Federal Court of Australia

Gao v Macquarie Bank Limited [2026] FCA 289

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) and (c) of the Federal Court Rules 2011 (Cth) the proceedings against the second, third and fourth respondents be summarily dismissed.

2.    Paragraphs [3]-[5] (in so far as each identifies the individual as a respondent), [6], [18]-[21], [117]-[120], [96]-[97], [99(c)], [130] to [132] of the applicant’s statement of claim be struck out.

3.    The applicant be granted leave to replead [6], to reflect this ruling that the identified persons are not respondents.

4.    The applicant be granted leave to replead a general protections claim in relation to the conduct contained in [117]-[120] of the statement of claim.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant brings proceedings against the respondents alleging unlawful discrimination and victimisation under the Sexual Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA), and the Racial Discrimination Act 1975 (Cth) (RDA), and adverse action under the Fair Work Act 2009 (Cth) (FW Act).

2    The respondents seek orders that identified paragraphs of the statement of claim filed on 25 November 2025 in these proceedings be struck out pursuant to r 16.21(1)(d) and/or (e) of the Federal Court Rules 2011 (Cth) (Rules) or alternatively summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01(1)(a) and (c) of the Rules.

3    The basis of the application is that the impugned paragraphs do not disclose a reasonable cause of action because:

(1)    paragraphs [3]-[6] pursue claims against named persons (the second respondent, third respondent and fourth respondent) who were not respondents to the applicant’s complaint to the Australian Human Rights Commission (AHRC) and therefore this Court does not have jurisdiction to determine them in their individual capacity pursuant to s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act);

(2)    paragraphs [18]-[21], [26] and [117]-[120] were not referred to in the applicant’s complaint to the AHRC and therefore this Court does not have jurisdiction to determine them pursuant to s 46PO(3) of the AHRC Act; and

(3)    paragraphs [96]-[97], [99(c)] and [130]-[132] are general protection court applications which the Court does not have jurisdiction to determine where claims are simultaneously made under anti-discrimination laws in relation to the same conduct pursuant to s 734 of the FW Act.

4    The applicant opposes the application.

5    For the reasons below, the proceedings against the second, third and fourth respondents are summarily dismissed, and paragraphs [3]-[5] (in so far as each identifies the individual as a respondent), [6], [18]-[21], [117]-[120], [96]-[97], [99(c)], [130] and [132] of the applicant’s statement of claim are struck out.

Relevant principles

6    The relevant principles applicable to the determination of an application to strike out pleadings and for summary dismissal are well established, and are unnecessary to repeat in detail. This application under each limb is on the basis of lack of jurisdiction. Therefore, it is addressed to the ground that there is no reasonable cause of action in r 16.21(1)(e) of the Rules, and no reasonable prospect of success in s 31A FCA.

7    A strike out application is directed to the sufficiency of the pleadings or equivalent documentation, as opposed to the underlying prospects of success of the proceedings: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) (French CJ and Gummow J) at [23]. Relevantly for this application, for the purposes of r 16.21(1)(e) of the Rules, a “reasonable cause of action” is one that has some chance of success having regard to the allegations pleaded: Polar Australian Competition and Consumer Commission v Meta Platforms, Inc. (formerly Facebook, Inc.) (No 4) [2025] FCA 1084 at [8]; Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 32 at [42]-[43]; Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 (Chandrasekaran) at [108]-[110]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Chandrasekaran at [108]; Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226 at 236.

8    The Court also has power to dismiss an action summarily, relevantly if it is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding: s 31A(2) FCA. The power to dismiss an action summarily is not to be exercised lightly: Spencer at [24] and [60]. However, it does not require that the proceedings be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24], [53]-[60]. The critical question is whether the moving party has persuaded the court that the opposing party has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17] and see Spencer at [59]-[60].

9    The primary difference between a strike out, and summary dismissal, is that in the case of the former leave may be given to replead (depending on the circumstances), and in the latter, the impugned aspect of the proceedings is dismissed.

Statutory scheme

10    Given the nature of this application, it is appropriate to briefly address the jurisdiction of this Court to determine claims arising under the AHRC Act.

