Federal Court of Australia

Daniel v Australian Irrigation Investments Pty Ltd [2026] FCA 1180

ORDERS

THE COURT ORDERS THAT:

1.    The Application filed 17 August 2026 by Mr Luke Daniel is dismissed.

2.    Order 1 of the Orders of Rofe J dated 13 August 2026 be discharged forthwith.

3.    The Applicant provide to the Respondents, by 4.00pm 20 August 2026, all of the Respondents’ property in his possession, including all copies of files downloaded from the First Respondent’s systems.

4.    The Applicant refrain from using, copying or disclosing any confidential information of the Respondents.

5.    The Applicant pay the Respondents’ costs of and incidental to the Application, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    On 13 August 2026, the applicant, Mr Luke Daniel, filed an Originating Application under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The respondents to the Originating Application are Mr Daniel’s employer Australian Irrigation Investments Pty Ltd ACN 619 600 627 (Australian Irrigation Investments or AII), and AII’s managing director Mr Benjamin Lee.

2    In the Originating Application Mr Daniel sought various final (but not interlocutory) orders, including but not limited to:

3.    An Order, pursuant to s 46PO(4)(c) of the AHRC Act, that the First Respondent re-employ the Applicant; further or alternatively, an order pursuant to s 46PO(4)(e) that the termination of the Applicant’s employment be varied so as to redress the loss and damage suffered by the Applicant.

3    Accompanying the Originating Application was the applicant’s Genuine Steps Statement (also filed on 13 August 2026) in which the Applicant indicated that interlocutory relief would be sought in the following terms:

6     The Applicant, pursuant to section 46PP of the Australian Human Right Commission Act 1986 is seeking an interim injunction to maintain the status quo, as it existed immediately before the complaint was lodged or to preserve his legal rights as an employee now that his employment has been terminated on 11 August 2026.

(emphasis added)

4    The parties appeared before the duty Judge on the afternoon of 13 August 2026. I understand that that urgent hearing was sought by the applicant in relation to the interim injunction anticipated by paragraph 6 of the Genuine Steps Statement.

5    The duty Judge made the following Orders (timetabling Orders) on 13 August 2026:

THE COURT NOTES THAT:

A.     The applicant undertakes immediately to refrain from using, copying or disclosing any confidential information of the respondents

B.     The applicant undertakes not to delete any documents or information of the respondents that are within his possession, custody or control.

THE COURT ORDERS THAT:

1.     From the date of this order until 4.00 pm on 20 August 2026:

a.     the applicant be reinstated to his employment with the first respondent and placed on immediate gardening leave, with continuity of employment and remuneration maintained; and

b.     the applicant not perform any work for the first respondent and not access any of the first respondent’s systems.

2.     By 4.00 pm on 17 August 2026, the respondents file and serve any affidavit material on which they intend to rely.

3.     By 4.00 pm on 18 August 2026, the parties file and serve any written submissions in support of, or in opposition to, the applicant’s application for injunctive relief (not exceeding 10 pages in length).

4.     Following the filing of the submissions, the matter be listed for hearing before a duty judge at the first available opportunity.

5.     Costs be reserved.

6.     There be liberty to apply.

6    Noting that the timetabling Orders contemplate the filing of submissions by 4.00pm on 18 August 2026, the matter was referred to me in my capacity as the duty Judge. On 14 August 2026, my chambers set down the matter for hearing at 10.15am on 19 August 2026.

RELEVANT LEGISLATIVE SCHEME

7    In his Originating Application Mr Daniel relies on s 47A of the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act), claiming victimisation in terms of that section. Section 47A relevantly provides:

47A Victimisation

(1)     It is unlawful for a person to commit an act of victimisation against another person.

Note 1: See also section 94 (offence of victimisation).

Note 2: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.

(2)     For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)     has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b)    has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c)     has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d)     has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e)     has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f)     has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g)     has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part (other than subsection (1)); or

(h)     has made an allegation that a person has contravened a provision of Part IIA;

or on the ground that the first person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (h), inclusive.

(3)     In a proceeding for a contravention of subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation mentioned in paragraph (2)(g) or (h), it is a defence if it is proved that the allegation was false and was not made in good faith.

8    Section 47A in its present form was introduced by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth). The Explanatory Memorandum accompanying that legislation relevantly provided:

193.    Section 47A operates separately from subsection 94(1), however Note 1 has been inserted to ensure users of the SD Act are made aware of the mirrored civil and criminal provisions. The criminal offence provision remains as a separate mechanism for the AFP to address particularly egregious forms of victimisation conduct.

…

195.    The creation of new section 47A, alongside the amendments to the definition of ‘unlawful discrimination’ by items 1 to 2 of this Bill, will clarify that people who experience victimisation conduct for the purposes of the SD Act can make a complaint to the AHRC and, if their complaint is terminated, initiate civil proceedings against the alleged perpetrator under section 46PO. Note 2 below subsection 47A(1) refers to the definition of ‘unlawful discrimination’ in the AHRC Act to make this operation clear.

(emphasis added)

9    As I noted earlier, Mr Daniel’s Originating Application seeks relief, inter alia, under s 46PO(4) of the AHRC Act, which empowers the Court to make various orders if satisfied that there has been “unlawful discrimination” by any respondent.

10    “Unlawful discrimination” for the purposes of the AHRC Act is defined by s 3(1) of that Act as meaning:

… any acts, omissions or practices that are unlawful under:

…

(c) Part II of the Sex Discrimination Act 1984;

11    Section 47A of the Sex Discrimination Act falls within Part II of that Act. It follows that a complaint of victimisation pursuant to s 47A of the Sex Discrimination Act is a complaint of “unlawful discrimination” within the AHRC Act.

12    Importantly however, for the purposes of the present proceedings before the Court, I note s 46PO(1) of the AHRC Act, which provides:

(1)     If:

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

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

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

13    As I observed to the parties in Court this morning, it is clear that a pre-condition to the commencement of an application in the Federal Court alleging unlawful discrimination within the meaning of the AHRC Act (including a claim of victimisation under the Sex Discrimination Act) is compliance with the procedure prescribed by s 46PO(1) of the AHRC Act: Hanson v Faruqi [2026] FCAFC 96 at [326], Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64 at [26].

