuant to s 1317AE(1)(a) in respect of the Respondents’ alleged contraventions of s 1317AC of the Corporations Act. Paragraph 18 focusses on the alleged orchestration and implemental of “a pretextual and constructive dismissal process”, paragraph 19 focusses on the dismissal of Mr Bilal from his employment, paragraph 20 focusses on the alleged misrepresentations about Mr Bilal’s statutory entitlements under the workers compensation system, and paragraph 21 focusses on the alleged concealment of information and provision of false information.

52 In paragraph 22, Mr Bilal again claims exemplary damages for the Respondents’ alleged contraventions of s 1317AC of the Corporations Act.

53 Finally, in paragraph 23 Mr Bilal seeks declaratory relief.

4.    SUMMARY DISMISSAL OR STRIKE OUT

54 In order to summarily dismiss the proceedings in full or in part, I need to be satisfied that Mr Bilal has no reasonable prospect of successfully prosecuting one or more of his claims.  The Respondents contended that parts of the claims advanced by Mr Bilal could not be maintained.  In this regard, they submitted that:

(a)    in so far as Mr Bilal had made claims “in relation to” his dismissal, these claims were the subject of the statutory bar against multiple proceedings contained in Part 6-1 of the FW Act;

(b)    the pleaded case relying upon certain qualifying disclosures in the SOC at [5]–[8] (which are alleged to have been made after the termination Mr Bilal’s employment) were not temporally connected to the detriment pleaded in the SOC, most of which had occurred before the time of the disclosures alleged at [5]–[8]; and

(c)    no reasonable cause of action was disclosed as against the first and third respondents.

4.1    The statutory bar against multiple proceedings in relation to a dismissal

55 As to the first of these points, the fact is that Mr Bilal has commenced separate proceedings in the FCFCOA in which he contends that:

(a)    his dismissal from his employment by the Second Respondent was in contravention of Part 3-1 of the FW Act (SYG1728/2023) (the General Protections Proceedings);

(b)    he was, inter alia, subjected to bullying and harassment, coercion, discrimination, a lack of procedural fairness and a denial of various asserted human rights (SYG853/2024) (the Bullying Proceedings); and

(c)    he was not provided with employment records on request, he did not receive a pay slip within one day of his termination, and he had a contractual right to a bonus payment that he did not receive (SYG452/2025) (the Entitlements Proceedings).

56 In the General Protections Proceedings, Mr Bilal commenced his claims by way of filing a “Form 2: Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (Form 2).  In Part G of the Form 2, Mr Bilal has addressed the contraventions alleged by him as follows:

Part G – Contravention(s) alleged

1.     On 10 July 2023, I commenced employment with the Respondent.

2.     During the course of employment I reported some Incidents about bullying to my line manager, Safiq Iqbal, but he failed to address them properly.

3.     I also complained about some matters related to my employment and made inquiries about some company policies but did not receive a proper answer.

4.     On 14 August 2023, I contacted the Respondent’s human resources department to speak to a representative and Kirsty Muir scheduled a phone call with me on 17 August 2023.

5.     On 17 August 2023, I explained my situation to Ms Muir and complained about bullying. I also made some complaints and Inquiries about my employment which Ms Muir postponed answering them. I then agreed with the internal investigation to be done first and to complain to the court if the outcome was unfair.

6.     On 5 September 2023, Lindsay Hoare, the manager of the group of people that I complained about sent me an email with the investigation outcome attached to it.

7.     On the same day. I contacted Ms Muir and HR to ask some questions and receive the response to the inquiries which she postponed answering them to the end of the investigation. They did not respond.

8.     On 6 September 2023, Mr Hoare terminated my employment.

9.     I rely on sections 340 and 341 of the Fair work Act 2009, which says that an employer must not dismiss an employee because he:

o     has a workplace right

o    has exercised a workplace right

o    proposes or has proposed to exercise a workplace right

10.     I had a right:

o     to a workplace free from bullying

    to make a complaint or inquiry in relation to my employment

o     to initiate a process or proceedings under a workplace law

11.     The Respondent dismissed me because I made complaints and inquiries about my employment and asked not to be bullied and proposed to complain to the court if the matter is not resolved fairly.

57 In the General Protections Proceedings, Mr Bilal seeks the following remedies:

Part H – Remedy sought

1.     An order requiring the Respondent to pay the Applicant damages by way of compensation pursuant to section 545{2} of the Fair Work Act 2009.

