Federal Court of Australia

Turner v Chandler Macleod Group Limited [2026] FCA 139

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth), the Originating Application filed on 28 October 2025 and the Statement of Claim filed on 15 December 2025 be struck out as against the first respondent, with no leave granted to the applicant to replead.

2.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), judgment be given for the second to fourth respondents, and fifth respondent, against the applicant.

3.    Pursuant to r 2.28(1)(a) of the Federal Court Rules 2011 (Cth), the Statement of Claim be removed from the Court file as it contains material which is an abuse of the processes of the Court.

Costs

4.    No order as to the costs of the second to fifth respondents.

5.    Within 14 days, the first respondent to file and serve evidence and submissions in support of any costs order sought pursuant to s 570 of the Fair Work Act 2009 (Cth), including submissions addressing whether a lump-sum costs order in accordance with Part 4 of the Costs Practice Note (GPN-COSTS) should be utilised.

6.    Within 28 days, if a costs order is sought by the first respondent under order 5, the applicant to file and serve any evidence and submissions in response to the first respondent’s evidence and submissions.

7.    If a costs order is sought by the first respondent under order 5, the question of any costs order be reserved 28 days from the date of publication of these reasons, to be determined on the papers.

Suppression orders

8.    The second, third, and fourth respondents to prepare orders reflecting that part of the reasons for judgment dealing with suppression orders, and such orders are:

(a)    to be provided to the Chambers of Needham J within 14 days of the publication of these reasons, indicating whether the other parties are in agreement with those orders or if there is no agreement, the extent of that disagreement; and

(b)    to be made in Chambers or on a date to be fixed.

9.    Until final orders dealing with suppression are made, pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), the publication and disclosure of:

(a)    Originating Application;

(b)    Statement of Claim;

(c)    Affidavit of Simon Alexander Turner filed on 28 October 2025;

(d)    Second, Third and Fourth Respondents’ Interlocutory Application filed on 11 December 2025;

(e)    Affidavit of Trent Matthew Forno and Confidential Exhibit TMF-1 filed on 11 December 2025;

(f)    Any outline of submissions and evidence filed by the parties in respect of the Application; and

(g)    Pages 19-21 of the transcript of the hearing on 12 February 2026, which pages disclose information covered by the redactions to the Originating Application under order 10,

be prohibited to any person or entity except the Court save for disclosure to:

(i)    the Court and its staff, and any person performing services for the Court, acting in the course of their duties; or

(ii)    the parties and their legal representatives.

10.    Pursuant to r 2.29(1)(a) of the Federal Court Rules 2011 (Cth), the Originating Application be removed and replaced with a redacted copy, with redactions applied by the Court to paragraphs 8-12 under the heading “Details of Claim”.

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

REASONS FOR JUDGMENT

NEEDHAM J:

The proceedings

1    The applicant, Mr Turner, commenced these proceedings on 28 October 2025 by way of Originating Application and affidavit. On 15 December 2025, the applicant filed a Statement of Claim, in compliance with orders of this Court.

2    At the first case management hearing, I listed the matter for hearing and made timetabling orders in relation to the hearing of the final relief in the Statement of Claim, and the two interlocutory applications filed on 5 December 2025 and 11 December 2025, to be heard together on 12 February 2026.

3    On 5 December 2025, the first respondent, Chandler Macleod Group Limited (CMG), filed an interlocutory application (CMG Application). The CMG Application sought that the Originating Application be set aside as against the first respondent as an abuse of process, “in that it seeks to relitigate matters that have been settled and where earlier litigation that deals with similar matters has been concluded”. Alternatively, it sought that the Originating Application be struck out as failing to disclose a reasonable cause of action.

4    On 11 December 2025, the second, third and fourth respondents (BHP respondents) filed an interlocutory application (Suppression Application). The Suppression Application sought confidentiality and non-publication or suppression orders over the documents listed in the Schedule to the application. At the first case management hearing, I made non-publication orders pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) over the confidential affidavit of Michael Russell dated 5 December 2025, and interim orders pursuant to s 37AI of the FCA Act in relation to the documents set out in the Schedule, until the hearing of the Suppression Application on 12 February 2026. I provided reasons for those orders in Turner v Macleod Group Limited (Interim Suppression Order) [2025] FCA 1599.

5    On 29 January 2026, the fifth respondent, Coal Mining Industry (Long Service Leave Funding) Corporation (Coal LSL), filed an interlocutory application (Coal LSL Application). The Coal LSL Application sought an order dismissing the proceedings as against it, pursuant to s 31A of the FCA Act and/or r 26.01(1) of the Federal Court Rules 2011 (Cth) (FCR). In the alternative, it sought an order that paragraphs 6, 37 and 38 of the Statement of Claim be struck out pursuant to rr 16.21(c), (d) and (e) of the FCR. Prayer 3 of the Coal LSL Application sought that the application be listed for hearing on 12 February 2026.

6    On 29 January 2026, the BHP respondents filed another interlocutory application (Summary Judgment Application) for summary judgment in favour of the BHP respondents pursuant to r 26.01 of the FCR and/or s 31A of the FCA Act with respect to the claims advanced by the BHP respondents, on the basis that the pleading does not disclose a reasonable cause of action against them and/or is an abuse of process. In the alternative, it sought an order pursuant to r 16.21 of the FCR that so much of the Originating Application and Statement of Claim which purports to plead a claim against the BHP respondents be struck out.

7    On 2 February 2026, the parties each filed written submissions on their respective applications and on the applicant’s final relief in the Statement of Claim. The applicant sent his submissions via email to the parties and the NSW Registry, which, following advice from the NSW Registry, were consolidated into one document and filed on 5 February 2026. He did not file any evidence in support, but listed documents in his submissions which he asserted “proved” the matters raised in his submissions and in the Statement of Claim.

8    For clarity, I note that “Ready Workforce (a division of Chandler Macleod) (ABN 54 088 288 037)” was listed on the front page of the Originating Application as a respondent, but was not joined as a party, and did not appear in the Statement of Claim. That entity is thus not a party to the proceedings.

