FEDERAL COURT OF AUSTRALIA

Bilal v EML NSW Limited [2025] FCA 1190

ORDERS

THE COURT ORDERS THAT:

1.    The statement of claim filed on 23 April 2025 be struck out in its entirety.

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

3.    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.

4.    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.

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

6.    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 Ampol Australia Petroleum Pty Ltd between 10 July 2023 and 6 September 2023 (being the date his employment was terminated). Following the termination of his employment, Mr Bilal applied for workers compensation on 2 November 2023, claiming that he had suffered psychological injury in the course of his eight weeks of employment. The first respondent (EML) was, and is, responsible for managing Mr Bilal’s entitlements under the workers compensation system in New South Wales and is an agent of Insurance and Care NSW and the Workers Compensation Nominal Insurer. The second and third respondents (Ms Taylor and Mr Stewart) were employed by EML and were case managers responsible for managing Mr Bilal’s workers compensation entitlements between 30 October 2023 – 20 December 2023 and 20 December 2023 – 7 February 2024 respectively.

2    Mr Bilal commenced these proceedings by way of an Originating Application and Statement of Claim (SOC) filed on 23 April 2025. He claims that each of EML, Ms Taylor, and Mr Stewart contravened the “whistleblower” protections contained in Part 9.4AAA of the Corporations Act 2001 (Cth) (the Corporations Act) and each contravened the prohibition in s 345 of the Fair Work Act 2009 (Cth) (the FW Act) against knowingly or recklessly making false or misleading representations about workplace rights.

3    By an interlocutory application filed on 16 July 2025, the respondents sought orders for the summary dismissal of the whole of the proceedings or such of the claims that the Court may order be dismissed 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). They also seek their costs of the proceedings. In the alternative, the respondents seek an order pursuant to r 16.21 of the Rules that the SOC be struck out in whole or in part.

4    Mr Bilal has also commenced separate proceedings in this Court (NSD391/2025) against Ampol Australia, and other entities related to it, alleging contraventions of Part 9.4AAA of the Corporations Act (the Ampol Whistleblower Proceedings). The respondents in the Ampol Whistleblower Proceedings have 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 EML, Ms Taylor and Mr Stewart in respect of contraventions of Part 9.4AAA of the Corporations Act rely upon the same or similar apparent substratum of alleged facts as to alleged “qualifying” disclosures or proposed disclosures. In my separate reasons in the Ampol Whistleblower Proceedings, I have set out relevantly applicable principles and other matters to which I will refer throughout these reasons: see Bilal v Ampol Limited [2025] FCA 1189 (Ampol Judgment).

5    In the present proceedings, the respondents’ primary contentions can be summarised as follows:

(a)    as for the whistleblower claims, it is contended that:

(i)    Mr Bilal’s pleadings are defective and liable to be struck out as each of the alleged disclosures, among other things, lack specificity, fail to identify material facts, and are expressed in non-exhaustive terms; and

(ii)    Mr Bilal has no reasonable prospect of establishing that EML (or any of its employees) believed or suspected that Mr Bilal had made, may have made, proposed to make, or could make the disclosures alleged and that such a belief or suspicion actuated the handling of Mr Bilal’s workers’ compensation claim in the way that it was; and

(b)    as for the misrepresentations claims under s 345 of the FW Act, it is contended that:

(i)    in many respects, Mr Bilal’s pleadings assert that the respondents made representations in particular documents which are not borne out from an examination of the relevant documents or, to the extent that the representations were made in those documents, they are not false or misleading such that these claims should be dismissed or struck out;

(ii)    in any event, Mr Bilal’s claims should be dismissed or struck out because they fail to allege any material fact from which the Court can infer that each representor had knowledge or was reckless as to the falsity or misleading nature of the representations;

(iii)    aspects of Mr Bilal’s claims should be dismissed or struck out because they do not concern workplace rights; and

(iv)    Mr Bilal’s claims are an abuse of process as he is seeking to relitigate issues resolved by consent or discontinuance in three proceedings instituted in the Personal Injury Commission and because he is seeking the same compensation sought in those proceedings; and

(c)    as for Mr Bilal’s pleading of accessorial liability as against Ms Taylor and Mr Stewart, it is contended that the pleadings disclose no cause of action because they fail to articulate essential elements of an accessorial case against these individuals.

6    For the reasons that follow, I am satisfied that:

(a)    Mr Bilal’s SOC should be struck out in its entirety;

(b)    Mr Bilal should be given an opportunity to replead his claims by serving on the respondents a proposed amended statement of claim; and

(c)    if the respondents do not consent to Mr Bilal filing the proposed amended statement of claim, I will hear and determine Mr Bilal’s application for leave to file and serve such an amended statement of claim.

7    Before explaining my reasons for these conclusions, it is necessary for me to set out some preliminary observations about the course taken both by Mr Bilal and the respondents.

2.    PRELIMINARY OBSERVATIONS

8    It is necessary to note at the outset that Mr Bilal appeared as a litigant in person and exercised his choice to do so without the advantage of legal representation. It is not the function of the Court to give judicial advice to, or conduct the case on behalf of, a self-represented litigant: Bhagwanani v Martin [1999] SASC 406; 204 LSJS 449 (Bleby J); Clark v New South Wales (No 2) [2006] NSWSC 914 (Johnson J). However, I have been mindful of the Court’s duty to ensure a fair hearing and that Mr Bilal not be disadvantaged from the fact that he has exercised a right to be self-represented: see Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]–[57] (Markovic, Derrington and Anastassiou JJ); SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J; Allsop CJ and Mortimer J (as her Honour then was) agreeing); Hamod v New South Wales [2011] NSWCA 375 at [311]–[316] (Beazley JA; Giles and Whealy JJA agreeing). In view of his circumstances, I sought to accommodate Mr Bilal’s particular requests and provided him with an opportunity to file further written submissions to address matters that arose during the hearing of the respondents’ application. I also permitted the filing of further evidence in support of his pleaded claims should he wish to do so. Mr Bilal took up the opportunity to file further submissions.

9    Although some degree of tolerance is often afforded to unrepresented litigants in the interests of justice, the Rules nonetheless apply. As the Full Court observed in Kimber v The Owners Strata Plan No. 48216 [2017] FCAFC 226; 258 FCR 575 at [69] (Logan, Kerr and Farrell JJ), the “justice system of Australia would be bogged down to an unacceptable extent” if the Court were expected to ignore all non-compliance by self-represented persons so as to permit the disregard of its Rules: see also Kimber at [40]. Although Mr Bilal appears to have complied with the Rules in some respects, the SOC exhibits a failure to appreciate important rules of pleading. These rules are designed to ensure fairness as between all parties to a proceeding. Such rules are especially significant when serious allegations are made, as have been made in these proceedings. As Colvin J stated in Azad v Avant Insurance Ltd (No 2) [2025] FCA 853 at [3]–[8]:

…there are rules of procedure which require the parties to give notice of the nature of their case before the hearing so each side can prepare. Indeed, the adversarial system depends upon those procedures. The task of the judge is to supervise those procedures to make sure there is fairness as between the parties and to confine the final hearing to what is necessary to decide the case, ultimately adjudicating between the competing cases.

The process begins with the applicant party explaining the nature of the case that it seeks to advance, both as to the factual and legal basis for the claim. The applicant must also specify the terms of the orders that the Court is asked to make if the case is successful. It is the responsibility of the applicant to be able to describe a valid form of legal claim and of the defendant to identify the parts of the claim that are admitted and the parts that are denied and to otherwise describe the basis for a valid form of legal defence.