11    This jurisdiction derives from s 46PO of the AHRC Act, which provides:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(emphasis added)

…

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

12    It is well established that this regime in the AHRC Act is an exclusive one for remedying contraventions of Commonwealth anti-discrimination laws and places importance on the ability to conciliate claims in the AHRC before proceedings are commenced in court: see e.g. French v Gray (2013) 301 ALR 679; [2013] FCA 263 at [149]- [151]; Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 (Dye) at [71].

13    The complaint submitted by the applicant to the AHRC in this case was terminated under s 46PH(1B)(b) of the AHRC Act on the ground a delegate of the President of the AHRC was satisfied there was no reasonable prospect of the matter being settled by conciliation.

Consideration

Paragraphs [3]-[6]

14    By these paragraphs the applicant names three individuals as respondents. As explained above, the respondents submit this Court has no jurisdiction to determine any claims against them in their individual capacity as they were not respondents in the applicant’s AHRC complaint, and as such the proceedings should be dismissed against them.

15    The respondents are correct.

16    It is plain the scheme of the AHRC Act is such that the statutory cause of action in s 46PO only lies in respect of the subject matter of the complaint to the AHRC: Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 (Grigor-Scott) at [18]. It operates as a constraint on the relief a complainant to the AHRC can later seek in the Court: Dye at [46].

17    Proceedings cannot be instituted alleging unlawful discrimination otherwise than against the respondent or respondents to a terminated complaint under s 46PO(1) of the AHRC Act: Picos v Servcorp Ltd [2015] FCA 344 (Picos) at [49]; Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381 (Eliezer) at [49]; Grigor-Scott at [18]-[19], [70]-[71], [78].

18    The term “respondent” is defined in s 3 of the AHRC Act, as follows:

"respondent", in relation to a complaint, means the person or persons against whom the complaint is made.

19    The text of s 46PO(1) is clear, considered in its context and given its purpose.

20    The applicant’s submissions distinguishing Picos and Eliezer from the current case cannot be accepted. Although, as the applicant points out, in Picos the applicant did not appear and therefore s 46PO(1) was not the subject of adversarial argument, that case has since been applied in Eliezer. The construction of s 46PO(1) in Eliezer is consistent with the construction of the Full Court in Grigor-Scott, which is cited with approval in Eliezer. In Grigor-Scott, the Court considered the competence of an order made by the primary judge purporting to join Mr Grigor-Scott to the proceeding as a respondent. The proceeding was commenced following termination of a complaint of racial discrimination made by Mr Jones pursuant to the Human Rights and Equal Opportunity Act 1986 (Cth) (as the AHRC Act was then known), against the Bible Believers’ Church. Mr Grigor-Scott was a representative of the Church. The Full Court held that as Mr Grigor-Scott was not a respondent to the complaint, proceedings could not be bought against him in the Court. It is helpful to refer to some of the underlying reasoning in Grigor-Scott, including at [18], where the Full Court concluded:

Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission. Importantly, for the purpose of this appeal, it only lies against the respondents to the terminated complaint.

21    And later at [77]-[78]:

 No party at any time prior to 21 July 2005 treated the complaint made to the Commission as a complaint against Mr Grigor-Scott. Mr Grigor-Scott was never a respondent to the complaint before the Commission.

Since Mr Grigor-Scott was never a respondent to the complaint to the Commission, no proceeding could be brought against him by Mr Jones. That would be enough to dispose of this appeal.

22    As Perry J observed in Eliezer at [49]:

I have no doubt that the ratio in Grigor-Scott, insofar as the Full Court held the Court lacked jurisdiction despite the joinder of Mr Grigor-Scott, was that s 46PO(1) provided only for a statutory cause of action against any respondents to the terminated complaint and not, therefore, against Mr Grigor-Scott.

