Federal Court of Australia

Kaur v Commonwealth Bank of Australia [2026] FCA 749

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    On 20 March 2025, the applicant, Ms Kaur, commenced a proceeding in the Federal Circuit and Family Court of Australia (Div 2), by which she alleged that her former employment with the respondent (hereafter, “the Bank”) had been terminated in contravention of s 772 of the Fair Work Act 2009 (Cth) (the “FW Act”). A few months later, the Bank filed an interlocutory application in the proceeding for summary judgment, which, by judgment dated 26 November 2025, was granted: Kaur v Commonwealth Bank of Australia [2025] FedCFamC2G 1931 (Judge Young; hereafter, the “Primary Judgment”).

2    On 16 December 2025, Ms Kaur filed a notice of appeal in this court. It stated that it was brought “by leave of the Court granted on 26/11/25”. Leave was required because, as is discussed further below, the judgment that Ms Kaur sought to appeal was an interlocutory judgment.

3    In truth, no such leave had been sought or granted, a reality that was brought to Ms Kaur’s attention at a case management hearing in May 2026 (after the matter was allocated to my docket). At that juncture—and without opposition from the Bank—I indicated that I would treat the notice of appeal as though it were an application for leave to appeal on the grounds there stated. Such an application was made outside of the time limit reserved for that purpose by the court’s rules. Thus, a hearing was convened for Tuesday, 9 June 2026 to determine those questions: should Ms Kaur have an extension of time and leave to appeal?

4    That hearing transpired. Although Ms Kaur made reference to having made an affidavit, none was filed; and, although somewhat unorthodox, the application proceeded on submissions alone (the tenor of which, happily, left nothing materially to be doubted). For the reasons that follow, I am not persuaded that the Primary Judgment is attended by doubt sufficient to warrant an appeal and, on that basis, the application for an extension of time and leave to appeal will be dismissed.

5    The background to the application may briefly be stated. It is set out uncontroversially in the reasons of the primary judge. Although it is plain that Ms Kaur takes issue with many factual aspects of her Honour’s reasons, it emerged during the hearing of the application for leave to appeal that there is no dispute—and certainly none that is presently material—about matters of relevant chronology, to which attention should now turn.

6    Ms Kaur worked for the Bank until she was dismissed in April 2024. Within days of that dismissal, she made an application to the Fair Work Commission in respect of it. It is possible that she made two such applications: one under pt 3-2 of the FW Act, alleging that the termination of her employment was unfair; and another under pt 3-1 of the FW Act, alleging that it was effected unlawfully in contravention of one or more of the “general protections” provisions of that part. That the application under pt 3-2 of the FW Act was made is uncontroversial. Whether there was also an application made under pt 3-1, as Ms Kaur asserted during her oral submissions, is not established but nor is it material.

7    As is the usual course, Ms Kaur’s unfair dismissal application appears to have been the subject of a conciliation conference. Whether in the context of that conference or at some later point, it appears that an accord was struck in settlement of the application. The Bank agreed that it would pay—and Ms Kaur agreed that she would accept—a sum equivalent to six weeks’ pay. Terms of settlement were then drawn and, ultimately, signed (including by Ms Kaur). Those terms included what appear to have been familiar releases (at least by Ms Kaur in favour of the Bank), by operation of which it was agreed that no further litigation would ensue regarding Ms Kaur’s employment or its termination.

8    At or about that time, Ms Kaur was enduring some very unfortunate personal or family circumstances, the details of which are rehearsed in the primary judge’s reasons (but which needn’t be explored here). The execution of the settlement terms appears to have occurred after a few weeks’ worth of corresponding as between Ms Kaur and the Bank (or, probably more accurately, as between their respective representatives). On 30 May 2024, Ms Kaur signed the deed within which the agreed terms were recorded. They were (or, perhaps I should say, appear to have been) countersigned by the Bank on or about 4 June 2024.

9    In her reasons for judgment, the primary judge recorded as follows about the terms that the parties agreed:

66    The terms of the Deed include a payment to be made to Ms Kaur of an amount equivalent to six weeks’ pay and for her termination to be regarded as a resignation. The Deed, at clause 3.1, includes a release by Ms Kaur in favour of “the Group” from all “Claims” in the following terms:

3.1     The Employee:

(a)     on and from the date of this Deed, and to the maximum extent permitted by law, unconditionally releases the Group from all Claims the Employee has now, or may have had in the future if the Parties had not executed this Deed;

(b)     agrees not to make, take or institute any Claims against the Group; and

(c)     indemnifies, and keeps indemnified, the Group against any loss or damage incurred in relation to any Claims the Employee institutes in breach of this Deed.