1. 1.     An amount equal to the total monetary benefit the Applicant would have been paid had he remained with the Respondent up to 10/07/2024, being the amount of time (1 year) the Applicant could reasonably have been expected to remain with the Respondent had his employment not been terminated. The amount includes the following components and is based on a base salary of $180,000 AUD.

1.1.1.     Wage

1.1.2.     Superannuation guarantee

1.1.3.     Short term incentive (12% bonus)

1. 1.4.     Accrued annual leave

2.    An order pursuant to section 547{2} of the Fair Work Act 2009 for the payment of Interest up to judgement

3.     An order that the Respondent pay a pecuniary penalty pursuant to section 546 of the Fair Work Act 2009.

58 The Respondents submitted that because Mr Bilal has already commenced the General Protections Proceedings “in relation to” his dismissal from employment, his commencement of the present proceedings enlivens the statutory bar against a multiplicity of actions as contained in ss 725, 728 and 732 of the FW Act.  Section 725 of the FW Act is expressed as a “General Rule” and provides as follows:

General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

(Emphasis and additional emphasis added.)

59 As will be apparent from the text, the “General rule” applies as a prohibition on the person, and not the Court.  It operates to prohibit the person from making an application or complaint of a kind in any of ss 726 to 732 if an application or complaint has, in effect, already been made under one of the other sections.

60 Relevantly, s 728 of the FW Act provides as follows:

This section applies if:

(a)    a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and

(b)      the application has not:

(i)      been withdrawn by the person who made the application; or

(ii)      failed for want of jurisdiction.

61 While the phrase “general protections court application” is not defined in Part 6-1 of the FW Act, it is defined in s 368(4) to mean an application to a Court under Division 2 of Part 4-1 for orders in relation to a contravention of Part 3-1.  I accept that, absent any indication to the contrary, the same meaning is to be given to that expression in s 728.

62 The Respondents submitted that, whilst many aspects of the General Protections Proceedings are unclear, it is clear that Mr Bilal has commenced a “general protections court application” within the meaning of s 725 of the FW Act because he is contending in those Proceedings that his dismissal from Ampol Australia contravened the general protections provisions of the FW Act, and particularly, s 340. Mr Bilal did not dispute that by commencing the General Protections Proceedings, he had commenced a “general protections court application” in the FCFCOA in relation to his dismissal from employment.

63 As the General Protections Proceedings have not been withdrawn by Mr Bilal and they have not failed to want of jurisdiction, s 728 of the FW Act is engaged.  This then bring s 732 of the FW Act into sharp focus.  It provides as follows:

732 Applications and complaints under other laws  

(1)      This section applies if:

(a)      an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b)      the application or complaint has not:

(i)      been withdrawn by the person who made the application; or

(ii)      failed for want of jurisdiction.

(2)    An application or complaint under another law is an application or complaint made under:

(a)     a law of the Commonwealth (other than this Act); or

(b)      a law of a State or Territory.

(3)      For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.

64 The Respondents submitted that the current proceedings include claims that are “an application or complaint” made under a Commonwealth law (other than the FW Act) in relation to Mr Bilal’s dismissal, such that s 732 is engaged.  As a result, the Respondents submitted that the statutory bar in s 725 was engaged because Mr Bilal has commenced an application of the type covered by s 728 and has subsequently commenced an application of the type covered by s 732 of the FW Act.

65 Met with these submissions, Mr Bilal advanced several arguments as to why his claims in the present proceedings should not be summarily dismissed.

66 For his first argument, Mr Bilal submitted that pursuant to r 13.01(3) of the Rules, if the Respondents wished to raise a jurisdictional objection to his claims in the present proceedings, they were required to do so prior to or at the time they filed a notice of address for service.  Mr Bilal further submitted that, having entered an appearance, the Respondents had submitted to the Court’s jurisdiction and it was not open to them to now raise a jurisdictional objection to his claims.  This argument is unpersuasive.  Rule 13.01 is contained in Part 13 of the Rules.  It provides as follows:

PART 13 – JURISDICTION – SETTING ASIDE ORGINATING APPLICATION

13.01 Setting aside originating application etc  

(1)      A respondent may apply to the Court for an order:

(a)      setting aside an originating application; or

(b)      setting aside the service of an originating application on the respondent; or

(c)      declaring that an originating application has not been duly served on the respondent; or

(d)      discharging any order giving leave to serve an originating application outside Australia.

Note:   Rule 10.43 deals with service of originating applications outside Australia with leave.