14    In the present case, a complaint by Mr Daniel was made to the AHRC on 11 August 2026 and accepted by the AHRC on 12 August 2026 (see affidavit of Rohan Tate affirmed on 13 August 2026). There is no evidence before me that Mr Daniel’s complaint has been terminated by the President under ss 46PE, 46PF(1)(b) or 46PH of the AHRC Act. There is furthermore no evidence of notice given in relation to any such termination. It appears that, in the circumstances, there is no power in the Federal Court to hear a claim of unlawful discrimination against Mr Daniel by one or more of the respondents.

15    However, s 46PP of the AHRC Act provides:

46PP Interim injunction to maintain status quo etc.

(1)     At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain:

(a)     the status quo, as it existed immediately before the complaint was lodged; or

(b)     the rights of any complainant, respondent or affected person.

(2)     The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)     The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)     The court concerned may discharge or vary an injunction granted under this section.

(5)     The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

16    At 11.02am on 17 August 2026 the applicant lodged an interlocutory application seeking the following orders:

Interlocutory orders sought

1.    The Applicant maintain his employment with the First Respondent, maintaining continuity of employment and remuneration, from the date of this Order until resolution of the Application.

2.    Each Party has liberty to apply on three days notice.

17    In Court this morning I pointed out to Counsel for the applicant that the interlocutory order sought was that the applicant – in substance – be reinstated “until resolution of the Application”. I understood that “the Application” meant the Originating Application.

18    Following that exchange the applicant amended the orders he sought to be as follows:

1.    Pursuant to 46PP of the Australian Human Rights Commission Act 1986 (Cth) the Applicant be reinstated on full remuneration until the complaint is terminated by the Australian Human Rights Commission matter or the matter is otherwise resolved.

2.    Parties have liberty to apply with 3 days’ notice.

3.    The Applicant’s costs of the interlocutory application be paid jointly and severally by the Respondents.

CONSIDERATION

19    This matter has been brought on urgently before the Court as a duty matter. Although the applicant had not originally specifically invoked s 46PP of the AHRC Act, I consider that the only basis on which the Court has power to consider an interlocutory application for interim relief of the nature sought by the applicant is pursuant to that section.

20    I acknowledge the submissions filed by the applicant on 18 August 2026 concerning various evidentiary objections, including objections relating to the alleged waiver of privilege and the inclusion of an unredacted without prejudice offer in an affidavit filed by the Second Respondent. In my view, those matters are not appropriately considered in the present application. They are issues for determination at the final hearing and are not relevant to the question presently before the Court, namely whether interim relief should be granted pursuant to s 46PP of the AHRC Act.

21    For the purposes of the present proceedings I will however have regard to evidence to which the parties directed my attention at the hearing,

22    In submissions Mr Daniel relied on s 46PP of the AHRC Act, or in the alternative, s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).

23    I do not accept the applicant’s submission that the Court has power under s 23 of the Federal Court Act to order the relief Mr Daniel currently seeks. To paraphrase the comments of the plurality in Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [25]-[26], Part IIB of the AHRC Act provides a scheme to allow a person aggrieved by unlawful discrimination to obtain a remedy. Section 46PP of the AHRC Act provides for an application for interim relief to maintain the status quo where a claim of unlawful discrimination within the meaning of the AHRC Act has been made. It is that section which defines the possible remedies of an applicant in such circumstances.

24    I will proceed on the basis that this Court can only be empowered by s 46PP of the AHRC Act to grant the relief sought in the present case.

25    Section 46PP of the AHRC Act was recently considered by Bromwich J in Zey v State of New South Wales [2026] FCA 655. In that case his Honour observed:

11.    It is well-established that s 46PP does not require the usual tests or equitable principles, including whether there is a prima facie case or serious question to be tried, and that the balance of convenience favours the granting of the injunction, to be met to the same level or rigour as is required to grant an ordinary interlocutory injunction. Regard must be had to the apparent purpose of the power, which is to maintain the status quo and thereby preserve the effectiveness of the powers of the President of the Commission (as often exercised by delegates) under ss 46PF, 46PI and 46PJ of the Act to, respectively, inquire into a complaint, obtain information relevant to that inquiry and conciliate a complaint: see Chadwick v State of New South Wales [2022] FCA 1498 at [26] (Wigney J); see also Abraham v Housing Authority [2022] FCA 1145 (Jackson J); Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331 (Colvin J); and Smith v A High School [2025] FCA 1432 (Perram J). Both Abraham and Millar were considered by Wigney J in Chadwick.

12.    Wigney J in Chadwick made the following further observations, with which I respectfully agree and endorse, and do not regard as being inconsistent with either Abraham or Millar:

[27]     The fact that the “usual tests” for an interlocutory injunction do not apply in the case of an interim injunction under s 46PP does not mean that, in considering whether to grant such an injunction, the Court can or should disregard entirely the apparent merits or otherwise of the complaint in question, or not have regard to the types of considerations that ordinarily factor into the balance of convenience. The mere making of a complaint cannot itself be sufficient to ground the making of an interim injunction under s 46PP of the AHRC Act.

[28]     While regard must be had to the nature and purpose of the statutory power in s 46PP, the interests of justice would ordinarily require an applicant for an interim injunction to demonstrate at least that the complaint that had been made to the Commission was one which has sufficient apparent merit to warrant inquiry and conciliation by the President of the Commission. A complaint which appears, prima facie, to be unmeritorious and likely to be terminated by the President of the Commission pursuant to s 46PH could scarcely be seen to provide a sound basis for an interim injunction.

[29]     Likewise, even if the general law principles concerning the balance of convenience may not be applied with the same rigour in respect of interim injunctions under s 46PP of the AHRC Act, the Court should nevertheless have regard to the types of considerations that are ordinarily seen as relevant to the balance of convenience in the case of an interlocutory injunction. That would include, for example, any prejudice or damage that the granting of the injunction to preserve the status quo might cause to the respondent. It is less likely that the interests of justice could be seen to favour the grant of an interim injunction to preserve the status quo if the injunction was likely to cause significant loss or damage to the respondent, particularly in circumstances where the Court cannot require the applicant to give an undertaking as to damages. That would particularly be the case if the complaint was not one which appeared to have sufficient merit to warrant inquiry and conciliation by the President of the Commission.

