Federal Court of Australia

Cleary v Qube Ports Pty Ltd [2026] FCA 628

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 92 of the Statement of Claim dated 1 October 2025 is struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

2.    The applicant has leave to file and serve an amended statement of claim by 26 June 2026.

3.    By 31 July 2026, the respondent file and serve an amended defence.

4.    Paragraphs 1 and 2 of the respondent’s interlocutory application filed on 26 February 2026 are otherwise dismissed.

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

REASONS FOR JUDGMENT

HORAN J:

1    This proceeding was commenced by an originating application filed on 2 October 2025 by the applicant, Ms Dana Cleary, together with a Statement of Claim (SoC) dated 1 October 2025. Ms Cleary alleges that the respondent, Qube Ports Pty Ltd, is vicariously liable under s 527E of the Fair Work Act 2009 (Cth) (FW Act) for acts of sexual harassment by its employee or agent in contravention of s 527D(1) of the FW Act, and took adverse action against her because she had workplace rights, or had exercised workplace rights, or to prevent her from exercising workplace rights, in contravention of s 340 of the FW Act.

2    By an interlocutory application filed on 26 February 2026, Qube Ports seeks an order striking out parts of the SoC pursuant to rr 6.01 and 16.21 of the Federal Court Rules 2011 (Cth). Alternatively, Qube Ports seeks orders that Ms Cleary provide particulars of certain paragraphs in the SoC pursuant to r 16.45(1)(a) of the Rules. In support of its interlocutory application, Qube Ports relied on an affidavit of Anoushka Rastogi affirmed on 26 February 2026.

3    Qube Ports has filed an Amended Defence dated 2 February 2026, in which it relevantly pleads that the impugned paragraphs of the SoC are evasive, vague and embarrassing, or are an abuse of process, and are liable to be struck out on such bases.

4    I have concluded that paragraph 92 of the SoC should be struck out, with leave being given to Ms Cleary to replead the matters to which that paragraph is directed. Otherwise, the interlocutory application filed by Qube Ports is dismissed.

BACKGROUND

5    The following broad factual summary is based on the pleadings that have been filed to date by the parties.

6    From around January 2017, Ms Cleary performed work for Qube Ports, which is a logistics company. Until around April 2021, she was employed pursuant to an agreement with Qube Ports. She alleges that, at various times from around July 2022, she provided services for Qube Ports as a contractor. The precise basis and details of such engagements are in issue between the parties.

7    Ms Cleary alleges that she was sexually harassed by an employee of Qube Ports after a dinner with colleagues on 13 May 2023, at a time when she is alleged to have been in a continuing working relationship with those colleagues on the basis of her “engagement” by Qube Ports. Following these alleged incidents, Ms Cleary alleges that she reported the conduct and told Qube Ports that she would no longer be providing her services. However, she alleges that she was prepared to consider further work with Qube Ports depending on the outcome of the investigation into the incidents.

8    Ms Cleary alleges that Qube Ports subsequently took adverse action against her, first by disabling her access to her email account on 22 May 2023, and then by sending her an email on 25 August 2023 in which she was informed that there were “no contractor or part time roles available”, thereby either terminating the contract for services between her and Qube Ports, or refusing to engage her as an independent contractor, or refusing to employ her. She alleges that such actions were in contravention of s 340 of the FW Act.

STRIKE OUT APPLICATION

9    At the hearing of the interlocutory application, Qube Ports did not press its challenge to paragraphs 14, 22, 29, 34 and 72 of the SoC, in so far as they contained allegations in relation to Ms Cleary’s engagement by Qube Ports at various times. This concession was made by Qube Ports in the light of its understanding of Ms Cleary’s case as disclosed in her written submissions on the interlocutory application – namely, that she alleges that she was engaged by Qube Ports as an independent contractor from 1 July 2022 pursuant to a contract for services as pleaded in paragraphs 22 and 29 of the SoC.

10    Further, Qube Ports did not press its challenge to paragraphs 73(c) and 96(c) of the SoC, which contained allegations that Qube Ports took adverse action against Ms Cleary for reasons including to prevent her from making a complaint in respect of sexual harassment, or to prevent her from commencing proceedings in respect of sexual harassment or general protections under the FW Act. Ms Cleary submitted that the actions taken by Qube Ports could be regarded as steps taken in order to discourage or raise barriers to her making a complaint or commencing a proceeding, including by impeding her communications with other staff of Qube Ports or preventing her from accessing evidence. In the light of that explanation of the manner in which Ms Cleary pleads her case, Qube Ports no longer seeks to have these paragraphs struck out, although they are denied by Qube Ports in its Amended Defence.

