Federal Court of Australia

Zaydan v Experian Australia Pty Ltd (No 2) [2025] FCA 1614

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 16.21(1)(e) of the Federal Court Rules 2011 (Cth), paragraph 17 of the Amended Statement of Claim dated 22 August 2025 be struck out.

2.    The applicant file and serve any further amended statement of claim by 4.00 pm on 6 February 2026.

3.    If the applicant files a further amended statement of claim, the respondents file and serve an amended defence by 4.00 pm on 27 February 2026.

4.    The applicant file and serve any reply by 4.00 pm on 13 March 2026.

5.    The proceeding be referred to mediation before a Registrar not before 16 March 2026.

6.    Orders 9 and 10 of the orders made on 27 October 2025 be vacated.

7.    Pursuant to r 2.32(1)(b) and (3)(a), the reasons for judgment delivered on 18 December 2025 are confidential, until the termination or other conclusion of the mediation process between the parties, or further order.

8.    There be liberty to apply.

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

REASONS FOR JUDGMENT

HORAN J:

1    The applicant, Ms Bernadette Zaydan, was formerly employed by the first respondent, Experian Australia Pty Ltd. Ms Zaydan commenced this proceeding by an originating application filed on 1 May 2025, seeking declarations that each of the second respondent, the third respondent and the fourth respondent sexually harassed Ms Zaydan in contravention of s 28B of the Sex Discrimination Act 1984 (Cth) (SDA), and that Experian is vicariously liable for those contraventions under s 106 of the SDA. Each of the second, third and fourth respondents was formerly employed as a salesperson by Experian.

2    By an interlocutory application filed on 10 October 2025, Experian seeks orders under r 16.21 of the Federal Court Rules 2011 (Cth) striking out paragraph 17 of Ms Zaydan’s amended statement of claim dated 22 August 2025 (ASOC) on the ground that it is vague, embarrassing, scandalous and irrelevant. In paragraph 17 of the ASOC, Ms Zaydan alleges that, during or just prior to her employment by Experian, there was “a persistent pattern of inappropriate conduct of a sexual nature between Experian employees” and “a poor workplace culture at Experian in relation to inappropriate conduct of a sexual nature”. That allegation is subsequently relied on by Ms Zaydan in alleging that the alleged unlawful conduct by each of the second respondent, the third respondent and the fourth respondent was done in connection with their employment for the purposes of establishing Experian’s liability under s 106(1) of the SDA.

3    While Experian initially relied on an additional ground that the allegation in paragraph 17 of the ASOC is outside jurisdiction by reason of s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), that argument is no longer pressed. In other words, Experian does not maintain that, by reason of paragraph 17 of the ASOC, the unlawful discrimination alleged in the originating application is not the same (or the same in substance) as the unlawful discrimination that was the subject of Ms Zaydan’s complaint to the Australian Human Rights Commission, nor that it does not arise out of the same (or substantially the same) acts, omissions or practices that were the subject of that complaint.

4    I have concluded that paragraph 17 of the ASOC should be struck out pursuant to r 16.21(1)(e) on the ground that it fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading. Ms Zaydan will be given an opportunity to file a further amended statement of claim in which she may plead any further matters on which she seeks to rely in relation to the connection between the alleged acts of the individual respondents and their employment by Experian.

Background

The complaint

5    Ms Zaydan lodged her complaint with the Commission on 16 November 2023, naming Experian and its managing director as the respondents. On 10 October 2024, while the complaint was before the Commission, Ms Zaydan added the second, third and fourth respondents as additional respondents to the complaint.

6    On 3 March 2025, the complaint was terminated under s 46PH of the AHRC Act, on the ground that a delegate of the President was satisfied that there was no prospect of the matter being settled by conciliation.