9    I will deal with the various applications in the order in which they were argued at the hearing. I am grateful to all the parties including Mr Turner for their efficient management of court time and for the smooth running of these interlocutory applications which enabled the hearing to finish on time, and for these reasons to be prepared with reference to the helpful submissions.

The claim

10    In the Originating Application, Mr Turner seeks broadly:

(a)    Various declarations in relation to the applicant’s ‘true’ employer (see Originating Application, paragraphs 1-4);

(b)    Orders that the respondents pay “Award-based underpayments” and interest (see Originating Application, paragraph 5);

(c)    Declarations and compensation in respect of the applicant’s injury on 12 December 2025 (see Originating Application, paragraphs 6-8);

(d)    Damages for economic loss arising from award underpayments (see Originating Application, paragraph 9);

(e)    Recalculation and rectification of superannuation and long service leave entitlements (see Originating Application, paragraphs 10-11);

(f)    Orders compelling the respondents to “correct” their records referencing the applicant (see Originating Application, paragraph 12);

(g)    Pecuniary penalties for contraventions of the Fair Work Act 2009 (Cth) (see paragraph 13); and

(h)    Costs (see Originating Application, paragraph 14).

11    The crux of Mr Turner’s claim is directed at determining which entity is his ‘true employer’, and rectifying the issues which he says arise from a mischaracterisation of his employment.

12    The Statement of Claim states that from 28 September 2014 to January 2016, Mr Turner worked at the Mt Arthur coal mine, and that the first respondent, at all material times, employed him. At paragraphs 10-19 of the Statement of Claim, Mr Turner refers to previous proceedings, such as under the heading “FWC Stanton Proceedings – Employer and Award Admitted”, and states that “CMG admitted it was the employer and that workers were covered by the Black Coal Mining Industry 2010”, and under the heading “Federal Court Confirmation – Altobelli J (2017)” he cites a proceeding in the (former) Federal Circuit Court of Australia, stating that “the Court found CMG … was the employer of Mt Arthur labour-hire workers”. This decision appears to be a decision of Judge Altobelli (now Altobelli J of the Federal Circuit and Family Court of Australia, Division 1) in Construction, Forestry, Mining and Energy Union v Hunter Valley Energy Coal Pty Ltd [2017] FCCA 1559; 322 FLR 209 (the Judge Altobelli decision).

13    The Statement of Claim then refers to an injury that the applicant suffered on 12 December 2015, and that “Compensation was paid by NSW iCare under false employer data… CMG falsely certified no workers’ compensation claim existed”. The claim against the fifth respondent, Coal LSL, appears in paragraph 37, that “Levies were paid by CMG… records were later altered unlawfully”.

14    Mr Turner makes another claim, somewhat separately from the claims above, in relation to a deed of settlement he entered into with the BHP respondents. The Statement of Claim states:

G. COMMON LAW SETTLEMENT – VOID

28. The Applicant entered a common law settlement calculated on false premises. 29. Centrelink was told $700,000 was paid when only ~$305,000 was received. 30. The deed is void for misrepresentation.

15    The relief that is sought by Mr Turner is contained in the final paragraphs of the Statement of Claim as follows:

L. RELIEF SOUGHT

43. Declarations of employment and Award coverage. 44. Setting aside of deeds. 45. Recalculation and payment of all entitlements, damages and interest. 46. Costs and further relief.

16    At the hearing, Mr Turner raised the fact that the Court Book had been filed with only the consent of the respondents, and that the Court Book did not incorporate documents which he had referenced in his submissions. The orders made were that Mr Turner’s submissions and evidence be filed and served by 9 February 2026. Mr Turner said that he did not understand that he was required to file evidence, which he referred to as “statutory evidence which has never been put before the court in any proceeding”.

17    Each of the respondents objected to Mr Turner being able to file evidence or to have an adjournment to do so (although Mr Turner did not make any specific applications to that effect). I explained to Mr Turner the effect of s 37M of the FCA Act and, while the Court would do its best to assist litigants in person, the order for the filing of evidence was clear (and indeed comprised in the same order as to submissions, with which he complied). I refused leave for Mr Turner to file further evidence as I was satisfied that the respondents would be prejudiced by material which they had not seen being filed. However, I noted that I would hear him on whether any particular document which he sought to tender may be relied upon as the proceedings continued. He made no such application.

BHP respondents’ applications

Suppression Application

18    The Suppression Application was the first application dealt with at the hearing. The BHP respondents sought that the Originating Application be replaced with a redacted copy that redacts paragraphs 8 to 12 under the “Details of Claim” subheading, and suppression orders pursuant to s 37AF(1) of the FCA Act until such time as the BHP respondents have filed their defence.

19    As noted, the interim suppression orders sought in the Suppression Application were granted on 15 December 2025 and were continued, with the addition of the applicant’s Statement of Claim, at the end of the hearing on 12 February 2026 until delivery of judgment.

20    The BHP respondents relied on, relevantly, s 37AF(1) of the FCA Act which provides that the Court may make a suppression or non-publication order prohibiting or restricting the publication or other disclosure of:

(a)    information tending to reveal the identity or otherwise associated with a party in the proceeding (s 37AF(1)(a)); or

(b)    information that relates to a proceeding before the Court and is lodged with or filed in the Court (s 37AF(1)(b)(iv)).

21    The principles relating to suppression orders were not in contest. The BHP respondents accepted that they bore the onus of persuading the Court that the order is necessary, but noted that if and when “the necessity of an order for the relevant purpose is established, refusal to make an order is not an option”: Farrell v Super Retail Group Limited [2024] FCA 954 at [46] citing Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383 (at 421 [218] per Bathurst CJ, Leeming JA and Simpson AJA).

22    The first order sought at the hearing was redaction of paragraphs 8-12 under the “Details of Claim” portion of the Originating Application. The BHP respondents characterised these paragraphs as dealing with confidential and “without prejudice” discussions, and providing speculation as to the motivation and state of mind of those parties. They submitted that “the relevant passages appear to be entirely unrelated to the relief claimed” in the Statement of Claim.

