Federal Court of Australia

Tzaros v ServiceNow Australia Pty Ltd [2025] FCA 1633

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm on 6 February 2026, the applicant file and serve a Statement of Claim.

2.    By 4.00 pm on 6 March 2026, the respondent file and serve a Defence.

3.    By 4.00 pm on 20 March 2026, the applicant file and serve any Reply.

4.    Orders 5 and 6 of the orders made on 3 June 2025 are vacated.

5.    The matter be referred to a Registrar of this Court for mediation on a date to be fixed not before 6 April 2026.

6.    In the event that the matter does not resolve at mediation, the matter be listed for a case management hearing on a date to be fixed following the conclusion of the mediation.

7.    Costs reserved.

8.    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 Eleni Tzaros, was employed by ServiceNow Australia Pty Ltd as a senior commercial account executive from 21 March 2022 until the termination of her employment with effect from 9 January 2025.

2    This proceeding was commenced by an originating application filed on 4 March 2025, accompanied by certificate under s 368 of the Fair Work Act 2009 (Cth) (FW Act) dated 18 February 2025. In support of the application, the applicant relied on an affidavit affirmed by her on 4 March 2025 (March Affidavit).

3    At the first case management hearing, I made orders requiring the parties to file concise statements and for the matter to be referred to mediation by a Registrar. The applicant subsequently filed a Concise Statement dated 2 May 2025. After the respondent raised concerns with the Concise Statement, the applicant filed a Supplementary Concise Statement dated 27 June 2025.

4    The respondent did not consider that its concerns in relation to the deficiencies in the Concise Statement had been met by the Supplementary Concise Statement. By an interlocutory application dated 13 August 2025, the respondent applied for orders requiring the applicant to file a statement of claim, and for the matter to proceed by way of pleadings. In support of that interlocutory application, the respondent relied on an affidavit of Mr Nicholas David Turner affirmed 13 August 2025.

5    For the reasons set out below, I do not consider that the Concise Statement, read together with the Supplementary Concise Statement, provides adequate notice of the applicant’s case in relation to the alleged contraventions by the respondent of Pt 3-1 of the FW Act. Accordingly, orders will be made requiring pleadings to be filed by the parties.

BACKGROUND

The originating application

6    The originating application claims relief under s 545 of the FW Act in respect of alleged contraventions by the respondent of general workplace protections under Pt 3-1 of the FW Act. In particular, the applicant claims that:

(a)    she exercised her workplace right to make an inquiry in relation to her employment within the meaning of s 341(1)(c) by:

(i)    “seeking to raise the issues [she] was facing with her manager”;

(ii)    “the way her role was being minimised and coopted by her manager”; and

(iii)    “seeking to address the manner in which her speciality role was being misapplied and misunderstood”;

(b)    the respondent took adverse action against her within the meaning of s 342(1) by:

(i)    “minimising and coopting her role”, thereby altering her position to her detriment;

(ii)    “impinging upon and unnecessarily performance managing her work”, thereby discriminating between her and other employees; and

(iii)    dismissing her;

(c)    the respondent took adverse action against her because she had exercised a workplace right within the meaning of s 340(1); and

(d)    having raised “the issues of sexism and misogyny in [her] workplace”, the respondent took adverse action against her due to her sex within the meaning of s 351.

7    Each of ss 340(1) and 351 of the FW Act is a civil remedy provision. The applicant seeks an order under s 545 of the FW Act awarding compensation for the loss that she has suffered because of the alleged contraventions of those provisions by the respondent. She alleges that she has suffered a loss of income, stress and anxiety, and that she will not receive “the appropriate redundancy” and a “share payout” amounting to approximately $180,000.

8    The applicant also claims relief in respect of alleged contraventions of ss 18 and 31 of the Australian Consumer Law (ACL), which is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). Section 18 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 31 of the ACL proscribes conduct that is liable to mislead persons seeking employment as to the availability, nature, terms or conditions of the employment, or any other matter relating to the employment. The applicant relevantly claims that the respondent made misleading or deceptive representations on which she relied to her detriment.

The March Affidavit

9    The originating application was accompanied by the March Affidavit, in which the applicant addresses the background to her employment by the respondent, and the issues that arose during that employment.