The pleadings

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13    Paragraph 17 of the ASOC, [redacted], alleges as follows:

C.2.    The workplace culture

17.    During Ms Zaydan’s employment with Experian, or just prior to that employment commencing:

(a)    there was a persistent pattern of inappropriate conduct of a sexual nature between Experian employees; and

(b)    there was a poor workplace culture at Experian in relation to inappropriate conduct of a sexual nature.

14    The particulars subjoined to this paragraph refer to four incidents in which male employees are alleged to have sexually assaulted female employees of Experian, or to have engaged in unwelcome conduct of a sexual nature towards female employees. Two of the four alleged incidents occurred “[i]n about 2018” or “[d]uring or around 2018”; one of the incidents is alleged to have occurred “[d]uring or around 2020”; and another incident allegedly occurred “[d]uring or around December 2021”. In a letter from her solicitors dated 18 November 2025, Ms Zaydan provided further and better particulars of each of the alleged incidents, including the names of the male and female employees in question, together with a fifth alleged incident that took place “[d]uring or around 2019” in which a male employee allegedly made inappropriate comments about the appearance of a female employee.

15    The allegations in relation to workplace culture, including the alleged incidents set out in the particulars, are matters on which Ms Zaydan will seek to rely in establishing the vicarious liability of Experian under s 106(1) of the SDA for the acts alleged to have been done by the second, third and fourth respondents. In particular, the workplace culture allegations are relied on in support of the allegation that those acts were done by each of the second, third and fourth respondents in connection with his employment: see ASOC, paragraphs 65(a), 67(a) and 69(a). In correspondence dated 23 September 2025, the applicant’s solicitor has confirmed that the allegations made in paragraph 17 of the ASOC “are not pleaded as contraventions of the [SDA] in and of themselves”.

16    In their joint defence, the respondents relevantly deny the alleged sexual harassment by each of the individual respondents towards Ms Zaydan. The respondents also join issue on whether or not the alleged conduct was in connection with the employment of the individual respondents, including by alleging that Ms Zaydan socialised with fellow employees of Experian outside of work and unconnected with her employment

Consideration

17    In support of its strike out application, Experian submitted that neither paragraph 17(a) nor paragraph 17(b) of the ASOC relate to the allegations of sexual harassment against Ms Zaydan. The amendments that introduced s 28M of the SDA, which now deals with hostile workplace environments, were not in force during Ms Zaydan’s employment. In such circumstances, Experian submitted that paragraph 17 of the ASOC has no relevance to any cause of action raised by Ms Zaydan, and that it should be struck out as scandalous and embarrassing.

18    In response, Ms Zaydan submitted that the allegations made in paragraph 17 of the ASOC are relevant as material facts necessary to establish a connection or “nexus” between the alleged conduct of the second, third and fourth respondents and their employment by Experian, as is made clear by paragraphs 65(a), 67(a) and 69(a) of the ASOC. Ms Zaydan argued that the prevailing workplace culture can be relevant to determining whether unlawful acts by an employee have the requisite nexus with his or her employment, referring to Lee v Smith [2007] FMCA 59 at [198] (Connolly FM). She also submitted that the Court could conclude that the alleged sexual harassment against her was more likely to have occurred in circumstances where there was a poor workplace culture: Magar v Khan [2025] FCA 874; 342 IR 403 at [102]–[103] (Bromwich J).

19    Ms Zaydan noted that she had complained to the Commission that Experian failed to take all reasonable steps to prevent sexual harassment and sex discrimination from occurring in the workplace, and that such matters could be indicated by an employer’s failure to comply with policies for investigating complaints, reflecting a workplace culture that tolerates sexual harassment.

20    It is common ground that the discretionary power conferred by r 16.21 of the Rules to strike out part of a pleading should be exercised sparingly and only in a clear case: see e.g. Viridian Financial Group Ltd v Loring [2025] FCA 327 at [24(6)] (Dowling J); Haire v WorkCo Australia Pty Ltd (No 2) [2024] FCA 1266 at [25] (Horan J).