(emphasis added)

26    See also Feutrill J in Seniors and Disabilities Best Access Group v Commissioner of Main Roads [2025] FCA 424 at [8]-[10].

27    I further note that, despite deficiencies in the manner in which the relief sought in the interlocutory application was framed (in particular the reference to “the Application” rather than a complaint before the AHRC), s 46PR of the AHRC Act provides:

46PR Court not bound by technicalities

In proceedings under this Division, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

28    As the Explanatory Memorandum to the Human Rights Legislation Amendment Bill 1988 (Cth) stated, s 46PR:

…is intended, amongst other things, to provide a legislative framework for the Court to develop appropriate practices and procedures to facilitate the determination of human rights proceedings. It aims to ensure that the Court processes are accessible, efficient and as sensitive as possible to the needs of the parties, while not compromising the Court’s overriding objective of deciding matters according to law as a court exercising the judicial power of the Commonwealth.

(emphasis added)

29    Accordingly, it is appropriate for me to consider the interim relief sought by the applicant.

30    This morning the submissions of the parties were in terms of the merit of Mr Daniel’s complaint before the AHRC, and whether the balance of convenience favoured the grant of the interim relief to Mr Daniel which he sought. I now turn to these issues.

Merit

31    In summary, Mr Daniel submitted as follows:

    Mr Daniel is a registered psychologist with extensive experience and qualifications in workplace culture, leadership and safety. On 3 March 2025 he commenced employment with AII in the role of General Manager, People and Culture.

    Between May and July 2026 he raised a number of concerns, in the performance of his role, referable to AII’s obligations under the Sex Discrimination Act. These concerns included concerns about:

•    AII’s treatment of a female employee with caring responsibilities;

•    Mr Lee’s response to a business case presented by Mr Daniel on 14 May 2026 for terms including family and domestic violence leave;

•    A worker at a remote AII location with a history of offences against women; and

•    AII’s refusal to remove a sexually explicit calendar at another remote AII Location.

    On 6 August 2026 he was informed by Mr Lee that he was not “a good cultural fit” with AII, and that the business did not “need to do things by the book”.

    He was served with a notice of dismissal on 7 August 2026 (effective 14 August 2026)

    He made a complaint to the AHRC on 11 August 2026, which complaint he served on AII on that day. Approximately 30 minutes after being served with the AHRC complaint, Mr Lee terminated Mr Daniel’s employment with immediate effect.

    There had been no prior performance concerns expressed by the respondents in respect of Mr Daniel.

32    I understand that Mr Daniel’s remuneration is well above the high-income threshold for the purposes of the Fair Work Act 2009 (Cth).

33    The respondents submitted, in summary:

    Mr Daniel has not established a serious question to be tried because the decision to terminate his employment was made and communicated before the AHRC complaint was lodged on 11 August 2026.

    The decision to terminate was made for "specific failures of ... [Mr Daniel] to adequately perform his role", rather than because of any protected conduct. After the initial termination decision, AII discovered Mr Daniel's alleged unauthorised downloading and access to confidential documents and treated that conduct as serious misconduct warranting immediate termination.

    The contemporaneous chronology materially weakens any contention that the AHRC complaint caused the termination, supports the AII's contention that the termination decision had already been made for independent reasons, and is inconsistent with the retaliatory explanation advanced by Mr Daniel.

    Mr Daniel had, without authorisation, downloaded and accessed confidential documents following his initial termination on 7 August 2026. The respondents were entitled to treat this as serious misconduct.

    Mr Daniel lodged the AHRC complaint after he was initially terminated on 7 August 2026. The clear inference to be drawn from this timeline was that the termination decision had already been made for independent reasons unrelated to any claim of unlawful discrimination.

    The evidence disclosed a seriously contested factual dispute.

34    Turning to the present case and the material before the Court, and taking into account the principles explained in Zey and Seniors and Disabilities Best Access Group, I observe as follows.

35    For the purposes of the definition of “victimisation”, Mr Daniel’s written submissions indicate (at [17]) that the relevant paragraphs in s 47A of the Sex Discrimination Act pursuant to which Mr Daniel claims victimisation are as follows:

(2)     For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)     has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

…

(f)     has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g)     has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part (other than subsection (1)); or

…

The Initial Dismissal

36    A problem with Mr Daniel’s case, however, is that on the material before the Court it appears more likely than not that the respondents had already formed a view that Mr Daniel would be dismissed, prior to Mr Daniel informing Mr Lee of his intention to make a complaint under the AHRC Act. Although there is apparent dispute between the parties as to the exact form of words used by Mr Lee to Mr Daniel at their meeting on 6 August 2026, the material before the Court indicates that there is common ground that:

    Mr Daniel had a meeting with Mr Lee on 6 August 2026, and

    at that meeting Mr Lee indicated to Mr Daniel that the working relationship between Mr Daniel and the respondents was unsatisfactory.

37    It also appears not to be controversial that, on 7 August 2026, the respondents issued a letter to Mr Daniel, signed by Mr Lee, terminating Mr Daniel’s employment (initial dismissal letter). The letter was in the following terms:

I refer to the meeting that you attended with myself yesterday (6 August 2026) and to our discussion during the meeting (Meeting).

During the Meeting, I raised concerns that you were not adapting to the needs of the organisation and were not meeting the expectations of the GM People & Culture. I had determined that our working relationship had broken down and advised that a decision had been made for you to finish up your employment within the week.

Further to the discussion during the Meeting, I confirm that your employment with Australian Irrigation Investments Pty Ltd is terminated in accordance with clause 13 of your employment agreement dated 9 December 2024 (Employment Agreement). As per our discussion, your last day of work will be Friday, 14 August 2026.

You are being placed on gardening leave effective immediately, until Friday, 14 August 2026. During this time, you are directed not to attend the office, and you are to work from home for the purposes of providing a handover of your current matters only.