10    In broad terms, the applicant states that she was employed by the respondent in relation to “specialty healthcare accounts”, in the light of her expertise and experience in the healthcare industry and strategic sales. The applicant states that she was told certain things about the role that she would be undertaking and the support that would be available to her in that role. She proceeds to outline various issues in relation to the number and type of accounts that she was given to manage, and the concerns that she expressed about achieving sales targets.

11    Under the heading “Unrealistic Expectations and Interference”, the March Affidavit deals with actions that were taken by the applicant’s manager, including occasions on which the applicant says that she felt ambushed in meetings and bullied by the provision of unsolicited feedback. This is said to have resulted in the applicant’s exclusion from specific work opportunities as well as being “micromanaged”.

12    The applicant also addresses a “lack of support” for her role which negatively impacted her quota. She says that her numerous requests for management to engage with and support her customers were not acted upon. She raises criticisms in relation to the organisation of a particular “Healthcare Executive event” that was important for bolstering the respondent’s brand in the industry.

13    The applicant refers to alleged “gender bias”, including sexual or misogynistic remarks in the “male dominated workplace”. She deals with a particular example in which, during a meeting in August 2024, a colleague made a comment which the applicant found to be offensive and insulting. The applicant states that no action was taken in response to her report of this incident. The applicant also suggests that a male colleague was treated more favourably than her, and that she was overlooked for leadership roles despite her clear interest and merit.

14    Finally, the March Affidavit deals with the applicant’s termination on 12 December 2024, following a meeting with the Human Resources team. The applicant states that, while the reason given for her dismissal was her failure to meet the performance expectations for her role, those expectations were unrealistic and were not imposed on other members of the team. The applicant contends that the “real reasons” for her dismissal were the enquiries, suggestions and opinions that she had made or expressed to her manager and others in relation to her employment.

15    The applicant subsequently filed a further affidavit affirmed on 2 April 2025 (April Affidavit), in which she provides further details in relation to the events preceding the termination of her employment on 12 December 2024. She states that, without prior notice, her weekly “catch-up” or “check-in” meeting with her immediate supervisor was changed to a meeting about performance attended by a member of the respondent’s “Global People Team”. The applicant states that, after raising her objections to the manner in which the meeting had been changed, she left the meeting. Following the meeting, the applicant received an email in which she was informed that the purpose of the meeting had been to inform her of the termination of her employment. The email attached a letter of termination and deed of release. The balance of the April Affidavit addresses correspondence that was exchanged between the parties’ representatives concerning whether the deed of release was subject to “without prejudice” privilege.

Concise Statement

16    The first case management hearing was held on 4 April 2025. The respondent sought orders for the matter to proceed by way of pleadings, with the applicant being required to file and serve a statement of claim. Ultimately, orders were made for the applicant to file a concise statement in accordance with paragraphs [6.8] to [6.10] of the Central Practice Note: National Court Framework and Case Management (CPN-1), and for the respondent to file a concise response.

17    The Concise Statement traverses much of the same ground as the March Affidavit. It is divided into sections that reflect the terms of paragraph [6.10] of the Central Practice Note, namely: the important facts giving rise to the claim; the relief sought from the Court; the primary legal grounds or causes of action for the relief sought; and the alleged harm suffered by the applicant.

18    In relation to the important facts giving rise to the claim, the Concise Statement refers to:

(a)    the employment agreement made on or about 7 March 2022;

(b)    the applicant’s recruitment by the respondent, and the pre-contractual representations made to the applicant by the respondent’s “hiring team”;

(c)    the applicant’s commencement of employment, and the perceived deficiencies in the respondent’s market strategy for the healthcare industry in Australia;

(d)    unreasonable behaviour towards the applicant by her direct manager, including ambushing her in meetings and providing unsolicited criticism of her work without offering specific feedback;

(e)    concerns raised by the applicant over her treatment and other inquiries as to her employment and her perceptions of “mismanagement”;

(f)    the applicant’s receipt of comments of a sexual and misogynistic nature and gender-based discrimination; and

(g)    adverse action taken by the respondent against the applicant.

19    The legal grounds set out in the Concise Statement identify and paraphrase the requirements of ss 340, 341 and 342 of the FW Act and ss 4, 18 and 31 of the ACL.