21    Rule 16.21(1) sets out a number of discrete grounds on which all or part of a pleading may be struck out, namely, that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

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

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

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

22    In the present case, the sole basis on which Ms Zaydan contends that the alleged poor workplace culture or persistent pattern of inappropriate conduct of a sexual nature is relevant to her pleaded causes of action is in order to establish that the alleged instances of sexual harassment against her by the individual respondents were done in connection with their employment. There was also some suggestion in Ms Zaydan’s submissions that the alleged workplace culture or pattern of conduct might be probative of whether or not she was sexually harassed by the individual respondents: cf. Magar v Khan at [103] (Bromwich J). However, even if a poor workplace culture or a pattern of conduct by other employees is capable of rationally affecting an assessment of the probability that the individual respondents engaged in the alleged conduct in relation to Ms Zaydan on specific occasions (a proposition that is not necessarily self-evident), that is not the function of paragraphs 17, 65(a), 67(a) and 69(a) of the ASOC.

23    The phrase “in connection with the employment” in s 106(1) should be broadly construed, and may be satisfied by establishing that the unlawful acts were in some way related to or associated with the person’s employment: South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 at [41]–[42] (Black CJ and Tamberlin J), [64], [70] (Kiefel J); Kruger v Thompson [2025] FCAFC 143 at [442] (McElwaine J). This invites a fact sensitive inquiry, albeit “within a framework of consistent principle developed over time by the cases”: South Pacific Resort Hotels at [38] (Black CJ and Tamberlin J), [74] (Kiefel J); see also Weir v Telstra Ltd (2023) 301 FCR 261 at [112] (Collier ACJ, Rangiah and Thomas JJ). Usually, the employment of the persons concerned must be more than “unrelated or merely incidental to the sexual harassment of one by the other”: South Pacific Resort Hotels at [39] (Black CJ and Tamberlin J). In an appropriate case, it might be sufficient if the opportunity for the conduct arose in connection with work related activities, even if the conduct occurred in a location away from the actual workplace: ibid. at [72]–[73] (Kiefel J).

24    In my view, neither the allegation that there is a poor workplace culture at Experian nor that there has been a persistent pattern of inappropriate conduct of a sexual nature between employees is capable of demonstrating or rendering it more likely that the individual respondents’ alleged conduct on the particular occasions in question had the requisite connection with their employment that is necessary to establish that Experian is vicariously liable for that specific conduct. A central issue in the present case will be whether the acts of the individual respondents towards Ms Zaydan in the course of social functions outside the workplace were nevertheless sufficiently connected to their common employment by Experian to attract liability under s 106(1) of the SDA. However, it has not been explained how the existence of any alleged “poor workplace culture” or “persistent pattern of inappropriate conduct of a sexual nature between employees”, as sought to be established through a handful of specific instances of alleged conduct of that nature involving different employees and at different times, could have any bearing on the connection between the alleged conduct of the individual respondents towards Ms Zaydan and their employment by Experian. It would not itself make the existence of any employment connection on those specific occasions more or less likely.

25    Experian relied on the decisions of Snaden J in Forshaw v Qantas Airways Ltd [2023] FCA 957 (Forshaw (No 1)) at [25]–[49] and Forshaw v Qantas Airways Ltd (No 2) [2024] FCA 446 (Forshaw (No 2)) at [22]–[64].

(a)    In Forshaw (No 1), the applicant alleged that Qantas had taken adverse action against her in contravention of ss 340 and 351 of the Fair Work Act 2009 (Cth). The applicant relevantly alleged that the Qantas workplace was “hostile to women”, which was described as amounting to a “Sexist Culture” that injured the applicant in her employment and discriminated against her compared to male employees (at [18]). Justice Snaden held (at [25]–[26]) that this plea failed properly to articulate a sound cause of action, noting that the allegations were “inherently indistinct” and “unsatisfactorily imprecise” (at [27]). His Honour did not accept that this was a matter to be developed by way of submissions, noting (at [29]) that “[i]t is no answer to a charge that a pleading is impermissibly vague to say that it is open to the opposing party merely to deny what is alleged and, thereafter, to let things play out as they may in submissions”. Moreover, Snaden J found (at [32]–[33]) that the applicant had failed to plead the material facts capable of establishing conduct attributable to Qantas by which it had either created, failed to prevent, or tolerated a hostile workplace. His Honour observed (at [36]) that Qantas was entitled to know with precision the case that was to be mounted against it.