23    The BHP respondents sought that the documents listed in the Amended Schedule (in brief summary, the Originating Application, Statement of Claim, Mr Turner’s affidavit of 28 October 2025, the Suppression Application and affidavit in support, and the evidence and submissions filed by the parties on the Suppression Application) be suppressed, until the BHP respondents have filed their Defences. They relied again on the confidential and “without prejudice” nature of the matters raised in the Statement of Claim and Originating Application. They submitted that the documents filed by Mr Turner are not able to be pleaded to – containing as they do, allegations of fraud and other unlawful conduct which are not particularised – and that public reporting of them would result in an unbalanced view of the facts until proper particularisation and any strikeout applications have been made.

24    Mr Forno, who gave evidence for the BHP respondents and was not cross-examined, noted that there was already some reporting on this issue. Ms Bulut of counsel submitted that I could infer that Mr Turner had some involvement in the reporting as the photograph of him was noted as being “supplied”.

25    In McLaughlin v Glenn [2020] FCA 679, Abraham J said at [22]:

The public interest in open justice operates on an assumption that a person who is the subject of serious allegations in litigation has the opportunity to respond in the same public forum, with a corresponding expectation that the media will report on both sides of the story: Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [54]… If the statement of claim was not properly particularised, allowing access would be to give a third party access to allegations which did not fairly set out the applicant’s case and which the respondents have not had and will not have the opportunity to answer in accordance with this Court’s procedures.

26    And at [30]:

Moreover, this is particularly so where the state of the proceedings at the time of settlement were such that the statement of claim to which access is sought was still the subject of dispute such that further particulars were called for and a defence not filed as a result. It would, on any account, be an incomplete position. If access to those documents is granted in those circumstances the early settlement of the proceedings has the consequence that the respondents are likely prejudiced, or at the very least, put at a disadvantage.

27    Mr Turner objected to the orders being made. As to the redaction order, he said that “most of this is out in the public domain and available on court websites and documents that are already there”. However, he noted that there was a “without prejudice” meeting which was held, but he says that all he did in the Statement of Claim was “mention that that meeting took place”. He submitted that the material should not be suppressed or redacted.

Determination

28    It seems to me that paragraphs 8-12 of the “Details of Claim” section on pages 5-6 of the Originating Application should be redacted. They expose details of “without prejudice” discussions, not merely the fact that a meeting happened (in particular paragraphs 9 to 11) and, compellingly, do not relate to the relief sought. Because I have made the determination to redact them, I will not provide more detail, but suffice to say that there are references to meetings, offers, and discussions which have no relevance to the relief sought in the Originating Application or the Statement of Claim. I will order that the Originating Application be removed from the Court file and replaced with a redacted copy pursuant to r 2.29(1)(a), as I am satisfied that the grounds in r 16.21(1) of the FCR are satisfied.

29    As to the suppression orders, I agree with the BHP respondents that at this point of the proceedings, the “open justice” principle has not yet been engaged, as the claims are subject to dismissal and strikeout applications and contain material that has not yet been responded to; see John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [65] cited in Ryan v Transurban Limited [2024] FCA 994 at [26] (Rangiah J). It is appropriate, given that no Defence or evidence will be filed by the respondents, that the material which is currently on the file setting out confidential matters and allegations of fraud and dishonesty which are not balanced by the respondents’ views be subject to a suppression order.

30    Accordingly, I am prepared to make suppression orders as I am satisfied, on the basis expressed in Farrell and EFA, that it is necessary in the interests of justice to do so as the order is necessary to prevent prejudice to the proper administration of justice. Given my determination below on the removal of the Statement of Claim, the suppression order should be crafted to cover the documents which remain on the file. I will order that the documents (including the Statement of Claim) be suppressed on an interim basis until final orders for an ongoing suppression order be made. The orders should include any parts of the transcript of the hearing of 12 February 2026 which deal with the substance of paragraphs 8-12 of the “Details of Claim” which are to be redacted.

31    In relation to the Statement of Claim, I have formed the view that as the document (as discussed below) is an abuse of process, it should be removed from the Court file pursuant to r 2.28 of the FCR on the grounds stated in r 16.21(2) (exercising my power to make a different order from that which was sought, pursuant to r 1.41(c), which I consider to be appropriate in the interests of justice: r 1.32). This is because given my determinations on summary judgment and strikeout, no defences will be filed to the Statement of Claim.

Summary Judgment Application

32    The BHP respondents sought an order for summary judgment, or in the alternative, an order striking out the parts of the Originating Application and Statement of Claim which purport to plead any claim against the BHP respondents.

33    The BHP respondents relied on three affidavits of Mr Trent Forno, affirmed 11 December 2025, 28 January 2026 and 10 February 2026.

34    They rely on s 31A of the FCA Act, which relevantly provides:

31A Summary judgment

…

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

(a)     the first party is defending the proceeding or that part of the proceeding; and

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

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

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

…

35    Rule 26.01 of the FCR provides:

26.01  Summary judgment

 (1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)     the proceeding is frivolous or vexatious; or

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

…

36    Their submissions cited passages of French CJ and Gummow J (at [24]-[26]) in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, and a more recent case of the Full Court in Sabapathy v Jetstar Airways [2021] FCAFC 25; 283 FCR 348, where Logan and Katzmann JJ observed at [50]:

It is trite that a statement of claim must disclose “a reasonable cause of action” against the person or persons against whom the cause of action is brought. A “reasonable cause of action” in this context means “one which has some chance of success, having regard to the allegations that are pleaded, even if weak”: Wride v Schulze [2004] FCAFC 216 at [25] (Spender, Tamberlin and Bennett JJ).

37    It was submitted that Mr Turner’s claims against any of the BHP respondents were difficult to discern, but that the following could be noted:

(a)    Mr Turner does not allege, in any of the documents he has filed, that any of the BHP respondents were his employer;

(b)    to the extent that Mr Turner alleged (or ever alleged) that the BHP respondents were liable for any underpayment of wages (as accessories), such a claim was extinguished by the discontinuance of the class action proceedings, in April 2022, in which Mr Turner was the lead plaintiff and is, in any event, statute-barred; and

(c)    to the extent that Mr Turner alleges that he has a common law (personal injury) claim against the BHP respondents, not only would such a claim be statute-barred, but Mr Turner is prevented from pursuing any such claim.