Different procedures are adopted by individual courts as to what the applicant must do to commence (or plead) a case. The documents which must be provided have different names, but they have three things in common. First, the applicant must provide a clear and concise statement setting out the essential aspects of what is alleged to have happened that is relevant to the claim. Second, the applicant must specify why those events, if proven to have occurred, mean that there is a recognised basis for a legal claim (often referred to as a cause of action). Third, the applicant must specify the relief that is sought. Importantly, the relief must be of a kind that the law recognises as being available to a person who demonstrates the existence of the alleged cause of action. If the applicant says that the same underlying controversy gives rise to claims against more than one respondent, then each of the three requirements must be met for each respondent.

The responding party is entitled to insist upon the applicant meeting these obligations before the case proceeds. Unless and until they are met, there is great unfairness to the respondent in being able to prepare its own case in response. This is sometimes explained in terms that the respondent is entitled to know the case that it has to meet. What the respondent is entitled to know is the essence of the factual and legal basis for the case advanced by the applicant, not every aspect of the evidence and arguments that will be advanced at the final hearing. The same obligation falls upon a respondent when it comes to the nature of its defence.

The true burden of these procedures is to set out a clear and concise statement of the party’s case. Detail is no substitute for clarity. The final hearing is the time for detail. The claim together with the defence or answer defines the extent of the controversy. These ‘pleadings’ are also a means by which to scrutinise whether an applicant party has a proper basis to bring a claim and the responding party has an arguable defence. If not, the proceedings can be brought to an end at an early stage, thereby avoiding the need for a final hearing.

Parties are usually assisted in meeting these obligations by competent lawyers. In cases where parties are unable to obtain legal representation or where they exercise their right to personally conduct proceedings, the Court will explain those obligations. When parties conduct their own case, they are not expected to be able to plead their case with the same precision as a skilled lawyer. Some leeway, consistent with the fair conduct of the proceedings, will be allowed to a litigant in person. Nevertheless, the responsibility of an applicant to plead a case and for a respondent to state the nature of the defence must still be met before the case can proceed. The fair conduct of adversarial proceedings depends upon the parties discharging their responsibility in that regard. If an applicant is unable or unwilling to do so, the case cannot proceed. The failure to meet the obligation to clearly and concisely state the nature of the case that the applicant seeks to allege means that the foundation for the adversarial nature of the process has not been established.

10    In the present case, in the face of a pleading that made serious allegations, the respondents cannot be faulted for having made an application for summary dismissal or a strike out of the whole or parts of the SOC. However, there is a real risk that applications for the summary dismissal of proceedings brought by litigants in person will achieve little more than intensifying what Lee J has aptly described as the “brume of endless interlocutory applications and collateral disputation”: see Victorian Legal Services Board v Kuksal (Interlocutory Matters) [2025] FCA 801 at [19]. Such applications incur cost and take up time. That cost and time is not limited to the parties. It is a cost and time that burdens the Court, and, importantly, other litigants before the Court and the community at large. Every minute or hour that is spent dealing with a summary dismissal application and in assessing arguments that criticise or defend lengthy pleadings, is a minute or hour that is not dedicated to other matters before the Court. It may also be grossly disproportionate to the real issues in dispute between the parties.

11    None of this is to say that applications for summary dismissal or strike out are not an appropriate course in a given case or to foreclose them as a forensic choice available to respondents, but to underscore that there is a choice. The making of such a choice is particularly acute when respondents are met with claims made under a statute such as the FW Act where the default position as to costs (if there, in fact, be a default position) is affected by the application of s 570 of the FW Act. A similar position attains for whistleblower claims by reason of s 1317AH of the Corporations Act.

12    The question that arises in these instances (especially where the position as to costs is governed by unique statutory regimes) is: what is the best way to “facilitate the just resolution of disputes” according to law and “as quickly, inexpensively and efficiently as possible”. In such instances, the burden of navigating the question as to how a dispute may be resolved as quickly, inexpensively and efficiently as possible is one that is shared between the parties and the Court. Ultimately though, if interlocutory applications are made, they must be decided. Sometimes, met with a pleading that does not disclose a cause of action, respondents may consider that they have little choice but to make an application for summary dismissal or strike out. However, consideration will need to be given to whether the better alternative is to enable a matter to proceed to final hearing as swiftly as possible, as Lee J emphasised in Kuksal. That may appropriately be the case where an applicant insists that there is no reason to amend their pleading and the respondent maintains the claim is hopeless.

13    It is now well-settled that applications for summary dismissal under s 31A of the FCA Act face a lower bar than was historically the case. However, as the Full Court observed in Kimber at [73]: “if summary dismissal is claimed, it must be a ‘clean kill’”. In determining whether there is a “clean kill” argument, it is fundamental to understand the distinction between (a) whether a pleading discloses a reasonable cause of action, and (b) whether the cause of action itself has no reasonable prospect of success. The distinction was explained by Finkelstein J in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; 252 ALR 41 at [4] and [6], as follows (in the context of the predecessor version of the Rules, but applicable with equal force to the Rules):

The fundamental thing to understand about the strike-out rule, which the language of O 11 r 16 itself makes clear, is that the rule is concerned only with the adequacy of the pleading (or to be more precise, the allegations and the causes of action asserted therein) as a matter of law. The rule does not permit or allow consideration of facts or evidence outside the pleadings: Dey v Victorian Railway Cmrs (1949) 78 CLR 62 at 91 and 109; [1949] ALR 333 at 347–8; see also General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129; [1965] ALR 636 at 638 (General Steel). Indeed, as counsel for ANZ… correctly noted in his submissions, the court must, for purposes of deciding the strike-out motion and deciding whether a pleading discloses a reasonable cause of action, assume the truth of the allegations in the statement of claim and draw all inferences in favour of the non-moving party because the question is whether those allegations, even if proved, cannot succeed as a matter of law: General Steel at CLR at 129; ALR 638.

….

In contrast, a s 31A application not only permits, but requires, a consideration of matters outside the pleadings: …The application is, after all, a trial albeit a summary trial. In White Industries Aust Ltd v Federal Cmnr of Taxation (2007) 160 FCR 298; 240 ALR 792; 95 ALD 30; [2007] FCA 511 at [50], Lindgren J said that s 31A “is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”. That is to say, the “no reasonable prospect of success” standard is designed to test the adequacy of the evidence in support of the allegations, not just the allegations themselves. At the same time, it is important to understand that the court in deciding a motion for summary judgment does not, in testing that evidence, find any facts; rather, the court determines, as a matter of law, whether there are any facts that need to be found such that a trial is required: …

14    The passage from Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [50] was relied upon in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 in the reasoning of French CJ and Gummow J at [22]–[24]:

In the Federal Court and in the Court of Appeal of Queensland, the criterion of a “reasonable prospect” of success has been understood in analogous statutory settings to mean a “real” rather than “fanciful” prospect. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

Accepting that there are a number of ways in which s 31A may be applied to empower the Federal Court to dismiss a proceeding, it is to be distinguished, in its application to deficient pleadings, from rules (such as O 11 r 16 of the Federal Court Rules) which provide for the striking out of pleadings. As Lindgren J said in White Industries at [47]:

[E]vidence may disclose that a person has or may have a “reasonable cause of action” or “reasonable prospects of success”, yet the person’s pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but … s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this court in Fancourt v Mercantile Credits Ltd said:

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following (at [57]):

…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

(Footnotes and other citations omitted.)

15    The point was echoed by the Full Court in Kimber at [72], where their Honours stated that s 31A of the FCA Act is concerned with the summary disposition of proceedings and that the Court “must come to a view about the prospect of the proceedings and look beyond deficient pleadings unless the deficiency is incurable”: citing Spencer at [22]–[23].