…

Download of Confidential Information

38    On AII’s case, on the evening of 6 August 2026 following the meeting between Mr Lee and Mr Daniel, Mr Daniel accessed AII’s information systems and performed a significant amount of download and deletion operations. In Mr Lee’s affidavit he gave the following evidence:

116.    On Monday, 10 August 2026, at 3:20 pm I received an email from Dave Kissane | Senior Support Engineer | Cyber Security Specialist, which attached a list of File Names of documents which were downloaded by Luke.

117.    This 10 August 2026 email about Luke’s downloads from Dave Kissane, Senior Support Engineer | Cyber Security Specialist is annexed to this affidavit and marked annexure “BL-04”. I have not annexed the file attachment, as it contains confidential information.

118.     I understand from phone discussions with David Kissane on 10 August 2026 after receiving his email where he confirmed that where the excel spreadsheet file refers to “FileRecycled” it means that the file was deleted. At the time of swearing this affidavit, there were 213 files which appear to have been deleted and around 3,300 files which had been downloaded.

119.     At the time the email was sent to me, I only looked very quickly at the deleted files and saw that they were mostly photos, so I was more concerned with the downloaded files. Initially I thought maybe they were personal photos because he’s handing the company laptop back, so I didn’t care about those. But since then I have come to understand that there were actually some work documents which were deleted. Some of those documents that were deleted were outcome letters advising employees about the outcome of annual reviews were part of the files deleted. Until we get his laptop, we are unable to determine accurately, whether these were deleted from the company OneDrive and/or only from his personal work folders.

…

126.    That afternoon at around 5:00 pm on 10 August 2026, after receiving confirmation that there were definitely files downloaded, I made the decision to summarily dismiss Luke from his employment because I came to understand that, at around 6:21pm on Thursday 6 August 2026, approximately three hours after I had the discussion with Luke about his employment coming to an end, Luke began to download files from his company OneDrive account. Over the next approximately 10 hours, until 5:03 am on Friday 7 August 2026, around 3,300 files were downloaded. He had engaged in a series of unauthorised activities in relation to our company’s data and the data of related entities.

127.     I have reviewed these files and they appear to be a complete download of any file related to the HR part of the business, including the following:

(a)     various confidential and commercially sensitive materials regarding our Corporate Group's human resources operations, including policies, role profiles, job descriptions, employment agreements, training records and information contained in employee personnel records files (including, employee complaints, investigations, warnings, termination-related documents, confidential deeds of release and separation, performance review outcomes and exit interviews);

(b)     various confidential and commercially sensitive financial records regarding our Corporate Group’s budgets, wages, and remuneration;

(c)     various confidential and commercially sensitive business management records, including leadership team materials, proposals, strategies, and reports; and

(d)     records containing confidential personal information regarding a number of candidates for employment with our Corporate Group.

128.     As such, by downloading these files, I formed the view that Luke had engaged in serious misconduct.

39    Counsel for Mr Daniel challenged the veracity of Mr Lee’s evidence, on the basis that the advice of AII’s IT Consultant appeared to allow for two competing explanations for material of this nature being recorded as downloaded, namely either

    a “glitch” from Microsoft OneDrive, or

    the actual downloading by Mr Daniel of a large volume of the respondents’ material.

40    However, I note that Mr Daniel on 12 August 2026 gave an undertaking to the first respondent that he would:

1.     immediately refrain from using, copying or disclosing any confidential information as defined at clause 11 of the Employment Contract belonging to AII that was obtained during or after my employment with AII other than for the purposes of pursuing my victimisation proceedings;

2.     After the completion of the victimisation proceedings, deliver up of the electronic and hard copy documents that are confidential as defined in the employment contract and permanently delete any electronic documents (for clarity, this means that you are not permitted to retain any hard copy documents of All and electronic documents that are confidential as defined in the employment contract that you hold must be deleted after a copy is delivered to Talbot Sayer Lawyers);

3.     within 7 days of my victimisation proceeding being finalised, provide Talbot Sayer Lawyers with a statutory declaration setting out:

(a)     the steps taken to comply with items 1 to 3 and confirming that each of these undertakings has been complied with; and

(b)     the name and contact details of any company to which I have provided All's confidential information or intellectual property, if any, other than my legal representatives.

41    On the material before the Court, and particularly taking into account of Mr Daniel’s undertaking, I consider that it is unlikely that there was a computer “glitch” of the type suggested by Counsel for the applicant. Rather I consider it likely that Mr Daniel did deliberately download a large volume of confidential material from AII overnight on 6 August 2026 until the morning of 7 August 2026. Further, I do not accept the submission of Counsel for the applicant that there is a possibility of slow internet speed, such that Mr Daniel only downloaded a small volume of material.

42    It appears that the respondents only learned of the download of that confidential material on 10 August 2026. I consider likely that their discovery of that download was the key reason for the summary dismissal of Mr Daniel on 11 August 2026.

Summary Dismissal

43    Mr Daniel made an complaint to the AHRC on 11 August 2026. It is not in dispute that Mr Daniel received a further letter from the respondents (summary dismissal letter) terminating his employment with immediate effect approximately 30 minutes after the respondents were served with a copy of the AHRC complaint.

44    Mr Daniel’s employment had already been terminated on 7 August 2026. Prima facie, the timeline of events is inconsistent with Mr Daniel’s claim that his employment was terminated because he had or proposed to make a complaint to the AHRC within the meaning of s 47A(2)(a) of the Sex Discrimination Act. While there was clearly a temporal contiguity between Mr Daniel informing Mr Lee of Mr Daniel’s AHRC complaint and Mr Daniel being summarily dismissed on 11 August 2026, these events occurred after Mr Daniel had been served the initial dismissal letter on 7 August 2026.