67     “Group” and “Claim” is defined in the Deed at clause 11, respectively, as follows:

Group means the Employer and all of its Related Bodies Corporate including each of their current and former directors, officers, employees and agents (jointly or severally).

Claim means any present and future demand, action, legal or other proceeding, application, arbitration, appeal, cause of action, complaint, cost, debt due, determination, inquiry, judgment, suit, verdict and any other claim whether under statute or otherwise, whether known or unknown, arising directly or indirectly from or in connection with the Employment Agreement, the Employment, the Termination the Proceedings and any other matters recited in the Background, but does not include any claims arising under applicable workers’ compensation.

68     The Deed also provides that Ms Kaur:

(a)     must file a notice of discontinuance (NoD) within five days of signing the Deed (clause 2.1(a));

(b)     acknowledges that the payments and benefits under the Deed are in full satisfaction of any Claims (as defined) that Ms Kaur has or may have against CBA or the Group (clause 4); and

(c)     warrants that she has read the terms of the Deed, has had an opportunity to seek legal advice about the terms and effect of the Deed and the Group has not made any promise, representation or inducement or been a party to any conduct material to Ms Kaur entering into the Deed, other than as set out in the Deed (clause 7).

69     Clause 8 of the Deed provides that the Group may plead the Deed as a bar to proceedings brought by Ms Kaur in relation to any Claims that are the subject of the release given by Ms Kaur in the Deed.

10    In the absence of any suggestion to the contrary (much less any evidence of any kind), I take that summary to be accurate. Certainly, it has not been suggested to be inaccurate. Similarly, there is no apparent reason to doubt (and I did not understand it to be controversial) that Ms Kaur filed with the Fair Work Commission a notice of discontinuance of her unfair dismissal application.

11    For some time after the settlement terms were agreed, nothing much appears to have happened (which is to say, of course, that nobody has told me that anything much happened and the reasons of the primary judge don’t reveal anything in that regard). It was not until March of 2025 that Ms Kaur filed her application in the court below.

12    That application alleged that the Bank had dismissed her contrary to s 772(1) of the FW Act. Section 772 forms part of pt 6-4 of the FW Act. Part 6-4 appears toward the end of the FW Act (in a chapter entitled, “miscellaneous”). Perhaps that’s for good reason. It serves to confer various obligations and entitlements regarding termination of employment; and it does so in circumstances that extend beyond the constitutional limitations of the more commonly used provisions of pts 3-1 and 3-2 of the FW Act.

13    There are some aspects of pt 6-4 of the FW Act that warrant noting. An applicant claiming to have been dismissed from his or her employment in contravention of s 772(1) of the FW Act may apply to the Fair Work Commission “to deal with” that contention: FW Act, s 773. Such an application must generally be made within 21 days of the date that the person’s employment was terminated: FW Act, s 774(1). Once made, the Fair Work Commission must “deal with” the application by conciliation: FW Act, s 776. If that fails—and if the parties agree—it may “deal with” the application by arbitrating it: FW Act, s 777. Absent arbitration, the person who made the initial application is entitled thereafter to make an “unlawful termination court application” but may only do so within 14 days after the Fair Work Commission certifies in writing that the initial application has been the subject of unsuccessful conciliation: FW Act, s 778(a).

14    That process largely mirrors the equivalent process that applies in respect of applications made under pt 3-1 of the FW Act. Applicants who claim to have been dismissed in contravention of a provision in that part must first go to the Fair Work Commission for (at least) conciliation purposes, and cannot make an application to a court in respect of it unless or until the Fair Work Commission certifies that that initial step has been completed (unsuccessfully, in the sense that no resolution was reached): FW Act, ss 365, 368 and 370.

15    It appears to be accepted that Ms Kaur never made any application to the Fair Work Commission under s 773 of the FW Act. The reasons of the primary judge make no reference to her having ever made an application under s 365 of the FW Act; but, even assuming that she did, what is not in dispute is that Ms Kaur never, at any stage before commencing her action in the court below, obtained any kind of certificate from the Fair Work Commission. As I will shortly explain, that circumstance is one of some moment.

16    There is another statutory provision of significance. Section 723 of the FW Act prohibits a person from making an application under pt 6-4 of the FW Act if they are entitled, instead, to make an application relating to the same dismissal under pt 3-1. Presently, it is not in dispute—and, in any event, it is unquestionably the case—that Ms Kaur enjoyed such an entitlement in relation to the Bank’s decision to terminate her employment (or, perhaps more accurately, would have enjoyed such an entitlement had she obtained from the Fair Work Commission a certificate under s 368(3) of the FW Act).