11    Qube Ports pressed its strike out application in relation to the following parts of the SoC:

(a)    First, paragraphs 1(b) and (c) were said to be evasive as to the times at which Ms Cleary was alleged to have been a “worker” for the purposes of s 527D of the FW Act.

(b)    Secondly, paragraphs 92 to 94 were said to contain allegations with unpleaded premises in relation to the existence and terms of a contract for services, or in relation to a proposed contract for services or prospective employment.

(c)    Thirdly, the relief claimed in paragraph H.4 of the prayer for relief was said to be either unavailable or beyond the powers of the Court.

Applicable principles

12    It is unnecessary to restate the applicable principles in relation to the functions of pleadings, and the exercise of the power to strike out pleadings. Such principles are well understood: see, e.g., Rizkalla v CDC Geelong Pty Ltd [2026] FCA 249 at [34]–[43]; KTC v David [2022] FCAFC 60 at [113]–[125] (Wigney J).

13    An important role of pleadings is to ensure procedural fairness by giving notice to opposing parties of the case they will have to meet. A pleading may be struck out under r 16.21(1) of the Rules if it is evasive or ambiguous, or is likely to cause prejudice, embarrassment or delay in the proceeding, or fails to disclose a reasonable cause of action or defence, or is otherwise an abuse of the process of the Court.

Paragraphs 1(b) and (c)

14    Paragraphs 1(b) and (c) of the SoC respectively allege that Ms Cleary was “at all material times” a worker for the purposes of the Work Health and Safety Act 2012 (Tas) (WHS Act) and a worker in a business or undertaking for the purpose of s 527D of the FW Act.

15    Qube Ports submitted that it was unclear from these paragraphs, alone or together with other paragraphs in the SoC, at what “material times” Ms Cleary alleges that she was a “worker” in the relevant sense. There is potentially some contest about the precise dates on which Ms Cleary was employed or otherwise engaged to perform work for Qube Ports, and the nature or basis of any such employment or engagement at various times. In particular, there appears to be a potential dispute as to the existence and terms of any contract or arrangement between Qube Ports and Ms Cleary at the time of the alleged incident on 13 May 2023, and in the following weeks and months during which Qube Ports is alleged to have taken adverse action against Ms Cleary.

16    In such circumstances, Qube Ports submitted that Ms Cleary’s failure to particularise the “material times” at which it is alleged that she was a “worker” is evasive, ambiguous or likely to cause embarrassment, on the basis that it does not put Qube Ports on notice of the case that it is required to meet. Qube Ports submitted that it remains unclear whether the “material times” extend to the period following the alleged incidents on 13 May 2023 and Ms Cleary’s cessation of services following those incidents.

17    In a letter dated 23 December 2025, Ms Cleary’s solicitor confirmed that the “material times” referred to in paragraph 1 of the SoC were “those times pleaded at SOC Part D”. Part D is headed “Engagement of Ms Cleary by Qube Ports”, comprising paragraphs 14 to 34 of the SoC. The allegations in Part D cover the period from about 30 January 2017 (when it is alleged that Ms Cleary was engaged by Qube Ports pursuant to an agreement dated 16 January 2017) to May 2023, and encompass her engagement pursuant to an alleged agreement on about 1 July 2022, as varied from about 17 April 2023, the terms of which were partly written, partly oral and partly to be implied.

18    In a letter dated 12 February 2026, Qube Ports’ solicitors stated that they were “still left without an understanding of what Ms Cleary alleges to be the start and end dates of the period or periods during which she claims to have been a worker for the purpose of the WHS Act and FW Act”, and that they assumed that Ms Cleary’s case was “that she was a worker at the time of the events alleged in SOC Part E” (namely, the alleged incidents involving acts of sexual harassment).

19    In her written submissions, Ms Cleary relevantly submitted:

Although Ms Cleary does not accept that there is ambiguity in the Statement of Claim, for the sake of clarity she states that the “material times” include the post-incident period and so run until 25 August 2023, the date on which Ms Cleary claims that Qube [Ports] either terminated the contract for services between itself and Ms Cleary or, if that contract had already been terminated, refused to engage or employ Ms Cleary. If the Court considers it necessary, she is happy to amend the Statement of Claim to include this clarification.

