Federal Court of Australia

Leung v Omnia Inclusive Employment Solutions Ltd [2026] FCA 606

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to file the further amended notice of appeal, other than with respect to the proposed ground 5.

2.    The appeal be dismissed.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The central issue for determination in this appeal is whether a judge of the Federal Circuit and Family Court of Australia Division 2 denied a litigant in person procedural fairness and misapplied provisions of the Fair Work Act 2009 (Cth) (FW Act) in dismissing claims by the appellant, Ms Leung, that her former employer, the respondent, (Omnia) had contravened s 340 and s 352 of the FW Act: Leung v Omnia Inclusive Employment Solutions (No 3) [2024] FedCFamC2G 1094 (primary judgment or PJ).

2    The primary judge dismissed Ms Leung’s claims that Omnia had contravened s 340 of the FW Act on the basis that (a) Ms Leung had not exercised any workplace rights prior to Omnia’s decision to dismiss her, and (b) neither Ms Leung’s dismissal nor any other alleged adverse action were taken because of any alleged exercise of workplace rights (PJ [183]-[184], [186], [198]).

3    The primary judge dismissed the s 352 FW Act claim advanced by Ms Leung because his Honour was satisfied that Omnia had not dismissed Ms Leung because she was temporarily absent from work (PJ [185], [198]).

4    The primary judge had otherwise found that Omnia had contravened s 44 of the FW Act by terminating Ms Leung’s employment prior to providing her with a termination letter, contrary to s 117(1) of the FW Act, and without paying her in lieu of notice, contrary to s 117(2)(b) and (3) of the FW Act. His Honour ordered Omnia to pay Ms Leung compensation in an amount of $10,000 because of its contravention of s 44 of the FW Act (PJ [182], [199]).

5    Ms Leung appeared at the hearing before the primary judge by video link as a litigant in person. Ms Leung also appeared as a litigant in person at the hearing of her appeal, but this time in person. She did engage solicitors for a short period after filing her appeal, but their retainer was terminated prior to the hearing of the appeal.

6    Ms Leung seeks leave to file a further amended notice of appeal raising nine grounds of appeal. Omnia does not object to leave being granted other than in respect of proposed ground 5.

7    For the reasons that follow, Ms Leung is to be given leave to file the further amended notice of appeal, other than in respect of proposed ground 5, and the appeal is otherwise to be dismissed.

B.    Salient facts

8    The primary judge summarised the salient facts at PJ [2]-[4]:

In summary, the applicant was employed by Omnia Inclusive Employment Solutions (“the respondent”) as an Area Manager for North Sydney under an agreement dated 17 May 2022, commencing on 23 May 2022. The applicant underwent a three month performance review on 16 August 2022, following which there were two further meetings with the applicant and Ms Fraser on 18 August 2022, the first with Ms Robertson and the second with Ms Turecek, then a meeting alone with Ms Fraser and the applicant, following which there was a meeting with Ms Fraser, Ms Simic and the CEO Ms Lambourne who decided terminate the employment of the applicant who was still on probation. The termination letter was postponed due to the applicant not returning to work after 18 August 2022.

The applicant initially went on leave after 18 August 2022, and then made an application for workers' compensation. Ms Lambourne was informed on 17 November 2022, the applicant’s workers' compensation claim had been rejected, and the decision made in August to terminate the applicant's employment then proceeded with the letter terminating the applicant's employment, being sent on 21 November 2022, recording a date of termination as being 17 November 2022. The applicant's payment in lieu of notice of approximately $1600 was not made until January 2023.

It is apparent on the face of the termination letter dated 21 November 2022 that it purports to identify an earlier date of termination than the actual letter, dated 21 November 2022, by four days. It is apparent that following the termination, the respondent withheld the final payments until January 2023 because the applicant had failed to return property of the company to the respondent which included keys to a company vehicle, and keys to filing cabinets which needed to be accessed by staff of the respondent.

9    None of those findings are challenged by Ms Leung on appeal.

C.    Should leave be given to rely on ground 5?

C.1.    Alleged denial of fair opportunity to plead accessorial liability

10    The only issue to be resolved with respect to Ms Leung’s application for leave to file the further amended notice of appeal is whether that leave, which is otherwise not opposed by Omnia, should include proposed ground 5.

11    Proposed ground 5 is in the following terms:

The primary judge denied the Appellant procedural fairness by rigid application of amendment deadlines and failing to accommodate late disclosure of critical evidence, thereby denying the Appellant a fair opportunity to plead accessorial liability.

12    In the particulars that Ms Leung provided in support of proposed ground 5, Ms Leung contends that pursuant to an order made on 5 April 2024, she had been required to finalise her statement of claim by 26 April 2024 but the affidavits from the proposed accessory respondents, Ms Kate Fraser, Ms Deborrah Lambourne and Ms Anne Simic, explaining their roles in the decision to terminate Ms Leung’s employment with Omnia (termination decision), were not served until 2 August 2024. An earlier proposed joinder application had been struck out on 16 February 2024, on the basis that no proper basis had been identified to join Ms Fraser and Ms Simic as respondents: Leung v Omnia Inclusive Employment Solutions [2024] FedCFamC2G 175 at [1].

13    As a preliminary matter, I note that Ms Leung requires an extension of time pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) to advance ground 5 because an application to appeal against an interlocutory judgment must be filed within 14 days of the pronouncement of judgment (r 35.13). Leave to dispense with that requirement should only be granted if “good reason” can be demonstrated: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]. For present purposes, it is sufficient to consider this question at the same time as considering whether leave to raise the ground should be granted. If I am not satisfied that leave to advance the ground should be granted, the question of whether there is good reason to dispense with the requirement falls away.

C.2.    Steps taken by Ms Leung to plead accessorial liability

14    On 7 December 2023, the primary judge ordered Ms Leung to file and serve an amended application and what was described as a “proper statement of claim” with particulars, including “the joinder of any proper parties”, on or before 9 February 2024.

15    On 9 February 2024, Ms Leung filed a statement of claim in which she alleged that Ms Fraser and Ms Simic, two senior managers of Omnia, were involved in the alleged contraventions by Omnia of s 44 and s 342 of the FW Act, pursuant to s 550 of the FW Act.

16    On 16 February 2024, the primary judge had struck out the paragraphs in the statement of claim alleging that Ms Fraser and Ms Simic were involved in Omnia’s alleged contraventions of the FW Act. His Honour, however, also made orders on that date requiring Ms Leung (a) to file and serve an amended statement of claim by 15 March 2024, which “properly articulates the basis for any proposed joiner” of Ms Fraser and Ms Simic and “provides proper particulars and material facts in support of alleged loss and damage referable to the relevant alleged contraventions”, and (b) to file an application for joinder of Ms Fraser and Ms Simic as the respondents, if Ms Leung wished to pursue the joinder, together with a supporting affidavit, by 15 March 2024 and to serve these documents on Ms Fraser and Ms Simic by 22 March 2024.