45    The response by Mr Daniel to the apparent discrepancy in the timeline is that, on 7 August 2026, he provided to the respondents a letter of demand that anticipated the lodgment of a complaint to the AHRC, and that the initial dismissal letter dated 7 August 2026 issued by the respondents was issued after Mr Daniel’s letter of demand was delivered to them. However Mr Daniel’s letter of demand dated 7 August 2026 does not refer to any prospective complaint to the AHRC. Rather, it states:

The purpose of this correspondence is to formally notify you of significant Causes of action arising from NPI’s systemic breach of our client’s employment agreement, repeated contraventions of statutory workplace protections, and persistent failure to maintain a safe working environment free from psychosocial hazards.

…

… if a satisfactory commercial response is not received by 4:00pm on Wednesday, 12 August 2026, our client has instructed us to immediately commence formal legal proceedings without further notice …

(emphasis added)

46    I note that NPI, or National Pumping and Irrigation, is a trading name of the AII.

47    I consider it likely that the initial dismissal of Mr Daniel on 7 August 2026 followed a decision of the respondents on 6 August 2026, which decision was reinforced by the delivery of Mr Daniel’s letter of demand on 7 August 2026. On the material before me and for the purposes of the present interlocutory application, I do not accept that the decision to dismiss Mr Daniel on 7 August 2026 could be attributed to any actual or anticipated complaint to the AHRC by Mr Daniel.

48    Further, while the reason for the summary dismissal of Mr Daniel on 11 August 2026 is disputed, the contention of the respondents that Mr Daniel was ultimately summarily dismissed because of their discovery on 10 August 2026 of Mr Daniel’s unauthorised downloading of confidential material, is consistent with the evidence before the Court.

49    This morning in Court, Counsel for Mr Daniel made detailed submissions concerning evidence of the respondents, indicating casual dismissal by the respondents of concerns of Mr Daniel relating to female employees of AII. In particular, Counsel directed the attention of the Court to paragraphs 268-285 of Mr Lee’s affidavit sworn 17 August 2026. However, it is not apparent that Mr Daniel, within the meaning of s 47A(2)(f) of the Sex Discrimination Act, “asserted the rights” of any person or persons under the Sex Discrimination Act or the AHRC Act, or that he had made an allegation within the meaning of s 47A(2)(g) of the Sex Discrimination Act. At its highest, an inference open to the Court on the material presently before the Court is that Mr Daniel – over a number of months – may have raised issues with Mr Lee referable to the culture of AII, as distinct from engaging in conduct contemplated by ss 47A(2)(f) and (g). However, there is minimal evidence on the part of Mr Daniel concerning the assertion by him of rights, and certainly there does not appear to be any evidence of any person (including Mr Lee) specifically taking issue with him in relation to any raising of concerns by Mr Daniel, such as to engage s 47A(2)(f).

50    For the purposes of the present interlocutory application, I am not satisfied that there is sufficient merit in the case of the applicant to warrant the Court ordering the interim relief for reinstatement he has sought pursuant to s 46PP of the AHRC Act. While I consider that Mr Daniel’s case is arguable, I do not consider it strongly arguable in light of the evidence of the timeline relating to the circumstances of his dismissal, the strong evidence (to some degree supported by Mr Daniel’s undertaking) that he was summarily dismissed because the respondents learned on 10 August 2026 of his downloading of confidential AII material, and the weakness of his evidence supporting his claim of dismissal on the basis of his assertion of rights of female employees to the respondents.

Balance of convenience

51    In summary, Mr Daniel submitted as follows:

    The balance of convenience, including "all relevant factors", favours Mr Daniel being reinstated pending final relief. The interim relief sought maintains the status quo and protects the practical utility of any eventual re-employment order.

    If relief is refused, Mr Daniel faces irreparable harm to his career, reputation and professional standing.

    By contrast, any prejudice to AII is limited to the quantifiable and compensable cost of continuing his remuneration, in exchange for his services or availability. Any prejudice to AII can also be limited by Mr Daniel's commitment to prosecuting the matter expeditiously and consenting to an early trial.

    AII cannot rely on any alleged breakdown in trust and confidence because the asserted breakdown arises from the very conduct challenged in these proceedings. Additionally, any practical workplace difficulties can be addressed through tailored interim arrangements, including paid duties or gardening leave.

52    The respondents submitted, in summary:

    Mr Daniel's alleged losses, including lost remuneration, distress and damage to professional standing, are principally economic and compensable through final remedies, including compensation and reinstatement if unlawful discrimination is established. Mr Daniel has not identified any particular aspect of the alleged harm that cannot be remedied at final hearing. Mr Daniel has also not demonstrated that, absent relief, the AHRC process, the Court's ability to grant final relief, the preservation of evidence, or the prosecution of his victimisation claim would be frustrated.

    As Mr Lee determined that Mr Daniel was not adapting to the organisation's needs or meeting expectations, the employment relationship has broken down and the parties now have a highly adversarial relationship. In those circumstances, the Court should not compel the restoration of a close working relationship where the employer says trust has been lost, the employee alleges victimisation and hostile conduct, and serious allegations exist concerning access to confidential systems and documents.

    Reinstatement would create significant confidentiality risks to AII's records and information, as well as practical difficulties concerning systems access, supervision, reporting lines, performance of duties, and protection of confidential information. This is especially in the context of AII no longer trusting Mr Daniel with access to their systems and confidential information (due to the alleged unauthorised downloading). The prejudice to AII is not readily compensable because loss of confidentiality, compromised employee privacy and disruption to management processes cannot be satisfactorily quantified or reversed.

    Reinstatement would have significant financial implications because AII would effectively need to employ a second person to perform the role and would be unable to recover those costs if successful at trial.

    Reinstatement of Mr Daniel's employment would be inconsistent with the purpose of section 46PP of the AHRC Act, which is directed at maintaining the status quo immediately before the complaint was lodged, not creating rights that did not exist at the relevant time. Prior to the AHRC complaint, Mr Daniel had been notified that his employment would end on 14 August 2026, had received written confirmation of the termination, and had been placed on gardening leave and restricted to handover duties. The status quo was therefore not active employment but, at most, "employment under notice and on gardening leave pending cessation". Therefore, the orders by Mr Daniel would not preserve the existing position but would require AII to restore the employment relationship, continue remuneration and benefits, determine duties and reporting lines, provide workplace access, and manage an employment relationship said to have "irretrievably broken down". Additionally, a disputed right to continued employment after termination is not established merely by asserting that the termination was unlawful. Furthermore, the rights protected by s 46PP of the AHRC Act include the rights of respondents, including an employer's right to manage and terminate employees, which weighs against the grant of relief.