(Footnote omitted.)

20    In my view, paragraphs 1(b) and (c) are not defective, in the light of the particulars that have been provided by Ms Cleary. Qube Ports is sufficiently on notice of the case that is advanced against it. In particular, it is clear that Ms Cleary alleges that she was a “worker” in the period after the alleged incidents of sexual harassment, and continued to be a “worker” until 25 August 2023. In so far as Qube Ports sought further particulars of the “material times” referred to in paragraphs 1(b) and (c), I consider that sufficient particulars have now been given by Ms Cleary. In so far as Qube Ports denies that Ms Cleary was a “worker” at any of the times alleged, it can so plead by way of defence.

Paragraphs 92 to 94

21    Paragraphs 92 to 94 of the SoC are in the following terms:

92.     By the 25 August 2023 email, Qube Ports, as the principle [sic], terminated the contract for services between it and Ms Cleary as an independent contractor.

93.     Further and in the alternative to paragraph 92 above, by the 25 August 2023 email, Qube Ports, as the principle [sic] proposing to enter into a contract for services with an independent contractor, refused to engage Ms Cleary as an independent contractor.

94.     Further and in the alternative to paragraph 92 above, by the 25 August 2023 email, Qube Ports, as the prospective employer, refused to employ Ms Cleary.

22    The tenor of these allegations is that the email that was sent to Ms Cleary by Qube Ports on 25 August 2023, informing her that “no contractor or part time roles were available”, amounted to adverse action within items 2, 3 or 4 of the table in s 342(1) of the FW Act. This is made explicit in paragraph 95 of the SoC, which alleges as follows:

95.     By the of [sic] 25 August 2023 email, Qube Ports took adverse action against Ms Cleary.

PARTICULARS

The Applicant refers to and repeats and relies upon:

A.     Paragraph 92 above and s 342(1) item 3(a) of the FW Act;

B.     Paragraph 93 above and s 342(1) item 4(a) of the FW Act; and

C.     Paragraph 94 above and s 342(1) item 2(a) of the FW Act.

23    Despite being pleaded as “[f]urther and in the alternative”, the allegations in paragraphs 92, 93 and 94 respectively advance alternative (and not cumulative) cases: cf. Mulivai v Utaileio (2022) 11 QR 797 at [21] (Bond JA). This is clear from Ms Cleary’s written submissions, namely, that she “alleges three alternate species of adverse action arising from the 25 August 2023 email”. As so understood, there is no confusion.

24    Qube Ports submitted that Ms Cleary had not put it on notice of matters that were “necessarily fundamental to her adverse action claims”, on the basis that conclusions were “embedded” in paragraphs 92 to 94 for which no underlying facts were pleaded, namely:

(a)    paragraph 92 was premised on an implicit conclusion that there was a contract for services that could be terminated by sending the email dated 25 August 2023, without alleging the existence of that contract or the terms governing its termination;

(b)    paragraph 93 was premised on an implicit conclusion that Qube Ports had proposed to enter into a contract for services with Ms Cleary, without pleading the facts underpinning that allegation; and

(c)    paragraph 94 was premised on an implicit conclusion that Qube Ports was a “prospective employer” of Ms Cleary, without pleading the facts underpinning that conclusion.

25    In this regard, Qube Ports relevantly submitted that “[i]t is not sufficient for the pleader to state conclusions drawn from unstated facts”, referring to Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114–115 (Fisher J).

26    In the letter dated 23 December 2025, Ms Cleary’s solicitor confirmed that the contract for services referred to in paragraph 92 was the alleged contract “which existed immediately prior to 25 August 2023, in accordance with the facts alleged in SOC Part D”. As discussed above, Ms Cleary relevantly alleges that she was engaged from about 1 July 2022 pursuant to a contract for services as pleaded in paragraphs 22 and 29 of the SoC.

27    Qube Ports nevertheless complained that Ms Cleary has not specifically pleaded an alleged term by which the contract could be terminated by sending the email dated 25 August 2023, nor any circumstance that might have given rise to the termination of the contract at general law (such as repudiation or frustration). It submitted that “[w]ithout knowing the contents of the termination term of the alleged contract, Qube [Ports] is left to speculate about how the sending of the [email on 25 August 2023] could give rise, ipso facto, to ‘termination’ [of the contract]”.