38    Mr Turner’s claim in relation to the deed of settlement (extracted at [14] above) is the only relief that is apparently claimed against the BHP respondents, although he mentions in paragraph 3 of the Statement of Claim that the second respondent is the “parent entity” exercising control over the labour hire arrangements at the Mt Arthur Coal Mine. In paragraphs 28-30, and 44 (extracted at [15] above) of the Statement of Claim, Mr Turner seeks to set aside “deeds”, which apparently includes the deed of settlement and release dated 14 July 2022 (BHP Deed).

39    The grounds to set aside the deed are said to be “misrepresentation” as Mr Turner asserted that the settlement was “calculated on false premises” and Centrelink was told information that was not accurate, however it was submitted for the BHP respondents that neither of those matters discloses a reasonable cause of action against them.

40    In brief summary, the BHP respondents submitted that:

(a)    Mr Turner was employed by CMG between September 2014 and January 2016; over ten years ago;

(b)    He was injured on 12 December 2015;

(c)    He made a workers compensation claim and received various entitlements;

(d)    He filed a claim in the District Court of NSW for common law negligence, joining the third respondent on 18 July 2018;

(e)    That claim was settled by Mr Turner and the third respondent entering into the BHP Deed on 14 July 2022, which deed:

(i)    included “all entities within BHP Group Ltd” in a release by Mr Turner (cl 6);

(ii)    operated as a “full and complete defence by [the third respondent] and/or BHP Group to any action, suit or proceeding commenced, continued or taken by or on behalf of [Mr Turner] in connection with any of the matters referred to in this Deed” (cl 7.1);

(iii)    was expressed to be the entire agreement between the parties (cl 13.1); and

(iv)    noted that Mr Turner acknowledged he had been afforded the opportunity to obtain legal advice (cl 23).

(f)    He commenced two class actions as lead plaintiff in this Court, filing amended claims on 20 December 2018, each against the third respondent in an accessorial capacity;

(g)    After the decision in the High Court in Workpac Pty Ltd v Rossato & Ors [2021] HCA 23; 271 CLR 456, each of the class actions was discontinued (see, respectively, Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435 (Murphy J) and Turner v Ready Workforce (A division of Chandler Macleod) Pty Ltd [2022] FCA 467 (Murphy J)) on the basis that they each no longer had reasonable prospects of success. Mr Turner was advised in each of those proceedings by senior and junior counsel, and a firm of solicitors;

(h)    The two discontinuances were made on the basis that the plaintiffs’ limitation period which applied to the claims would begin to run again from 60 days after the delivery of each judgment; and

(i)    The limitation period for the actions alleged against any one of the BHP respondents had expired by the time these proceedings were filed in October 2025, taking into account the grace periods set out in the decisions of Murphy J referred to above.

41    In addition to the grounds that the BHP respondents rely upon arising out of the terms of the BHP Deed and the limitation periods pertaining to the applicant’s actions, they noted that the ground for the BHP Deed being void is “misrepresentation”. Clause 13.2 is an acknowledgement that Mr Turner did not rely on any representations by the third respondent and/or BHP Group when entering into the BHP Deed. Further, Ms Bulut noted that the claim for “misrepresentation” is not particularised.

42    Section J of the Statement of Claim refers to “ex gratia discussions” with BHP and other persons, which were “then withdrawn”. No relief is sought against the BHP respondents in respect of this allegation.

43    Mr Turner’s submissions focused on the history of the first respondent’s employment of persons at the Mt Arthur coal mine “under the Black Coal Mining Industry Award as casuals” which Mr Turner says was not an available option. He said that CMG being his employer resulted in it being “impossible for [the BHP respondents] to discharge their statutory legal obligations of the minimum employment, which is full-time employment under the Black Coal Mining Industry Award”. When pressed about why that matter went to his allegation in the Statement of Claim, he said that he sought to have “the legality of the deed checked in this court”.

44    Mr Turner’s grievances appear to arise out of his complaints about his legal representation at the time. For example, he said (in submissions, but not on oath or by affidavit) that “I instructed [his class action lawyers] to submit that Judge Altobelli decision and the Crix affidavit which contains the contract, the amount of pay”. The “Crix affidavit” was referred to in Mr Turner’s written submissions but was not part of the material available on this application. It appears from his description to go to the underlying complaint that he has regarding his employment entitlements rather than the issue of whether the BHP Deed should be set aside. The relevance of the Judge Altobelli decision is, he said, that “… a human person that did the instructions on that deed to settle it … well and truly knew in 2017 that Judge Altobelli ruled that Chandler Macleod Group was the employer”. He went on to say that “BHP is responsible that they discharge their legal obligations that everybody is paid the statutory award minimum wage …”.

45    The BHP respondents submitted that, if the Judge Altobelli decision were relevant, the BHP Deed was entered into well after it was delivered, and so was part of the legal landscape when Mr Turner was legally represented and signed the deed. That decision dealt with whether the worker in question was employed by a labour hire service provider or in fact by another entity, or was an independent contractor.

Determination    

46    The grounds for summary judgment under the FCA Act are found in s 31A(2), and require that I must be satisfied that there is “no reasonable prospect” of the applicant being able to successfully prosecute the proceeding. Sub-section (3) provides that I need not find that it is (a) hopeless or (b) bound to fail in order for it to have no reasonable prospect of success. Accordingly, the process I must undertake is whether there is a “reasonable prospect” of success, not a certainty of failure (see joint judgment of Hayne, Crennan, Kiefel and Bell JJ in Spencer at [52]).