16    It is also fundamental to bear in mind that the Court has a discretion whether to deal with a summary dismissal application at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [50]. As Reeves J further stated in Cassimatis at [46] :

… the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it 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. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

17    In the present case, an aspect of the respondents’ contentions required an assessment of the facts, which Mr Bilal contested. As I explain below, Mr Bilal objected to the respondents developing these arguments orally when they had not addressed them in that way in their written submissions. Irrespective of whether the respondents may be ultimately correct, I accept Mr Bilal’s point that the respondents were seeking a mini-trial on the facts. Aspects of the respondents’ arguments descended into the factual minutiae of whether Mr Bilal’s case could be proved on the facts. That aspect of the respondents’ application placed the Court in an invidious position of having to decide facts in an interlocutory application whilst seeking to ensure that Mr Bilal had a fair opportunity to respond.

18    Equally, the responsibility to present a coherent pleading that articulates an arguable case at law rests upon an applicant, irrespective of whether they are represented or not. There will be instances where applicants may need to swallow their pride and seek to revise their pleadings so as to avoid unnecessary interlocutory skirmishes. This was such a case. Mr Bilal should have attended to the very many defects in the SOC. He did not do so.

19    The respondents have satisfied me that the SOC should be struck out in its entirety. However, they have not satisfied me that the claims made by Mr Bilal should be summarily dismissed in whole or in part. The result is that Mr Bilal is to prepare a proposed amended statement of claim and, if consent is not reached as to its filing, I will determine whether he should be granted leave to do so. If this comes to pass, the Court will have expended its time and resources in hearing and determining two interlocutory applications relating to matters of pleading. If, on the other hand, the respondents had proceeded to trial at a final hearing, taking Mr Bilal’s case at its highest in its presently pleaded form, the result may have been entirely different. Mr Bilal too had forensic choices—he could have accepted the deficiencies in the SOC and agreed to replead his claims. He could have taken heed of the many points made by the respondents and the Court as to these deficiencies. The converse position that presently prevails is the burden of the forensic choices that the parties have made. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, Heydon J observed at [156] in a different context (but one which generally related to issues of case management) that:

The proceedings reveal[ed] a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.

20    As the determination of the present application reveals, a functional system relies upon the alliance of parties to proceedings and the Court working co-operatively together to ensure that the true and real issues in dispute are brought to trial as quickly as is possible, and as cheaply and as efficiently as the dictates of each case demand. At some point, all parties need to get on with having the Court determine the real issues in dispute in a way that affords procedural fairness to the other. This applies to the respondents as much as it does to Mr Bilal. If that means there are to be further arguments resisting Mr Bilal’s proposed amended statement of claim, or seeking that it be struck out or the proceedings be dismissed, all parties will need to carefully consider the best means to progress the matter lest these proceedings take a course that requires the Court to resolve an endless round of interlocutory applications.

3.    APPLICABLE PRINCIPLES

21    I have summarised in the Ampol Judgment at [7]–[19] the principles that govern an application for summary dismissal or strike out, as well as the circumstances in which leave may be granted to replead a defective pleading. It is unnecessary to repeat those principles here, but I have applied them.

4.    MAKING SENSE OF THE SOC

22    As in the Ampol Whistleblower Proceedings, 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: see Ampol Judgment at [20].

23    Mr Bilal’s pleaded case against the respondents in these proceedings follows a similar logic to his case in the Ampol Whistleblower Proceedings but seeks to allege different detriments having regard to the distinct role of the respondents in dealing with and managing his workers’ compensation claims. However, as I further address below, Mr Bilal’s claims against the respondents in these proceedings involve quantum leaps in logic which have not been satisfactorily pleaded.

24    The skeletal aspects of Mr Bilal’s whistleblower claims against the respondents to the present proceedings appears to be as follow:

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

(b)    during his employment, Mr Bilal either made or proposed to make disclosures to the “Ampol Group” or to other “eligible recipients” 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, Mr Bilal made or proposed to make further disclosures to the “Ampol Group” and the Australian Securities and Investments Commission (ASIC) which would (if accepted) also qualify for protection under Part 9.4AAA of the Corporations Act;

(d)    EML engaged in conduct that caused detriment to Mr Bilal including by making misrepresentations about his statutory entitlements under the workers’ compensation scheme and by concealing information, providing him with false information, and procuring others to do same;

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

(f)    Ms Taylor and Mr Stewart also contravened s 1317AC(3) as they were “involved” in the contraventions alleged against EML; and

(g)    Mr Bilal has suffered various forms of loss and damage by reason of the contraventions of Part 9.4AAA of the Corporations Act.

25    At a high level, the core aspects of Mr Bilal’s claims under s 345 of the FW Act appear to be as follows:

(a)    EML made a series of false and misleading representations to Mr Bilal between 2 November 2023 and 14 April 2025;

(b)    these representations were made in connection with or about Mr Bilal’s entitlements under the workers’ compensation system administered under a workplace law;

(c)    EML made these representations with knowledge that they were false or misleading, or reckless as to their truth, and thereby contravened s 345 of the FW Act;

(d)    by reason of their conduct as case managers, including by having written and signed certain letters, Ms Taylor and Mr Stewart were involved in the representations made by EML and thereby also contravened s 345 by the operation of s 550 of the FW Act; and

(e)    as a result of these misrepresentations, Mr Bilal has been deprived of his workers’ compensation entitlements and has suffered other financial, reputational, physical, and mental injuries.

26    Mr Bilal has structured his SOC in the following way:

(a)    Paragraph 1 identifies the respondents;

(b)    Paragraphs 2 to 18 plead contraventions of the whistleblower protections in Part 9.4AAA of the Corporations Act;

(c)    Paragraphs 19 to 91 plead representations and contraventions of s 345 of the FW Act;

(d)    Paragraph 92 pleads loss, damage, and injury caused by EML’s alleged contraventions of s 345;

(e)    Paragraph 93 appears to plead that EML engaged in aggravating conduct and seeks an award of exemplary damages to “punish” EML for the “egregious”, “calculated”, and “systemic” contraventions of s 345;

(f)    Paragraphs 94 and 95 seek orders under s 1317AE(1)(a) of the Corporations Act requiring EML to provide compensation for loss, damage, or injury caused by detrimental conduct which contravened the whistleblower protections, with such conduct involving:

(i)    the making of false or misleading representations concerning Mr Bilal’s statutory entitlements under the NSW workers compensation system; and

(ii)    the concealment of information, the provision of false or misleading information, and the procurement or inducement of others to do the same;

(g)     Paragraph 96 seeks an order that EML pay exemplary damages under s 1317AE(1)(f) of the Corporations Act for contraventions of the whistleblower protections;

(h)    Paragraphs 97 and 98 seek declaratory relief under s 1317AE(1)(g) of the Corporations Act in respect of each whistleblower contravention engaged in by EML, Ms Taylor, and Mr Stewart;

(i)    Paragraphs 99 and 100 seek orders under ss 545(1) and (2)(b) of the FW Act requiring EML to pay exemplary damages and compensation for loss or damage suffered by contraventions of s 345 of the FW Act;

(j)    Paragraph 101 seeks an order under s 546(1) of the FW Act, requiring all respondents to pay a pecuniary penalty for each contravention of s 345 of the FW Act; and

(k)    Paragraph 102, the final paragraph, seeks declaratory relief under s 545(1) of the FW Act in respect each contravention of s 345 of the FW Act by the respondents.

27    At this high level, it may appear that Mr Bilal’s SOC follows a coherent path in seeking to address the necessary elements for causes of action arising under ss 1317AC(1) and 1317AD(1) of the Corporations Act and s 345 of the FW Act. However, as in the Ampol Whistleblower Proceedings, the SOC is not in fact coherent at all. It is necessary to explain why. Both causes of action are addressed in sequence.