53    Having regard to these submissions, I find that the balance of convenience favours the respondents in respect of Mr Daniel’s application for interim reinstatement. I so find for the following reasons:

    The strength of Mr Daniel’s prima facie case is a factor to take into consideration in determining the balance of convenience: see for example Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67]. Prima facie, I have found that Mr Daniel’s case for victimisation within the meaning of s 47A of the Sex Discrimination Act is not strong.

    I consider it very likely that there has been a breakdown in the employment relationship of trust and confidence between the parties (see for example affidavit of Benjamin Lee affirmed 17 August 2026 paragraph 249). I understand that AII is not a large company. In circumstances where Mr Daniel was in the senior role of General Manager, People and Culture at AII, I consider that reinstating him to that role could significantly prejudice the operation of AII, as I consider it unlikely that he would be able to work satisfactorily with Mr Lee.

    Immediately prior to the AHRC complaint being made, Mr Daniel was on “gardening leave” albeit working from home and with access to AII computer systems. As the authorities demonstrate, “reinstatement” is meant to be real and practical, not illusory and theoretical: Kirby J in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at 549 [33]. Counsel for Mr Daniel submitted, in summary, that Mr Daniel was prepared to return to work in an active capacity as distinct from “gardening leave”. However I do not consider this prospect realistic. As submitted by AII, in circumstances where AII is unwilling to provide Mr Daniel with access to their systems and workplace, reinstatement is not a realistic option.

    I understand that the cost to AII of employing Mr Daniel was in excess of $300,000.00 per annum. It is reasonable to assume that AII has, or will in the immediate future, require a replacement of Mr Daniel at a similar salary in his previous role. I consider it likely that even if Mr Daniel were to be reinstated at his previous salary, some if not all of Mr Daniel’s duties would be allocated to another person because of the breakdown in trust, and the likelihood that he would be placed – again – on “gardening leave”. In circumstances where it is uncertain whether the complaint before the AHRC will be finalised in the near future, and where there is also the prospect of future proceedings in this Court, the prejudice to AII of reinstatement of Mr Daniel is likely to be ongoing, and high.

    I am not persuaded that any alleged reputational damage to Mr Daniel weighs in favour of an order for reinstatement. In particular:

•    I am not satisfied that the refusal of this interlocutory application, with its consequence that Mr Daniel will no longer be employed by AII, is objectively likely to cause any damage to Mr Daniel’s reputation, much less “serious” damage: see for example Rugg v Commonwealth of Australia as represented by the Department of Finance [2023] FCA 179 at [121]. There is no evidence before me to support the likelihood of such damage. In any event, the extent to which the maintenance of the status quo would result in less prejudice to Mr Daniel’s reputation is not clear, and in my view is not a powerful consideration in determining whether the interim relief he has sought should be granted: Burnett v Eastern Health [2015] FCA 1247 at [54].

•    While I accept that work can be a source of self-respect and satisfaction, there is no evidence before me, for example, that AII provided a tangible and critical source of social or professional support for Mr Daniel (see Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [78]). In any event, Mr Daniel in his letter of demand dated 7 August 2026 stated, inter alia, that AII “consistently rejected, mocked and subverted” Mr Daniel’s professional governance measures. Counsel for AII submitted that it was unlikely that Mr Daniel actually wanted to return to AII at all – I consider this submission to be reasonable on the material before the Court.

•    To the extent that there has been reputational damage to Mr Daniel, I consider it likely that any damage would have already arisen from the termination of Mr Daniel’s employment and the litigation in open Court, and is unlikely to be repaired by any interim order for reinstatement: Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 at [79].

•    Counsel for Mr Daniel further submitted that while, because of the seniority of his role, Mr Daniel could experience difficulty in obtaining an equivalent position quickly, he was prepared to give an undertaking that he would use all reasonable efforts to obtain alternative employment on commensurate remuneration. This is plainly appropriate, but also points to the fact that Mr Daniel in all likelihood does not genuinely wish to return to his former position at AII.

54    In summary, the balance of convenience favours the respondents for the Court to refuse the interim relief sought by Mr Daniel.

Damages

55    I note in the interests of completeness that, in the circumstances of this case and particularly in light of my findings concerning reputational damage, there is no material before me to substantiate a finding that damages would be an inadequate remedy for Mr Daniel should he be successful in any related complaint or proceedings.

CONCLUSION

56    I now turn to the appropriate form of orders in this case.

57    At the hearing this morning, Counsel for the respondents provided draft orders (Respondents’ Draft Orders) in the following terms:

THE COURT ORDERS THAT:

1.    The Application filed 18 August 2026 is dismissed.

2.    Order 1 of the Orders of Rofe J dated 13 August 2026 be discharged.

3.    The Applicant undertakes to provide to the Respondents by 4:00pm 20 August 2026 all of the Respondents’ property in his possession, including all copies of files downloaded from the First Respondent’s systems.

4.    The Applicant undertakes not [sic] to refrain from using, copying or disclosing any confidential information of the Respondents.

5.    The Applicant pay the Respondents’ costs of and incidental to the application.

58    I raised the issue whether it was appropriate for the Court, pursuant to s 46PP of the AHRC Act, to make orders in the terms of orders 3 and 4 of the Respondents’ Draft Orders. In particular, I was concerned that the respondents sought the Court to order Mr Daniel to provide undertakings. The following exchange then occurred:

HER HONOUR: Looking at the form of orders, if you are successful.

MS VARSHNEY: Yes.

HER HONOUR: You are seeking orders that the applicant undertake various things.

MS VARSHNEY: Yes.

HER HONOUR: Why should the court do that? Why would the court require Mr Daniel to undertake anything, would not the court just order that he provide to the respondents by 4 pm all the property and refrain from using, would not we just do that?

MS VARSHNEY: Yes, your Honour, I think that that is correct. Yes, your Honour, I believe that that is the correct approach - - -

HER HONOUR: All right.