28    Ms Cleary contended that it is not incumbent on her to identify a specific contractual term by or under which the contract for services was allegedly terminated. However, the difficulty is that the SoC does not currently plead the material facts by reason of which it is alleged that Qube Ports terminated the contract for services with Ms Cleary, other than by alleging that an employee of Qube Ports sent an email to Ms Cleary in which it was stated that, following a restructure of the Government Services division, there were no contractor or part-time roles available.

29    The basis on which it is alleged that this email effected a termination of the contract for services is not pleaded. It is not clear whether this is alleged to have constituted the exercise by Qube Ports of a contractual right of termination, or a purported termination on some other basis. While the contract for services is pleaded in paragraphs 22 and 29 as partly oral and partly implied, together with a variation that was partly written, partly oral and partly implied, no specific terms of the contract have been pleaded. It is left unclear whether there was an obligation on either party to make available or to provide services under the contract, or whether the contract could be terminated by notice. In oral submissions, counsel for Ms Cleary invoked the concept of “constructive dismissal”, but this is not explicitly pleaded and it is far from certain whether or how such a concept would apply to an independent contractor. If Ms Cleary intends to advance a case that Qube Ports engaged in conduct amounting to a repudiatory breach or other conduct that entitled Ms Cleary to terminate the contract, this is not currently raised by paragraph 92.

30    Of course, it should be kept in mind that Ms Cleary does not plead a cause of action in contract, but rather for adverse action in contravention of s 340, which does not itself depend on whether or not the action taken by Qube Ports was in accordance with or in breach of the alleged contract.

31    Nevertheless, the relevant adverse action alleged by Ms Cleary is that Qube Ports terminated the contract for services within item 3(a) of s 342(1) of the FW Act. It is not otherwise currently alleged that Qube Ports injured Ms Cleary in relation to the terms and conditions of the contract, or altered her position to her prejudice, or refused to make use or to agree to make use of services offered by her, within the meaning of items 3(b), (c) and (d) of s 342(1) of the FW Act.

32    In my view, paragraph 92 of the SoC in its current form is ambiguous, if not unsustainable, and does not give proper notice to Qube Ports of the case to be advanced against it. Accordingly, paragraph 92 should be struck out, with leave to replead.

33    In relation to paragraphs 93 and 94 of the SoC, Ms Cleary confirmed that both the proposed contract for services and her prospective employment by Qube Ports as at 25 August 2023 were based on the facts alleged in Parts D and F of the SoC. Relevantly, Part D of the SoC refers to alleged discussions between Ms Cleary and various employees or agents of Qube Ports in December 2022, February 2023, March 2023, and April 2023 about the performance of work for Qube Ports, and work performed by Ms Cleary from about 17 April 2023 to 12 May 2023. Part F of the SoC refers to events following the alleged sexual harassment incidents, including alleged telephone discussions and email correspondence between Ms Cleary and Qube Ports, some of which related to the possibility that Ms Cleary might perform further work for Qube Ports.

34    Qube Ports submitted that each of paragraphs 93 and 94 of the SoC was premised on the proposition that the contract for services with Ms Cleary had been terminated prior to 25 August 2023, and that there was either a proposal by Qube Ports to enter into a contract for services with Ms Cleary as an independent contractor, or a refusal by Qube Ports as a prospective employer to employ Ms Cleary as a prospective employee. Qube Ports submitted that no material facts or particulars were pleaded of any such proposal or prospect that Qube Ports would engage or employ Ms Cleary: see Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at [121] (Buchanan and Griffiths JJ); Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290 at [136]–[139] (Bromberg J).

35    Counsel for Ms Cleary confirmed in the course of the hearing of the interlocutory application that paragraphs 93 and 94 were based solely on the matters alleged in Part F of the SoC, which include correspondence and telephone discussions between Ms Cleary and employees or agents of Qube Ports from May 2023 in relation to Ms Cleary’s engagement with Qube Ports. Ultimately, Ms Cleary relies on those communications to support the allegation that, if the extant contract for services had been terminated, Qube Ports subsequently proposed to enter into a contract for services or an employment relationship with Ms Cleary.