5.    THE WHISTLEBLOWER CLAIMS

28    I have summarised the essential matters to plead and establish a claim under s 1317AC(1) or s 1317AD(1) of the Corporations Act in the Ampol Judgment at [25]–[33]. As in the Ampol Whistleblower Proceedings, Mr Bilal’s SOC in the present proceedings does not conform with a sensible and meaningful articulation of the essential elements of either cause of action: see Ampol Judgment at [34].

29    In the instant case, paragraph 4 of the SOC is expressed as follows:

During his employment with Ampol, the Applicant, pursuant to section 1317AA(2) of the Corporations Act, made disclosures qualifying for protection under Part 9.4AAA, to eligible recipients, pursuant to section 1317AAC(1), 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. The disclosed information also concerned matters that, under the Whistleblower Policy of Ampol and its related bodies corporate (Ampol Group), were classified as reportable conduct, including but not limited to dishonest or unethical behaviour, harassment, or bullying.

30    In the Ampol Judgment at [35]–[37], I addressed the reasons why the equivalent paragraph in the Statement of Claim in the Ampol Whistleblower Proceedings (and its particulars) fail to conform with essential principles of pleading. Those same concerns are applicable to each of paragraphs 5 – 9 of the SOC in the present proceedings. These paragraphs are conclusory, do not plead material facts in separate paragraphs, seek to plead material facts in particulars, contain rolled-up and non-exhaustive assertions of fact and law, and assert conditions of mind without adhering to the requirements of r 16.43 of the Rules. I am satisfied that these paragraphs are vague and embarrassing and liable to be struck out.

31    However, the more fundamental issue with the pleading in the present proceedings is that it fails to plead (or otherwise articulate) the essential elements of a case against EML. It will be immediately apparent from paragraph 4 of the SOC (as extracted above) that it, variously, pleads disclosures made to “Ampol”. It says nothing about EML, Ms Taylor or Mr Stewart. Nothing in the particulars to paragraph 4 of the SOC sheds any further light on these matters. This fundamental defect is replicated throughout the balance of Mr Bilal’s pleading in respect of the whistleblower claims in most respects. Paragraph 5 asserts that during his employment Mr Bilal “proposed to Ampol Group” to make “disclosures qualifying for protection” in relation to “Ampol”. Paragraphs 6, 7, 8, and 9 to of the SOC each allege that Mr Bilal either made, or proposed to make, further disclosures to the “Ampol Group” or ASIC.

32    The fundamental difficulty is that the SOC fails to clearly articulate the basis upon which it is alleged that EML, an insurer, had knowledge of the alleged disclosures or proposed disclosures made by Mr Bilal to Ampol and others, or how it was actuated to engage in conduct occasioning detriment to Mr Bilal by reason of his having made, or having proposed to make, those disclosures. In paragraph 10 of his SOC, Mr Bilal alleges in a conclusory manner that:

10.     The First Respondent contravened section 1317AC(1) of the Corporations Act because:

1.     The First Respondent engaged in 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; and

2.     The First Respondent's conduct caused detriments to the Applicant; and

3.     When the First Respondent 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 in relation to Ampol, its related bodies corporate, or their officers or employees, as set out in paragraphs 4-9; 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.     Deprivation or impairment in accessing entitlements under the WC Scheme pursuant to section 1317ADA(j)

2.     Undermined ability to exercise legal rights and pursue available relief and remedies, pursuant to section 1317ADA(j)

3.     Loss of income pursuant to section 1317ADA(j)

4.     Exacerbation or aggravation of the injuries the Applicant sustained in connection with his employment with Ampol pursuant to section 1317ADA(j)

5.     Harassment or intimidation pursuant to section 1317ADA(e)

6.     Psychological harms and injuries pursuant to section 1317ADA(f)

7.     Damage to reputation pursuant to section 1317ADA(h)

8.     Damage to financial position pursuant to section 1317ADA(i)

9.     Loss of career pursuant to section 1317ADA(j)

10.     Loss of future prospects pursuant to section 1317ADA(j)

11.     Loss of enjoyment of life pursuant to section 1317ADA(j)

12.     Permanent impairments pursuant to section 1317ADA(j)

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

33    Whilst this pleading alleges that EML engaged in detrimental conduct, it does not articulate the basis on which a claim could be maintained against EML where there is no pleaded connection between the alleged actual or proposed disclosures and the alleged detrimental conduct. Despite these fundamental failures, paragraphs 11, 12 and 13 of the SOC assert that any officer or employee of EML “who was involved in the contravention” also contravened s 1317AC(3) and that orders should be made against EML, Ms Taylor, and Mr Stewart under ss 1317AD(1) and (2) of the Corporations Act.

34    Mr Bilal’s claim proceeds on the basis that all of the relevant disclosures (or proposed disclosures) were made either to the “Ampol Group” or ASIC, and he has not pleaded as a material fact where and how any of those matters were notified to EML, let alone in some way brought to its attention. And, nothing at all is pleaded about the knowledge of Ms Taylor and Mr Stewart. When confronted with these obvious deficiencies at hearing, Mr Bilal argued that that EML and the Ampol Group had a “common lawyer” and identified that at paragraph 5 of his SOC he alleges that this lawyer acted on behalf of EML as well as the Ampol Group. In essence, Mr Bilal said that because this lawyer had knowledge of the Ampol Group’s circumstances, and because this lawyer acted for EML, the knowledge of the lawyer thereby became the knowledge of EML.

35    In further supplementary submissions filed after the hearing before me, Mr Bilal submitted:

36.     The Applicant invites the Court, if I may put it this way, to walk through the operation of attribution under s 1317QE of the Corporations Act, and then contrast it with s 793 of the FWA. Section 1317AC is an “assembled contravention”: its elements can be supplied by different actors, but once attributed upwards, the body corporate bears responsibility. The following example is illustrative only. It does not constitute the Applicant’s submissions in this proceeding.

a.     An officer of Ampol Group becomes aware of the Applicant’s actual or potential qualifying disclosures (knowledge element).

b.     The Officer instructs a lawyer retained by Ampol Group to assume control of the claim from the First Respondent (EML) and informs the lawyer of the disclosures (continuing the knowledge element).

c.     The lawyer induces the Second Respondent, Hayley Taylor, a case manager employed by the First Respondent, to dispute the claim without reasonable grounds, causing detriment (conduct element).

d.     When doing so, the lawyer was acting with actual or apparent authority in relation to the First Respondent, which permitted him to represent it. Accordingly, the knowledge element is attributed to the First Respondent.

e.     When disputing the claim, the Second Respondent was acting within the scope of her employment with the First Respondent. Accordingly, the conduct element is attributed to the First Respondent.

f.     Section 1317AC has four elements:

i.     knowledge of an actual or potential disclosure;

ii.     conduct;

iii.     detriment; and

iv.     causation (“because of”).

g.     In this example, knowledge and conduct are attributed to the First Respondent through different actors. The Applicant must prove detriment. Once detriment is proved, s 1317AD presumes the causation element, and the onus shifts to the Respondent to prove otherwise.

h.     This illustrates how s 1317QE allows contraventions to be assembled against a company even where knowledge and conduct are dispersed across different actors.

i.     It is not a defence to say that no single employee directly had both knowledge and conduct.

j.     By contrast, under s 793 FWA attribution would ordinarily fail, because that section adopts a unity model: the same actor must have both conduct and knowledge. In this example, the case manager acted but lacked knowledge, while the lawyer knew but did not personally act. Unless the Court treated the lawyer as the true decision-maker or the case manager’s conduct as wilful blindness, attribution under s 793 would fail. Section 1317QE, by contrast, operates under an assembly model, allowing attribution of elements across different actors without resort to such judicial devices.

