Federal Court of Australia

Norman v Inner West Council (No 2) [2025] FCA 1541

ORDERS

THE COURT ORDERS THAT:

1.    The claims set out on pages 62–66 of the Statement of Claim be summarily dismissed.

2.    Pages 1–19, 52–61 and 67–84 of the Statement of Claim be struck out.

3.    The allegations of agency between Inner West Council (the Council) and StateCover be struck out.

4.    Mr Norman be granted leave to file and serve an amended Statement of Claim by 19 December 2025, noting that the Council will take no objection to the filing of an amended Statement of Claim which consists only of pages 20–51 of the Statement of Claim, together with the specific amendments referred to in the reasons for judgment.

5.    The Council file and serve its defence by 6 February 2026.

6.    Mr Norman file and serve any reply by 27 February 2026.

7.    The costs of the interlocutory application are reserved.

8.    If the Council seeks to have the amended Statement of Claim struck out or summarily dismissed in whole or in part, the Council is to notify my Associate by 4 pm on 23 December 2025 and provide a list of mutually convenient dates for an interlocutory hearing concerning that matter.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    These proceedings were commenced by originating application and Statement of Claim on 3 September 2025 under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) alleging unlawful discrimination by the respondent (Council), being the applicant's (Mr Norman) former employer, and various other matters. Mr Norman is self-represented, although I did refer Mr Norman to a lawyer for assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) (Rules).

2    At the first case management hearing on 26 September 2025, I made orders at the Council's request for the Council to serve a request for further and better particulars and for Mr Norman to respond, in the hope that that process would obviate the need for a dispute as to Mr Norman's pleading. As matters have transpired, the Council does not regard Mr Norman's response as adequate and, by interlocutory application dated 1 December 2025, seeks summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and r 26.01 of the Rules of certain aspects of the Statement of Claim, and alternatively that those parts of the Statement of Claim be struck out, pursuant to r 16.21 of the Rules.

3    It should be noted at the outset that the Council takes no issue with Mr Norman's disability, sex discrimination and victimisation claims, being pages 20–51 of the Statement of Claim, with a number of relatively minor exceptions, which I will deal with later. Mr Norman's written submissions refer to the disability, sex discrimination and victimisation claims as his "core claims" (at [11]–[12]). The Council does not object to Mr Norman filing an amended Statement of Claim, comprising pages 20–51 of the Statement of Claim, subject to the following amendments:

(a)    on page 20, in the last line of [3.2], the deletion of the words "as breach of confidence and";

(b)    on page 23, in [6.3], the deletion of subpara (b) and the deletion of the words "insurer and" in subpara (c);

(c)    on page 26, in [10.6], the deletion of the word "permit" and its replacement with the words "use of", and in [10.7], the deletion of the words "submit to";

(d)    on page 27, in [12.1], the deletion of the words in the last line "as breach of confidence";

(e)    on page 31, in [20.4], in the fifth line, the insertion of the words "use of information received from" before the words "surveillance and";

(f)    on page 33, in [22.1], the deletion of the words "authorised, adopted and/or ratified";

(g)    on page 46, in para [3.9], the deletion of the word "agents" in the first line and the word "other" being changed to "others";

(h)    on page 50, in [3.21], in the first line, the deletion of the words "pleaded in Claim 8".

4    One set of impugned claims concerns an alleged contravention of Pt 3-1 of the Fair Work Act 2009 (Cth) (the FW Act). The Council submits, and I accept, that Mr Norman's claim in relation to the FW Act at pages 62–66 of the Statement of Claim should be summarily dismissed on the basis that it is premised on a statutory cause of action (namely s 340 of the FW Act) that discloses no reasonable cause of action and has no reasonable prospect of success. Part 3-1 of the FW Act, which contains s 340, does not apply to Mr Norman as he was not a national system employee and the Council is not a national system employer because they are a local government sector employee/employer: see s 14(2)(a) and ss 337–339 of the FW Act; and s 6(f) of the Industrial Relations (Commonwealth Powers) Act 2009 (NSW). Even if, contrary to that conclusion, Part 3-1 of the FW Act applied to Mr Norman and the Council, Mr Norman has not obtained a certificate pursuant to s 368(3)(a) of the FW Act and cannot make a general protections court application without one: s 370 of the FW Act.

5    Accordingly, it is appropriate that pages 62–66 of the Statement of Claim be summarily dismissed.

6    Another set of allegations concerns a claim for breach of confidence made at pages 52–61 of the Statement of Claim. The premise of the breach of confidence claim is that StateCover Mutual Limited (StateCover), as agent of the Council, collected, disclosed, retained and misused Mr Norman's sensitive personal information, and the Council used that information in its employment decision or decisions (Statement of Claim at [4.1]). The Council submits that the claim should be summarily dismissed or alternatively struck out as the claim discloses no reasonable cause of action and has no reasonable prospect of success on two bases: (1) Mr Norman has not pleaded material facts which would support the breach of confidence claim; and (2) the deficiency in the breach of confidence claim is incurable because Mr Norman will be unable to establish the requisite legal elements of that claim. As Gummow J held in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443, the plaintiff, in making an allegation of breach of confidence must be able, among other things, to identify with specificity and not merely in global terms, that which is said to be the information in question, and must show that the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge).