(b)    In Forshaw (No 2), Snaden J refused to grant leave to the applicant to file a proposed further amended statement of claim in the wake of the strike out ruling in Forshaw (No 1). His Honour held that the proposed pleading remained objectionable, “in that parts of it remain embarrassing and, in material respects, fail to disclose an arguable cause of action” (at [5]; see also at [64]). The applicant had sought to revise her pleading so as to elaborate the characteristics of the alleged sexist culture in the workplace. However, Snaden J concluded that the new paragraphs in the pleading suffered “from the same want of clarity” (at [22]), including by introducing characteristics that were “equally nebulous or conclusory (or both)” (at [23]; see also at [27]).

26    The decisions in Forshaw (No 1) and Forshaw (No 2) were different from the present case, in that the alleged workplace culture was there relied upon as adverse action involving discrimination against the applicant, as distinct from being pleaded in support of an allegation of vicarious liability on the part of an employer for unlawful acts done by its employees or agents. Nevertheless, the respondents, in the present case, submit that each of those decisions illustrates that a generalised allegation of “poor workplace culture” is inherently indistinct, vague and conclusory.

27    Ms Zaydan sought to counter that submission by relying on the decisions in Lee v Smith and Magar v Khan.

(a)    Lee v Smith relevantly involved claims of sexual harassment and unlawful discrimination which included the display of pornographic images by fellow employees in the workplace. The Federal Magistrates Court (as it then was) made findings that the employer’s failure to prevent the display of such images “sent a message to the workforce that accessing or displaying the material was acceptable within the workforce”, and “may well create an impression regarding the prevailing workplace culture and thereby diminishing the confidence in the formal complaint procedures and policies”: at [198] (Connolly FM). It may be noted that there was no dispute in that case that the employees’ conduct of displaying the pornographic images was in the course of their employment and at their workplace, and clearly amounted to an ongoing act of sexual harassment: ibid.

(b)    In Magar v Khan, Bromwich J accepted the applicant’s evidence in relation to sexist comments that had been made by members of staff about other female employees, and treated that evidence as constituting “a form of contextual support” for the alleged sexual harassment towards the applicant which rendered that conduct more likely to have taken place: at [101]–[102]. His Honour concluded that “the culture at that workplace tolerated overt and outspoken sexist and boorish behaviour as both collective behaviour and individual behaviour”, and that senior staff had “fostered a workplace culture that was disinterested in preventing sexist conduct from taking place and was instead tolerant, or even conducive to its continuation”: at [103]. Justice Bromwich stated that “[s]uch a workplace culture can have the effect of normalising sexualised behaviour towards women and foster an escalation into worse behaviour, such as a progression into sexual harassment”: ibid.

28    Ultimately, neither of those decisions provides much direct assistance in the present case, as they were not directly concerned with the relevance of workplace culture or a pattern of workplace behaviour to the question whether conduct by a particular employee was in connection with his or her employment. It is not suggested that evidence of workplace culture can never be relevant to the issues raised by an allegation of sexual harassment or harassment on the ground of sex contrary to s 28B of the SDA: see e.g. Magar v Khan at [61] (Bromwich J). However, the question on the present interlocutory application is not concerned with evidence, but with whether paragraph 17 of the ASOC is objectionable on one or more of the grounds set out in r 16.21(1) of the Rules.