20    The Concise Statement states that the applicant has suffered loss and damage both as a result of the respondent’s adverse actions, and by accepting employment as a result of the respondent’s representations. In relation to the former, the applicant relies on an ongoing loss of income, including a share payout of approximately $180,000, as well as stress and anxiety.

Supplementary Concise Statement

21    By letter dated 21 May 2025, the respondent’s solicitors identified “material deficiencies” in the Concise Statement, and requested that the applicant file and serve an amended concise statement “to rectify these shortcomings”. The letter relevantly stated:

The Concise Statement fails to provide fair notice of the issues and the case that ServiceNow Australia Pty Ltd (ServiceNow) must meet. In particular, it does not adequately identify, or particularise with any precision, the material facts underpinning Ms Tzaros’ allegations.

22    The letter from the respondent’s solicitors set out examples of paragraphs of the Concise Statement in respect of which it was said that there had been insufficient disclosure of material facts. These included details of the alleged pre-contractual misrepresentation; the basis for the allegation regarding the applicant’s projected earnings with her former employer; the basis for the alleged deficiencies in the respondent’s readiness for the Australian market; the specific occasions on which the applicant’s manager was alleged to have behaved unreasonably towards her; the occasions on which the applicant had raised concerns or made inquiries about her treatment or other employment issues; the workplace rights that the applicant had exercised in reporting the offensive comment that she alleges was made to her; the specific occasions on which the applicant’s manager was alleged to have reduced his direct interactions with the applicant or excluded her from her team’s communications and from clients; and the basis on which it was alleged that the applicant was subject to unreasonable performance targets.

23    More generally, the respondent’s solicitors contended that the Concise Statement did not properly set out the material facts required to give rise to a cause of action, and did not link many of the allegations to a cause of action.

24    In an attempt to meet these concerns, the applicant agreed to file the Supplementary Concise Statement, and consent orders were made to that effect.

25    The Supplementary Concise Statement commences with a statement that it is to be “read together with” the originating application, the March Affidavit, the April Affidavit and the Concise Statement. It then provides further details in relation to various paragraphs of the Concise Statement, including the paragraphs that had been identified by the respondent’s solicitors in their letter dated 21 May 2025. In some cases, the further details are given by referring to and repeating specified paragraphs in the March Affidavit or the April Affidavit.

26    In relation to the alleged pre-contractual representations, the Supplementary Concise Statement particularises a number of communications made on specific occasions in late 2021, including conversations between the applicant and representatives of the respondent, such as its “internal recruiter” and its Senior Sales Director. The Supplementary Concise Statement refers to an interview of the applicant that was conducted on or about 21 January 2022 by the respondent’s managing director for Australia and New Zealand and other “senior leaders” (commercial sales managers or account executives). It also elaborates the applicant’s allegations in relation her reliance on the representations in leaving her former employer and accepting employment with the respondent in a “lesser role”.

27    Further particulars are provided of the allegations that the representations were false or misleading, including by reference to identified paragraphs of the Concise Statement and the March Affidavit, but also setting out additional factual allegations.

28    In support of the allegation in paragraph 9 of the Concise Statement that the applicant’s manager “repeatedly behaved unreasonably” towards the applicant during her employment, including by ambushing her in meetings and providing unsolicited criticism in relation to her work, the Supplementary Concise Statement states:

9.    In support of paragraph 9 of the Concise Statement the Applicant provides the following particulars, inter alia:

a)    The Applicant refers to and repeats paragraphs 7 to 16 and 28 of the [March Affidavit]; and

b)     Paragraphs 3 to 11 of the [April Affidavit].

29    In relation to paragraph 10 of the Concise Statement, which addressed the concerns raised and inquiries made by the applicant over the course of her employment, the Supplementary Concise Statement states:

10.    In paragraph 10 of the Concise Statement the Applicant summarises the times in which she raised concerns and made inquiries about her employment, being an exercise of a workplace right as per s 341(1)(c)(ii) of the Fair Work Act as referred to in paragraph 12 and 14(c) of the Concise Statement and Form 81 of the Originating Application. In support of paragraph 10 of the Concise Statement the Applicant provides the following particulars, inter alia:

a)     The Applicant refers to and repeats paragraphs 5, 7, 8, 9, 12, 13, 14, 15, 18, 19, 21 and 22 of the [March Affidavit]; and

b)     Paragraphs 3 to 11 of the [April Affidavit].