17    On 15 March 2024, Ms Leung filed a joinder application and a further amended statement of claim, providing some particulars of the accessorial claims that she sought to advance against Ms Fraser and Ms Simic.

18    On 3 May 2024, the primary judge dismissed the joinder application. His Honour’s reasons for judgment in Leung v Omnia Inclusive Employment Solutions (No 2) [2024] FedCFamC2G 416 read at [8] as follows:

The Court is not satisfied that the applicant has any genuine claim against the proposed additional parties under s 550. Further the inability of the applicant to comply with the Court's orders reinforces the Court's conclusion that there is no utility in giving the applicant any further opportunity to seek to join additional parties. The interests of the administration of justice and taking into account the paramount purpose in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) do not warrant yet another opportunity to file a proper pleading. The failure to comply with the Court’s orders engage the power to dismiss the joinder application under r 13.06(1)(c) and(e) of the Federal Circuit and Family Court (General Federal Law Rules) 2021 (Cth) (“the GFL Rules”). In all the circumstances no further opportunity should be provided to amend the Statement of Claim for the joinder of third parties and the application for joinder should be dismissed under r 13.06 of the GFL Rules.

19    The decision of the primary judge on 3 May 2024 dismissing the joinder application was interlocutory in nature and involved the exercise of a discretion.

20    Ms Leung did not make any application to the primary judge to join Ms Fraser, Ms Simic or Ms Lambourne to the proceeding after she received the affidavits on 2 August 2024.

C.3.    The relevant principles are well established

21    It is well established that in an application for leave to appeal from an interlocutory judgment it is necessary to establish that (a) the judgment, in all the circumstances, was attended with sufficient doubt to warrant it being reconsidered by an appellate court, and (b) substantial injustice would result if leave were refused, supposing the decision was wrong: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at [2] (Sheppard, Burchett and Heerey JJ).

22    As to the principles applicable to appeals from decisions involving an exercise of discretions, I refer to my recent observations in Elks v Kirk [2026] FCA 460 at [23]-[25]:

It is not sufficient for the purposes of an appeal from a discretionary judgment for this Court to conclude that it would have exercised the relevant discretion differently had it been in the position of the primary judge: House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). As Dixon, Evatt and McTiernan JJ stated in House v The King at 505:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated.

There is a strong presumption in favour of the correctness of the decision appealed from in a discretionary judgment, and the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [39] (Dowsett, Foster and Yates JJ) .

A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, giving weight to extraneous or irrelevant matters, failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Even if the specific nature of the error may not be discoverable, the result may be so unreasonable or plainly unjust that an appellate court may infer that there has been a failure to exercise properly the discretion which the law reposes in the court of first instance: Australian Coal and Shale Employees’ Federation v Cth (1953) 94 CLR 621 at 627 (Kitto J).

C.4.    Leave should not be granted

23    Proposed appeal ground 5 does not give rise to sufficient doubt to warrant a grant of leave to raise that ground of appeal. Ms Leung does not appear to contend, and, in any event, I am not satisfied, that the primary judge erred in finding that the further amended statement of claim did not plead the material facts necessary to establish that Ms Fraser and Ms Simic were relevantly involved in the alleged contraventions by Omnia of s 44 and s 342 of the FW Act. Further, Ms Leung has not displaced the presumption in favour of the correctness of the discretionary judgment of the primary judge in dismissing her application to join Ms Fraser and Ms Simic to the proceeding.

24    The primary judge might have indicated in his 3 May 2024 judgment that no further opportunity should be provided to amend the further amended statement of claim to join third parties, but his Honour did not make any order to that effect. Ms Leung was not precluded by the orders made on 3 May 2024, if by way of example, new information came to light, from making a fresh application to join third parties. A party may of course appeal or seek leave to appeal an order of the Court – not an observation or finding, however forcefully expressed in reasons for judgment.

25    Further, and in any event, Ms Leung has not demonstrated any substantial prejudice would result if leave were to be refused. The only substantive practical consequence is that Ms Leung would have been deprived of the opportunity of seeking civil penalty orders against three managers of Omnia. Even that prejudice, however, may not arise because if Ms Leung had otherwise been successful on her other appeal grounds, it is likely that the proceeding would have been remitted and Ms Leung could have made a fresh application to join Ms Fraser, Ms Simic and Ms Lambourne to advance accessorial liability contentions.

D.    Was there excessive judicial intervention? (Ground 1)

26    Ms Leung contends in ground 1 of her further amended notice of appeal that:

The primary judge denied the Appellant procedural fairness by excessive judicial intervention throughout the trial which created a real danger that the hearing was unfair and denied the Appellant a reasonable opportunity to put her case.

27    Ms Leung relies on five particulars of alleged excessive judicial intervention by the primary judge in the course of the hearing of the proceeding.

28    The critical issue raised by this ground of appeal is whether “the litigant has had a proper opportunity to advance his or her case”: Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530; [2019] FCAFC 144 at [22] (Greenwood and Rangiah JJ), citing RPS v R (2000) 199 CLR 620 at [11].

29    The test to be applied is whether the excessive questioning or pejorative comments made by a judge have created a real danger that the trial was unfair, and, in determining whether interventions by a judge have reached the point of unfairness, it is necessary to have regard to “the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions”: Galea v Galea (1990) 19 NSWLR 263 at 281 (Kirby A-CJ, with Meagher JA agreeing).

D.1.    Cross examination of Ms Leung

30    First, Ms Leung contends that during her cross examination, the primary judge intervened at a very early stage in leading form, stating ''[t]he correct answer was yes'' and warning that unresponsive answers would impact his Honour’s assessment of her credibility, confusing her as to how to answer questions.

31    The intervention by the primary judge occurred in the following exchange:

MR MEAGHER: And you understood that Ms Robertson had been assigned to give you some training and support. Is that right?

THE WITNESS: She was not only coming to give me some training in – she was coming to the area to give me training in only respect to this particular program review. Other than that, she was coming to my area to assist my team and provide training to the team with – with the duties, especially those new onboarding staff, and also covering – and also covering anyone who was taking leave at the time. So - - -

HIS HONOUR: Ms Leung.

MR MEAGHER: I see. .....

HIS HONOUR: Just pause. Ms Leung, if you answer a question unresponsively or advocate your case unresponsively to the question, it will impact on my assessment of your credit. The question you were asked was whether this person came from another area to give you training and support. The correct answer was yes. Is that right?

THE WITNESS: Sorry. What was the question?

HIS HONOUR: The question you were asked was whether this person, Ms Robertson, came from another area to give you training and support. Is the answer yes?

THE WITNESS: No. I – I would not say 100 per cent right, but not 100 per cent wrong.

HIS HONOUR: And Ms Leung, every time you give an answer that is evasive, it impacts on my assessment of your credit. Next question, Mr Meagher.

32    The warnings given by the primary judge were robust but were directed at the need to answer questions responsively, not simply to answer questions “yes” or “no”. That Ms Leung did not interpret his Honour’s comments as restricting her to answering questions in the “yes” or “no” manner was demonstrated on the next page of the transcript in the following exchange that Ms Leung had with her cross examiner:

MR MEAGHER: And after that, you called Ms Fraser, your supervisor. Is that right?