47    It seems to me that there is a myriad of hurdles in bringing and prosecuting this action – not limited to, but chief amongst them, that the claim that the BHP Deed is void seems both inadequately pleaded and without any basis which was able to be articulated by Mr Turner except that Centrelink was told something (apparently after the execution of the BHP Deed), and/or was otherwise void for unspecified and unpleaded misrepresentations. If, against these obstacles, the BHP Deed were set aside, then Mr Turner would face limitation periods under both common law and the Fair Work Act 2009 (Cth) which means that he would not be able to revisit his claim arising out of his injury or employment (paragraph 45 of the Statement of Claim seeks “recalculation and payment of all entitlements, damages and interest”). As was pointed out by the BHP respondents, there was no “calculation” which is evident from the face of the BHP Deed; the settlement was an amount of money. Accordingly, Mr Turner is seeking that his settlement be re-agitated but does not set out any ground which would demonstrate any utility in having the deed set aside.

48    I am satisfied that there is no reasonable prospect of Mr Turner succeeding against the BHP respondents in the claims against them (which appear in sections A, G, J, and L of the Statement of Claim). Additionally, given the terms of the BHP Deed, which comprehensively restrain the applicant from relitigating the subject matter of his employment, they are an abuse of process. I am prepared to order summary judgment for the second, third, and fourth respondents on the grounds set out in rr 26.01(a), (c), and (d) of the FCR.

CMG Application

49    The CMG Application sought an order pursuant to r 13.01(1)(a) of the FCR, that the Court set aside the Originating Application as against the first respondent on the basis that the application is an abuse of process. Rule 13.01(1) of the FCR provides that:

13.01 Setting aside originating application etc

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

(a)     setting aside an originating application; or

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

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

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

50    In the alternative, the CMG Application sought an order under r 16.21(1)(e) of the FCR, that the Originating Application be struck out as against the first respondent. Rule 16.21 of the FCR provides that:

16.21  Application to strike out pleadings

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

(a)     contains scandalous material; or

(b)     contains frivolous or vexatious material; or

(c)     is evasive or ambiguous; or

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

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

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

 (2)     A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

51    The first respondent relied on the affidavit of Michael Russell sworn on 5 December 2025, and the confidential affidavit of the same deponent on the same date, marked as Confidential Exhibit 1A in these proceedings. Mr Russell is the solicitor for the first respondent and was involved in previous litigation involving the applicant and the first respondent, being applications under the Fair Work Act, Turner v Ready Workforce (A Division of Chandler Macleod) Pty Ltd & Ors (ACD 47/2018) and Simon Alexander Tumer v Ready Workforce (a division of Chandler Macleod) Pty Ltd (CAG 23/2019). Annexed to Mr Russell’s affidavit is a copy of the Statement of Claim in ACD 47/2018, and a copy of the Statement of Claim in CAG 23/2019. Mr Russell’s confidential affidavit set out the reasons why the Originating Application should be set aside as against the first respondent and included the terms of a deed of settlement and release between Mr Turner and the first respondent.

Grounds for setting aside or striking out

52    The first respondent characterised the Originating Process as “discursive” and “entirely unparticularised”. As with the BHP respondents, the first respondent noted that the causes of action arising out of the employment of the applicant and his injury in 2015 appear to be substantially out of time. It made the same complaint as to the Statement of Claim, and pointed to the paragraphs which seem to relate to the first respondent; these appear in Part A (an introduction of the first respondent as a labour hire company which employed the applicant), Part B (noting his employment), Part C (reciting proceedings by the CFMEU against the first respondent in which the applicant claims that the first respondent made admissions as to employees under the relevant award), Part E (that Ready Workforce did not pay or contract the applicant), Part F (that “CMG falsely certified no workers’ compensation claim existed”) and Part K (“Loss and damage”, being “unpaid wages, compensation, common law loss, and pension denial”). It may also be that Part L (“Relief Sought”), being “declarations of employment and award coverage” and “setting aside of deeds” are claims against the first respondent as well.

53    The first respondent submitted that the application is an abuse of process in that it seeks to relitigate matters that have been previously determined or settled; see UBS AG v Tyne [2018] HCA 45; 265 CLR 77 per Kiefel CJ, Bell and Keane JJ at [1] where their Honours said that a permanent stay for abuse of process of the Court is enlivened:

where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

54    The first respondent contended that the “relitigation of matters that have previously been determined or settled lies in the heartland of either condition”.

55    Mr Latham, counsel for the first respondent, said that the applicant sought, in bringing these proceedings, to be given the privileges of litigants in this Court such as access to coercive processes, and the qualified privilege for what they may say in court. He submitted that:

with these privileges, of course come responsibilities … to articulate their case so that the other side, and also so that the court, may understand what the case is actually about. They are required … to justify allegations of fraud and properly particularise them. They are required to comply with court timetables, and they’re also bound by their previous conduct in settling litigation.

56    The submission was that previous claims had been brought arising out of the same factual contentions – including whether or not Mr Turner was a casual employee – and those previous claims had been settled on terms that were confidential (and contained in Mr Russell’s confidential affidavit). Without being specific, that Deed (the CMG Deed) contains terms agreed to by Mr Turner which:

(a)    show that Mr Turner was legally represented;

(b)    contained an agreement that the terms remain confidential; and

(c)    released both Ready Workforce and the first respondent from any claims arising, broadly, out of his employment and the subject matter of the previous suits.

57    Mr Turner’s lawyers were a party to the CMG Deed. They are not parties to these proceedings. As they have an interest in these proceedings were they to continue, it was submitted that they should have been joined.

58    Mr Turner in reply again noted that what he sought the Court to do was to examine the legality of the CMG Deed, and to identify the “human person [who] instructed Ready Workforce to write that deed, and how they came about writing that deed when in 2017, Judge Altobelli ruled that [the first respondent] is the true employer”. When asked where that appears in his Statement of Claim, Mr Turner replied that he had “added it in my submissions” and referred to a decision of Jens v The Society of Jesus in Australia [2024] VSC 329 (Ierodiaconou AsJ). That decision was not elucidated upon by the applicant but I have read it. It is a decision setting aside deeds of settlement and release in relation to child sexual abuse claims where the plaintiff had not been legally represented (apart from his brother, a senior barrister, providing him with a paragraph of the deed) until after executing the deed of release. The deed was set aside because the plaintiff did not have a proper appreciation of the “legal barriers” affecting his claim against the Society of Jesus.