36    There are fundamental problems with these submissions. First, the alleged lawyer is not identified. Second, it is assumed that this lawyer was informed by Ampol Australia, or its related entities, of all of the alleged disclosures or proposed disclosures. Third, it is assumed that this lawyer then disclosed all of those matters to EML. Fourth, it is assumed that the lawyer then “induced” Ms Taylor to do certain things which, even it is to be accepted for the purposes of the argument, does not establish that Ms Taylor had any knowledge of any of the asserted matters. Fifth, it says nothing about Mr Stewart or the other unnamed officers or employees of EML who are also said to be contraveners. Sixth, it is assumed that because the lawyer had been acting with apparent and actual authority of EML, it follows that EML is taken to be imputed with all of the knowledge of that lawyer in respect of an apparently different client. None of these matters are pleaded. Even if they were pleaded, there are considerable leaps in logic from the various assumptions that underpin them.

37    It is no answer to these difficulties for Mr Bilal to submit (as he did) that he does not know all the facts and needs extensive discovery to make good his case. That involves a fundamental inversion of the basic rules of pleading and is tantamount to seeking to use the Court’s coercive processes to make a case that cannot be pleaded, as opposed to making good a case that has been properly pleaded.

38    As noted at the outset, in assessing whether a claim has reasonable prospects of success, it is necessary to distinguish between (a) a pleading that discloses no reasonable cause of action, and (b) whether the cause of action itself has no reasonable prospect of success: see Kimber at [72] relying upon Spencer at [22]–[23]. The present position is entirely unsatisfactory. On the one hand, there is nothing that Mr Bilal has raised in his pleadings that discloses any reasonable cause of action against the respondents for the asserted contraventions of Part 9.4AAA of the Corporations Act. On the other hand, the apparent factual basis for this claim that he identified in his oral and written submissions (relying upon the knowledge imputed to EML by a “common lawyer”) is highly problematic but not completely hopeless to the point where I can presently be satisfied that it has no reasonable prospects of success. This position would have been entirely different had the respondents invited Mr Bilal to address the deficiencies in his SOC prior to making their application for summary dismissal, or perhaps made the forensic decision that the matter should proceed to final trial based on the present pleaded case taken at its highest. The respondents did not take either course.

39    In the circumstances, I propose to strike out the entirety of the SOC as it relates to Mr Bilal’s claims of alleged contraventions of Part 9.4AAA of the Corporations Act by the respondents. I will order Mr Bilal to serve an amended form of the SOC relating to these claims on the respondents to seek their consent as to its filing. If the respondents do not consent to the filing of the SOC, then I will list for hearing any application made by Mr Bilal for leave to amend the SOC to bring such claims and will determine at that time whether such leave should be granted or whether the entirety of the claims against the respondents under Part 9.4AAA of the Corporations Act should be dismissed.

6.    THE SECTION 345 CLAIMS

40    The SOC contains 72 paragraphs alleging that misrepresentations were made about Mr Bilal’s workplace rights in contravention of s 345 of the FW Act. As far as I can discern, it appears that Mr Bilal alleges at least 62 misrepresentations have been made in contravention of s 345. Those 62 representations primarily rely upon written materials, mostly said to be letters and emails but occasionally other documents. Mr Bilal also appears to allege that representations were made by other types of conduct including by EML filing a “bundle of evidence” in workers’ compensation proceedings. Some of the pleaded representations are alleged to have been made by EML to persons other than Mr Bilal—for example, paragraph 48 of the SOC alleges that EML filed materials with the Personal Injury Commission including witness statements and thereby represented to the Commission, amongst other things, that Mr Bilal “had raised unsubstantiated personal grievances that had been properly investigated and dismissed”.

41    For the reasons that follow, I am satisfied that the entirety of the SOC as it relates to the claims made under s 345 of the FW Act should be struck out.

42    Section 345 of the FW Act provides as follows:

345    Misrepresentations

(1)     A person must not knowingly or recklessly make a false or misleading representation about:

(a)     the workplace rights of another person; or

(b)     the exercise, or the effect of the exercise, of a workplace right by another person.

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

(2)     Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

43    The term “workplace right” is defined in the FW Act as follows:

341  Meaning of workplace right

Meaning of workplace right

 (1)    A person has a workplace right if the person:

 (a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

 (b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

 (c)     is able to make a complaint or inquiry:

 (i)     to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

 (ii)     if the person is an employee—in relation to his or her employment.

44    Several decisions of this Court have identified what is required to establish a claim under s 345 of the FW Act: see, for example, Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 at [452]–[459] (Jagot J) (ASU v Commissioner); Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 at [44] (Wheelahan J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 at [195]–[198], [204], [224], [250] (Mortimer J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [28] (Logan, Bromberg and Katzmann JJ) (CFMEU v BHP).

45    In ASU v Commissioner, Jagot J extracted the following observations made by Mortimer J in Australian Postal Corporation about s 345 of the FW Act:

(1)       “[o]ne apparently consistent principle is that the particular group to whom the representations are alleged to be directed must be identified”: [197];

(2)       “[i]n s 345 [of the FW Act], it is clear the Parliament has sought to restrict contraventions to circumstances where a mental element, or particular state of mind, is present” (that is, the knowing or reckless elements): [224];

(3)        “the FW Act is, through s 345, intending to protect the rights the FW Act itself gives to workers, and ensure that no person (whether employer or anyone else) misleads workers about what rights they have under the FW Act”: [250]; and

(4)        “the word “about” in s 345 means “in relation to” or “concerning”: that is, it contemplates some degree of connection or relationship between the representation and (relevantly) the exercise of a workplace right: see generally Gold Coast City Council v Satellite Wireless Pty Ltd [2014] FCAFC 51; 220 FCR 412 at [38]-[39], [43] (the Court); R v Le [2002] NSWCCA 186; 54 NSWLR 474 at [59] (Heydon JA, Dunford and Buddin JJ agreeing). The connection must be sufficient for the operative false or misleading conduct to occur. That is not to say there must be a causal connection: rather it is to recognise that the core purpose of the prohibition is to protect the exercise of the identified workplace rights in the FW Act from conduct which could undermine, frustrate or otherwise adversely affect the exercise of those rights”: [254].

46    In CFMEU v BHP, Logan, Bromberg and Katzmann JJ observed that where a contravention of s 345 is alleged against a respondent that is not a natural person – such as EML – it is necessary for the applicant to prove that the person who made the representations was authorised to make them: CFMEU v BHP at [161]. It follows that where it is claimed that a corporate entity contravened s 345, an applicant must plead as a material fact that the representor was authorised by the corporate entity to make the representation the subject of the claim.

47    Turning to Mr Bilal’s SOC, it is immediately apparent he has not pleaded all of the essential elements of a claim under s 345. And, of the elements that he has pleaded, they are pleaded in a defective way. To illustrate this point, it is useful to identify the manner in which Mr Bilal has chosen to articulate his claims. As noted above, Mr Bilal has pleaded his s 345 claims between paragraphs 19 to 91 of the SOC. The first representation is pleaded at paragraph 20, as follows:

20.    In a letter dated 2 November 2023, [EML] represented to the Applicant that a reasonable excuse existed to delay the commencement of provisional weekly payments and that further information was required to rectify the excuse, including clinical notes, medical records from all providers, a factual investigation, and attendance at an IME.

    PARTICULARS:

1.     The matters identified by [EML] were not of a kind required to rectify a reasonable excuse for the purpose of commencing provisional weekly payments.