THE WITNESS: Not immediately.

MR MEAGHER: But that day?

THE WITNESS: Yes, I did.

MR MEAGHER: Yes. And in that call, you said that you had had an argument with Ms Robertson?

THE WITNESS: I would not say that was an argument, but that was a – that was a conversation that I had with her in relation to her – to her attitude and manners when she was speaking to me in the – in the – in the – in the meeting.

33    I do not accept that the intervention by the primary judge impacted on the ability of Ms Leung to answer questions in cross examination.

D.2.    Cross examination by Ms Leung

34    Second, Ms Leung contends that during her cross-examination of witnesses, the primary judge stated his views on matters in issue before the close of evidence, including that Ms Simic was ''not the corporate mind'' and that it was ''perfectly apparent'' Ms Leung was not still on workers' compensation.

35    Neither observation made by the primary judge denied Ms Leung procedural fairness or deprived her of reasonable opportunity to present her case.

36    The first observation was made in the following context:

MS LEUNG: Do you agree that the termination procedure and policy are in accordance to the Fair Work Act?

MR MEAGHER: I object.

HIS HONOUR: Yes, I reject it. Ms Leung, there is no issue about section 44 and section 117. The respondent has admitted the breach. Do you have any other relevant questions for Ms Simic, who is not the corporate mind?

37    Notwithstanding the rejection of that question and a subsequent question directed at whether Ms Simic was a decision maker, the primary judge allowed Ms Leung to ask the following questions of Ms Simic:

MS LEUNG: Okay. Do you – sorry. Do you agree that you also contribute to the termination decision? Do you agree that you also contribute to the decision of my termination?---No, I was not the decision maker. I was certainly there when the facts were put to Ms Lamborne, but Ms Lamborne as the CEO made the decision.

Did you ever recommend her to terminate me because of the aggressive behaviour that happened on 18 August?---No.

38    The second observation to the effect that it was “perfectly apparent” that Ms Leung was not on workers’ compensation was made in the following exchange:

MS LEUNG: … Okay. So are you aware that I am still on worker compensation?

MR MEAGHER: I object.

HIS HONOUR: Yes, yes. Ms Leung, it’s perfectly apparent you’re not. Next question.

39    The primary judge may have been mistaken as to whether Ms Leung was still on workers’ compensation, but Ms Leung had not given any evidence that she was still on workers’ compensation, and the question as to whether she was still on workers’ compensation was at best of questionable relevance to the adverse action claims that Ms Leung sought to advance in the proceeding.

D.3.    Closing submissions of Ms Leung

40    Third, Ms Leung contends that during her closing submissions, the primary judge made statements forming a negative view of her that were not prompted by Omnia’s submissions, including that it was ''entirely inappropriate'' and ''very unsatisfactory'' for Ms Leung to withhold property and that she had ''no comprehension of privacy obligations in respect of individuals''. Ms Leung submits that these statements were procedurally unfair because the primary judge did not give her the opportunity to respond to them during cross-examination, or by way of reply evidence, and, while she did respond to them in her closing submissions, his Honour “did not appear to listen nor, in any event, would the submission constitute evidence”.

41    It can readily be accepted that these statements made by the primary judge were consistent with the primary judge forming a negative view about Ms Leung withholding company property, but, as the following extract demonstrates, Ms Leung was given multiple opportunities to respond and, in fact, did respond to his Honour’s statements:

HIS HONOUR: Ms Leung, that was entirely inappropriate. Ms Leung, to withhold that property, which were keys to access vehicles and other things, was entirely inappropriate, when you were asked to return - - -

MS LEUNG: .....

HIS HONOUR: Just pause. Don’t talk over me. In relation to which I will be making findings. And in the context of what I will call the section 117, while that’s not an explanation that means that there wasn’t a contravention, it was very unsatisfactory for you to withhold what were significant property of the company and not immediately return it physically back to the company. Anyway, next. Please continue.

MS LEUNG: As I explained, it is due to my safety concern.

HIS HONOUR: I don’t accept that, Ms Leung. Next. Continue.

…

MS LEUNG: Also, in accordance to the Fair Work Act, company cannot withhold my salary entitlement or final payment just because I haven’t returned the company property .....

HIS HONOUR: But do you understand how improper - - -

MS LEUNG: .....

HIS HONOUR: Do you understand how improper it was, Ms Leung, to withhold that property?

MS LEUNG: I did not intentionally withhold that property. I attempted to return to them several times by suggesting to meet them at Chatswood Station because it’s safe to me, and there are so many people and I would not be bullied or harassed or further injured. And I also suggested to meet someone at the police station. Finally, I suggested to return the company property to ..... by the assistance from Matthew Peterson. And then they finally agreed. I did not try intentionally to hold those properties, because I didn’t need them to. But I have a safety concern having them sending someone to my home to collect them, and I have a concern to go to the workplace to return them. Thank you, your Honour, for considering this. If it’s possible, I would like to continue.

HIS HONOUR: Please do.

…

HIS HONOUR: … The court then told him that … the court would decline as a matter of discretion in respect of the 44 contravention, if that’s onward, if that is the ground on which you succeed and only that ground in holding any penalty hearing, partly because that section 44 contravention was, at least in part, in reaction to your withholding of property that the court is going to find was entirely unreasonable.

MS LEUNG: I disagree, your Honour.

HIS HONOUR: Is there anything else you wish to say in submissions to the court, Ms Leung?

MS LEUNG: I disagree. I have made every attempt to return the company property to the respondent but they just refused my suggestion. So I had no intention to – so I had no intention to withhold the company property at any time, and, also, I disagree there were no adverse actions taken by Omnia because I clearly say that there were – there was perceptions of adverse action taken after I submit a formal complaint to my direct – my line manager, Ms Fraser. And I also disagree that the objection from the respondent that I was not deliberately injured by the respondent after raising my workplace bullying to the HR manager.

It’s very obvious that after I raised my bullying and harassment concern – which was Ms Robertson slammed the table when she was showing me – slammed the table at work. I believe such behaviour can be identified easily by experienced human resource manager as bullying and harassment behaviour. So right after I - - -

…

HIS HONOUR: So you understand, I may not accept your credit. I may make findings that I don’t accept that you’re a truthful witness, and I may find that Ms Robertson was telling the truth when she said it didn’t occur. Anything you want to say in that regard?

…

HIS HONOUR: Yes. I may find that you are not a credible witness and that I prefer the evidence of the witnesses that have given evidence by the respondent. Is there anything you want to say in that regard?

MS LEUNG: Yes, your Honour. Even though your finding of my witness – of me as a witness as not credible, but it does not mean that I did not exercise my right to my employer to raise my safety concern about this incident, and this is my right to report my concern to my employer; however, right after I make this concern in relation to my safety, I was immediately injured by my colleagues. Sanja was verbally abusing me throughout the meeting for an hour with encouragement by Ms Fraser, who gave her a high five in the middle of her yelling. That actually contributed the level of aggressiveness of Ms Turekic, her behaviour, and as a result, I’m injured psychologically.