59    Mr Turner made many of the same submissions as he did for the BHP respondents’ applications, but added that he had been paid workers compensation for six months, but his separation certificate did not reflect that. He also noted that he had been recorded “in the normal statutory New South Wales workers’ comp system … [as] an office worker and I was employed earning $22,000 a year on a certificate of currency”.

60    When asked how Mr Turner could bring the matters sought in Part K of his Statement of Claim, in light of the releases, the answer was that “the deed’s illegal, your Honour”. He made the point that the “true employer” was the first respondent, and that the deed was with Ready Workforce, and seeks that the Court now review the terms of his employment and the claims of illegality as to the terms of that employment and his losses arising out of it.

61    In response, Mr Latham noted that each of the first respondent, and Ready Workforce, were covered by the release in the deed.

Setting aside the application

62    In its submissions, the first respondent accepted that r 13.01 of the FCR is most commonly used to set aside service where there are defects in service. The power to set aside on more general grounds was dealt with by Finn J in Garrett v Foster’s Wine Estates [2007] FCA 253. In that matter, his Honour set aside an application at [16] under O 9 r 7 of the former Federal Court Rules on the basis that the applicant had no standing. The former rule is in similar terms to r 13.01 of the FCR.

63    In Swee & Yen Tay v Migration Review Tribunal [2009] FCA 515; 178 FCR 1 at [21], Besanko J held that a respondent could raise an argument that there was no justiciable controversy or matter within the meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in an application under O 9 r 7 of the former Federal Court Rules. His Honour held that:

The authorities establish that O 9 r 7(1) is not confined to cases where there has been service outside the jurisdiction. While O 9 r 7(1)(b), (c) and (d) refer to service of an originating process, (a) does not, and under that subparagraph an originating process may be set aside where the Court does not have jurisdiction to entertain the claim made in it, or where the originating process constitutes an abuse of process …

64    The first respondent noted that Swee makes clear that arguments as to the lack of a prima facie case should be dealt with at a later stage, however it submitted that the Originating Application constitutes an abuse of process against it.

Determination

65    Given that the more appropriate ground appears to be the application for striking out, as determined below, I decline to make orders under r 13.01 of the FCR.

Striking out the claim

66    The CMG Application sought, in the alternative, that the claim be struck out as against the first respondent on the basis that it fails to disclose a reasonable cause of action. The first respondent said that the claim should be struck out on the bases that:

(a)    Any claims by the applicant against the first respondent have been settled;

(b)    Even where all such claims are found not to have been settled; there is no reasonable cause of action.

67    The first respondent drew on established authority on whether an application has disclosed a reasonable cause of action. It accepted that, as the moving party, it bears the onus of persuading the Court that the application has no reasonable prospects of success: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at 271 [45]; and that a lack of reasonable prospects in the context of s 31A of the FCA Act requires a practical judgment as to whether the applicant has more than a “fanciful” prospect of success: Spencer at [25] per French CJ and Gummow J.

68    The first respondent noted the importance of clear pleadings in a civil penalty case, as the Statement of Claim includes a claim for pecuniary penalties, relying on Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 (Tracey, Reeves and Bromwich JJ) at [50] where the Full Court said:

… the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast.

69    The first respondent argued that the allegations do not move beyond assertion, failed to set out the material facts, and failed to state the statutory or common law basis for the particular claim. Leaving aside the issue of the settlement of earlier matters, the first respondent argued that the case, on its face, could give rise at best to only a “fanciful” prospect of success.

Determination

70    I have considered the terms of the CMG Deed and the substance of the actions brought by the applicant against the first respondent and against Ready Workforce in the past, settled by deed which released each of those parties from claims such as this. It is clear that this application to set aside the CMG Deed is not properly brought, given that the grounds are unparticularised and, as noted by Mr Latham, overly discursive. In his submissions, Mr Turner said that he wanted the CMG Deed “examined” by this Court; when asked what power I had to do that, he said:

ask them to provide … evidence of the deed, how they came to the calculations and the figures, and what my occupation was, who instructed them on that deed.

71    Even taking into account that Mr Turner is not legally trained or represented, and that the question of federal jurisdiction is somewhat not easy to understand, it still does not arise on the most generous reading of the Originating Application and the Statement of Claim that I should, in the context of the history of this matter and of the terms of the CMG Deed, consider that Mr Turner is likely to succeed in any of the claims made against the first respondent. No grounds for any basis to set aside the CMG Deed were pleaded or articulated in submissions beyond a high-level unparticularised assertion that the deed was illegal.

72    Accordingly, the pleading should be struck out on the grounds in r 16.21(1)(a), (b), (d), (e), and (f) of the FCR.

73    I will order that the Originating Application and the Statement of Claim be struck out as against the first respondent.

Costs

74    The first respondent sought an order for party/party costs against the applicant. It relied on the exceptions set out in s 570 of the Fair Work Act 2009 (Cth). Section 570 provides for a generally no costs jurisdiction, subject to a number of specific exceptions:

570  Costs only if proceedings instituted vexatiously etc.

(1)     A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2)     The party may be ordered to pay the costs only if:

(a)     the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)     the court is satisfied of both of the following:

(i)     the party unreasonably refused to participate in a matter before the FWC;

(ii)     the matter arose from the same facts as the proceedings.

75    The first respondent noted that a test for determining whether a proceeding is instituted “without reasonable cause” (per s 570(2)(b)), is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. It submitted that a proceeding is not to be characterised as “without reasonable cause” if success depends on the resolution in the applicant’s favour of one or more arguable points of law. Rather, where it appears that, on the applicant’s own version of the facts, it is clear the proceeding must fail, it can be properly said that the proceeding lacks a reasonable cause: see Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; 43 IR 257 at 264–5.

76    The first respondent submitted the proceedings were commenced with no reasonable cause as against it, and the exception has therefore been satisfied. However, in oral submissions, Mr Latham asked that this application not be dealt with at the moment. I will make orders giving the first respondent time to file evidence and submissions in support of any costs order, should it wish to proceed with this part of its application.