30    Paragraph 11 of the Concise Statement was directed to alleged “comments of a sexual and misogynistic nature” that were received by the applicant and her less favourable treatment compared to other employees. In relation to the former, paragraph 11(b) of the Concise Statement referred to the meeting in August 2024 in which the comment was alleged to have been made, and the applicant’s subsequent requests that appropriate action be taken in response. In relation to the latter, paragraph 11(a) of the Concise Statement referred to a colleague who was not subjected to any performance management in similar circumstances to those in which the applicant had been put on a performance management plan. The Supplementary Concise Statement addresses these paragraphs as follows:

11.     In paragraph 11 of the Concise Statement the Applicant summarises gender and sexual discrimination she experienced during her employment:

a)     in paragraph 11(a) this discrimination is noted as including that the Applicant received performance management while another employee who was not of the same sex or gender did not in spite of the other employee having only made 10% of his quota which was much less than the Applicant; this is further detailed in the [March Affidavit] in paragraph 26. This discriminating treatment is an adverse action under s 342(1)(d) and was taken due to the Applicant’s sex and gender per section 351 of the Fair Work Act.

b)     Further, the Applicant summarises at paragraph 11(b) gender and sexual discrimination she experienced during her employment; in paragraph 12 of the Concise Statement the Applicant refers to a complaint made to Adam Dougall about one of the incidents as referred to in paragraph 11(b). The complaint was an exercise of a workplace right under section 341(1)(c) and was referred to in the [March Affidavit] at paragraph 25.

31    Paragraph 12 of the Concise Statement addressed the adverse action that was allegedly taken against the applicant by the respondent. This included actions that are alleged to have been taken “[o]ver 2024” to exclude the applicant and undermine her leadership and her relationship with clients, thereby impacting her performance, and culminating in performance management and ultimately her dismissal without prior notice. In relation to these allegations, the Supplementary Concise Statement states:

12.     As to paragraph 12 of the Concise Statement:

a)     By way of particulars, in support of paragraph 12(a), the Applicant refers to, inter alia, paragraph 10 and 11 of the [March Affidavit].

b)     By way of particulars, in support of paragraph 12(b), the Applicant refers to, inter alia, paragraphs 5, and 12 to 14 of the [March Affidavit].

c)     By way of particulars, in support of paragraph 12(c), the Applicant refers to, inter alia, paragraphs 5, 12 to 15 of the [March Affidavit].

CONSIDERATION

32    Rule 8.05(1) of the Federal Court Rules 2011 (Cth) provides that an originating application seeking relief that includes damages must be accompanied by either a statement of claim or, where required or permitted by a practice note issued by the Chief Justice, an alternative accompanying document. The content of any alternative accompanying document must comply with any practice notes issued by the Chief Justice: r 16.13(2).

33    Under r 8.05(2), an originating application seeking relief that does not include damages may be accompanied by an affidavit, instead of a statement or claim or alternative accompanying document (subject to any practice note issued by the Chief Justice that requires an alternative accompanying document to be filed). Any such affidavit must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial: r 8.05(4).

34    It is arguable that a claim for compensation under s 545(2)(b) of the FW Act can be regarded as seeking damages for the purposes of r 8.05(1): cf. Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [453]–[457] (Barker J); Dafallah v Fair Work Commission (2014) 225 FCR 559 at [148]–[149], [157] (Mortimer J); Qantas Airways Limited v Gama (2008) 167 FCR 537 at [94] (French and Jacobson JJ); Mpinda v Fair Work Commission [2022] FCA 1111 at [28]–[29] (Feutrill J). However, it is not necessary for me to reach a concluded view on that point.

35    A concise statement is an alternative accompanying document for the purposes of the Rules. The Central Practice Note relevantly provides:

Concise Statement Method

6.8    A party commencing a proceeding may file a concise statement in support of an originating application. The purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute, as well as the essential relief sought from the Court before incurring what might be the considerable cost of preparation of detailed pleadings. The concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, but instead should be prepared more in the nature of a pleading summons, and may be drafted in a narrative form.