2.     The contravention contributed to the Applicant being denied provisional weekly payments and pressured the Applicant into lodging a formal claim prematurely.

48    Then in the next paragraph Mr Bilal pleads that:

21    The representation set out in the preceding paragraph was a false or misleading representation made by [EML], knowingly or recklessly, about the Applicant’s WC Rights, and therefore constituted a contravention of section 345 of the FW Act. Each person who was involved, within the meaning of section 550(2) of the FW Act, in this contravention is taken to have contravened that provision by operation of section 550(1). These persons include, but are not limited to, [Ms Taylor].

PARTICULARS:

1.     [Ms Taylor] was the case manager responsible for the Applicant’s claim at the time. She wrote and signed the letter dated 2 November 2023 and made related representations to the Applicant on or around that date.

49    These two paragraphs are representative of the general approach adopted by Mr Bilal throughout the balance of his pleading concerning the s 345 claims. Specifically, Mr Bilal has adopted an approached where (a) in one paragraph Mr Bilal identifies the date, form, and content of the relevant representation alleged to have been made, and (b) in the next paragraph, he alleges in a formulaic and conclusory way that the representation was (i) false or misleading, (ii) made knowingly or recklessly, (iii) about his workplace rights, and (iv) constituted a contravention of s 345 of the FW Act. In addition, Mr Bilal also bundles and rolls-up into the second of these paragraphs an allegation of accessorial liability by pleading that “[e]ach person who was involved” in the contravention also contravened the FW Act and, in an ambiguous and non-exhaustive manner, alleges that such persons “include, but are not limited to” either Ms Taylor or Mr Stewart as the case may be.

50    Whilst the SOC mostly follows this path, there are some variations. In some paragraphs of the SOC, Mr Bilal pleads that numerous, distinct misrepresentations were made in a single item of correspondence, and that each such representation contravened the FW Act. On some occasions, Mr Bilal pleads these as separate representations in separate paragraphs of the SOC and in others he appears to plead multiple representations in a single paragraph. For example, paragraphs 26 and 27 of the SOC appear to each focus on one representation whilst paragraph 32 of the SOC appears to contain three representations, as follows:

26.     In a letter dated 22 November 2023, being [EML’s] formal dispute notice in relation to the Applicant’s claim under the WC Scheme, [EML] represented to the Applicant that he was dismissed by Ampol for reasons of poor or unsatisfactory performance on 6 September 2023, prior to the conclusion of the employment probation period.

27.     In the same letter, [EML] represented to the Applicant that he had changed his NTD to Dr Kim for reasons which were not apparent, and that the CoC issued by Dr Kim dated 2 November 2023, describing the injury as “adjustment with depressive symptoms” was not a proper diagnosis of psychological injury.

…

32.    In the same letter, [EML] represented to the Applicant that, throughout the course of his employment between July and September 2023, his performance had been reviewed by the employer and found to be unsatisfactory. [EML] further represented that the Applicant had refused to undertake and complete requisite tasks, failed to comply with instructions, was consistently unproductive, refused to perform work he was instructed to do, made inappropriate requests for administrative access unrelated to his role, failed to complete peer-review checklists, and produced output below the required standard. It was further represented that, on this basis, the Applicant’s employment was concluded prior to the expiration of the probation period.

(Emphases added; particulars omitted.)

51    In some instances, it is difficult to be discern whether Mr Bilal has pleaded multiple representations within a single paragraph or one representation with multiple limbs. Taking paragraph 32 as a convenient example, whilst Mr Bilal appears to have pleaded three separate representations, the particulars to the paragraph refer to a single, specific representation (employing language consisting of a definite article). The particulars to paragraph 32 relevantly provide as follows:

PARTICULARS:

1.     The representation lacked merit and did not reflect the actual reasons for the Applicant’s dismissal. At no time was the Applicant informed that his employment was at risk due to performance concerns, nor was he provided with any formal warnings or performance feedback in accordance with typical probation or performance management procedures. [EML] made this representation without conducting any genuine or independent assessment and instead relied exclusively on untested assertions by the employer, including denials made during an internal process.

2.     The Applicant did not refuse to undertake or complete requisite tasks, nor was he consistently unproductive or non-compliant with instructions. To the extent any such incidents were alleged, they were either isolated, mischaracterised, or taken out of context.

3.     The Applicant did not make inappropriate requests for administrative access. Any access requests made were for legitimate work-related purposes in the course of his assigned duties.

4.     The Applicant’s output was not below the required standard. No performance metrics, quality reviews, or formal feedback were provided to suggest that his work product was deficient or unsatisfactory.

5.     The representation that the employment was concluded prior to the expiration of the probation period is incorrect. The Applicant’s employment contract did not contain a probation clause, and the termination did not occur under a probation related mechanism. [EML] misrepresented the contractual and factual context of the dismissal.

(Emphases added.)

52    Whether intended or not, the bundling up of material facts as to the alleged representations in the body of a single paragraph combined with the blending of the general and the specific in the particulars is confusing and obfuscatory. It makes it difficult to identify the precise content of Mr Bilal’s pleaded allegations.

53    Aside from these issues of clarity, a further difficulty with Mr Bilal’s pleading is that, in line with the authorities cited above, insofar as it is alleged EML as a corporate entity is said to have made a particular representation, it is necessary to plead (1) the person or persons who in fact made the representation on EML’s behalf, and (2) the fact that the maker of the representation was authorised to act on EML’s behalf. However, Mr Bilal does not do this. Instead, save for a few exceptions, Mr Bilal pleads that each representation was made by EML and does not plead that a natural person made the representation on EML’s behalf. Given this defect, it is unsurprising that Mr Bilal does not plead that the maker of the representation was authorised to do so on EML’s behalf. By way of example, Mr Bilal pleads as follows:

59.     In an email dated 26 August 2024, [EML] represented to the Applicant that it had been seeking updates from his NTD as to why he remained unfit for all employment and that no response had been received.

54    This email is then relied upon in paragraphs 60 and 61, as follows:

60.     In the same email, [EML] represented that the purpose of referring the Applicant for an IME was to obtain an update on his work capacity, treatment recommendations, and the progress of his psychological injury.

…

61.     In the same email, [EML] represented that it would normally refer the Applicant back to the previous IME, but that Dr Virk had retired.

(Particulars omitted.)

55    Following the formulaic approach that he has taken in the SOC (as referred to above), Mr Bilal pleads the falsity of the representations in paragraph 62, as follows:

62.     The representations set out in paragraphs 59 to 61 were, individually and collectively, false or misleading representations made by the [EML], knowingly or recklessly, about the Applicant’s WC Rights. Each such representation, whether considered alone or in combination with others, constituted one or more contraventions of section 345 of the FW Act. Each person who was involved, within the meaning of section 550(2) of the FW Act, in any such contravention is taken to have contravened that provision by operation of section 550(1).

56    Although the SOC purports to include particulars for each of the allegations pleaded, Mr Bilal does not provide any particulars as to the email – whether that be as to its sender, subject line, or otherwise. It is therefore entirely unclear who sent the email and who else received it (to the extent that there were recipients other than Mr Bilal).

57    On some occasions, however, Mr Bilal does appear to identify the person who made a particular representation in respect of a particular communication. However, this has been done in a vague manner that requires guesswork. By way of example, paragraph 22 refers to representations made by EML in the following terms:

22.     On or about 7 and 8 November 2023, [EML] represented to the Applicant’s NTD, Dr Matthew Kim (Dr Kim), that the Applicant had been job seeking since being terminated from Ampol, and that the Applicant had ceased seeing a previous general practitioner because he did not like what that practitioner had said. [EML] also asked Dr Kim to reflect this belief in the CoC.

