Federal Court of Australia

Byrne v BT Personnel Pty Ltd [2026] FCA 1268

ORDERS

THE COURT ORDERS THAT:

1. The Notice to Produce dated 30 July 2026 be set aside.

2. Leave be granted to the cross-claimants to file and serve the Further Amended Statement of Cross Claim in the form provided to the Court on 27 August 2026.

3. The cross-claimants file and serve the Further Amended Statement of Cross Claim by 28 August 2026.

4. The cross-respondents are to file and serve a Defence to the Further Amended Statement of Cross Claim, and the applicants are to file any Reply to the Amended Defence, by 4.00pm on 11 September 2026.

5. By 4.00pm on 23 October 2026:

(a) the applicants file and serve affidavit evidence in chief on the Claim; and

(b) the cross-claimants file and serve affidavit evidence in chief on the Cross Claim.

6. By 4.00pm on 20 November 2026:

(a) the cross-respondents file and serve affidavit evidence in answer on the Cross Claim; and

(b) the respondents file and serve affidavit evidence in answer on the Claim.

7. By 4.00pm on 7 December 2026:

(a) the applicants file and serve affidavit evidence in reply on the Claim; and

(b) the cross-claimants file and serve any affidavit evidence in reply on the Cross Claim.

8. The matter be listed for a case management hearing on 16 December 2026 at 9.30am.

9. The parties have liberty to restore.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

Leave to File Amended Cross claim

1 This started life as an interlocutory application seeking further and better particulars, which was filed on 21 August 2026.  By the time the application was called on for hearing, events had moved on and the cross-claimants had provided to the cross-respondents a draft proposed Further Amended Statement of Cross Claim (‘FASCC’).  The parties approached the debate about particulars as being sufficiently embodied in the proposed amendments to that pleading to take the place of the debate about the particulars.  In effect, the debates are the same.

2 The cross-respondents, who were represented by Ms Wong of counsel, submitted that the draft pleading was deficient because of a failure to comply with rr 16.42 and 16.43 of the Federal Court Rules 2011 (Cth), which are as follows.

16.42 Fraud, misrepresentation etc

A party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies.

16.43 Conditions of mind

1) A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.

2) If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.

3) In this rule:

condition of mind, for a party, means:

a) knowledge; and

b) any disorder or disability of the party’s mind; and

c) any fraudulent intention of the party

3 The relevant parts of the pleading are from §269A to §269L, which are as follows:

269A.    On and from January 2021, Samantha’s remuneration under the Samantha Employment Agreement was $90,000 (gross, base) per annum, as pleaded at [37] above.

269B.    During the following financial years, Samantha received salary payments in excess of an annual salary of $90,000 (gross, base), namely:

a. In FY2022, by 30 June 2022, Samantha had received $183,274.16 YTD;

b. In FY 2023 by 27 June 2023, Samanta had received $199,851.01 YTD; and

c. In FY2024 by 28 June 2024, Samantha had received $295,991.05 YTD.

Particulars

i. BT Personnel payslip for Samantha dated 30 June 2022.

ii. BT Personnel payslip for Samanha dated 27 June 2023.

iii. BT Personnel payslip for Samantha dated 28 June 2024.

269C.    Around 18 June 2024, Samantha’s remuneration under the Samantha Employment Agreement was $70,402.80 (net) plus other entitlements, as pleaded at [74] above.

269D.    During FY2025, Samantha received salary payments in exess of an annual salary of $70,402.80 (net) plus other entitlements, namely, by 3 June 2025, Samantha had received $301,061.12 YTD.

Particulars

i. BT Personnel payslip for Samantha dated 3 June 2025.

269E.     At the time of receiving the payments at [269B] and [269D]:

a. Samantha was the wife of David;

b. Samantha was the purported Human Resources Manager of the BT Wagga Group;

c. Samantha had not received any promotion;

d. Samatha had not provided any consideration for any or all of the payments;

e. Samantha knew, or ought to have known from her payslips, that:

i. the amount paid YTD as pleaded in [269B(a)-(b)] above was more than double the annual remuneration as pleaded in [269A] above; and

ii. the amount paid YTD as pleaded in [269B(c)] above, and the amount paid YTD in [269D] was more than triple her annual remuneration as pleaded at [269A] and/or [269C] above.

269F.    At all material times, Samantha did not take steps to query, report, refuse or repay the salary payments as pleaded in [269B] and [269D].

269G.     By reason of the matters in [269A] to [269F] above, Samantha breached the Samantha Duty of Good Faith and Fidelity.