6.9    If a concise statement is filed with the originating application, no further originating material in support (whether by statement of claim or affidavit) is required to be filed until the Court orders that to be done.

6.10    The concise statement must not exceed 5 pages (including formal parts) and the Court would expect that ordinarily (except in complex cases) less than 5 pages will be necessary. It will be plain, concise and direct in every regard. It will omit unnecessary repetition and will do no more than summarise:

(a)    the important facts giving rise to the claim;

(b)    the relief sought from the Court (and against whom);

(c)    the primary legal grounds (causes of action) for the relief sought; and

(d)    the alleged harm suffered by the applicant, including – wherever possible – a conservative and realistic estimate or range of loss and damage.

[Footnote omitted.]

36    As recognised in r 5.04(1), the Court has broad powers to make directions for the management, conduct and hearing of a proceeding. Among other things, this includes directions for the defining of the issues by pleadings or otherwise; for affidavits to stand as pleadings; for a proceeding to continue on affidavits even though the originating application is supported by a statement of claim; and for the parties to attend a conference before a Registrar to clarify the real issues in dispute: r 5.04(3). Where a proceeding has been commenced with an affidavit or an alternative accompanying document such as a concise statement, the Court may make orders requiring pleadings to be filed by the parties. Thus, in identifying the “Case Management Imperatives” to be addressed at the first case management hearing in a proceeding, the Central Practice Note requires consideration “whether, when a proceeding has been commenced with the concise statement method, a more detailed statement of the applicant’s case (or some aspect of it) should be provided in some fashion, including whether in the form of a pleading or by way of particulars, or by way of a narrative statement of facts and explanation”: Central Practice Note at [8.5(d)], referring to Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284.

37    The nature and purpose of a concise statement was discussed by McKerracher and Colvin JJ in Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388 at [140]–[154]. As their Honours stated, the object of the concise statement method is to facilitate the case management of the proceedings. While it might enable the proceeding to continue without detailed pleadings, the concise statement method does not foreclose the question “whether the efficient conduct and disposition of the application is better served by requiring pleadings or whether some other procedure might be followed to expose the issues”: Delor Vue Apartments at [141]. Concise statements can perform a “triaging function” which enables an assessment of what further procedural measures are required to identify the factual and legal issues and make the respondent fully aware of the case against them: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2023] FCA 1150; (2023) 169 ACSR 649 at [16] (Beach J); Australian Securities and Investments Commission v National Australia Bank Ltd (No 2) [2023] FCA 1118; (2023) 171 ACSR 176 (NAB (No 2)) at [36] (Derrington J); Commissioner of NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) (No 2) [2025] FCA 238 at [41] (Horan J).

38    What is clear is that a concise statement is not simply a “short form of pleading” (see Central Practice Note at [6.8]), and “should not be viewed as if it were a de facto pleading to which the old pleading rules apply unaffected by the new context and character of the concise statement”: Delor Vue Apartments at [148]. Rather, the concise statement method serves “a broader function of providing a fair disclosure of the nature of the case to be advanced with more precise issues being disclosed by other means and to the extent considered to be appropriate in the interests of fairness”: Delor Vue Apartments at [144]; see also NAB (No 2) at [26], [28] (Derrington J); Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170 at [185] (Allsop CJ); Australian Federation of Air Pilots v Regional Express Holdings Limited (2021) 290 FCR 239 (Bromberg, Kerr and Wheelahan JJ) at [139].

39    Although a concise statement is not required to comply with the requirements applicable to a traditional pleading (see rr 16.01A, 16.41A), it remains subject to r 16.02(2): see r 16.13(1)(b). Accordingly, a concise statement must not:

(a)     contain any scandalous material; or

(b)     contain any frivolous or vexatious material; or

(c)     be evasive or ambiguous; or

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

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

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

40    The contents of a concise statement are not governed by the rules of pleading. A concise statement should disclose the “key issues and key facts at the heart of the dispute”, by summarising the “important facts giving rise to the claim” and the “primary legal grounds (causes of action) for the relief sought” (Central Practice Note at [6.8], [6.10]), as opposed to being required to state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, together with necessary particulars: cf. rr 16.02(1)(d), 16.41(1). That is not to suggest that it is permissible for a concise statement to disclose only an incomplete cause of action or to address only part of the case that the party wishes to advance, nor does it allow the case advanced by the party to be obscured by overly broad generalisations or by unnecessary detail. The opposing party must still be given fair notice of the case to be met at trial.