(2)    If an order under paragraph (1)(b) or (c) is sought, the application must be accompanied by an affidavit stating:

(a)      the date on which the originating application was served on the respondent; and

(b)      details of the service.

(3)      A respondent applying for an order under subrule (1) must file the interlocutory application and affidavit at the same time that the respondent files a notice of address for service.

67 On the face of it, r 13.01 certainly applies so as to permit a respondent to seek to set aside an originating application where the service has been irregular or not duly served (including where it has not been duly served outside Australia): e.g. see Swee Yen Tay v Migration Review Tribunal [2009] FCA 515; 178 FCR 1 (Besanko J) at [20]–[22] in relation to predecessor form of the rule which was Order 9 rule 7 of the 1977 Rules.  However, it is less clear that r 13.01 of the current Rules applies where a respondent contends that an applicant’s pleadings are defective or should be dismissed.  As to this point, in Swee Yan Tay, Besanko J stated at [23]:

I have not been able to find any direct authority addressing the submission by the second respondent that an originating process served within the jurisdiction may nevertheless be set aside because the applicant has no prima facie case on the merits. There is authority that it is not appropriate to exercise the power in O 9 r 7 on the ground that a party’s pleadings are defective: Cell Tech Communications at 371 per Lindgren J. I do not think the power in O 9 r 7 extends to cases where the originating process has been served within the jurisdiction and a respondent claims that the applicant has no prima facie case on the merits. The rules, and now s 31A of the Federal Court Act, provide adequate procedures for a party who claims that the case against him or her has no substance.

(Emphasis added.)

68 I agree with Besanko J’s reasoning.  Further, it is also important that r 13.01(1) provides that a respondent may make an application of the type in sub-rules (a) to (d).  A respondent is not required to make such an application and nothing in the Rules indicates that a failure to make such an application deprives the respondent of a right to make an application for summary dismissal under s 31A of the FCA Act including on the grounds of jurisdiction after it has filed a notice of appearance and address for service.  Thus, I do not regard the Respondents’ failure to make an application under r 13.01 as being relevant to the determination of the present application, nor as an acceptance by the Respondents that Mr Bilal’s claims are maintainable.

69 For his second argument, Mr Bilal submitted that ss 725, 728 and 732 of the FW Act raised a constitutional issue as to the interaction between the provisions of the FW Act and the Corporations Act.  The precise point being made was difficult to follow, but its substance appeared to be that the Corporations Act is to be given precedence and primacy to the provisions of the FW Act in relation to the protection of whistleblowers.  This argument is also unpersuasive.  Section 725 of the FW Act expressly contemplates that a person is to be barred from commencing subsequent proceedings of a type covered by ss 726 to 732 if there is already an application or complaint in relation a person’s dismissal under one of those provisions.

70 Part 6-1 of the FW Act thereby contemplates that a person may have multiple actions that they could commence in relation to their dismissal: see RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [119]–[121] (Perry J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 at [136] (Rangiah J); Construction, Forestry, Maritime, Mining and Energy Union V BM Alliance Coal Operations Pty Ltd (No 2) [2019] FCA 2146 (Collier J); Cavar v Green Gate Management Services Pty Ltd [2017] FCA 471 at [20]–[22]; Dutta v Telstra Corporation Limited [2019] FCAFC 103 at [8]–[9] (Logan and Reeves JJ) and [44]–[50] (Flick J).  It may be that Part 6-1 of the FW Act makes an assumption that a person is conscious of the rival choices and has made a conscious decision as to which to pursue: e.g., see Dutta at [49]–[50] (Flick J).  However, irrespective of whether a person is conscious of the rival choices, the fact is that Part 6-1 imposes a bar, or prohibition against the person, from commencing a subsequent action. In Deam v Starlight Children’s Foundation Australia [2023] FCA 259, Mortimer J (as her Honour then was) adverted to this fact and stated at [89]–[91]:

Both s 725 and s 734 operate on the “making” of an application or complaint. That is, they fix the point in time when the prohibition is engaged as the time when a person makes the second (ie the multiple) application or complaint. It is by this point — the making of the second application — that the first complaint or application must have been withdrawn. The provisions use the past tense for “withdrawn”.