269H.     During the Samantha Employment Period, Samantha received amounts characterised as wages into an account held in her name as pleaded above, namely:

a. $5,000 on 10 March 2023 from an account held by BT Personnel;

b. $10,000 on 3 May 2023 from an account held by the BT Wagga Group;

c. $10,000 on 1 June 2023 from an account held by the BT Wagga Group;

d. $10,000 on 10 July 2023;

e. $10,000 on 7 August 2024 from an account held by BT Personnel; and

f. $6,000 on 2 September 2024 from an account held by BT Personnel.

Particulars

The Cross Applicants repeat the matters and particulars at [102], [107], [112], [122], [137] and [142] above.

269I.    Each of the payments at [269H] above was not a payment for wages.

269J.     At the time of receiving the payments at [269H]:

a. Samantha was the wife of David;

b. Samantha was the purported Human Resources Manager of the BT Wagga Group;

c. Samatha had not provided any consideration for any or all of the payments at [269H].

d. Samatha knew, or ought to have known, that each of the payments at [269H] above was not a payment for wages.

Particulars

Samantha’s knowledge can be inferred from:

i. the receipt of payment;

ii. the knowledge of her salary;

iii. the knowledge she was not entitled to lump sum payments, under the terms of her employment, nor entitled to lump sum payments characterised as wages for David; and

iv. the lack of any approval given to her by Lawrence for such payments.

269K.     At all material times, Samantha did not take steps to query, report, refuse or repay the payments characterised as wages as pleaded in [269H].

269L.     By reason of the matters in paragraph [269I] to [269K], Samantha breached the Samantha Duty of Good Faith and Fidelity.

4 During the course of argument, I was disposed to see the pleading at §269G and §269L, where a breach of the duties of good faith and fidelity are alleged, as being deficient.  This was because the way I read the pleading, there was no allegation that Samantha, the second cross-respondent, knew, or ought to have known, that the payments alleged at §269B and §269E, were ones to which she was not entitled.  This seemed to me to render any question about whether rr 16.42 and 16.43 were being complied with unnecessary.

5 However, Ms Yates of counsel who appeared for the cross-claimants, pointed out in her submissions that §269E(e)(i) and (ii) involved allegations that Samantha knew or ought to have known from her payslips that the overpayments alleged at §269D were ones to which she was not entitled.  I accept that submission.  That in turn means that Ms Wong’s submission about the operation of rr 16.42 and 16.43 does arise.  The compliance by the pleading with those rules turns upon an assessment of how sufficient the allegations contained at §269A to §269F are.

6 Despite Ms Wong’s submissions, in my view, the pleading in those paragraphs is sufficient to sustain the allegation that Samantha knew or ought to have known that the amounts were overpayments to which she was not entitled.  Concomitantly, I also conclude that r 16.42 is complied with for the same reasons.  The cross-respondents are sufficiently put on notice by the pleading of the case that they have to meet.

7 The same debate took place in relation to §269H to §269L, and my conclusions about that are the same, subject to two matters.  The first of these was an additional complaint made about §269H, that this was not sufficiently particularised insofar as the allegation that the amounts were characterised as wages in an account held in her name was concerned. However, the particulars to that paragraph include cross-references to other paragraphs at the pleading, which show or at least allege, which is sufficient, that the payments were characterised at wages: see particularly §102(a)(ii), §107, §112, §122, §137, and §142.

8 The second matter was, it was said, that there was a deficiency in the particulars to §269J, specifically particulars (iii) and (iv).  I do not accept that the particulars in §269J(iii) are deficient in light of the allegations which are made at §269B to §269F and §269H to §269I.  The particularisation of knowledge is sufficient.  In relation to particular (iv), I am not persuaded that the lack of approval by Laurence, the second cross-claimant, is a matter which needs to be particularised because it is an omission.  For those reasons, I grant the cross-claimants leave to file an FASCC in the form of the draft with which I was provided during the hearing.

Costs

9 The cross-respondents seek their costs relating to the debate concerning particulars which ultimately transformed into a debate about the filing of the FASCC.  The cross-claimants seek their costs of setting aside the notice to produce and resisting the categories proposed in the cross-respondents’ draft short minute of order.  Both parties agree that the matter is governed by s 570(2)(b) of the Fair Work Act 2009 (Cth) and that before the Court could make a cost order it must be satisfied that the party against whom the costs order is to be made has performed an unreasonable act or omission which has caused the other party to incur costs.  I am not satisfied that the behaviour of either party falls within that description and hence I decline to make either of the costs orders which are sought.

Associate:

Dated:    28 August 2026

SCHEDULE OF PARTIES