41    In appropriate cases, a concise statement might be sufficient to frame the factual and legal parameters of an applicant’s case, with further details to be articulated through particulars, affidavits or outlines of evidence, a joint list of issues, or submissions: Irabina Autism Services at [39] (Horan J). This will usually assume a degree of cooperation between the parties, informed by their obligations to act in accordance with the overarching purpose of the civil practice and procedure provisions under s 37M of the Federal Court of Australia Act 1976 (Cth). In other cases, however, procedural fairness might dictate that a statement of claim be provided and that the proceeding continues on pleadings: see e.g. Australian Securities and Investments Commission v Bettles [2020] FCA 1568 at [130]–[132] (Greenwood ACJ); NAB (No 2) at [36]–[38] (Derrington J).

42    In some practice areas, the use of the concise statement method is encouraged. For example, paragraph [5.8] of the Commercial and Corporations Practice Note (C&C-1) provides:

The Court anticipates that the majority of commercial and corporations matters will be assisted by being commenced with a concise statement. Applicants are encouraged to consider the alternatives carefully and to select the use of a concise statement unless it is clearly not an appropriate mechanism.

43    Concise statements are also commonplace in civil penalty proceedings brought by regulators, at least as a “preliminary step” leading to further case management: see NAB (No 2) at [30], [35]–[36] (Derrington J). It nevertheless remains important that persons who are accused of contraventions of civil penalty provisions should “know with some precision the case to be made against them”: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63] (Logan, Bromberg and Katzmann JJ); see also Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [50] (Tracey, Reeves and Bromwich JJ).

44    Paragraph [4.2] of the Employment and Industrial Relations Practice Note (E&IR-1) contemplates that an originating application might be accompanied by either a statement of claim, a concise statement or an affidavit. If a proceeding is commenced on affidavit (as in the present case), consideration should be given at the first case management hearing to whether the proceeding should continue on affidavit: Employment and Industrial Relations Practice Note (E&IR-1) at [4.6]. As discussed above, orders were made at the first case management hearing in the present case requiring the parties to file concise statements.

45    The respondent submitted that the Concise Statement and Supplementary Concise Statement fail to identify the material facts on which the applicant relies or the issues that the applicant wants resolved, such that it is “almost impossible to properly understand the case the Applicant intends to bring”. In particular, the respondent criticized the approach adopted in the Supplementary Concise Statement, in so far as it is required to be read together with the Concise Statement, the March Affidavit and the April Affidavit.

46    In oral submissions, counsel for the respondent focused on the manner in which the Concise Statement addressed the applicant’s case regarding the concerns that she raised and the inquiries she made in relation to her employment. The respondent submitted that paragraph 10 of the Concise Statement had not identified the material facts concerning the occasions on which the applicant raised concerns or made inquiries, without which it was not possible to assess whether and how the applicant is said to have exercised a workplace right or to identify the action that the respondent is said to have taken in response to those concerns or inquiries. Paragraph 10 of the Supplementary Concise Statement, which is set out above, simply refers to specified paragraphs of the March Affidavit and the April Affidavit by way of “particulars” of the concerns or inquiries, prefaced by the words “inter alia” (i.e. among other things) by which it would appear that the matters set out therein are not intended to be exhaustive.

47    The respondent advanced similar criticisms in relation to paragraphs 11 and 12 of the Concise Statement and the corresponding paragraphs of the Supplementary Concise Statement. Paragraph 11 deals with the alleged discrimination against the applicant and the receipt of comments “of a sexual and misogynistic nature”. Paragraph 12 deals with the adverse actions that are alleged to have been taken by the respondent against the applicant. In each case, the Supplementary Concise Statement principally refers to specified paragraphs in the March Affidavit.

48    The respondent also submitted that the applicant’s claim under the ACL was unclear, and that paragraph 14(d) of the Concise Statement and paragraph 4A of the Supplementary Concise Statement do not particularise the alleged representations made by the respondent nor how they are said to have been misleading or deceptive.