36    In such circumstances, the allegations in paragraphs 93 and 94 of the SoC can be treated as if they had referred to and relied on the allegations set out in the relevant paragraphs in Part F of the SoC, including paragraphs 65(b), 66(b), 70, 75, 77, 78, 85, 86, 87 and 89. In other words, Ms Cleary relies on the facts pleaded in Part F of the SoC to make out the allegation that Qube Ports was proposing to enter into a contract for services or was a prospective employer of Ms Cleary.

37    On that basis, I do not consider that paragraphs 93 and 94 of the SoC suffer from any defect that warrants those paragraphs being struck out. Nor do I consider that Ms Cleary should be required to provide further particulars of those paragraphs. Qube Ports is on notice of the case made against it, and is in a position to plead by way of defence to paragraphs 93 and 94 as understood in the light of the allegations made in Part F of the SoC.

Paragraph H.4 of the prayer for relief

38    Part H of the SoC sets out the relief sought by Ms Cleary in the proceeding, which includes declarations of contraventions of ss 340 and 527D of the FW Act, compensation and interest under ss 545(3) and 547 of the FW Act, and penalties under s 546 of the FW Act. In addition, paragraph H.4 seeks:

Orders pursuant to section 545(1) of the FW Act that Qube Ports:

a.     in consultation with third parties with expertise in the positive duty under 47C of the [Sex Discrimination] Act, develop a comprehensive stand-alone sexual harassment policy (comprehensive SH policy);

b.     engage a third-party provider or providers to deliver training on the comprehensive SH policy within 6 months to all current staff and to all new staff on induction;

c.     engage a third-party provider or providers to conduct and publish within 6 months an independent assessment of gender equality within its workforce, including identifying the ratio of women to men in the workforce, the roles held by women and the gender pay gap;

d.     publish within 6 months a report on the number of complaints of sexual harassment:

(i)     received by Qube Ports in the 12 months prior to reporting;

(ii)     disposed of by Qube Ports in the 12 months prior to reporting; and

(iii)     that remained pending with Qube Ports for 90 days or more in the 12 months prior to reporting; and

e.     provide a report back to Ms Cleary within 6 months providing evidence with [sic] compliance with sub-paragraphs (a) to (d).

39    Qube Ports submitted that such orders could not, and would not, be made under s 545 of the FW Act, which is limited to making preventative, remedial and compensatory orders in relation to past or apprehended contraventions of the FW Act: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 (ABCC v CFMEU) at [103]–[104], [110] (Keane, Nettle and Gordon JJ). In this regard, it was argued that the SoC does not allege that Ms Cleary will work for Qube Ports at any time in the future. Further, Qube Ports submitted that the relief claimed was not supported by the allegations in the SoC, which does not contain any allegation that Qube Ports contravened the Sex Discrimination Act 1984 (Cth), nor any allegation concerning “gender equality” or any “gender pay gap” in Qube’s workforce, nor any allegation concerning the adequacy of Qube Ports’ training or policies in relation to sexual harassment.

40    In its written submissions, Qube Ports advanced six reasons why the Court has no power to make the orders sought at paragraph H.4, or would not exercise any power to make such orders.

(a)    First, the orders sought were not directed to preventing the occurrence of an apprehended contravention, remedying the effects of a committed contravention or compensating victims for the consequences of such a contravention: cf. ABCC v CFMEU at [104].

(b)    Second, the orders were not capable of properly being seen as appropriate to be made in the exercise of the Court’s jurisdiction, for the protection and enforcement of the right or subject-matter in issue in the proceeding: cf. ABCC v CFMEU at [23] (Kiefel CJ); Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 (Deane J).

(c)    Third, the orders would effect an imposition on Qube Ports’ freedom to conduct its own affairs, including to draft its policies and train its staff in any manner that it deems fit, without clear and express words in the FW Act to confer such a power: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2016) 247 FCR 339 at [11] (Allsop CJ).

(d)    Fourth, the orders sought would be an exercise of non-judicial power, and a construction of s 545 of the FW Act that would result in constitutional invalidity should be avoided. I note that Qube Ports has given notices under s 78B of the Judiciary Act 1903 (Cth) in relation to this question. Qube Ports submitted that a power to make such orders would purport to authorise the Court to act upon broad policy considerations unrelated to the facts of the particular case, and that such a standard of “appropriateness” in s 545 of the FW Act would have no fixed content and would confer an arbitrary discretion based on “idiosyncratic conceptions and modes of thought”: Cominos v Cominos (1972) 127 CLR 588 at 593 (Walsh J), quoting R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 376 (Kitto J).