I’m – I – as a result, I suffered psychological injury and had to take sick leave and on workers compensation for extended period of time, and as soon as WorkCover declined my ..... any supporting medical evidence and follow-up investigation of my case, respondent immediately terminated my contract. Therefore, I strongly believe that they were – therefore, I strongly believe that there was not only one adverse action taken by the respondent but numerous adverse action taken by the respondents because I exercised my workplace right, especially calling for help due to my safety concern at work.

42    Notwithstanding the confrontational nature of the primary judge’s comments, Ms Leung was given a fair opportunity to respond to the alleged “excessive judicial intervention” by the primary judge. The fact that the response was provided by way of submissions does not negate the fact that the opportunity to respond was provided to, and was taken by, Ms Leung on multiple occasions and, therefore, does not give rise to any procedural unfairness. From the above exchanges, it is clear that his Honour (a) considered Ms Leung’s responses explaining her conduct, (b) warned Ms Leung that the Court might not accept her evidence in this regard, (c) invited Ms Leung to make submissions with respect to this warning, and, ultimately, (d) did not accept Ms Leung’s responses. None of these steps resulted in procedural unfairness to Ms Leung.

43    Further, I reject Ms Leung’s contention that the primary judge “did not appear to listen” to her responses to his Honour’s comments that it was ''entirely inappropriate'' and ''very unsatisfactory'' for Ms Leung to withhold Omnia’s property. It is clear from the following extract of his Honour’s reasons at PJ [187] that the primary judge did listen to Ms Leung’s explanation for her conduct but did not find it credible, which was a conclusion open for his Honour to reach, having heard from the witnesses and Ms Leung:

…The applicant's assertion is that she withheld the property because she was scared to return it to the respondent. The Court finds the applicant’s explanation to be not credible. The applicant's assertion that she made genuine effort to return the keys, however the Court rejects this explanation.

D.4.    Closing submissions of Omnia

44    Fourth, Ms Leung contends that from the start of Omnia’s closing submissions, the primary judge raised matters frequently in a strong way that gave the impression he had already made up his mind.

45    Ms Leung identifies the following examples of statements made or questions asked by the primary judge that she contends gave the impression that his Honour had “already made up his mind”:

And what you mean by that is that in the circumstances where she says that she can resolve it with the person, there is no what I will call exercise of a workplace right that supports the alleged first complaint; is that correct?

…

Now, as I understand it, the evidence doesn’t support that contention, that she was given a different template for her performance review; is that correct?

…

… the applicant has engaged in behaviour in the review meeting that would suggest a lack of managerial skills and capacity.

…

… as I understand it, the evidence is that when informed that her ongoing workers compensation claim had been rejected, the termination letter was then sent, and you say that was as a result of the decision that had been made back in August, that there was no fresh deliberation process in terms of subjective analysis; is that right?

46    Each example, however, has to be considered in its relevant context, not least because it is entirely unexceptional that a judge in the course of closing submissions may seek clarifications from counsel of matters, including matters that might be adverse to the interests of parties for whom the counsel did not appear.

47    Further, the complaint that the primary judge put these views to counsel for Omnia “for the most part, without first hearing from him” is misconceived. As the primary judge stated at the commencement of counsel for Omnia’s address:

Mr Meagher, I do have the benefit of your submissions. I guess I would like to just go though if we can, in sequence, the complaints – the subject of the alleged 340 contravention.

48    Having reviewed the whole of the transcript of the closing submissions made by counsel for Omnia, I am satisfied that the primary judge was, in substance, seeking confirmation of the manner in which Omnia was advancing its case using the shorthand expressions “as I understand it” and “is that correct?”. I do not accept, contrary to the submissions made by Ms Leung, that the primary judge had moved into “self-persuasion” and moved beyond putting provisional views to counsel.

49    Further and in any event, as stated by the plurality of the High Court in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13]:

Judges, … who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.

D.5.    Frequency of interventions

50    Fifth, Ms Leung contends that the interventions by the primary judge were frequent, commenced early in the trial, and undermined her ability to properly present her case and gave an appearance of prejudgment and bias.

51    I accept that the interventions made by the primary judge can fairly be characterised as frequent and that they commenced early in the trial. I do not accept, however, that the interventions prevented or precluded Ms Leung from presenting her case or gave an appearance of prejudgment or bias.

52    In a much-quoted passage, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated in Johnson v Johnson at [13]:

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

53    I am satisfied that, viewed as a whole, and accepting that at times the judicial temperament was less than exemplary and the primary judge did not disguise his frustration, the interventions by the primary judge can fairly be characterised as interventions principally directed at seeking to ensure that Ms Leung focused on the issues to be determined in the proceeding, evidence that was admissible and relevant, and were made to ensure that Ms Leung was acutely aware of the primary judge’s concerns with the case that she was seeking to advance.

E.    Was there apprehended bias? (Ground 2)

54    Ms Leung contends in ground 2 of her further amended notice of appeal that:

The primary judge's negative view of the Appellant and prejudgment of the case gave rise to a reasonable apprehension of bias.

55    Ms Leung relies on the particulars of excessive judicial intervention she advances in support of ground 1.

56    Ms Leung also relies on allegedly gratuitous negative views expressed by the primary judge in his Honour’s reasons for judgment to the effect that Ms Leung had not suffered any work place injury, the “only cause of her injury was her own misconduct”, and she had left the workplace because “she appreciated that she was about to be fired”. Ms Leung says that these views were not put to her in the course of the hearing and “were unnecessary”, particularly given that Omnia had conceded that she had suffered a work-related injury.

57    The expression of views in reasons for judgment that might be construed as reflecting poorly on the credit of a party or demonstrating that the primary judge had formed a view after hearing and considering all the evidence and submissions is not sufficient to give rise to a reasonable apprehension of bias. Rather, a fair-minded lay observer would expect that a judge, after hearing all the evidence and considering all the submissions, would have formed definitive views as to the merits of a parties case.

58    Further, I do not accept that, when viewed in their context, the views of which Ms Leung complains can be characterised as “gratuitous”. They were findings that formed part of the dispositive reasoning of the primary judge.

59    The “only cause of her injury was her own misconduct” finding was made in the following context at PJ [180]:

The Court does not accept that the applicant went on leave on 19 August 2022 because of any alleged exercise of workplace right, in the meeting on 18 August 2022. Whilst the respondent accepted that the applicant suffered a workplace injury for the purpose of a workers’ compensation law there was not concession as to the cause. The Court does not accept that the conduct identified by the applicant as to alleged harassment, bullying, intimidation or unsafe workplace occurred or caused any of the alleged symptoms asserted by the applicant during the applicant’s employment. The Court finds that the only cause of the applicant’s workplace injury was the misconduct of the applicant herself, and was not caused by any misconduct, misbehaviour or failure by the respondent or its staff. …

(Emphasis added.)