As I observed during argument, somewhat arbitrarily and unfairly, these prohibitions assume some knowledge in the putative applicant of their existence. For example, a person in Ms Deam’s position would need to be aware, before proceeding to have the AHRC finalise her complaint (it being impossible to withdraw it after it had been finalised/terminated) that the continued existence of that AHRC complaint would preclude her making a general protections court application. That may be well and good if a person is legally advised throughout the AHRC process. If they are not, then the prohibition may operate somewhat arbitrarily and unfairly, in the sense of not giving a person a choice to withdraw the claim that was first in time so as to continue with the one that is second in time. Nevertheless, the legislative intention is in my opinion that there be a prohibition on a second claim being commenced.

I have given some consideration to whether s 734 (and therefore also the earlier provisions relating to dismissal) could be construed as allowing a person to elect which claim should be continued. The text and context is however in my opinion intractable. The provisions operate on the facts as at the time of commencement of the claim that is second in time.

71 I agree with Mortimer J.  As Mortimer J reasoned, the text and context is intractable.  There is no scope for an assessment of which of two or more causes of actions, or two or more statutory regimes, has precedence or is to prevail.  Rather, the effect of the statutory bar operates in respect of the claim that commences second in time.  That this is so is also reinforced by Perry J’s reasons in RailPro at [119]–[121]:

… Section 725 provides that a person who has been dismissed must not make an application or complaint of a kind referred to, relevantly, in s 732 in relation to the dismissal. …

As is apparent from s 732(3), subs (2) will apply where (among other things) a complaint has been made under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). That Act creates a statutory cause of action for redress for “unlawful discrimination”, subject to the jurisdictional precondition that a complaint has been made to the Australian Human Rights Commission (AHRC) and terminated. “Unlawful discrimination” is defined relevantly to mean any acts, omissions or practices that are unlawful under Pt 2 of the Disability Discrimination Act (s 3 of the AHRC Act).

The effect of ss 725 and 732 Is to ensure that only one application in relation to the dismissal can be entertained, that is, relevantly, an application under the AHRC Act or an application under the FW Act: see by analogy Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J).

72 Thus, in RailPro even where the second in time claim was one made under human rights legislation, it was not sufficient to deprive the effect of the statutory bar contained in the FW Act. The same position applies here.  As it presently stands, I do not see the textual, structural or purposive construction by which some unidentified principle of constitutional law would operate so as to give precedence to the second in time proceedings.  No such principle was identified by Mr Bilal.  I accordingly reject this argument.

73 For his third argument, which is related to his second argument, Mr Bilal submitted that the purpose of ss 725, 728 and 732 of the FW Act was to prevent “double-dipping” and he was not seeking to double-dip as his separate claims related to different statutory norms and, in particular, his claims under Part 9.4AAA of the Corporations Act were directed to protecting the making of his qualified disclosures (or proposed disclosures) and compensating him for contravening conduct, which served a distinct purpose and was directed to different loss than the General Protections Proceedings.  This argument fails for the same reasons set out above.  The statutory bar in s 725 of the FW Act does not operate so as to require an evaluative or qualitative assessment as between rival causes of action in relation to proceedings that may be brought in relation to a person’s dismissal.  It operates by reference to the subject matter of the rival claims (i.e., an application or complaint in relation to the person’s dismissal) and prohibits a second claim being commenced in relation to that subject-matter.  That is the point that Mortimer J lucidly made in Deam and which was adverted to by Rangiah J in Anglo Coal and Flick J in Dutta.

74 For his fourth argument, Mr Bilal submitted that his claims in the present proceedings could be separated between those seeking to impugn the Respondents’ conduct in relation to (a) the processes leading up to the termination of employment, (b) the termination itself, and (c) detrimental conduct that he alleges occurred after the termination of his employment.   There is some substance in this argument.  As set out above, and although it is far from clear, it does appear that the SOC seeks to distinguish between different types of conduct alleged to have been engaged in by the Respondents, as follows:

(a)    the particulars to the SOC at [9] and [10] complain about the Respondents’ conduct in “orchestrating and implementing a pretextual and constructive dismissal process to remove the Applicant from his employment with Ampol”;

(b)    the particulars to the SOC at [11] and [12] complain about the Respondents’ conduct in “dismissing the Applicant from his employment with Ampol”;

(c)    the particulars to the SOC at [13] and [14] complain about the Respondents’ conduct “by making false or misleading representations concerning the Applicant’s statutory entitlements under the NSW Workers Compensation System, abusing processes within that system, and procuring or inducing others to improperly influence or interfere with decisions affecting those entitlements”;

(d)    the particulars to the SOC at [15] and [16] complain about the Respondents’ conduct “by concealing information from the Applicant, providing him with false or misleading information, and procuring or inducing others to do the same”.