MS VARSHNEY: - - - and I am happy to remove that order out of our draft.

HER HONOUR: Thank you, Mr O’Brien, you want to say anything about that?

MR O’BRIEN: Well, the relief that’s sought in the respondent’s order is relief that’s not available under the Act.

HER HONOUR: Why is that.

MR O’BRIEN: Well, an order that an applicant - - -

HER HONOUR: Undertakes.

MR O’BRIEN: Well, I believe that the form of order that your Honour is seeking is that he just does, rather than he undertakes to.

HER HONOUR: Yes.

MR O’BRIEN: Well, it’s an order that would not be available to the respondent at final hearing of this matter, and order that the applicant return confidential information, destroy confidential information, I don’t see where that’s founded in the Act.

MS VARSHNEY: Well, your Honour, I might just short-circuit that. At section 46PP(1)(b) the court is able to make an order, or grant an interim injunction to maintain the rights of any complainant respondent, or any affected person. So we say that that would be an order which would maintain the rights of the respondent, the right to be able to ensure that its information is kept confidential.

MR O’BRIEN: Your Honour, the provision that my learned friend takes you to should be read down such that rights means rights arising under the Act. If it’s rights at large, and I note that rights is not defined, if it’s rights at large, where does it stop. That cannot be the intent of the legislature, that there be rights at large that can be protected at this point in the proceeding. If that’s right, then we might have some things to add to our draft order.

HER HONOUR: Would it be the intention of the legislature that if Mr Daniel has confidential information by the respondent’s that he would be able to use it as he wishes?

MR O’BRIEN: There are other means by which the respondent can achieve that end, but in any event it’s otiose because of the undertaking that’s been given.

HER HONOUR: I’m not sure if your point is right, Mr O’Brien, but nonetheless, you will have your opportunity to respond, reply shortly, I will continue to hear Ms Varshney.

…

HER HONOUR: Just a moment, please. I gather you are about to finish off. I have one more question for you and that is this. You heard my exchange before with Mr O’Brien about the power of the court to make the orders you are proposing in draft three and four. And Mr O’Brien submitted that that is not within - I do not mean to misquote him, but I understood he was saying the court has no power to do that. Is that what you said, Mr O’Brien?

MR O’BRIEN: ….., yes.

HER HONOUR: All right. Your response to that was you point to section 46PP what, 1(b) - - -

MS VARSHNEY: 1(b).

HER HONOUR: - - - which is the court can make orders referable to - - -

MS VARSHNEY: Maintaining the rights of the respondent or the complainant - - -

HER HONOUR: The respondent. So - - -

MS VARSHNEY: - - - or other parties.

HER HONOUR: Anything further you wish to say about that?

MS VARSHNEY: Your Honour, we say that the right existed at the time of the

termination, at the time of the lodgement of the complaint. The respondents had a

right to be able to have possession of their information. We say that that is how it

falls within the - - -

HER HONOUR: This falls back into the status quo. No, it is not - - -

MS VARSHNEY: To the maintenance of the rights because the - - -

HER HONOUR: All right, sure.

MS VARSHNEY: - - - employer had a right to those documents. And if, for example, there had been a summary termination at any point during that period, it would have had a right separate from the one that occurred, it would have always had that right to retain its property or to obtain its property, sorry, from the applicant.

(transcript QUD520/2026 19 August 2026 p 37 lines 13-48, p 38 lines 1-29, p 49 lines 39-46, p 50 lines 1-30)

59    I note the submission of Counsel for Mr Daniel that the Court lacks power under s 46PP, in maintaining the status quo, to make orders requiring Mr Daniel to (inter alia) return the respondents’ property and refrain from using it. However for reasons to which I will shortly turn, I do not accept that submission. In my view the Court has power to make orders in the terms sought by the respondents, albeit I consider it inappropriate for the Court to require Mr Daniel to make an undertaking.

60    First, the relief sought in orders 3 and 4 of the Respondents’ Draft Orders is distinct from the undertaking made by Mr Daniel on 12 August 2026. That undertaking limits the obligation on Mr Daniel to return AII’s and/or Mr Lee’s property to electronic and hard copy documents. By contrast, order 3 of the Respondents’ Draft Orders sought for all property of AII and Mr Lee in Mr Daniel’s possession to be returned. Additionally, the undertaking made by Mr Daniel on 12 August 2026 limits the prohibition on Mr Daniel “using, copying or disclosing confidential information” to “confidential information as defined at clause 11 of the Employment Contract”. By contrast, order 4 of the Respondents’ Draft Orders sought to refrain Mr Daniel from “using, copying or disclosing” any “confidential information” of AII and/or Mr Lee.

61    Such orders are appropriate in circumstances where there is no suggestion presently before me that Mr Daniel is entitled to retain, or use, property of the respondents.

62    Second, as I have already stated, I do not accept the proposition, advanced by Counsel for the applicant, that the Court does not have the power to make the orders sought in orders 3 and 4 of the Respondents’ Draft Orders.

63    Section 46PP of the AHRC Act is extracted earlier in the decision. I acknowledge that there are competing authorities on the interpretation of s 46PP(1)(b) of the AHRC Act.

64    In Wilson v Britten-Jones [2019] FCA 747 at [42] Nicholas J said:

Section 46PP(1) is the source of the Court's jurisdiction to grant an interim injunction in respect of a complaint lodged under s 46PP(2) of the AHRC Act before it has been terminated. However, it does not confer jurisdiction on the Court to grant an interim injunction in support of the applicant's case on grounds unrelated to the complaint lodged by the applicant with the Commission. The Court may only grant an injunction under s 46PP(1) in order to maintain the status quo, as it existed immediately before the complaint was lodged (subpara (a)), or to maintain the rights of any complainant, respondent or affected person (subpara (b)). It is clear that 'the rights' referred to in subpara (b) of s 46PP(1) are rights under the AHRC Act which may ultimately be recognised or enforced by orders made by the Court pursuant to s 46PO(4).