60    The “she appreciated that she was about to be fired” finding was made in the following context at PJ [193]:

The Court finds the applicant’s behaviour in leaving work on 18 August 2022 occurred without proper notification that she was going on leave and was unreasonable behaviour consistent only with the applicant realising she was unable to competently perform her role for which she had been employed and that she was unlikely to pass her 3 month probationary review. The Court finds the applicant’s behaviour in not returning to work after 18 August 2022 was not the subject of persuasive explanation by the applicant. The Court does not accept that the applicant suffered any bullying or harassment by staff of the respondent as alleged in the email dated 21 August 2022 or at all. The Court does not accept that the applicant suffered any PTSD due to any other employee conduct during her probationary employment. It was apparent from the unsatisfactory probationary performance review that the applicant’s employment was at imminent risk of being terminated at the 3 month review mark. Indeed the applicant’s behaviour in leaving the meeting with Ms Faser on 18 August 2022 is consistent with, and the Court finds that, the applicant appreciated that she was about to be fired. …

(Emphasis added.)

61    The views expressed by the primary judge were not gratuitous and were conclusions that were open for the primary judge to reach based on the factual findings that he had made, having heard from each of Ms Fraser, Ms Simic, Ms Lambourne and the appellant.

F.    Was there a denial of procedural fairness to a litigant in person? (Ground 3)

62    Ms Leung contends in ground 3 of her further amended notice of appeal that:

The primary judge denied the Appellant procedural fairness by failing to give sufficient assistance to the Appellant as a self-represented litigant and erred in making adverse credibility findings in these circumstances.

63    Ms Leung relies on five particulars of a denial of procedural fairness by the primary judge in the course of the hearing of the proceeding.

64    The following summary of the Court’s obligation to assist an unrepresented litigant was recently provided by the Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479; [2020] FCAFC 138 at [51]-[57] (Markovic, Derrington and Anastassiou JJ):

The submissions advanced on appeal revealed the existing lack of clarity as to the obligations of a court to a litigant-in-person. Though the principles might be succinctly stated at a high level of generality, their application in a particular case is somewhat more problematic. Statements to the effect that, “Courts have an overriding duty to ensure that a trial is fair”: see, eg, Dietrich v R (1992) 177 CLR 292, 330, 362; or that judges must ensure that trials are conducted fairly and in accordance with law: MacPherson v R (1981) 147 CLR 512, 523, are axiomatic but do not offer any great assistance in the particular circumstances of a trial. On the other hand, the observations of Mason J (as his Honour then was) in MacPherson at 534 that the general duty to ensure that litigants do not suffer any disadvantage from exercising their right to be self-represented, includes the obligation to ensure that they do not remain in ignorance of a fundamental principle which, if invoked, may prove advantageous to them, do offer assistance at a more granular level. The disadvantages to which Mason J referred are usually identified as a lack of knowledge (both of the law and the processes of the court) and a lack of objectivity: Tomasevic v Travaglini (2007) 17 VR 100, 130 [140] (Bell J).

As acknowledged by the High Court in Neil v Nott [1994] HCA 23; 68 ALJR 509; 121 ALR 148, 150, “[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”. In addition, litigants-in-person commonly fail to lodge documents in the correct form, observe court formalities and procedures, understand the significance of court processes, put the relevant evidence or law before the Court; and understand the role of the Court in adjudicating the matter.

However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator: see, eg, Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19, 23 [10]. Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties: Hamod v New South Wales [2011] NSWCA 375 [315]; Minogue v Human Rights and Equal Opportunities Commission (1999) 84 FCR 438, 446 [29]; SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445, 452-453 [37] per Justice Robertson (with whom Allsop CJ and Mortimer J agreed); AMF15 v Minister for Immigration & Border Protection (2016) 241 FCR 30, 44-46 [39] per Flick, Griffiths and Perry JJ.

The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent. As acknowledged by Samuels JA in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, 16 June 1986), 27, and cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236, 250 [47]:

[T]he absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person:

(a)    Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283.

(b)    Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson, 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15, 50 [47].

(c)    Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.

The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: Hamod, [312]; Bhagwanani v Martin (1999) 204 LSJS 449, [23]; Clark v New South Wales (No 2) [2006] NSWSC 914, [13]. Nor does the duty of the Court require it to view a litigant-in-person’s case with a favourable eye. As stated by the High Court in Northern Territory v Sangare (2019) 265 CLR 164, 174 [27], albeit in the context of a determination on costs, “unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person”.

It seems to be well accepted that the extent of the Court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon “the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”: Abram v Bank of New Zealand [1996] FCA 1650 ATPR 41-507, 42,347.

(Emphasis in original.)

65    It is readily apparent from this summary that a litigant in person must be informed of relevant practices and procedures to allow them to make informed decisions as to how to conduct a proceeding but at the same time, the Court must be astute to ensure that a litigant in person is not put in a more favourable position, or that their contentions are not treated with less rigour and detachment, than a represented party.

F.1.    Opportunity to give reply evidence

66    First, Ms Leung contends that she was not offered the opportunity to give reply evidence or told she could give responsive evidence by way of re-examination, unlike Omnia’s witnesses.

67    Notwithstanding the absence of any order for the filing of reply evidence, Ms Leung did seek to rely at the hearing before the primary judge on affidavits in reply dated 24 September 2024 and 25 September 2024, but they were not admitted. The primary judge rejected the 24 September 2024 affidavit on the basis that it went solely to credit, on relevance grounds and because it was not in compliance with his orders. His Honour rejected the 25 September 2024 affidavit on the basis of relevance and a failure to comply with his orders.

68    Nor do I accept that the failure to offer Ms Leung an opportunity to give further evidence by way of re-examination after she had been cross examined gave rise to any denial of procedural fairness. It can of course be inherently problematic for a litigant in person to conduct what is in effect an examination of themselves following cross examination. It cannot proceed by way of questions and answers, and all too often simply becomes a response more in the nature of a submission than evidence. In practice, to the extent that matters might need clarification or a litigant in person has been prevented from answering a question in full, it is usually more appropriate for the judge to ask the litigant in person questions, rather than for the litigant in person to conduct a re-examination of themselves.

69    In any event, from my review of the transcript of the cross examination of Ms Leung, it was largely a matter of counsel for Omnia putting to Ms Leung the evidence given by Omnia’s witnesses rather than challenging Ms Leung on matters that she had not already considered or asking her questions that required clarification in the sense that Ms Leung had not been given a fair opportunity to answer questions that had been put to her.

F.2.    Explanation of role as cross examiner

70    Second, Ms Leung contends that the primary judge did not explain her role as cross-examiner and repeatedly interrupted her questions without clear explanation.

71    Ms Leung contends that the primary judge failed to explain her role as a cross examiner, the types of questions she could ask and repeatedly interrupted her during cross examination to disallow her questions, in a manner that was at times “abrupt and curt”. She says the nature and frequency of the interruptions, and the failure to explain clearly the reason for the interventions, impacted her ability to present her case.