(e)    Fifth, on the facts pleaded in the SoC, Ms Cleary does not have any legal right that would be protected by the orders sought at paragraph H.4: Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 at [77] (Kiefel CJ, Bell and Keane JJ); Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 at [112] (Moore, Dowsett and Greenwood JJ).

(f)    Sixth, the terms of the orders sought were unclear, including what was meant by “gender equality” or the “gender pay gap” and the nature of the consultation with third parties: cf. Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1 at [60] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

41    I proceed on the basis that the Court has power to strike out the relief sought in an originating application or statement of claim, whether under r 6.01 or r 16.21 of the Rules, in circumstances where the applicant “could not hope to obtain any part of the relief sought”: Noble Investments Pty Ltd v Southern Cross Exploration NL (2008) 174 FCR 301 at [40] (Lander J); Mpinda v Fair Work Commission [2022] FCA 1111 at [25] (Feutrill J).

42    However, an exercise of that power does not amount to judgment for the respondent against the applicant in respect of any part of the proceeding: Noble Investments at [39]. Accordingly, an application to strike out paragraphs in a prayer for relief is different to summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) or r 26.01 of the Rules on the ground that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding: Noble Investments at [34]–[38]; Mpinda at [17], [24].

43    Even if an order is made to strike out the relief sought in an originating application or statement of claim, it would remain necessary for the Court to fashion the relief to which the applicant is entitled in the event that judgment is ultimately given in her favour on a cause of action raised in the proceeding. In Noble Investments, Lander J observed (at [40]) that, “if at trial the plaintiffs showed that they were in fact entitled to the relief which had been struck out, relief could still be ordered”.

44    The Court will not generally strike out the relief sought by a party in whole or in part unless it is clear that such relief would not be granted in the proceeding. As Lander J said in Noble Investments at [44]:

If a party seeks relief which on any understanding must be plainly and obviously not available to that party, the Court would strike out the relief. The Court would need to be satisfied, however, that it was unarguable that the relief sought would not be granted.

Accordingly, relief will only be struck out if the Court is “convinced that the relief … would never be granted”, even if the applicants were successful: Noble Investments at [46].

45    There is room for debate about the scope of the power conferred by s 545 of the FW Act in the context of a particular proceeding. Section 545(1) of the FW Act confers power to “make any order the court considers appropriate” if it is satisfied that a person has contravened or proposes to contravene a civil penalty provision. Section 545(2) provides specific examples of the kinds of orders that may be made in the exercise of that power, including injunctions “to prevent, stop or remedy the effects of a contravention”, compensation for loss suffered by a person because of the contravention, orders for reinstatement, and orders requiring compliance with statutory notices.

46    The breadth of the power conferred by s 545(1) is not to be artificially limited: ABCC v CFMEU at [103] (Keane, Nettle and Gordon JJ). It may be accepted that the power encompasses “preventative, remedial or compensatory orders”, as opposed to penal orders: ABCC v CFMEU at [103]–[110] (Keane, Nettle and Gordon JJ). Nevertheless, the determination of what orders are “appropriate” will depend on the facts and circumstances of the contraventions that are found to have been committed or to be apprehended, including what might be considered appropriate to remedy the effects of those contraventions or to prevent or deter further contraventions (other than by way of penalty): see, e.g., ABCC v CFMEU at [112] (Keane, Nettle and Gordon JJ).

47    Qube Ports submitted that the orders sought by paragraph H.4 were directed at “systemic” issues that are not properly regarded as within the power to make orders of a preventative or remedial nature in respect of the contraventions alleged in the SoC: cf. Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 at [348]–[350] (Bromberg, Rangiah and Bromwich JJ). It was submitted that to allow such relief to be claimed would radically alter the nature and scope of the proceeding and would, among other things, have a consequential impact on the conduct of any settlement negotiations and the preparation of evidence.

48    Ms Cleary accepted that the systemic relief sought in paragraph H.4 was novel, in the sense that there was “limited superior court authority considering these types of orders”. Nevertheless, she submitted that s 545(1) of the FW Act confers power to grant such relief, including by providing public vindication to redress loss or damage suffered by Ms Cleary, by requiring Qube Ports to take corrective action, or by deterring further contraventions: cf. Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146 at [1552], [1564]–[1565] (Mortimer J); Eatock v Bolt (2011) 197 FCR 261 at [465]–[468] (Bromberg J); Kaplan v State of Victoria (No 8) [2023] FCA 1092 at [1790]–[1803] (Mortimer CJ); Faruqi v Hanson [2024] FCA 1264 at [389] (Stewart J). Accordingly, Ms Cleary characterised the orders sought as remedial and preventative in nature, and within the scope of s 545(1) of the FW Act.