17    At this juncture, it repays to say something about the nature of the present proceeding. By the Primary Judgment, Ms Kaur’s application for relief under pt 6-4 of the FW Act was summarily dismissed pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). That provision entitles the court summarily to give judgment for a respondent in a matter that it is satisfied that an applicant has “no reasonable prospect” of winning.

18    A judgment of that kind is classically interlocutory and an appeal therefrom to this court lies only with leave: Federal Court of Australia Act 1976 (Cth), s 24(1A); EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341, [31] (Feutrill J); CMW22 v Administrative Appeals Tribunal [2023] FCA 262, [31] (Perry J). An application for leave must generally be made within 14 days from the date of the judgment in respect of which it is sought but the court can extend that deadline if the interests of justice warrant it: Federal Court Rules 2011 (Cth), r 35.14. The present application was commenced more than 14 days after the Primary Judgment was pronounced.

19    In order to obtain it, an applicant for leave to appeal must generally establish that the judgment in respect of which it is sought is attended by doubt sufficient to warrant its reconsideration on appeal and that, on the assumption that it is wrong, substantial injustice would be suffered if it were to stand: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9 (Sheppard, Burchett and Heerey JJ); Waters v Mercedes Holdings Pty Ltd (2012) 203 FCR 218, 228-9 [32]-[34] (Jacobson, Flick and Foster JJ).

20    In assessing whether the Primary Judgment is attended by doubt sufficient to warrant its reconsideration on appeal, the court’s task is to evaluate at “a reasonably impressionistic level” whether the bases upon which the applicant hopes to impugn it are “sufficiently arguable” or attract “reasonable prospects of success”: Olson v Keefe [2019] FCA 339, [9] (Lee J).

21    In order to obtain an extension of time within which to seek leave to appeal, an applicant must generally demonstrate that he or she has a reasonable prospect of success, that the failure to commence the application within the timeframe limited by the court’s rules is explicable, and that an extension of time would not visit prejudice upon another party: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9 (Wilcox J); BQQ15 v Minister for Home Affairs [2019] FCAFC 218, [33] (Yates, Wheelahan and O’Bryan JJ).

22    Inherent in both questions is whether or not the appeal that is hoped to be pressed is attended by sufficient merit. In that regard, then, attention should turn to the appeal grounds that Ms Kaur identified in her premature notice of appeal. Intending no disrespect (and appreciating the difficulties that undoubtedly confront her as a self-represented litigant), the grounds that Ms Kaur intends to agitate are difficult to comprehend. It is convenient to replicate the relevant parts of her notice in full (errors original):

Grounds of appeal

1.     Decision involved significant errors of facts under section 536MA.

2.     Evidences provided are not considered, employer's duty of care missing and no real system evidence provided at all since 2023 in any meetings or hearings.

3.     It is in public interest to appeal and get justice to ensure other employee; doesn't feel this extreme level of victimisation and extreme bullying at workplaces to save their jobs.

Orders sought

1.     Real system evidences in regards to false allegations.

2.     Emotional duress and stress in regards to deed not correctly identified because a good employee can only sign document when coercion is involved and not to get $4,000 after tax and fee and charges.

3.     Apologies on CBA letterhead and resignations from all those who were involved.

4.     Reinstatement in comparative role and no restrictions on any future opportunities as deed/False allegations are not evidence against career

23    Section 536MA of the FW Act has (and had) no application to Ms Kaur and is an obvious error that I ignore for present purposes. The notice of appeal is otherwise vague in the extreme, and appears to proceed on contentions relating to the fairness or legality of the Bank’s decision to dismiss Ms Kaur from her employment, rather than the appropriateness or availability of summary judgment in the court below.

24    Again intending no disrespect, that want of clarity and focus was also a feature of Ms Kaur’s oral submissions before me. Over the course of the hearing, the court was singularly unsuccessful in persuading Ms Kaur to focus her submissions upon why it was that the primary judge was wrong to grant summary judgment against her. Instead, she took extended occasion to impress upon the court the injustice that she maintains attended her employment and its termination. She laid claim to being entitled to evidence justifying the Bank’s decision to terminate her employment and maintained (by means of an unfortunate but unavoidable double negative) that the Bank had not led evidence to establish that her execution of settlement terms was not a product of duress. At various points, her submissions extended to plainly irrelevant topics, such as the “offshoring” of Australian jobs overseas. It is plain that Ms Kaur has very strong feelings about what she says was done to her.