72    Having reviewed the transcript of the cross examinations undertaken by Ms Leung, I do not accept that there was any denial of procedural fairness by reason of any failure to explain Ms Leung’s role as a cross-examiner or the manner in which questions were rejected by the primary judge. I acknowledge that the transcript reveals that the primary judge had a pronounced and unfortunate tendency to reject questions in a manner that could be fairly described as “abrupt and curt”, but that does not establish procedural unfairness.

73    The primary judge explained to Ms Leung at the commencement of the hearing the procedure to be followed, including her entitlement to cross examine the witnesses called by Omnia and expressly brought to her attention, and asked her to confirm that she understood, that:

… where a witness is not the subject of cross-examination on a relevant issue, the court may more readily accept the witness’ evidence.

74    Ms Leung responded that she did understand that was the case.

75    Further, in the course of rejecting questions asked by Ms Leung, the primary judge generally explained why the questions were being rejected, including because the questions were unintelligible, misstated the witnesses earlier evidence, contained multiple questions, were not relevant, failed to identify the matter being asked about or were statements not questions.

76    The obligation to ensure that a litigant in person is not deprived of procedural fairness does not extend to reformulating their questions in cross examination to make them more intelligible.

F.3.    Opportunity to respond to objections to affidavit evidence

77    Third, Ms Leung contends that she was not given an opportunity to respond to objections to her affidavit evidence and that important evidence was rejected, including that Ms Simic made comments about her management ability and a medical letter from Dr Khan.

78    In many cases a judge might invite oral submissions in response to evidentiary objections but a decision not to invite submissions does not give rise to any denial of procedural fairness. The exclusion of probative and admissible evidence might well give rise to appealable error, but that cannot be equated with a denial of procedural fairness.

F.4.    Request for assistance of interpreter for cross examination

79    Fourth, Ms Leung contends that the primary judge refused her request to use an interpreter when cross examining Omnia’s witnesses, despite English being her second language and stress affecting her ability to cross examine and disallowed approximately 18 of her questions as ”unintelligible”.

80    The primary judge allowed Ms Leung to use an interpreter at various times while she was being cross examined. The use of an interpreter, however, given that Ms Leung was appearing by video link and the transcript records that she answered many questions directly in English, was not a straightforward exercise, as the following extract from the transcript indicates:

And in response, Ms Fraser then said, “Miss Leung, you can give Ms Turekic support, such as giving her a little high five”. Is that right?---No. No.

HIS HONOUR: Just to pause.

MR MEAGHER: And then she gave her a little high - - -

HIS HONOUR: Just pause. Ms Leung, if you want the interpreter to interpret it, you need to pause, so that – after the question is asked, so that the interpreter can interpret for you. If you - - -?---Okay.

- - - immediately answer in English, the interpreter can’t interpret. I fully understand that you may want to use the interpreter. You don’t have to. But you have asked me to use the interpreter, and I am letting you do so. But you need to pause, so the question can be interpreted. All right?---Okay. Can I just do a signal? So just, if I put a hand, then Ms – I – and I need the – I will need the interpreter?

I see. Well, if that is what you want to do, you’re welcome to do that. I can have every question interpreted, or just when you ask. It is up to you?---Yes. Okay. Thank you.

81    It was in that context that the primary judge had the following exchange with Ms Leung when she asked for an interpreter to assist her in cross examining Omnia’s witnesses:

MS LEUNG: Can I please - - -

MR MEAGHER: - - - organise - - -

MS LEUNG: - - - use the interpreter?

HIS HONOUR: No. No, Ms Leung, you don’t – you clearly understand English. To use the interpreter to ask questions is not appropriate when you understand English. It was one thing - - -

MS LEUNG: I’m – sir, I’m - - -

HIS HONOUR: - - - when you were giving evidence – it’s one thing when you are giving evidence. Your evidence is finished. We’re now moving - - -

MS LEUNG: Okay.

HIS HONOUR: - - - to cross-examining Mr Meagher’s witnesses. You’ve told me you want to ask Ms Fraser questions.

MS LEUNG: I – I – I – I’m sorry, Ms – your Honour, it’s just because Ms Fraser was one of the person who also bullied me, so I’m pretty scared of asking her questions about this. So this is the reason why I want to use the interpreter.

HIS HONOUR: I’m not satisfied that’s an adequate reason, Ms Leung. You’re doing so over video, she’s nowhere near you. And you are in a position - - -

MS LEUNG: But it will cause me anxious, and – I’m sorry. It still will cause me anxious. I – I cannot even go to ..... right now because it’s causing me anxious and, like, increasing my anxiety. So I’m sorry, your Honour, I – I – I don’t think I can do that.

HIS HONOUR: So you’re telling me you don’t want to ask Ms Fraser any questions. Is that the case?

MS LEUNG: I would like to ask her questions, but I would like to use the interpreter for assistance.

HIS HONOUR: Well, I – Ms Leung, I can’t comprehend why there is any legitimacy in you using the interpreter because you’re still online, you still have to see Ms Fraser, there’s no logical reason for using the interpreter when you understand English. Is there anything else you want to say as to why you want to use the interpreter in asking questions?

MS LEUNG: If any time I am caused, like, anxiety, then I may possibly need to use the interpreter.

HIS HONOUR: No, Ms Leung. I understand that you have anxiety and I understand that you are concerned about asking questions of Ms Fraser, but it makes no difference whether there’s an interpreter or not in relation to having to do so. You brought your case. If you want to challenge your evidence, you’ve got to ask the questions. I do not see why it’s appropriate to permit you to do so through an interpreter. So now, is Ms Fraser about – in the hearing room now, Mr Meagher?

82    The anxiety raised by Ms Leung was having to ask questions of a person she alleged had bullied her, not that she could not ask her questions in English. The primary judge had clearly formed a view by this time that Ms Leung was capable of conducting her case in English and that the anxiety claimed by Ms Leung was overstated because Ms Leung remained online and was not in the same room as Ms Fraser.

83    Ms Leung submits that the primary judge should have reconsidered his decision not to permit her to use an interpreter given his rejection of 18 of the questions that she asked in cross examination on the basis that they were unintelligible.

84    Having reviewed the transcript of Ms Leung’s cross examinations of the Omnia witnesses, it is apparent that the reasons for the primary judge’s rejections of questions asked by Ms Leung extended well beyond concerns about the use of infelicitous language by a person who was not a native English speaker. Rather, as with many litigants in person, Ms Leung struggled with (a) the distinction between asking questions and making statements, (b) framing questions that did not include premises that had not been established, (c) asking questions that did not include multiple clauses, and (d) confining her questions to matters in issue in the proceeding. I am satisfied that, on balance, the use of an interpreter would not have materially assisted Ms Leung in conducting the cross examinations. The interpreter would not have been able to reframe or recast questions asked by Ms Leung to overcome the difficulties encountered by Ms Leung in her cross examinations.