49    The applicant submitted that the documents are not as complex or convoluted as the respondent made them out to be. Rather, the Supplementary Concise Statement had specifically addressed the respondent’s requests for material facts to be identified, including by reference to the relevant paragraphs of the affidavits which contain detailed particulars of the case that will be put by the applicant in relation to the representations that were made to her by the respondent, the concerns that she had raised during her employment, and the actions that were taken against her by the respondent. In such circumstances, the applicant submitted that the respondent would not be caught by surprise, and that her case was clearly disclosed if the respondent were prepared to “engage” with the materials.

50    On balance, I consider that the Concise Statement and the Supplementary Concise Statement have adequately identified the key issues and the key facts in relation to the claim under the ACL in respect of misleading or deceptive conduct by the respondent with respect to the applicant’s employment. Paragraphs 4 to 8 of the Concise Statement and paragraphs 4, 4A, 5, 6, 7 and 8 of the Supplementary Concise Statement identify the alleged representations, summarise their nature and subject matter, describe the basis on which it is alleged that they were false or were made without any reasonable basis, and indicate the loss or damage claimed to have been suffered by the applicant by acting in reliance on the representations.

51    However, in my view, the applicant’s case in relation to the alleged contraventions of the FW Act is not adequately disclosed by the Concise Statement, and those deficiencies are not remedied by the “particulars” provided in the Supplementary Concise Statement.

52    The Concise Statement contains high-level assertions about the applicant’s manager having “repeatedly” or “regularly” behaved unreasonably towards her over a period of almost three years, without giving details about when and how the unreasonable behaviour is said to have occurred. The generalised descriptions of categories of conduct (such as “ambushing” the applicant in meetings and providing unsolicited criticism of her work) are put forward as inclusive examples rather than delimiting the applicant’s case.

53    Similarly, the applicant is said to have raised concerns over her treatment and to have made inquiries in relation to other employment issues over a period of almost three years. No details are provided about when and how those concerns were raised or those inquiries were made. The description of the subject of the concerns and inquiries is again inclusive and of a general nature, such as the “organisation and practices of the healthcare team”, the “lack of understanding about private healthcare accounts” and the “lack of support”.

54    The adverse actions said to have been taken by the respondent against the applicant are identified broadly and by reference to the whole of the 2024 calendar year. Apart from the meeting which preceded the termination of the applicant’s employment on 12 December 2024, only one specific instance of conduct is identified (involving the applicant’s manager having allowed a client to pay a portion of an outstanding bill, thereby preventing the applicant from meeting a sales target). Otherwise, the alleged actions taken by the respondent are described in general terms, such as excluding the applicant, undermining her leadership or client relationships, and subjecting her to performance management.

55    These matters are important to the formulation of the applicant’s case under Pt 3-1 of the FW Act. The respondent is entitled to a clear articulation of the key facts relating to the particular workplace rights on which the applicant relies and how they were exercised, and the basis on which it is alleged that adverse action was taken by the respondent because the applicant possessed or exercised such workplace rights.

56    The Supplementary Concise Statement does not itself clarify or elaborate any of these matters, but rather points to the applicant’s evidence as set out in the March Affidavit and the April Affidavit. That approach does not meet the objectives of the concise statement method. While a concise statement can be supplemented by subsequent procedural steps by which the issues are more fully disclosed and particularised, the respondent should not be left to discern or divine from the applicant’s affidavits the nature and number of alleged contraventions of the civil remedy provisions under the FW Act. In my view, this is a case in which the lack of clarity or particularity should be addressed by ordering pleadings: see Chadwick v State of New South Wales (No 4) [2024] FCA 651 at [38] (Kennett J).

57    If the applicant’s case is straightforward as was suggested by her counsel in oral submissions, it should not present too great a challenge to prepare a statement of claim that sets out the material facts on which she relies in order to give fair notice of the case to be made against the respondent at trial. That pleading should be as brief as the nature of the case permits: r 16.02(1)(b).

58    Accordingly, I will make orders requiring the applicant to file and serve a statement of claim, and fixing a timetable for subsequent pleadings to be filed.

Associate:

Dated:    18 December 2025