23    See also Reurich v Vincentia Golf Club Pty Ltd [2018] FCA 681 at [31]-[36].

24    The applicant also submitted that Eliezer was decided before the amendments in s 46PF(7) of the AHRC Act, and this changes the statutory context in which that case and Picos were decided. Section 46PF(7), which was introduced in 2017, provides:

(7)    If the President has decided to inquire into a complaint, the President:

(a)    must notify the complaint to the respondent, unless the President is satisfied that notification would be likely to prejudice the safety of a person; and

(b)    if the complaint is amended under subsection (3) by adding a respondent—must notify the complaint to that respondent, unless the President is satisfied that notification would be likely to prejudice the safety of a person; and

(c)    if any person (other than the respondent) is the subject of an adverse allegation arising from the complaint—must notify the person of the adverse allegation, unless the President is satisfied:

(i)    that notification would be likely to prejudice the safety of a person; or

(ii)    that it is not practicable to do so; and

(d)    may notify the complaint to any person who, in the opinion of the President, is likely to be able to provide information relevant to the complaint. …

(emphasis added)

25    The applicant acknowledged that s 47PF(7) does not deem a person to be a respondent for the purposes of s 46PO(1), but submitted that in the circumstances of this case, whether the identification of persons who are the subject of adverse comment under s 47PF(7) supports their inclusion as respondents under s 46PO(1) is a mixed question of statutory construction and fact and cannot be decided on a strike out application.

26    On the latter point, the respondents submitted that it is appropriate for the Court to determine this issue at an interlocutory phase so the parties to the claim are clear. This is correct. It is generally the practice of the Court to determine such issues at this stage: see e.g. Picos; Eliezer; Reurich. A matter of jurisdiction raised by an interlocutory application should be settled at the outset, particularly in circumstances where (as here) nothing that occurs during the hearing could alter the conclusion. That is because of the nature of the issue raised by the respondents in their application. The Court has before it the material needed to decide the application. To delay such a decision would be inconsistent with s 37M of the FCA.

27    Turning to s 47PF(7).

28    The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose: Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 424 ALR 768 (Palmanova) at [4]-[6]. In Palmanova, the Court emphasised that context is in “its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means […] statute was intended to remedy”: [5].

29    The Explanatory Memorandum to the Human Rights Legislation Amendment Bill 2017 at [110] relevantly states:

New subsection 46PF(9) requires the President to notify the complaint to any person (other than the respondent) who is the subject of a specific allegation in the complaint. A respondent to a complaint of unlawful discrimination may be subject to legal action in the courts if the complaint is terminated. However, a person who is the subject of an adverse allegation, but is not a respondent to a complaint, is not subject to legal action. Nevertheless, such a person may suffer reputational harm if allegations are made against them. They are entitled to know of the fact that the allegations have been made and, if they choose to do so, to challenge them. To enable them to do so, it is appropriate for the President to notify these persons as their alleged conduct may be the source of the complaint.

30    The text of s 46PF(7) considered in context and given its purpose is clear. As the respondents submitted, that provision is intended to provide individuals with a fair opportunity to protect their reputation by responding to allegations made against them. The person referred to in the provision is not a respondent, but rather they are “other than” a respondent. There is a clear distinction in the AHRC Act between a respondent, and a person who is not a respondent, but who is the subject of an adverse allegation. The identification of a person as a respondent has significance in the scheme. The legislative scheme set out in the AHRC Act reflects, inter alia, the procedures which must be followed in respect to a respondent, and provides various rights and possible consequences for them if a complaint is made out (e.g. that orders identified in s 46PO(4) can be made against them). As already explained, the scheme includes s 46PO which provides constraints on the jurisdiction of the Court to hear claims alleging unlawful discrimination. This includes that an application to this Court is confined to alleging unlawful discrimination by one or more of the respondents to the terminated complaint. There is nothing to indicate that Parliament intended to alter that scheme by the insertion of s 46PF(7). Rather, as evident from the explanatory memorandum referred to above, a person who is the subject of an adverse allegation, but is not a respondent to a complaint, is not subject to legal action. That is consistent with the text of s 47PF(7), considered in its context, and given its purpose. Nothing in s 47PF(7) alters the status of a person by designating them a respondent for the purposes of the AHRC Act, including in relation to s 46PO(1).