F.5.    Adverse credit findings

85    Fifth, Ms Leung contends that the primary judge made adverse credibility findings that the Appellant was unresponsive, evasive and advocating her case, which findings were unreasonable given she was a litigant in person, who had been denied procedural fairness.

86    Given my finding that Ms Leung was not otherwise denied procedural fairness this particular does not give rise to a contention that the primary judge erred by making adverse credit findings against a litigant in person. Such a contention must fail. A primary judge is not precluded from making adverse credit findings against a litigant in person.

G.    Was there a failure to consider a material consideration? (Ground 4)

87    Ms Leung contends in ground 4 of her further amended notice of appeal that:

The primary judge failed to take into account Ms Turecek’s inappropriate behaviour and how the Respondent’s findings as to her behaviour may have impacted the decision to terminate the Appellant.

88    Ms Leung contends that Ms Turecek’s probationary employee performance evaluation of 6 October 2022 (Turecek performance evaluation) citing Ms Turecek’s “'disrespectful and insubordinate'” behaviour towards her and other managers as requiring improvement was a material consideration that was not considered by the primary judge. Ms Leung says that it was a material consideration because it demonstrates that Omnia was concerned about Mr Turecek’s behaviour towards her and should have caused Omnia to reconsider the termination decision.

89    The Turecek performance evaluation made plain that her “disrespectful and insubordinate” behaviour was directed at all managers, not simply Ms Leung.

90    Moreover, the critical issue in the lead up to the termination decision was not whether Ms Turecek had engaged in conduct that might be construed as “disrespectful and insubordinate” towards Ms Leung, but rather that as a manager Ms Leung was expected to develop a better working relationship with Ms Turecek.

91    On 18 August 2022, Ms Leung attended a meeting with Ms Fraser, her manager, and Ms Turecek. The primary judge made the following findings as to what occurred at that meeting (PJ [104]-[105]):

After that meeting, at about 2:20pm Ms Fraser had a meeting with the applicant and Ms Turecek out of concern for their working relationship. Ms Turecek was unhappy working with the applicant and could see she was being treated differently and the applicant said Ms Tureck ignored her emails and dismissed her. Ms Turecek said the applicant was a bad manager and this is why to other staff left the respondent. Ms Fraser intervened and said the conversation was becoming unhealthy and told Ms Turecek not to be disrespectful to the applicant and told the applicant to provide positive feedback when Ms Turecek does good work in the future. Ms Turecek said she would be more respectful but that she would like some acknowledgment when she does good work. Ms Fraser told the applicant she can give verbal praise and a small gesture like a high five, which she then demonstrated. The applicant asked Ms Turecek to send her an email with the support and training needed and Ms Fraser told the applicant she could work on making changes.

The applicant then asked to speak to Ms Fraser privately after the meeting and then said Ms Turecek was lying and manipulative. The applicant didn’t think her behaviour contributed to the negative relationship. Ms Fraser told the applicant she needed to find ways to overcome the behaviour and build a relationship with Ms Turecek and other staff, and that she is the manager, is responsible for working through conflict with her team members and that Ms Fraser could provide assistance. The applicant appeared agitated and frustrated and said she was unhappy with Ms Turecek’s insubordination, then appeared exasperated and left the room suddenly without warning.

92    None of those factual findings are challenged by Ms Leung. Irrespective of any observations made in the Turecek performance evaluation, Ms Fraser was not only aware of but had personally observed Ms Turecek engaging in disrespectful behaviour towards Ms Leung prior to the termination decision. Therefore, it follows that any subsequent reference to Ms Turecek’s disrespectful conduct recorded in the Turecek performance evaluation would not have required any reconsideration by Omnia of, nor would have impacted upon, the termination decision. The termination decision was made notwithstanding Omnia’s knowledge of Ms Turecek’s disrespectful conduct for the reasons accepted by the primary judge.

93    I do not accept that this ground of appeal has any merit.

H.    Was there a failure to reconcile contemporaneous evidence? (Ground 6)

94    Ms Leung contends in ground 6 of her further amended notice of appeal that:

The primary judge erred in failing to reconcile objective inconsistencies between oral testimony and contemporaneous documentary evidence.

95    Ms Leung contends that the following alleged inconsistencies objectively contradicted the termination narrative advanced by Omnia and were not addressed by the primary judge:

(a)    the primary judge accepted Ms Fraser’s evidence that the termination decision was made on 18 August 2022 and concluded the Respondent rebutted the s 361 presumption;

(b)    Ms Fraser’s investigation statement dated 30 August 2022 made no reference to the termination decision on 18 August 2022, and no internal records indicated such a decision had been made on that date; and

(c)    Ms Simic’s affidavit stated Ms Fraser came to meet her at 3:00 pm on 18 August 2022, whereas contemporaneous documentation showed Ms Fraser was in a meeting with the Appellant and Ms Turecek from 2:30 pm for over an hour.

96    The first alleged inconsistency is in substance the same as ground 7 and is addressed below.

97    The other alleged inconsistencies are not material.

98    As to the second alleged inconsistency, Omnia called evidence from the relevant decision makers concerning the circumstances in which the termination decision was made that was accepted by the primary judge. The absence of a specific reference to a termination decision in an “investigation statement” prepared 12 days after the termination decision is very different to a positive statement that there had been no termination decision on 18 August 2022. The absence of any written contemporaneous corroboration is relevant but not decisive, particularly given the evidence of Ms Fraser, Ms Simic and Ms Lambourne, that was accepted by the primary judge that the termination decision was made on 18 August 2022.

99    The third alleged inconsistency is of little moment. Ms Simic states in her affidavit that Ms Fraser met with her “at around 3.00 pm on 18 August 2022”. She was not purporting to provide a precise time. More relevant is that each of Ms Simic and Ms Fraser give evidence that on the afternoon of 18 August 2022, Ms Fraser had a meeting with Ms Simic in Ms Simic’s office and had a discussion about Ms Leung and Ms Tureck and then each attended a meeting with Ms Lambourne later that afternoon, a meeting that is also corroborated by Ms Lambourne. That Ms Simic and Ms Fraser had a meeting before the meeting with Ms Lambourne is consistent with the inherent logic of events. It explains why Ms Simic accompanied Ms Fraser to the meeting with Ms Lambourne.

I.    Was s 361 of the FW Act MISAPPLIED? (Ground 7)

100    Ms Leung contends in ground 7 of her further amended notice of appeal that:

The primary judge misapplied the s 361 statutory presumption and failed to consider temporal proximity between the Appellant's exercise of workplace rights and the termination decision.

101    Ms Leung contends that the alleged termination decision was made on 18 August 2022, within days of her reporting bullying on 10, 16 and 21 August 2022, taking sick leave on 19 August 2022 and reporting a workers’ compensation claim on 20 August 2022. She submits that the primary judge reversed the statutory onus in s 361 of the FW Act by accepting Omnia’s explanation without requiring proof that these instances of her exercising workplace rights played no part in the termination decision.