49    Further, Ms Cleary submitted that the orders sought are directed to subject matters that have been put in issue in the proceeding, noting that she has alleged that Qube Ports is vicariously liable under s 527E of the FW Act for unlawful sexual harassment by an employee or agent. In response to that allegation, Qube Ports has pleaded in its Amended Defence that it took all reasonable steps to prevent the employee or agent from doing acts that would contravene s 527D(1) of the FW Act (which would constitute a defence to vicarious liability under s 527E(2)), alleging that it had in place “a range of policies, training and induction programs directed to preventing its staff from contravening s 527D(1) of the FW Act”, and that the employee or agent was bound by those policies and had participated in the relevant programs. Ms Cleary therefore submitted that “[w]hether [Qube Ports] took all reasonable steps to prevent unlawful sexual harassment by way of a range of policies, training and induction programs is a fact in issue”.

50    Ms Cleary also submitted that she has alleged as a workplace right that she was entitled to the benefit of Qube Ports’ obligation to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment in the workplace pursuant to s 47C of the Sex Discrimination Act, and the benefit of protection against sexual harassment under workplace laws.

51    For completeness, I note also that paragraph 75 of the SoC contains an allegation that Ms Cleary sent an email to employees or agents of Qube Ports on 22 May 2023 in which she asked about “the extent of the changes and updates to sexual harassment training and materials Qube Ports would be implementing as a result of the incident” and stated that this would “play a part in her decision and timeframe to come back to work with Qube Ports”. Further, paragraph 70 of the SoC pleads a telephone conversation between an employee of Qube Ports and Ms Cleary in which the employee is alleged to have said words to the effect that, “[a]s a result of what’s happened”, Qube Ports would review its compliance with sexual harassment training obligations.

52    There is a contest between the parties about the nature and scope of the power to grant remedial or preventative orders under s 545(1) of the FW Act. Ultimately, I have reached the view that it is not appropriate to resolve such issues in the context of this interlocutory application, in advance of the hearing and determination of the allegations raised by the pleadings. While there might be potential problems with aspects of the orders sought in paragraph H.4, on the current state of the authorities, it cannot be said that the claim for relief of that nature is unarguable nor that it would never be granted.

53    The appropriate time at which to address the question of relief, including the form of any orders that are considered “appropriate” under s 545(1) of the FW Act, is the trial of the proceeding, in the light of the facts and circumstances of any past or proposed contravention by Qube Ports of a civil penalty provision.

54    In this regard, it may be appropriate to consider whether questions of liability and relief should be tried separately. It is not uncommon for split trials to be held in civil penalty proceedings, particularly where this is appropriate in order to provide procedural fairness to the parties in relation to the penalties that might be imposed in the light of the findings made in relation to any contraventions: see generally SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [48]–[50] (Gageler CJ and Gleeson J), [69] (Gordon J), [134] (Jagot J), [193] (Beech-Jones J). The fact that there might be some overlap in the evidence does not preclude such a course from being taken: cf. ABB Engineering Pty Ltd v Freight Rail Corporation [1999] NSWSC 1037 at [15] (Rolfe J).

CONCLUSION

55    An order should be made to strike out paragraph 92 of the SoC, and Ms Cleary should be given leave to replead the matters to which that paragraph is directed. Otherwise, Qube Ports’ interlocutory application is dismissed (other than as to costs).

56    The interlocutory application filed by Qube Ports also sought an order pursuant to s 570(2) of the FW Act that Ms Cleary pay its costs of the application. In its written submissions, Qube Ports indicated that it wished to be heard on the question of costs. In the light of the outcome on the application, it is not clear whether Qube Ports will press its application for costs, which would relevantly require the Court to be satisfied that Qube Ports incurred costs because of Ms Cleary’s unreasonable act or omission. In the circumstances, the appropriate course is to hear and determine any application made by the parties for costs under s 570(2) if and when such an application is made.

Associate:

Dated:    21 May 2026