29    The position is not advanced by including specific instances of alleged conduct by way of “particulars” of the alleged workplace culture or persistent pattern of conduct. First, the five alleged incidents took place over a three-year period that does not coincide with the period of employment of Ms Zaydan and the individual respondents. Secondly, even if it were possible to rely on “tendency” evidence in this context (cf. Pt 3.6 of the Evidence Act 1995 (Cth)), the alleged incidents do not relate to behaviour by any of the individual respondents, and no material facts are pleaded in relation to any actions taken or not taken by Experian in connection with the alleged incidents. Third, a generalised allegation of “poor workplace culture” cannot become a Trojan horse to expand the field of controversy in the proceeding so as to encompass separate and unrelated incidents of alleged unlawful conduct (whether sexual harassment or otherwise) that do not themselves involve the sexual harassment of the applicant.

30    In oral submissions, counsel for the applicant relied on s 106(2) of the SDA, which provides that the liability of a person for unlawful acts done by their employee or agent does not apply “if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in [s 106(1)]”. As Kiefel J stated in South Pacific Resort Hotels at [61], s 106(2) provides employers with a defence by which vicarious liability “may be avoided if the employer or principal can show that they took ‘all reasonable steps’ to prevent the sexual harassment or discrimination”. Counsel for the applicant sought to explain paragraph 17 of the ASOC as pre-emptively directed at the “inevitable” prospect that Experian would invoke that defence by contending that it had taken reasonable steps to prevent its employees from engaging in sexual harassment of their fellow employees.

31    However, the respondents have filed their defence, in which Experian does not seek to rely on s 106(2) of the SDA. In her submissions in reply, counsel for the respondents observed that Ms Zaydan has not pleaded in the ASOC that Experian did not take reasonable steps to prevent its employees from doing the kind of acts that are alleged to have been done by the individual respondents. Section 106(2) of the SDA can only apply once it has been established that an employee has done unlawful acts in connection with his or her employment. Counsel for the respondents confirmed that, at least on the current pleadings, there is no reliance by Experian on the “defence” provided by s 106(2) of the SDA. Rather, Experian joins issue on whether the alleged acts were done in connection with the employment of the individual respondents by Experian.

32    In such circumstances, I consider that paragraph 17 of the ASOC should be struck out pursuant to r 16.21(1)(e) on the ground that it fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading. It is unnecessary to reach a concluded view on whether the allegations in that paragraph can otherwise be considered to be scandalous, frivolous or vexatious, evasive or ambiguous, or likely to cause prejudice, embarrassment or delay in the proceeding. In my view, this is not a case which calls for the exercise of a discretion to decline to strike out a defective pleading: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44] (Greenwood, Flick and Rangiah JJ). In particular, striking out paragraph 17 of the ASOC will not expose Ms Zaydan to the prospect of being unfairly denied access to the courts. Ms Zaydan will be given an opportunity to replead any further relevant matters on which she seeks to rely in relation to the connection between the alleged acts of the individual respondents and their employment by Experian.

33    While Experian initially applied for an order that Ms Zaydan pay its costs of the interlocutory application pursuant to s 46PSA(6)(b) of the AHRC Act, on the ground that her unreasonable act or omission had caused it to incur those costs, counsel for the respondents ultimately did not press for Experian’s application for costs to be determined at this time.

34    Finally, I note that suppression orders have been made under ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) and r 2.32 of the Rules to restrict the disclosure of the originating application, pleadings and affidavits filed in the proceedings until the termination or other conclusion of the mediation process between the parties, or further order: Zaydan v Experian Australia Pty Ltd [2025] FCA 1318. Consistently with the underlying basis on which those orders were made, it is appropriate that these reasons for judgment remain confidential to the parties for a similar period. Accordingly, I will make a confidentiality order under r 2.32(1)(b) and (3)(a) of the Rules restricting the inspection of these reasons for judgment on the court file until the mediation process between the parties has concluded.

Associate:

Dated:    18 December 2025