102    This ground is misconceived.

103    There was no misapplication of the statutory presumption in s 361 of the FW Act. The effect of the presumption was correctly summarised by the primary judge at PJ [197] in the following terms:

The Court is required to evaluate whether the respondent has discharged its onus, not just from a subjective fact-finding exercise, but also on an objective standard, taking into account all the evidence.

104    The primary judge then concluded that Omnia had meet the presumption, stating in the balance of PJ [197]:

Given the lack of managerial skill, inability to work co-operatively with a team demonstrated by the applicant and her inability to perform the role for which she was engaged, the Court finds that the respondent has objectively rebutted the presumption and finds that there was not that was a substantial or operative proscribed reason in relation to the dismissal of the applicant, in the conduct of the probation review, use of the standard key performance indicators, or in relation to the withholding of her payment entitlements. The Court finds that the respondent did not dismiss the applicant because of illness, injury or her leave. The Court finds the respondent has rebutted the presumption that the applicant’s illness, injury or leave was a substantial or operative reason for her dismissal.

105    As Omnia submitted, it met the onus by leading evidence from the relevant decision makers. The leading of direct evidence is a recognised means by which the presumption under s 361 can be rebutted and it is a matter for the court to decide whether that evidence is reliable and should be accepted: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [43]-[45] (French CJ and Crennan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 at [8] (French CJ and Kiefel J).

J.    Was there a failure to apply s 352 of the FW Act? (Ground 8)

106    Ms Leung contends in ground 8 of her further amended notice of appeal that:

The primary judge failed to apply s 352 which prohibits dismissal during temporary absence due to illness supported by medical certification.

107    Ms Leung contends that at the “time of termination”, she was on certified medical leave supported by a certificate of capacity, and the primary judge made no finding whether termination occurred during a protected absence period, nor considered s 352 of the FW Act or s 248 in Part 8 of the Workers Compensation Act 1987 (NSW).

108    The insurmountable hurdle to this ground of appeal is that the primary judge found the termination decision was made on 18 August 2022 prior to her absence from work. It necessarily followed that s 352 of the FW Act could therefore never be engaged. She could therefore not have been dismissed at a time when she was temporarily absent from work due to illness, injury or leave. Rather, as the primary judge found at PJ [195]:

The Court finds that the applicant lacked the managerial communication and team skills, to perform the role for which she was employed. The Court finds that the respondent correctly identified the performance deficiencies of the applicant and her lack of managerial skills and inability to work co-operatively with a team and objectively were reasonable and proper grounds to terminate the probationary employee.

109    Again, the primary judge was otherwise satisfied at PJ [197] that Omnia had met the reverse onus.

K.    Was there a conflation of a decision with adverse action? (Ground 9)

110    Ms Leung contends in ground 9 of her further amended notice of appeal that:

The primary judge conflated the making of a termination decision with the taking of adverse action, misapplying s 340 and failing to conduct the causal inquiry required by s 361.

111    Ms Leung contends that the primary judge accepted the termination decision was made on 18 August 2022 “before protected activities”, without analysing whether the implementation of the termination decision in November 2022 was influenced by those activities. She says that by treating the termination decision as the relevant “action”, the primary judge failed to examine the causal connection between the protected conduct and her dismissal.

112    Ms Leung submits that the decision of Ms Lambourne to “wait to terminate” until after Ms Leung’s worker’s compensation claim was resolved necessarily means that the claim was a factor in the timing of the adverse action and made that protected workplace right an inseparable part of the decision-making process. She says that by focusing exclusively on the termination decision, which his Honour accepted had been made on 18 August 2018, the primary judge made two critical errors. The first error being that his Honour did not have regard to Ms Leung’s “protected activities”, as they post-dated the termination decision, and the second error being that his Honour failed to examine whether Ms Leung’s conduct between the termination decision and the implementation of the termination decision in November 2022, including sick leave, workplace complaints and compensation claims, influenced the “final implementation” of the termination decision.

113    The decision by Ms Lambourne not to implement the termination decision until after Ms Leung’s worker’s compensation claim had been resolved, in circumstances where Ms Leung had been absent from work since the making of the termination decision, does not carry with it any necessary implication that any subsequent purported exercise of a workplace right is relevant to the decision to terminate. The primary judge accepted the evidence of Omnia’s witnesses that the termination decision had been made on 18 August 2018 prior to the exercise of any workplace right by Ms Leung. The adverse action may have ultimately been the implementation of the termination decision, but the primary judge unequivocally found that the decision had been made before the purported exercise of any workplace right by Ms Leung. There was no erroneous conflation of a termination decision and the taking of adverse action; the deferral of the implementation of the termination decision was for a discrete reason unconnected to the making of the termination decision, namely the resolution of Ms Leung’s worker’s compensation claim.

L.    Should there be a partial award of costs in favour of Omnia?

114    Omnia seeks its costs of drafting an outline of submissions in response to submissions that Ms Leung had filed in this proceeding on 17 September 2025 (September 2025 submissions). At that time Ms Leung was a litigant in person.

115    Section 570(1) of the FW Act provides that a party to a proceeding in relation to a matter arising under the FW Act may be ordered to pay costs incurred by another party to the proceeding only in accordance with s 570(2).

116    Secction 570(2)(b) of the FW Act relevantly provides:

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

…

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

117    On 7 October 2025, Ms Leung appointed solicitors to act for her. On 22 October 2025, Ms Leung’s then solicitor swore (and lodged for filing) an affidavit in which he stated that he had been informed by Ms Leung that she had generated the September 2025 submissions with the assistance of generative artificial intelligence, “namely, ChatGPT”.

118    Omnia submits that notwithstanding that Ms Leung was a litigant in person at the time she prepared the September 2025 submissions and may not have appreciated the dangers of using generative artificial intelligence, “a cursory glance at her submissions would have revealed that most of the cross-references to evidence and cases were wrong, and many of the arguments were confusing”. It contends that the filing of the September 2025 submissions was an unreasonable act within the meaning of s 570(2)(b) of the FW Act that caused Omnia to incur costs.

119    Ms Leung submits that work done by Omnia in response to the September 2025 submissions cannot properly be characterised as costs thrown away because it “informed” the submissions ultimately filed by Omnia on 27 February 2026. Omnia’s submissions were filed in response to the revised submissions of Ms Leung filed on 13 February 2026, at a time by which she had again become a litigant in person.

120    The inherent dangers and risks of using generative artificial intelligence should be well understood by both lawyers and litigants in person. At the same time, the specific extent of any “costs thrown away” is not readily apparent, given the overlap in contentions advanced by Ms Leung in the September 2025 submissions and Ms Leung’s revised submissions. More generally, the filing by a litigant in person of a submission that could have incorrect references to evidence and cases would not typically be expected to give rise to a costs exposure under s 570(2)(b) of the FW Act.

121    In these circumstances, I am not satisfied that the order for costs sought by Omnia against Ms Leung should be made.

M.    DISPOSITION

122    Leave to file the further amended notice of appeal should be granted, other than with respect to proposed ground 5, the appeal is otherwise to be dismissed and there is to be no order for costs.

Associate:

Dated:    15 May 2026