7    The Council submits, and I accept, that the Statement of Claim does not identify with specificity the information which is said to be confidential or how that information has the necessary quality of confidence. The information identified is "surveillance" of Mr Norman, including at a public Local Court (Statement of Claim at [4.7]), financial information (at [4.8]), police records obtained by subpoena (at [4.9]) and records created by StateCover (at [4.10]), all of which lack meaningful specificity and the quality of confidence. Further, the Council submits, and I accept, that the Statement of Claim does not plead material facts identifying how the information was received by the Council (or StateCover as its alleged agent) in such circumstances as to import an obligation of confidence. The Statement of Claim does not disclose any circumstances where Mr Norman disclosed the information to anyone, let alone in circumstances importing an obligation of confidence.

8    The Council also draws attention to the fact that the breach of confidence claim relies on the finding of an agency relationship between the Council and StateCover (at [4.1] and [4.7]), and submits that that finding is not open to be made. It is not necessary for me to decide that matter to conclude, on the basis of the first two matters, that the breach of confidence claim should be struck out.

9    Accordingly, pages 52–61 of the Statement of Claim should be struck out. I note, as Mr Norman submits in his written submissions (at [19], second and third sentences), that that ruling may not in itself prevent Mr Norman from relying on matters such as the Council's alleged use of the information produced by StateCover's alleged surveillance and use of police records, allegedly obtained by StateCover, as aspects of allegedly unlawful discrimination or victimisation within the scope of the matters pleaded in pages 20–51 of the Statement of Claim. That position appeared to be accepted by counsel for the Council.

10    A number of claims are also described as "contextual claims", namely (a) a claim under the Work Health and Safety Act 2011 (NSW) (WHS Claim) at pages 67–70 of the Statement of Claim; (b) a claim under the Local Government (State) Award 2023 (Award Claim) at pages 71–75 of the Statement of Claim; and (c) a set of so-called ‘Contextual Particulars of Procedural Misconduct and Maladministration’ at pages 76–84 of the Statement of Claim.

11    The WHS Claim, Award Claim and contextual particulars are liable to be struck out on the basis that they fail to disclose a reasonable cause of action, are ambiguous, and are likely to cause prejudice and delay in the proceeding. The claims do not articulate material facts that support a reasonable cause of action, and contain many allegations that appear to be irrelevant (such as in [6.7]– [6.8], [7.5]–[7.12], [8.8]–[8.31]). The claims allege matters that are more akin to allegations of generalised grievances (see [6.7]–[6.9], [7.8] and [8.14]–[8.31]) unattached to any cause of action with a reasonable prospect of success. To the extent that the purpose of the claims is to plead contextual particulars regarding the Council's statutory safety and industrial relations duties, those are background and contextual matters of the kind that seem to me very likely to cause unnecessary expenditure and delay in the proceedings without any real forensic benefit to Mr Norman.

12    Accordingly, it is appropriate that pages [67]–[84] of the Statement of Claim be struck out.

13    In addition, the Council challenges the introductory pages of the Statement of Claim, being pages 2–19, and contends that they should be struck out. The Council submits, and I accept, that these pages should be struck out on the basis that they are unintelligible, ambiguous or vague. It is not clear the extent to which those parts are merely a duplicative summary of the substantive claims, or plead facts which are independently relied on to support the substantive claims, and if so which claims and how. The response to the request for further and better particulars does not assist in this regard. Accordingly, those pages should also be struck out.

14    A large number of paragraphs of the Statement of Claim allege that StateCover was an agent of the Council between August 2022 and 20 May 2025 (the Agency Allegation). The Council submits that such an allegation is not open to be made by reason of the effect of the workers' compensation legislation, which defines the nature of the relationship between StateCover and the Council. While there appears to be substantial force in that submission as a general matter, I was not taken to any particular provision of the legislation which would prevent a particular relationship of agency from arising by way of a consensual transaction between insurer and insured. I do not regard the question as appropriate for summary dismissal.

15    However, there are clear deficiencies in the pleading of the Agency Allegation which require the paragraphs in question to be struck out. In particular, the Statement of Claim does not plead material facts which set out the elements of some consensual transaction between the Council and StateCover which allegedly gave rise to the relationship of agency, nor is there a pleading of the scope of StateCover's authority. Having said that, I am not able to see how the Agency Allegation materially advances Mr Norman's case. As I have indicated above, it appears to be common ground that Mr Norman is still able to rely upon matters such the Council's use of information produced to it by StateCover from the latter's alleged surveillance activities and other inquiries, irrespective of whether StateCover is characterised as an agent of the Council or not.

16    Pages 85 onwards of the Statement of Claim reproduce the orders sought. The appropriate place for the articulation of the orders which are sought is the originating application. It may well be that the originating application currently filed goes well beyond the scope of the amended Statement of Claim to be filed by Mr Norman, but counsel for the Council has helpfully indicated that it does not propose to take any particular issue with the way in which the originating application is expressed, provided that it is understood that the originating application is operative only to the extent that the orders which it seeks correspond to the claims made in the amended Statement of Claim to be filed.

17    It is appropriate to grant Mr Norman leave to re-plead the Statement of Claim, other than in respect of the FW Act claim which I have summarily dismissed. Although I will not force Mr Norman by Court order to limit his amended Statement of Claim to pages 20–51 of the Statement of Claim (making the amendments to those pages which I have identified above), I regard it as consistent with the Court's duty under s 37M of the FCA Act to give Mr Norman a very strong indication that any pleading which goes beyond the three claims expressed in pages 20–51 runs a serious risk of being struck out or summarily dismissed, together with an order for costs incurred by that pleading.

18    Referring to the potential for a costs order in that hypothetical circumstance, I bear in mind the provisions of s 46PSA of the Australian Human Rights Commission Act 1986 (Cth), which the Council accepts applies to this proceeding.

Associate:

Dated:    8 December 2025