Coal LSL Application

77    The fifth respondent sought an order dismissing the proceeding as against it pursuant to s 31A of the FCA Act and/or r 26.01(1) of the FCR. In the alternative, it sought an order that paragraphs 6, 37 and 38 of the Statement of Claim be struck out, pursuant to rr 16.21(c), (d) and (e) of the FCR.

78    The fifth respondent relied on the affidavit of Richelle Farrar affirmed 28 January 2026, who is the solicitor for the fifth respondent.

79    The applicant’s pleaded claim as against Coal LSL consists of two sentences, namely:

I.    COAL LSL BREACHES

37. Levies were paid by CMG ABN 052. 38. Records were later altered unlawfully.

80    The applicant seeks declarations that Coal LSL maintain “accurate employer identity records”, that levies are “rectified” based on the employer and that Coal LSL be ordered to “reinstate” CMG as the employer on its records (see paragraphs [4], [11], [12] of the Originating Application).

81    The fifth respondent submitted that the applicant has no reasonable prospect of successfully prosecuting the proceeding, in circumstances where it argues the Statement of Claim does not plead any material facts with respect to acts or omissions by Coal LSL, or how or why it is said that a cause of action arises against Coal LSL.

The role of Coal LSL

82    Under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth), an employee is an “eligible employee” when (among other things) they are employed in the black coal mining industry, they carry out their duties at or about a black coal mine, and their duties are directly connected with the day to day operation of a black coal mine: s 4. An eligible employee will be entitled to long service leave when they have completed a period (or periods) of qualifying service that add up to at least eight years: s 39A(1). The number of hours of long service leave that an eligible employee is entitled to is calculated by reference to a formula: s 39AA. An eligible employee may then apply, in writing, to their employer to take a period of long service leave: s 39AB. It is the employer who grants or refuses the taking of long service leave and pays the employee for the long service leave: ss 39AB(3), (4), 39AC(1), (2); see also ss 39C – 39CC.

83    Coal LSL is a corporate Commonwealth entity established by the Administration Act to administer the portable long service leave scheme in the black coal mining industry: s 6. It is required to establish and maintain the Coal Mining Industry (Long Service Leave) Fund: ss 7, 40. Levies are paid into the Fund by employers of eligible employees.

84    If an employer makes a payment to an eligible employee in respect of long service leave, Coal LSL must reimburse the employer out of the Fund: s 44. That is, Coal LSL does not itself make any long service leave payments to eligible employees (other than in confined circumstances where the employer is insolvent, being wound up or has ceased to exist, which is not presently relevant: s 48).

85    Coal LSL is required to maintain records relating to: (a) the employment of eligible employees; (b) the qualifying service completed by them (and their long service leave entitlements); (c) employers of eligible employees; and (d) amounts that are, or may become, payable to employers under the Act: s 7.

86    Section 5 of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth) requires an employer to submit a monthly return to Coal LSL in a prescribed form. Ms Farrar gave evidence that she was informed by Mr Michael Dowzer, General Manager, Legal for the fifth respondent, that, amongst other things, the “self-reported” information contained in those prescribed forms is used by Coal LSL to comply with its record-keeping functions, described in [85] above. Ms Farrar was informed by Mr Dowzer that if a dispute arises in relation to the “self-reported” information on a monthly return (such as the identity of the employing entity), then Coal LSL seeks to facilitate an agreed resolution between those parties in the first instance.

87    On information from Mr Dowzer, and Ms Farrar’s own review of the Administration Act, she gave evidence that where an agreed resolution is not reached, the statutory powers of Coal LSL do not enable it to:

(a)    adjudicate on that issue itself and make a binding decision; or

(b)    otherwise compel an employer to amend its monthly return/s.

Instead, the issue must be determined in a separate jurisdiction, such as by the Court.

Communication with the applicant

88    On 5 December 2025, Ms Farrar wrote a letter to the applicant which noted that if the Court were to determine a different entity was in fact the applicant’s employer (such as CMG), or that aspects of the applicant’s employment or remuneration were not as reported in the monthly returns that relate to the applicant, Coal LSL will make any necessary corrections to his records. The letter invited the applicant to file a notice of discontinuance and indicated that if the applicant continued to maintain the proceedings against Coal LSL, it may seek orders requiring the applicant to file a statement of claim and reserve its right to apply for summary dismissal and/or have the pleadings struck out. The applicant declined to discontinue the proceedings.

89    On 20 December 2025, after the applicant had filed his Statement of Claim, Coal LSL sent further correspondence to the applicant which noted that no cause of action had been disclosed against Coal LSL, invited the applicant to file a notice of discontinuance, and foreshadowed the filing of the Coal LSL Application. The applicant again declined to discontinue proceedings.

Relevant principles

90    The fifth respondent sought an order for summary judgment under s 31A of the FCA Act, and r 26.01 of the FCR, extracted at [34] and [35] above.

91    The general rule is that a pleading should enable a respondent to know, with sufficient clarity, the case which it is required to meet and (incidentally) define the issues for decision: Dare v Pulham [1982] HCA 70; 148 CLR 658 at 664; Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13]. Rules 16.02(1) and (2) of the FCR specify the requirements of a pleading, including that it must state the material facts upon which a party relies that are necessary to give the opposing party fair notice of the case to be made against the party at trial and state the provisions of any statute relied upon: rr 16.02(1)(c)-(e). Material facts must be pleaded with a degree of specificity which is sufficient to convey to the opposite party the case that the party has to meet, and a “bare conclusion” is ordinarily not a proper allegation. A pleading that simply pleads a conclusion is embarrassing and “should not be permitted to stand”: KTC v David [2022] FCAFC 60 at [114] and cases cited therein.

92    The fifth respondent too relied on Spencer, which held that s 31A authorises summary dismissal under a variety of bases, including but not limited to where the pleading discloses no reasonable cause of action and the deficiency in that regard is “incurable”; where “there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment”; and the “longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’”: [22], see also [49]-[60].