25    That acknowledged, the following themes emerged from what Ms Kaur contended, namely that:

(1)    the primary judge did not inform her of the need to obtain a certificate from the Fair Work Commission and it was not open to the primary judge to grant summary judgment against her without first having done so; and

(2)    the settlement that was reached should be disregarded because it was obtained at a time when she was cognitively incapable of processing its significance.

26    The first of those assertions is inarguably wrong and I reject it. It was for Ms Kaur alone to establish that her application was jurisdictionally sound. Nothing more need be said about that.

27    The second of Ms Kaur’s assertions was raised before the primary judge and her Honour’s reasons for judgment address it at some length. I should identify the conclusions to which she was drawn but, before doing so, it repays to note an unusual (but not unorthodox) feature of the summary judgment application upon which she ruled. Both sides led affidavit evidence in support of their respective positions on that application; and both sought and were given leave to cross-examine. It would appear that the oral evidence focused, at least to some extent (and possibly a significant extent), upon the circumstances that led to the execution of the settlement terms that Ms Kaur signed in May of 2024.

28    Before the primary judge (and, to a less relevant extent, before me), Ms Kaur sought to impress that she signed the written terms of settlement under duress and not “under free will”. That, she maintained, was a product of what I earlier described as the very unfortunate personal and family circumstances that confronted her at and about the time that her unfair dismissal matter was settled. It was also, it seems, said to be a product of some form of coercion on the Bank’s part.

29    Although I was not taken to the transcript of the hearing before the primary judge nor provided with any of the written evidence that was before her, it appears that it was suggested to the primary judge—and, certainly, the suggestion was repeated orally before me—that Ms Kaur was emotionally distressed at the conciliation conference that took place (apparently by telephone) in May of 2024. She maintained (and maintains) that that distress was amplified somewhat by the conduct of those present, including her own representative.

30    The primary judge rejected Ms Kaur’s suggestion that the written settlement terms were executed in circumstances apt to rob them of binding legal effect. It is convenient to replicate her findings:

83    Firstly, Ms Kaur’s own evidence is that at the conciliation conference she was emotionally distressed as a result of the deaths of her parents and other family members, most particularly, the death of her father on 7 March 2024. I am unable to see how on any view this could constitute pressure by Mr Vague such as to cause Ms Kaur to sign the Deed. Further, for the reasons below, I do not consider that Ms Kaur’s distress over her father’s death, which I accept, was such as to result in her not understanding the consequences of entering into the Deed.

84     Secondly, Ms Kaur’s evidence under cross-examination was difficult. However, she ultimately agreed that she asked Mr Vague if there was “a black mark against her” and that Mr Vague told her there was no restriction on her seeking employment with CBA again if she signed the Deed. I accept Mr Vague’s evidence that he also may have told Ms Kaur this, via Mr Dircks, at the conciliation conference and that he also may have told her in that conference that there would be a note on her file that she was dismissed for misconduct. However, even taking Ms Kaur’s evidence at its highest, Mr Vague did not threaten her. There is, simply, no threat by Mr Vague. He simply provided her with information. Ms Kaur seems to infer that it is because of the Deed that she has subsequently been unsuccessful in obtaining further employment with CBA. However, I consider this is entirely unsurprising, given her file records that she was dismissed for misconduct. It is clear that the Deed does not, in its terms, prohibit Ms Kaur from seeking further employment with CBA.

85     Thirdly, other than Mr Vague acknowledging receipt of emails from Ms Kaur on 14 and 15 May 2024, Mr Vague had no further engagement with Ms Kaur after the conciliation conference.

86     Fourthly, Ms Kaur was represented throughout the conciliation conference and at all relevant times afterwards, including at the time of the execution of the Deed, by Mr Dircks. Whilst Ms Kaur makes criticisms of Mr Dircks[’s] representation, even if they be correct, this does not establish illegitimate pressure by Mr Vague such as to establish duress. As to the assertion that Mr Dircks, Mr Vague and the conciliator laughed during the conciliation, given that the conciliation was conducted by telephone, and in light of the nature of a conciliation conference, I prefer the evidence of Mr Vague that this did not occur. However, even if it did, firstly, I am unable to see the relevance of this in the present context. Secondly, there is simply no evidence to suggest that even if this did occur it was in any way related to the death of Ms Kaur’s father and/or mother or other family members.