75 Three things are apparent from the above.

76 First, one aspect of Mr Bilal’s claims is clearly in relation to his dismissal (as set out in (b) above) and I am satisfied that this aspect of his claim should be summarily dismissed as it is the subject of the statutory bar in s 725 of the FW Act.

77 Second, two aspects of Mr Bilal’s claims do not relate to his dismissal at all (as set out in (c) and (d) above) and are unaffected by the statutory bar contained in the FW Act.

78 Third, a further aspect of Mr Bilal’s claims may relate to the dismissal of his employment but the precise nature of his claims is unclear (as set out in (a) above).  In relation to this aspect, Mr Bilal submitted that these claims relate to the processes leading to his dismissal from employment and did not relate to the dismissal itself.  The Respondents submitted that this was a distinction without any substance as it did not account for the breadth of the words “in relation to the dismissal”.

79 It may be accepted that the words “in relation to” have been held to be of very wide import and their meaning depends on the context: see eg Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; 105 CLR 602 at 613–614 (Dixon CJ), 616–619 (Kitto J; Menzies J agreeing at 623), 620–621 (Taylor J), 624–625 (Windeyer J); Joye v Beach Petroleum NL [1996] FCA 502; 67 FCR 275 at 285 (Beaumont and Lehane JJ); Australian Competition & Consumer Commission v Maritime Union of Australia [2001] FCA 1549; 114 FCR 472 at [68] (Hill J); Australian Communications Network Pty Ltd v Australian Competition & Consumer Commission [2005] FCAFC 221; 224 ALR 344 (Heerey, Merkel and Siopis JJ); Australian Securities and Investments Commission v Narain [2008] FCAFC 120; 169 FCR 211 at [66]–[80] (Jacobson and Gordon JJ).  However, to conclude that the words are of broad import does not lead to the conclusion that any connection with a person’s dismissal will suffice to enliven the statutory bar.  In O’Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 at 367, Dawson J stated that:

The words “In relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the … Act … What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion — something in the nature of a relevant relationship — is necessary …

80 In the present case, the relevant aspect of Mr Bilal’s claim seeks to establish a cause of action relating to the Respondents allegedly “orchestrating and implementing a pretextual and constructive dismissal process to remove [him] from his employment with Ampol”.  Although that may be viewed as seeking to complain about a matter that was in relation to his dismissal, in that it seeks to impugn the steps leading up to his allegedly contrived dismissal, it does not necessarily follow that all such steps were in relation to the dismissal.  The difficulty with resolving the question at this point in time is that the assertions made in this regard in the SOC are not adequately pleaded to a point where I can readily determine the issue.  I consider it to be a more appropriate exercise of my discretion that the SOC should be struck out and Mr Bilal be given an opportunity to replead with precision the matters about which he complains.  In doing so, Mr Bilal will need to be conscious that he runs the risk that his repleaded claim may fall foul of the statutory bar if his application and complaints relate to his dismissal.

81 For his fifth argument, Mr Bilal submitted that his claims against the first and third respondents were not affected by the operation ss 728 and 732 of the FW Act.  As I will return to below, the difficulty with Mr Bilal’s submissions in this regard is that it is impossible at this stage to work out what claims he is fact making against the first and third respondents.

82 For his sixth argument, Mr Bilal submitted that his claim raised matters of public interest and that fairness to him meant that his claims should be determined at trial.  I do not regard these matters as bearing upon my determination.  The fact is that the SOC is deficient in fundamental respects.

83 It follows that I am satisfied that Mr Bilal’s claims should be summarily dismissed in so far as they relate to the dismissal of his employment as presently constituted by the pleadings in the SOC at [11] and [12] and any consequent paragraphs.  As to the balance of his claims, I consider the more appropriate course is for the SOC to be struck out in its entirety and he be given the opportunity to replead.

4.2    The absence of temporal connection between the alleged qualified disclosures and the alleged detrimental conduct

84 The Respondents submitted that the SOC at [5]–[8] of the SOC pleaded that the alleged qualifying disclosures had all been made at a time after Mr Bilal claims that he was subjected to detrimental conduct.  The Respondents contended that a cause of action under Part 9.4AAA of the Corporations Act cannot be established in these respects as it is illogical that alleged detrimental conduct could have been actuated by matters that had not yet occurred.