31    The only respondent to the complaint lodged by the applicant with the AHRC was Macquarie Bank (the first respondent in these proceedings). So much is plain from the face of the complaint, where they were the only party named as a respondent. I note also the applicant’s answer to the question on the complaint form asking, “Do you want to add another respondent?”, was “No”. That Macquarie Bank was the only respondent is also plain from the conduct of the complaint proceedings by the applicant and the AHRC (see e.g. the letter of termination of complaint, which reported the decision on the applicant’s “complaint lodged with Australian Human Rights Commission (the Commission) which, based on the information provided, was accepted and has been progressed as a complaint against Macquarie Bank Limited (Macquarie)”). The case was conducted in the AHRC on that basis.

32    That the second, third and fourth respondents were persons who were subject to adverse allegations who were notified pursuant to s 46PF(7), does not render them respondents for the purposes of s 46PO(1). Nor does s 46PF(7) alter the correctness of the reasoning in Grigor-Scott, Picos, Eliezer and Reurich.

33    The respondents submitted that the proceedings in respect to the second, third and fourth respondents be summarily dismissed, as there is an absence of jurisdiction in this case to hear such claims. I agree. However, it does not follow that the whole of paragraphs [3]-[6] are to be struck out. Although the individuals named therein are no longer respondents, on the pleadings their actions are still relevant in so far as their conduct is attributed to Macquarie Bank. Accordingly, paragraphs [3]-[5] are struck out only in so far as they allege each of the individuals is a respondent to these proceedings. Paragraph [6] is struck out. That said, I grant leave to replead paragraph [6] to remove the reference to respondents.

Paragraphs [18]-[21]

34    The basis of this aspect of the application is that the event alleged in those paragraphs was not referred to in the applicant’s complaint to the AHRC and therefore this Court does not have jurisdiction to determine the issue raised. Paragraphs [18]-[21] of the statement of claim concern an alleged incident in or about February 2023 where Mr Ahmed is accused of making a gender-based comment. This incident is new and does not appear in any of the material submitted to the AHRC.

35    The applicant submitted the respondents’ submission reduces the argument to a requirement that the matters be factually identical to those in the AHRC complaint, when that is not the law. Further the applicant submitted no new claims are raised in these paragraphs (and the other impugned paragraphs) as they just provide further particulars of the same complaint.

36    In Hanson v Burston [2022] FCA 1234, referred to by the applicant, Bromwich J summarises the principles at [99]:

(a)    an amendment to an application, and thus an application itself, may be made which “does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices”: R v Jetstar Airways (No 2) [2012] FCA 8; 286 ALR 149 per Robertson J at [28];

(b)    different or additional facts may be relied upon, provided they are not different in substance from those alleged in the terminated complaint, with complete symmetry not being required: Leach v Burston [2022] FCA 87 at [58], and the cases there cited;

(c)    additional particulars or details in support of an application based upon a terminated complaint may be relied upon: see Dye No 2 at [50]–[53] above, where an additional allegation of sexual assault was permitted to be relied upon because it was “capable of being characterised as an act that arose out of the same unlawful discrimination of which she complained or it was the same in substance”, and the complaint was understood to be alleging “instances of a pattern of behaviour”, such that the scope of the complaint was “sufficiently wide” to prevent this aspect from being excluded from the pleading upon the ground in s 46PO(3);

(d)    a complaint is not to be read as a pleading, an approach that is reinforced by the Court not being bound by technicalities and legal forms by s 46PR, quoted in Dye No 2 at [48], reproduced above;

(e)    what matters is the “shape” of the complaint by the time of termination, with a focus on the facts and matters before the AHRC by that time, which in this case includes Mr Burston’s response which had been considered by the AHRC, insofar as it informs the scope of the complaint that has been made: Travers v New South Wales [2000] FCA 1565 per Lehane J at [8]; Cumaiyi at [14(c)].