58    While the particulars to this paragraph do not shed light on who Mr Bilal alleges made the representation on EML’s behalf to Mr Bilal’s treating doctor, the particulars to the subsequent paragraph (which alleges that the representation was false) appear to do so:

PARTICULARS:

1.    [Ms Taylor] was the case manager responsible for the Applicant’s claim at the time. She wrote and signed the letter to Dr Kim dated 7 November 2023 and contacted Dr Kim by telephone on 8 November 2023.

…

(Emphasis added.)

59    This part of the SOC at least sheds some light on the case.

60    A further issue with Mr Bilal’s pleading of his claims under s 345 of the FW Act is that they do not comply with the requirement of r 16.43 of the Rules, which provides:

16.43    Conditions of mind

(1)     A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.

(2)     If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.

(3)     In this rule:

condition of mind, for a party, means:

(a)    knowledge; and

(b)     any disorder or disability of the party’s mind; and

(c)     any fraudulent intention of the party.

61    As Mortimer J identified in Australian Postal Corporation (at [224]), it is clear that Parliament sought to restrict contraventions of s 345 to circumstances where a particular state of mind is present. It is not the mere act of making a false or misleading representation about workplace rights that is proscribed, but doing so “knowingly or recklessly”. Given this, it is clear that in order to articulate a claim alleging a contravention of s 345, a party must plead the condition of mind and also state particulars of the facts upon which the alleged condition of mind can be supported. Whilst Mr Bilal does plead the requisite condition of mind, he does so in a conclusory and rolled-up manner by asserting each such representation was false or misleading and made “knowingly or recklessly”. Despite the requirements of s 345 of the FW Act and r 16.43, Mr Bilal has invariably failed to provide any particulars as to the element of knowledge or recklessness alleged against EML. On most occasions throughout the SOC, the particulars provided in respect of the alleged condition of mind is limited to the following (by way of example):

PARTICULARS:

1.     The Applicant reserves the right to identify and include persons who may have been involved in the contravention, as the proceedings progress.

62    The majority of the issues identified above are repeated by Mr Bilal throughout his SOC as he progressively addresses what appears to be 62 distinct representations said to have been conveyed on what appears to be 22 separate occasions.

63    For the abovementioned reasons, I am satisfied that the entirety of Mr Bilal’s SOC that relates to his claims under s 345 of the FW Act should be struck out.

64    However, the respondents urged me to go further and summarily dismiss these claims. In support of the summary dismissal application, EML relied upon an affidavit of Mr Gardner dated 15 July 2025. That affidavit annexed a number of materials, stretching over 421 pages. In addition, at the hearing before me, with little prior notice to Mr Bilal or to the Court, EML sought to rely upon further documents.

65    In its written submissions in support of its application, EML submitted as follows:

IV.    Misrepresentation of workplace rights claim

Failure to identify workplace right and allege basis for knowledge or recklessness

12.    The Applicant’s claims in SOC [19]-[93], [99]-[102] allege contraventions of s 345 of the Fair Work Act 2009 (FW Act), which relevantly prohibits a person knowingly or recklessly making a false or misleading representation about the workplace rights of another person. The state of mind required by s 345(1) of the FW Act attaches to the false or misleading quality of the representation, not the act of making the representation, and requires that the statement is made “purposely or deliberately or intentionally” with knowledge that it is false or reckless indifference as to its truth in the sense of closing one’s eyes to the obvious or knowing the representation is likely not correct and choosing to make it without caring whether it is correct or misleading.

13.    The pleadings follow a pattern in which a representation is alleged in one or more paragraphs (e.g. [20]), the particulars purport to contradict the representation, and then the following paragraph alleges that the representation was false or misleading, made knowingly or recklessly, and that any each person involved is accessorily liable (e.g. [21]). Each of these pleadings is defective and liable to be struck out in that they fail to allege any material fact from which the knowledge or recklessness of the author of the representation could be inferred. Further, many of the alleged representations do not concern workplace rights (e.g. [26], [27].) The Court will be taken through other examples in oral address.

(Original emphasis retained; additional emphasis added.)

66    During the course of oral hearing before me, counsel for EML submitted that Mr Bilal’s claims had no prospects of success for the following reasons:

(a)    the documents upon which Mr Bilal relied upon to support his claims about misrepresentations did not in fact contain the alleged representations;

(b)    to the extent that they contained the written representations, they were materially true (including because they were true as a matter of law);

(c)    in any event, some of the representations fell within an exemption in s 345(2) in that Mr Bilal would not be expected to rely on the representations; and

(d)    in any event, the statement of claim did not disclose, other than in conclusory terms, the basis upon which the representations were said to be knowingly false or misleading, or recklessly so, in circumstances where there was an obligation to particularise such matters.

67    In advancing each of these reasons, counsel for EML took me to most of but not all of the documents in respect of each set of representations and provided an aide memoire to the oral submissions that otherwise sought to address each cluster of representations pleaded in the SOC. In response, Mr Bilal submitted that the course taken by EML was productive of unfairness to him and was prejudicial. That is because he says EML had served upon him a number of evidentiary materials without clear identification of their relevance and the written submissions made by EML had not addressed the matters which were addressed in detail during the oral hearing.

68    In my view, Mr Bilal’s criticisms were well made. In light of this, I afforded Mr Bilal an opportunity to provide supplementary written submissions as to the points made by EML’s Counsel at the hearing. In those supplementary written submissions, Mr Bilal contends that, in many respects, EML had selectively relied upon documents, had referred to the wrong documents, and had not accounted for the fact that his case also relies upon oral representations or a combination of oral and documentary representations. Mr Bilal maintained his position that the course taken by EML was unfair and prejudicial, and that he should not be required to respond in a wholesale way to every document as it would convert the summary dismissal application into a mini-trial for which he was not prepared.

69    I agree with Mr Bilal on these points. The course that the respondents took of seeking to articulate the substance of their arguments at the oral hearing did not adequately account for the fact that Mr Bilal is a litigant in person. He was learning about the respondents’ arguments in detail for the first time during the oral hearing. I did not regard this course as particularly helpful.

70    Putting to one side my concerns about the approach that was taken by the respondents, it is the essence of satisfaction of summary judgment that the Court must be satisfied that there is no triable issue. It may be that ultimately EML is right and Mr Bilal is wrong as to whether any of the documents contain the representations that Mr Bilal alleges or whether those representations were true (to the extent that the representations were conveyed). In many of the examples to which I was taken by Counsel for EML, there are issues as to both fact and characterisation (including characterisation of a representation said to relate to a matter of law).

71    It is trite that the assessment required by s 31A of the FCA Act as to whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [28] (Spender, Graham and Gilmour JJ). As noted at the outset, the Court has a discretion whether to deal with such an application at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac at [19]; Cassimatis at [50].

72    At this stage, it seems to me that there are contested issues as to how to characterise the relevant documents. I do not consider that this is a proper case where it would be an appropriate exercise of my discretion to force a litigant in person to advance the entirety of his factual case as to 62 pleaded representations so that I can determine whether there are triable issues of fact and law. That would be to turn this interlocutory hearing into a mini-trial involving the investment of significant time and resources by Mr Bilal and, importantly, the Court. I consider this course to be entirely disproportionate to the dictates of case management as provided for in ss 37M and 37N of the FCA Act.

73    None of this is to say that Mr Bilal’s SOC has been sufficiently or adequately pleaded. It has not. For the reasons I have already stated, the relevant parts of the SOC should be struck out. However, I am not satisfied that they should be summarily dismissed.