87     Fifthly, the conciliation conference occurred on 14 May 2024 and Ms Kaur did not sign the Deed until 30 May 2024. Accordingly, Ms Kaur had a period of some two weeks to consider her position before signing the Deed. Further, the evidence before the Court is that Ms Kaur made amendments to the Deed. This is inconsistent with Ms Kaur executing the Deed under duress or emotional distress such that she did not understand the consequences of what she was doing. It is also inconsistent with Ms Kaur’s evidence that she did not read the Deed before signing it. Further, I note that at clause 7 of the Deed Ms Kaur warrants that she has read the terms of the Deed, has had an opportunity to seek legal advice about the terms and effect of the Deed and the Group has not made any promise, representation or inducement or been a party to any conduct material to Ms Kaur entering into the Deed, other than as set out in the Deed.

88     Sixthly, on 31 May 2024 Ms Kaur copied Mr Vague into two emails sent to Mr Dircks, arising from Mr Dircks forwarding the Deed to Mr Vague and informing him that Ms Kaur had made amendments to the Deed. The second of those two emails says in the final paragraph “Mr Vague, I am not [sic] longer taking services from this company after today. Let me know if this matter is settled today and so [sic] I can transfer his fee and charges.” In light of this, I consider that any contention by Ms Kaur that she did not understand that by entering into the Deed she was settling the matter against CBA, or that she was so distraught in the conference that, to use her words, she was “not in a position to understand what was going on”, cannot be sustained.

89     Seventhly, Ms Kaur has accepted payment under the Deed.

90     For completeness, that Ms Kaur may have signed the Deed to, in her words, “avoid any serious harm to my career”, does not establish that she executed the Deed under duress. Ms Kaur’s motivations for signing the Deed cannot establish illegitimate pressure by another party such as to constitute duress.

31    Her Honour was otherwise prudent to address the other jurisdictional concerns that the Bank raised in support of its application for summary dismissal of Ms Kaur’s substantive application. In that regard, her Honour noted that the action had been commenced inconsistently with the prohibitions imposed by the FW Act, particularly s 778 (in that there was no Fair Work Commission certificate) and s 723 (in that Ms Kaur was a person who could have agitated her claims under pt 3-1 of the FW Act).

32    Several things are plain. The first is that it is very difficult to find any room to doubt the primary judge’s conclusions about the execution of the written settlement terms.

33    It is notoriously difficult for a party to written terms of settlement to be excused from their application for want of capacity to approve them. The question for the primary judge was whether Ms Kaur lacked, on available material, reasonable prospects of establishing that proposition at trial. That Ms Kaur was distressed about her personal circumstances was not in doubt. But her Honour was also confronted with positive evidence that Ms Kaur did in fact have the capacity to appreciate the deed’s effect. That was evidence to which weight was appropriately afforded: see, by analogy, Rossi v Qantas Airways Ltd [2024] FCAFC 144, [48] (Snaden, Hatcher and Horan JJ).

34    The hurdles that Ms Kaur had to clear to establish duress—as articulated in the Primary Judgment—were lofty. The circumstances as her Honour recounted them—accurately, so far as I am able to ascertain from submissions alone—would seem virtually guaranteed not to suffice in that regard. The result, so her Honour concluded, was that the release to which Ms Kaur agreed stood fatally as a bar to any prospect that she might succeed on her substantive action.

35    So too did the absence of a certificate from the Fair Work Commission attesting to the holding of failed efforts to conciliate the dispute that Ms Kaur had sought to prosecute against the Bank. Whether the absence of certification is explained by Ms Kaur’s failure to make the relevant application (whether under pt 3-1 or pt 6-4) or by reason of the fact that the conciliation that did occur was not unsuccessful doesn’t much matter. Either way, her Honour concluded that an essential jurisdictional ingredient in Ms Kaur’s suit was missing; and, without it, her substantive application could not succeed.

36    Either of those conclusions sufficed to warrant the summary relief that her Honour was minded to grant. Her Honour explained as much in her reasons for judgment; and made appropriate reference to authority supportive of those explanations. There is no error of legal principle in what those reasons record (and nor did I understand it to be suggested otherwise). With respect, there is no reasonable prospect that Ms Kaur might succeed on appeal in establishing that either of her Honour’s conclusions was wrong. Although I needn’t reach any final view, both strike me as inarguably (to the point of obviously) correct.

37    It is unnecessary that I should separately address the other criteria that inform the exercise of the court’s discretion to grant an extension of time and leave to appeal. The absence of any serious prospect that Ms Kaur’s appeal (if she were permitted to pursue it) might succeed is sufficient to warrant that her application should be dismissed and it will be.

38    Perhaps in light of s 570 of the FW Act, the Bank did not invite any order as to costs. If an application in that regard is to be made, it may be made in the usual way.

Associate:

Dated:    18 June 2026