37    To that I add that the text in s 46PO(3)(a), “must be the same as (or the same in substance as)” and (b) “must arise out of the same (or substantially the same) acts, omissions or practices” that were the subject of the terminated complaint, suggests some degree of flexibility in the application of the section: Dye at [46]-[48]. It contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination: Dye at [46]. The terms of a complaint made to the AHRC should not be read with the same strictures as apply to a pleading in a Court: Dye at [46]-[48], citing Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 at 188. It may be that the ambit of a complaint is to be ascertained not by considering its initial form but by considering the shape which it had assumed at the time of its termination: Dye at [47].

38    In that context, it is correct that the allegation in [18]-[21] is not referred to in the original complaint. But, as apparent from the principles above, that is not the end of the inquiry. The issue is whether it falls within the criteria in s 46PO(3)(a) and/or (b). That criteria is not met here. The impugned paragraphs are in a section of the statement of claim addressing sexual harassment. They are the only paragraphs under a heading: “Unwelcome Gender-Based Comments”. The material submitted to the AHRC does not make any claim of being subjected to unwelcome gender-based comments. In those circumstances, I do not consider the conduct alleged in [18]-[21] to fall within the description in s 46PO(3), and therefore it cannot be relied on now.

Paragraph [26]

39    The basis of the respondents’ argument in relation to paragraph [26] of the statement of claim is the same. That paragraph sets out an alleged incident around April 2023 where Mr Ahmed invited the applicant to use his personal new BMW while he was on leave, and offered to deliver it to her house. This incident is new and does not appear in any of the material submitted by the applicant to the AHRC. The applicant’s position is the same as for the paragraphs above.

40    This incident appears in the statement of claim as under the heading of “Unwelcome Personal Invitation”. There are other allegations made in this section of the statement of claim, which are not the subject of this challenge. Again, it may be accepted this incident is not mentioned in the material submitted to the AHRC. That said, considered in context, the incident contained in paragraph [26] does satisfy the description in s 46PO(3)(a). It is the same in substance as the unlawful discrimination addressed by the terminated complaint. It is not a separate claim, but another incident of what the applicant described to the AHRC as unwelcome personal invitations by Mr Ahmed (e.g. to travel with him, have dinner with him). As explained in Dye, there is some ambit for additional acts to be included at the stage of Court proceedings, provided they satisfy the criteria in s 46PO(3).

Paragraphs [117]-[120]

41    The respondents submit paragraphs [117], [119] and [120] relate to allegations of acts that occurred after the conciliation in the AHRC and therefore the Court does not have jurisdiction. The applicant did not address these paragraphs in her written submission, beyond that they were subsequent manifestations of the same alleged conduct.

42    Suffice to say, as succinctly stated by Tracey J in Chen v Monash University [2015] FCA 130 at [5]:

This Court has held that [s 46PO] prevents a complainant from relying, in a proceeding in the Court, on any act of unlawful discrimination which occurred after the relevant complaint had been lodged with the Commission: see Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 (Katz J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (French J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (Weinberg J); Crvenkovic v La Trobe University [2009] FCA 374 at [11] (Tracey J).

43    Those paragraphs do relate to events alleged to have occurred after the conciliation of the AHRC complaint. It follows that this Court has no jurisdiction to determine those claims.

44    Paragraph [118] sets out an alleged incident in early 2024 where an insurance lawyer sent a letter to the applicant requesting her full medical history. I note, as the respondents submit, paragraph [118] is not an act by any of the respondents but an unnamed insurance lawyer. The applicant did not address this paragraph in submissions. It appears to have been included in this section of the statement of claim to provide context for an alleged second threat of termination outlined in [119]-[120], which occurred after the termination of the AHRC claim. As there is no jurisdiction in relation to [119] and [120], the paragraph, in the statement of claim as drafted, has no relevance. It does not appear to be a stand-alone claim. In any event, again, this is a new incident that was not included in the applicant’s AHRC complaint. There is no jurisdiction in relation to this.

Paragraphs [96]-[97], [99(c)], [130], [132]

45    The respondents submit these paragraphs should be struck from the statement of claim as they concern allegations of contraventions of the FW Act, which the applicant is prohibited from making under s 734 of that Act. Under this section, a person is precluded from making a general protections court application if an application under an anti-discrimination law in relation to the same conduct has not been withdrawn or failed for want of jurisdiction. The applicant submitted that she has not commenced a general protections court application.