7.    THE CLAIMS AGAINST MS TAYLOR AND MR STEWART

74    As currently pleaded, the claims against Ms Taylor and Mr Stewart disclose no reasonable cause of action. They are no more than bare assertions. For the reasons that follow, they too should be struck out.

75    Section 550 of the FW Act provides as follows:

550    Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

Note:     If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

76    The limbs in s 550(2) have different purposes, and operate distinctly, albeit with some overlap. As White J observed in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]–[178]:

Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]–[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court in Rafferty v Madgwicks [2012] FCAFC 37; (2012) 287 ALR 437 summarised the position in this respect at [254]:

[W]hile the identification of the elements of a contravention requires careful legal analysis, “[i]n order to know the essential facts, and thus satisfy s 75B(1) … and like provisions, it is not necessary to know those facts are capable of characterisation in the language of the statute” … This is another aspect of the longstanding principle that it is not necessary for a person to “recognise” the contravention as such, or explicitly to think about the relevant legislation that their actions may contravene …

Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v R (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:

… [Offences of aiding and abetting and counselling and procuring] require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. …

The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]–[325].

77    These principles were endorsed by the Full Court in EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; 360 ALR 261 at [11] (Flick, Bromberg and O’Callaghan JJ). The requisite knowledge that a person must have to be “knowingly concerned” in another person’s contravention was also examined by the High Court in Productivity Partners Pty Ltd (t/as Captain Cook College) v Australian Competition and Consumer Commission (ACCC) [2024] HCA 27; 419 ALR 30. It should also be added that an allegation that a person is “knowingly concerned” in a contravention, such as for the purposes of s 550(2)(c) of the FW Act, has been said to be a serious one, akin to a pleading of dishonesty: cf Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31; 368 ALR 607 at [70] (McKerracher, Robertson and Derrington JJ).

78    Having regard to these principles, it follows that Mr Bilal was required to have pleaded in the SOC the material facts and circumstances which will enable Ms Taylor and Mr Stewart to understand the case they have to meet as to one or more limbs of s 550(2), bearing in mind the essential ingredients of the primary contravening conduct: Yorke v Lucas [1985] HCA 65; 158 CLR 661 at 667. He has not done so. Although I have addressed these matters in part above, it is convenient to address them here. Mr Bilal’s pleadings against Ms Taylor and Mr Stewart in relation to the whistleblower claims and then the s 345 claims may be summarised as follows.

79    As for the whistleblower claims, aside from non-specific allegations that they were “involved in” the contraventions of s 1317AC(1) alleged against EML, Mr Bilal claims relief under s 1317AE against Ms Taylor and Mr Stewart who are each specifically alleged to have:

(a)    been an “officer or employee” of EML;

(b)    been a case manager responsible for Mr Bilal’s workers’ compensation claim;

(c)    dealt directly with Mr Bilal and his treating team of medical professionals;

(d)    issued key correspondence;

(e)    made and conveyed decisions affecting Mr Bilal’s claim;

(f)    engaged or liaised with third parties such as independent medical evaluation providers; and

(g)    been actively involved in the detrimental conduct.

80    As for the s 345 claims, again other than non-specific allegations that they were “involved” in the contraventions of s 345 alleged against EML, there are only four bases upon which Ms Taylor and Mr Stewart are themselves alleged to have contravened s 345 (by the operation of s 550) of the FW Act. These includes that they each:

(a)    were a case manager responsible for managing Mr Bilal’s workers’ compensation claim;

(b)    wrote and signed letters which made representations to Mr Bilal;

(c)    made certain non-specific representations to persons other than Mr Bilal, including his treating doctor and a rehabilitation provider; and

(d)    made “separate representations” or “related representations” to Mr Bilal.

81    These pleadings clearly fall short of what the authorities identify as being necessary for an applicant to establish accessorial liability. These deficiencies are not helped by the fact that each of these specific allegations against Ms Taylor and Mr Stewart are not pleaded as material facts but are particularised. Critically, Mr Bilal has failed to plead that these individuals had the requisite element of intention or knowledge of the essential facts constituting the alleged contraventions of s 1317AC of the Corporations Act and s 345 of the FW Act. In the latter case, for example, an essential fact that must be proven to establish liability against an accessory in relation to a contravention of s 345 is that they knew that or were recklessly indifferent as to whether the representation was false or misleading. If this is not pleaded and established, the case cannot be made good.

82    In his further written submissions, the only argument Mr Bilal made in support of his allegations of accessorial lability was as follows:

33.     In relation to the accessorial liability of [Ms Taylor and Mr Stewart] under s 1317AC(3), the same transactions pleaded in respect of the contraventions of s 345 of the FWA are relied upon. The conduct of [Ms Taylor and Mr Stewart] is tangible and central to those transactions: each effected nearly all of the elements of s 345 personally, such that they could themselves be liable as direct contravenors, in addition to rendering [EML] vicariously liable.

34.     If the contraventions of s 345 are proved, it is plausible to infer accessorial liability of [Ms Taylor and Mr Stewart] pursuant to s 550 of the FWA. It is therefore also reasonable to assume their involvement, within the meaning of s 79 of the CA (which mirrors s 550 of the FWA), in the same transactions for the purpose of s 1317AC(3).

35.     Having regard to their knowledge of, or reckless indifference to, the Applicant’s actual or perceived whistleblowing status, [Ms Taylor and Mr Stewart’s] involvement in the conduct should be found for the purposes of both regimes.

83    As with his pleadings, these submissions are replete with assumptions, unfounded conclusions, and unsound logical propositions. Mr Bilal assumes that Ms Taylor and Mr Stewart had knowledge or were recklessly indifferent as to his “whistleblowing status” without pleading or identifying any of the necessary factual bases from which one can draw such a conclusion. As noted already, Mr Bilal’s pleaded case appears to be that a lawyer engaged by the “Ampol Group” had knowledge of the disclosures, whether made or proposed, and by reason of this lawyer having been separately engaged by EML, it followed that EML is to be attributed that knowledge. However, Mr Bilal has not alleged that any officer or employee of EML had knowledge of the disclosures, let alone that Ms Taylor and Mr Stewart had such knowledge. He appears to assume that because Ms Taylor and Mr Stewart performed certain acts, that they necessarily performed those acts with a particular state of mind.

84    The relevant question then is whether the claims against Ms Taylor and Mr Stewart should be struck out or summarily dismissed. Met with the respondents’ written and oral submissions, Mr Bilal had little to say in response other than to maintain that his pleadings disclosed a reasonable cause of action against both individuals. I am again met with an entirely unsatisfactory position. On the one hand, I am not satisfied that the pleadings disclose a reasonable cause of action against Ms Taylor and Mr Stewart, but I cannot presently be satisfied that Mr Bilal has no claim at all against them. Again, as the Full Court observed in Kimber (at [72]), there is a distinction between the existence of a reasonable cause of action and the pleading of a reasonable cause of action.

85    The respondents have elected to take the course that they have. Had the matter proceeded to final trial, Mr Bilal’s claims would have risen no higher than the present pleadings. The respondents elected not to take that course. They have made good their contention that the claims against Ms Taylor and Mr Stewart should be struck out, but I am not presently satisfied that these claims should be summarily dismissed. Instead, I again propose to allow Mr Bilal to serve a proposed amended statement of claim and, if there is no consent to it being filed, I will hear his application for leave to amend.

8.    FUTURE CONDUCT OF THESE PROCEEDINGS

86    For the foregoing reasons, the respondents have not succeeded in summarily dismissing Mr Bilal’s claims but have succeeded in their application to strike out 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 list the matter for further case management at the conclusion of that period. Finally, I will not repeat again the observations I have made at the outset of this judgment but 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