93    While the power is to be exercised with caution, and not lightly, an applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is hopeless or bound to fail: s 31A(3) FCA Act; Spencer at [17], [24], [60]. The inquiry is “not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52]; see also KTC at [131].

94    Having regard to the principles above, the fifth respondent submitted that the paragraphs of the Statement of Claim which relate to it (see [79] above) consist of bare allegations. The pleading does not satisfy the requirements in r 16.02. No issues are identified that the applicant wishes the Court to resolve, no material facts are pleaded with respect to acts or omissions by Coal LSL, no indication is given of the case to be made against Coal LSL at trial, and no statute is referred to. While the reference to “unlawful alteration” in the pleading may suggest some fraud or analogous claim, the fifth respondent submitted that it does not comply with r 16.42 of the FCR, which requires a party who pleads fraud or misrepresentation to state in the pleading particulars of the facts on which the party relies.

95    Secondly, it is not apparent whether any claim would be sustainable against it. As noted in [82]-[87] of these reasons, Coal LSL’s functions are derived from statute and its role is to maintain the Fund and records relating to employment in which it relies on information provided by employers. It does not have the statutory power itself to determine who the correct employer is, neither can it compel an employer to amend the self-reported information if a dispute arises.

96    Finally, the fifth respondent said that the applicant had been given ample opportunity to plead a reasonable cause of action, but it had failed to do so which suggests that no such action exists. In the absence of any articulated case, it would be contrary to the overarching purpose in s 37M of the FCA Act to require Coal LSL to incur the time and expense of defending the proceedings, particularly where it was not within Coal LSL’s power to ascertain or determine the true employer of the applicant.

97    Mr Turner’s response was that he wished to know “who the human person or persons and their authority, who is instructing their representatives, to get [his access to his Coal LSL] on the court record, because, as [counsel for Coal LSL] pointed out, it is a corporate Commonwealth entity”. He repeated his submissions as to the “true employer” and the default employment classification being full time, not casual. He made a detailed submission about how he viewed the operation of the Coal LSL regime of payment and referred to Senate estimate questions on notice in relation to CMG and its ABN. However, he frankly admitted that these aspects were not pleaded in his Statement of Claim. He made it clear that he had concerns as to the way in which Coal LSL was administered, and he sought to understand how, if Coal LSL did not know the terms and conditions of each employee, “how do they know that the levies paid are true and correct?”.

98    Ms Bembrick in reply noted that Mr Turner’s concerns as to Coal LSL’s operation were not pleaded, and his claim for long service leave payments were claims which must be made through the employer, not Mr Turner directly.

Determination

99    It seems to me that, given the role of Coal LSL as a corporate body which responds to claims made by employers for reimbursement of long service leave payments made to employees, and the assurance that were there to be any findings as to the proper employer, records would be adjusted if necessary, there is no reasonable prospect of Mr Turner succeeding on his claim. In any event, the only claim made against Coal LSL is set out in full at [79] above. No particulars of the unlawfulness of the alleged alteration have been given. The claim does not seek any relief against Coal LSL.

100    In any event, it is my view there is no action against Coal LSL, based on the facts outlined by Mr Turner in his oral submissions, that could be properly pleaded. Coal LSL provides administration of long service leave entitlements for coal mining employees; it does not have any obligations, statutory or otherwise, to determine the identity of the employer or to calculate the amount of a particular employee’s leave.

101    I will order summary judgment against the applicant in favour of the fifth respondent.

Strike out of the impugned paragraphs

102    As an alternative, Coal LSL seeks that the impugned paragraphs may be struck out. However, it was noted that if summary judgment were given, I would not need to consider this. I note that, as to the intersection between rr 26.01 and 16.21, Wigney J in Chandrasekaran v Commonwealth [2020] FCA 1629 observed at [102]:

The grounds upon which a pleading can be struck out under r 16.21 of the Rules correspond, to a large extent, with the grounds upon which a proceeding may be summarily dismissed under s 31A of the FCA Act and r 26.01 of the Rules. The Court will proceed to strike out under r 16.21, rather than summarily dismiss the proceeding under r 26.01 of the Rules, where although there are deficiencies in the pleading, a reasonable case may still exist. The granting of leave to replead in those circumstances may allow the applicant to remedy the deficiencies.

103    Given my determination above on summary judgment, and my determination below on leave to replead, on the basis that I am of the view that Mr Turner is barred from bringing the claims against the other respondents, and there is no reasonable prospect of succeeding against the fifth respondent, I do not need to consider this part of the submissions.

Leave to replead

104    Each of the parties sought that the applicant should not be granted leave to replead. I have ordered that the pleading be struck out as against the first respondent, and so the issue as to whether Mr Turner could simply replead his case against the first respondent needs to be considered.

105    The Court may exercise its discretion not to grant leave to replead where it is clear that there would be no utility in doing so: Nulyarimma v Thompson [1999] FCA 1192; 96 FCR 153 at [208].

106    While Mr Turner did not address separately on this issue, I will take it that he would have sought leave to replead. His submissions relied on his view that he had an arguable case, whereas, as discussed above, he does not. I would not be minded to grant any such application to replead because, as outlined above, it does not seem to me that there is a reasonable cause of action available to be pleaded. The CMG Deed bars action being taken in relation to the matters with which it deals, and in any event, any rights of action which have been released would now be out of time to be brought by Mr Turner.

107    The second to fifth defendants have the benefit of judgment being entered for them and so the question of leave to replead would not arise.

108    I note that no party has raised the question of whether Mr Turner has been engaging in vexatious proceedings as defined in Part VAAA of the FCA Act. I note that under s 37AO the Court has a power to make such orders on its own initiative. I have not yet reached that position and I take the view that the judgments, and the order constraining Mr Turner from repleading, provides the kind of protection to the respondents which that Part of the FCA Act seeks to provide.

Orders

109    Each of the respondents is entitled to an order as against the applicant.

110    I consider, on a preliminary basis without having heard from the parties, that if any costs order is to be sought, then it should be a lump-sum costs order (as to which, see Part 4 of the Costs Practice Note (GPN-COSTS)).

Associate:

Dated:    27 February 2026

SCHEDULE OF PARTIES