85 During oral submissions, Mr Bilal accepted the logic of the Respondents’ argument but submitted that he had not alleged that any of the qualifying disclosures had occurred after he had been subjected to detrimental conduct.  I disagree.  This is plain from the following given that Mr Bilal asserts that:

(a)    he made a disclosure to ASIC on 27 November 2024 (SOC at [5]);

(b)    he made a disclosure to the Respondents on 5 December 2004 (SOC at [6]);

(c)    he proposed to make a public interest disclosure to the Respondents on 8 December 2024 (SOC at [7]);

(d)    he proposed to make an emergency disclosure to ASIC on 8 December 2004 (SOC at [8]);

(e)    at SOC [13.3] that the Respondents made false or misleading statements and engaged in other detrimental conduct in relation to this workers’ compensation entitlements and claims because of the disclosures at [3]–[8] of the SOC but the relevant dates identified in the particulars as to when this conduct is said to have occurred are 2 November 2023 (particular 1), mid-2024 (particular 2), 11 December 2023 (particular 3), 13 December 2023 (particular 5) and February 2024 (particular 6) – all of these dates are before the alleged disclosures pleaded in the SOC at [5]–[8]; and

(f)    at SOC [15.3] that the Respondents concealed information and engaged in other detrimental conduct because of the disclosures at [3]-[8] of the SOC but the relevant dates identified in the particulars as to when this conduct is said to have occurred are 5 September 2023 (particular 2), 6 September 2023 (particular 3) and 9 and 23 December 2024 (particular 5) – all of these dates except one are before most of the alleged disclosures pleaded in the SOC at [5]–[8].

86 Except in one respect, these claims as presently framed are not maintainable.  I am satisfied that Mr Bilal’s claims should be summarily dismissed in so far as they allege contraventions of s 1317AC(1) in respect of detrimental conduct that is said to have occurred before the making of any of the alleged disclosures claimed by Mr Bilal to have been qualifying disclosures for the purposes of Part 9.4AAA of the Corporations Act.  As Mr Bilal will be given the opportunity to replead the balance of his case, he will need to ensure that he does not repeat such claims.

4.3    Claims against the First and Third Respondents

87 The Respondents submitted that the SOC does not disclose any cause of action against the first and third respondents.  That criticism is well made.  The SOC at [2] defines the second respondent as “Ampol”.  The balance of the SOC refers at times to “Ampol”, at other times to “Ampol, its related bodies corporate, or their officers or employees” and at other times to the “Respondents”.  Mr Bilal has made no attempt to distinguish as between the Respondents or to make clear what claims are being made against each of the Respondents.

88 In response to these criticisms, during the oral hearing, Mr Bilal submitted that his claims relate to all of the Respondents as primary contraveners because he does not know which one of the Respondents acquired knowledge of his qualifying disclosures or which one of them engaged in the detrimental conduct.  This is an unsatisfactory submission.  Mr Bilal has elected to bring claims against all three respondents and therefore it falls to him to identify the case he wishes to advance against each of them.  Again, instead of summarily dismissing the claims against the first and third respondents, I will strike out the entirety of the SOC and Originating Application and Mr Bilal will have the opportunity to replead with precision the claims he seeks to advance against each respondent.  To the extent that he wishes to discontinue his claims against one or more of the Respondents, that will be a matter of him to decide.

4.4    Strike out

89 It follows from what I have said above that I am satisfied that other than in relation to the matters in respect of which I am satisfied that Mr Bilal’s claims should be summarily dismissed, the SOC should be struck out in its entirety.  In taking this course, I have accounted for the fact that Mr Bilal is self-represented and should have a further opportunity to clearly plead his case in circumstances where the pleadings have not closed.  This will allow Mr Bilal to take steps to ensure that his revised pleading conforms with the basic rules of pleading and to articulate his case with precision.

5.    FUTURE CONDUCT OF THESE PROCEEDINGS

90 For the foregoing reasons, the respondents have succeeded in summarily dismissing two aspects of Mr Bilal’s claims. For the balance, they have succeeded in their application for the strike out of Mr Bilal’s SOC in its entirety. During the course of oral argument, Mr Bilal submitted that if I were to strike out any part of his SOC, he would need eight weeks if not longer to prepare a proposed amended statement of claim. I propose to allow a period of six weeks and will list the matter for further case management at the conclusion of that period.

91 Finally, I will not repeat the observations I have made in the EML Judgment at [8]–[17]. However, the parties should bear those observations in mind in deciding upon the forensic choices that they make as to any further interlocutory applications.

Associate:

Dated:    25 September 2025