46    It is helpful at the outset to recite the terms of s 734 of the FW Act:

734    General rule

(1)    A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if:

(a)    an application or complaint under an anti-discrimination law or the Australian Human Rights Commission Act 1986 has been made by, or on behalf of, the person in relation to the conduct; and

(b)    the application or complaint has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

(2)    A person must not make an application or complaint under an anti-discrimination law or the Australian Human Rights Commission Act 1986 in relation to conduct that does not involve the dismissal of the person if:

(a)    a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

47    Various terms in that provision are defined in the FW Act.

48    “Anti-discrimination law” is defined to include the SDA, DDA, and RDA: s 351(3) of the FW Act. “General protections court application” is defined to be ‘an application to a court under Division 2 of Part 4 - 1 for orders in relation to a contravention of this Part’: s 368(4). “This Part” is a reference to Part 3-1 General Protections under the FW Act. Part 3-1 includes claims of adverse action: s 340, coercion: s 343, undue influence: s 344, discrimination: s 351, and temporary absence dismissals: s 352.

49    Section 734(1) of the AHRC Act is one of a number of provisions designed to prevent a multiplicity of actions being brought in respect of alleged conduct occurring in employment relationships. Put shortly, the “provisions expose a legislative regime whereby a complainant cannot seek substantially to challenge the same conduct pursuant to both the Fair Work Act and an “anti-discrimination law””: Cavar v Green Gate Management Services Pty Ltd [2017] FCA 471 at [19].

50    In Deam v Starlight Children’s Foundation Australia [2023] FCA 259, Mortimer J (as her Honour then was) discussed the purpose and operation of s 734. This was in a context where Ms Deam had filed an application with the AHRC and later made a general protection court application. Mortimer J concluded that s 734 was engaged at the time of the filing of the AHRC complaint: [92]-[93]. Her Honour observed at [93]:

Section 734 having been engaged, the real issue in the present proceeding is the scope of the operation of the prohibition in s 734(1) (relevantly). In my opinion, the premise upon which the prohibitions are based is that each of the two claims deals in substance with the same conduct. Although s 734 does not include the adjective “same” or a description such as “substantially similar”, in my opinion this the intention of the provision. The scheme of Div 3 of Pt 6.1 is to preclude multiple litigation concerning substantially the same conduct.

51    In the current case, s 734 was engaged at the time of the filing of the complaint. A consideration of the AHRC complaint and the statement of claim readily reflects that the general protections court application is in relation to “the conduct” that is the subject of the AHRC complaint. Indeed, the applicant did not suggest otherwise. The applicant’s written submission stated it “arises from the same conduct, events, and course of behaviour relied upon in the Applicant's original AHRC complaint, and from the same alleged unlawful discrimination”.

52    Although the originating application does not refer to the Fair Work claims, that omission does not alter the nature of the application. The originating application was filed sometime before the statement of claim. The applicant is unrepresented, and this appears to have been omitted by oversight as the statement of claim plainly sets out general protections claims contrary to the FW Act, and the relief she seeks from those claims also arises from the FW Act.

53    Finally, I note that the respondents raised a very limited exception to it being the same conduct, being [117]-[120] of the statement of claim which did not form part of the AHRC complaint. As the respondents submitted, if that is to be relied on, the statement of claim would need to be amended very specifically to only encompass that section as part of the general protections application.

54    Accordingly the claims under the FW Act are struck out.

55    I grant leave to replead a general protections claim in relation to the very narrow claim arising from the conduct in [117]-[120].

Conclusion

56    In summary, due to a lack of jurisdiction the proceedings against the second, third and fourth respondents are dismissed. For the same reason, sections [3]-[5] (in so far as each identifies an individual as a respondent), [6], [18]-[21], [117]-[120], [96]-[97], [99(c)], [130] and [132] of the applicant’s statement of claim are struck out. Leave to replead [6] and [117]-[120] is granted.

57    The question of costs is reserved.

Associate:

Dated:    24 March 2026

SCHEDULE OF PARTIES