(emphasis added)

65    However in Millar, Colvin J addressed the interpretation of s 46PP(1)(b) of the AHRC Act and stated as follows:

23.    Given the existence of the object in subpara(a), the power to grant an interim injunction ‘to maintain the rights of any complainant, respondent or affected person’ may be seen to be directed to an instance where some form of relief is sought that would go beyond preserving or reinstating the status quo as it existed immediately before the complaint was lodged. It contemplates the making of an order that would disturb that status quo by creating through the grant of an interim injunction a state of affairs that was different to the status quo as it existed immediately before the complaint was lodged. In such a case, the statutory power extends to what may be done to maintain ‘the rights’ of any of those involved. Significantly, the reference is not to ‘human rights’ (a term used throughout the legislation). Nor is there a reference to giving effect to or recognising the validity of the nature of the claim that there has been unlawful discrimination. The use of terminology that includes the rights of the respondent suggests that it is not be the ‘right’ of the applicant to bring a statutory claim of unlawful discrimination (and seek statutory relief on that basis) that may be ‘maintained’ by an interim injunction. As has been noted, the statutory right to bring a legal claim of unlawful discrimination arises only once the complaint to the Commission has been terminated. Then, the Court may grant an interim injunction pending the determination of those proceedings; s 46PO(6). Finally, the use of the expression ‘maintain the rights’ suggests that the object is concerned with rights that exist rather than a statutory entitlement to seek future relief on the basis that there has been unlawful discrimination.

24.    For the above reasons, it seems to me that the second object in s 46PP(1) is concerned with maintaining those rights of the claimant that are said to have been interfered with by alleged unlawful discrimination or those rights of the respondent which are said to be able to be lawfully asserted or exercised despite the legislative provisions concerning unlawful discrimination (rather than the prospective statutory relief that may be granted under s 46PO(4)). Rights of that character may be said to be held by the complainant, the respondent or an affected person (being a person on whose behalf a complaint has been lodged). They exist (or would exist but for the conduct said to amount to unlawful discrimination) and do not depend upon the future grant of relief. It is for that reason that the word ‘maintain’ is used. Further, it would be consistent with the concern to protect the status quo and the evident purpose of supporting the process to be conducted by the Commission for any ongoing interference with such rights to be stopped for the duration of that process.

25.    Having expressed those views, I note that in Wilson v Britten-Jones [2019] FCA 747 at [42], Nicholas J expressed the view that it was clear that the rights referred to in s 46PP(1)(b) are rights which ultimately may be recognised or enforced by orders made by the Court under s 46PO(4). However, for reasons I have given, and with great respect for the contrary view, the power to grant an interim injunction conferred by the terms of s 46PP(1)(b) requires the identification of a right recognised by Australian law that has its source outside the relief that might be granted if the statutory right to bring a claim for unlawful discrimination was pursued and upheld. It is directed towards a case where a party claims that the enjoyment of such a right should be maintained during the course of the process to be conducted by the Commission. It is dealing with preserving, during the Commission process, alleged rights otherwise recognised by Australian law even though the grant of an interim injunction to maintain those rights may alter the status quo. It is concerned with whether it is appropriate for those rights to be exercised in a manner that will alter the status quo pending a process which may ultimately result in an application for statutory relief in the exercise of judicial power.

26.    The distinction is perhaps a fine one. It will still be relevant to consider the prospect of future relief. However, it is not the ‘rights’ that may arise from the grant of statutory relief that are to be ‘maintained’. Rather, it is other rights recognised by Australian law. The question is whether it is appropriate for them to be maintained pending the Commission’s process.

(emphasis added)

66    In line with the findings of Colvin J in Millar, I consider it clear that the “rights” referred to in s 46PP(1)(b) of the AHRC Act encompass any right recognised by Australian law, and are not limited to rights specified by the AHRC Act. It is also clear that the “rights” that may be maintained by an order under s 46PP(1)(b) of the AHRC Act include the rights of a respondent: Millar at [24]. AII and Mr Lee’s asserted rights to the possession of their property, and to restrain the unauthorised use or disclosure of confidential information, are rights recognised and protected by Australian law. Accordingly, in my view, they are capable of constituting “rights” for the purposes of s 46PP(1)(b).

67    In circumstances where Mr Daniel has admitted to previously downloading information from AII’s systems (whether held to be “confidential information” or not), I consider the relief sought in orders 3 and 4 of the Respondents’ Draft Orders to be reasonable.

68    The orders sought appear directed to the preservation of existing proprietary and confidentiality rights said to be held by AII and Mr Lee. They do not seek to determine, on a final basis, any disputed issue arising in the proceeding, nor do they confer upon AII or Mr Lee a substantive entitlement that would not otherwise exist. Rather, they seek to ensure that information and property said to belong to AII and Mr Lee are returned to them and are not used, copied or disclosed pending the final determination of the proceeding.

69    In that respect, orders 3 and 4 of the Respondents’ Draft Orders are consistent with the conception of s 46PP(1)(b) of the AHRC Act explained by Colvin J in Millar.

70    To the extent that Counsel for the Applicant submitted that such relief could not be granted because it would not be available at the final hearing of an application brought under Part IIB of the AHRC Act, I do not accept that submission. The task required by s 46PP(1)(b) of the AHRC Act is not to identify whether equivalent relief may ultimately be granted under s 46PO of the AHRC Act. Rather, the question is whether an interim injunction is necessary or appropriate to maintain an existing right recognised by Australian law pending the determination of the proceeding. For the reasons identified in Millar, those rights need not derive from the AHRC Act itself.

71    In my view the appropriate orders are:

(1)    The Application filed 17 August 2026 by Mr Luke Daniel is dismissed.

(2)    Order 1 of the Orders of Rofe J dated 13 August 2026 be discharged forthwith.

(3)    The Applicant provide to the Respondents, by 4.00pm 20 August 2026, all of the Respondents’ property in his possession, including all copies of files downloaded from the First Respondent’s systems.

(4)    The Applicant refrain from using, copying or disclosing any confidential information of the Respondents.

(5)    The Applicant pay the Respondents’ costs of and incidental to the Application, to be taxed if not otherwise agreed.

Associate:

Dated:    19 August 2026