Federal Court of Australia

Zhao v GHD Pty Ltd [2026] FCA 1412

ORDERS

THE COURT ORDERS THAT:

1.    The applicant file a statement of claim by 5 pm on 23 October 2026.

2.    The proceeding stand dismissed in the event that the applicant does not comply with order 1.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The applicant (Ms Zhao) was employed by the first respondent (GHD) between 8 March 2021 and 18 May 2023. She was absent from work on medical grounds from 24 October to 22 December 2021 and again from 24 January 2022 until the termination of her employment. Her employment with GHD was terminated on the ground that she was unable to perform the requirements of her role at that time or in the foreseeable future.

2    Ms Zhao filed two proceedings against GHD in the Fair Work Commission (FWC): a general protections application not involving dismissal (on 18 May 2023) (the non-dismissal proceeding) and a general protections application involving dismissal (on 19 May 2023) (the dismissal proceeding). Attempts at conciliation were made by the FWC but were delayed on several occasions by Ms Zhao’s unwillingness or inability to participate in conferences or negotiations. Eventually, in August 2025, a Deputy President of the FWC advised that the non-dismissal proceeding would be closed and a certificate under s 368(3) of the Fair Work Act 2009 (Cth) (the FW Act) would issue in the dismissal proceeding.

3    With that certificate having been issued, on 2 September 2025 Ms Zhao commenced this proceeding by filing an originating application in the Fair Work Division of the Court through her then solicitors Gorval Lynch. The respondents are GHD, Ravi Sanikommu, Annabel Sammut and Sheryl Cornelius. The individual respondents were apparently employees of GHD at the time Ms Zhao was working there and her originating application seeks an order imposing liability on them for GHD’s alleged contraventions of ss 340 and 351 of the FW Act. The originating application also seeks orders for compensation and the imposition of civil penalties against GHD. The first, third and fourth respondents were served with the originating application at around this time.

4    The solicitors for the respondents wrote to Gorval Lynch on 25 September 2025 proposing that, because the proceeding involved an application for civil penalties, a statement of claim should be filed. However, in late September 2025 Ms Zhao began sending emails directly to the registry seeking, among other things, to adjourn a case management hearing listed on 3 October 2025 for at least four months. On 1 October 2025 Gorval Lynch filed a notice of ceasing to act.

5    The case management hearing went ahead before a registrar on 3 October 2025. Ms Zhao did not appear. Orders were made that Ms Zhao file a statement of claim by 16 February 2026 and the proceeding be listed for further case management on or after 20 February 2026. On 9 October 2025 new solicitors, Jewell Hancock Employment Lawyers (Jewell Hancock), filed a notice of acting for Ms Zhao.

6    On 13 February 2026, three days before the statement of claim was due to be filed, Jewell Hancock sent the respondents’ solicitors proposed consent orders which would stay the proceeding for the remainder of 2026. The respondents’ solicitors were also provided with medical evidence on a confidential basis which they were asked not to share with their clients. The respondents advised on 16 February 2026 that they did not consent to the proposed orders.

7    On 20 February 2026 the second respondent (who no longer works for GHD) was served with the originating application. The solicitors for the respondents commenced to act for him shortly thereafter.

8    No statement of claim has been filed or served on the respondents in this proceeding to date.

9    On 2 March 2026 the respondents filed an interlocutory application seeking the dismissal of the originating application pursuant to s 37P(5) and (6) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) or r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) (the Rules), or alternatively a self-executing order that the proceeding stand dismissed unless a statement of claim was filed within 14 days (the dismissal application).

10    On 3 March 2026 the retainer of Jewell Hancock was terminated by Ms Zhao. She has been unrepresented since then.

11    On 6 March 2026 Ms Zhao filed an interlocutory application, which she sought to have determined ex parte and on the papers, seeking that a case management hearing listed on that day be vacated and the proceeding be stayed for the remainder of 2026. Ms Zhao also filed an unsworn affidavit with 71 pages of annexures, which included certificates apparently signed by three medical practitioners and a clinical psychologist who were involved in treating her. No orders were made on 6 March 2026.

12    Subpoenas were served by GHD on two of Ms Zhao’s treating medical practitioners. Documents were produced in response to these subpoenas and were the subject of orders made by registrars restricting access.

13    The matter was listed for case management before me on 12 June 2026. On 11 June 2026 Ms Zhao filed an interlocutory application (the 11 June application) which sought (among other things):

(a)    an order under r 1.34 of the Rules dispensing with rules requiring formal verification and swearing of affidavits and for the interlocutory application to be “heard immediately on an unsworn, ex-parte basis on the papers”;

(b)    suppression and non-publication orders under ss 37AF and 37AG(1)(a) of the FCA Act;

(c)    an “Immediate Interim Stay” of the entire proceeding pursuant to s 23 of the FCA Act and r 36.08 of the Rules;

(d)    a “Medium-Term Stay and Clinical Review Window” for at least the remainder of 2026;

(e)    vacating and deferral of all listed hearings;

(f)    a “Bar on Substantive Steps”;

(g)    the setting aside of all subpoenas issued by the respondents;

(h)    dismissal of the dismissal application; and

(i)    referral for pro bono legal assistance.

14    No affidavit was filed in support of the 11 June application. I did not consider it appropriate for the orders that it sought to be made ex parte and without proper supporting evidence and therefore did not vacate the case management hearing listed on 12 June 2026. This position was conveyed to Ms Zhao by the registry.

15    Ms Zhao did not appear on 12 June 2026. On that occasion I made timetabling orders for the determination of the dismissal application which included a hearing of that application on 22 September 2026. These orders were designed to leave a three-month window within which Ms Zhao could instruct new legal representatives if she saw fit to do so and could agitate her application for a stay (for example by filing evidence and seeking to have it listed for hearing). I also varied the arrangements for access to the documents produced on subpoena in the hope that the respondents’ legal representatives would be able to assist the Court concerning what weight should be placed on the medical certificates filed by Ms Zhao.

16    Ms Zhao has contacted the registry by email on several other occasions. She attempted to file some other material in August 2026 but it was not accepted for filing. No application has been made to review the decision to reject that material and I have therefore proceeded on the basis that it is not before me. The 11 June application remains on the Court’s file but no steps have been taken to have it listed for hearing. Nor has an affidavit in support of that application (or a sworn version of the affidavit filed on 6 March 2026) been filed.

17    Ms Zhao has not filed evidence or submissions in response to the dismissal application. She sent another long email to the registry on 21 September 2026 seeking to have the hearing on 22 September vacated.

18    The hearing of the dismissal application proceeded on 22 September 2026. Counsel appeared for the respondents and relied on affidavits affirmed by his instructing solicitor on 27 February and 27 August 2026. Ms Zhao did not appear.

Dismissal for default

19    Section 37P(5) and (6) of the FCA Act authorise the Court to make orders, including dismissing a proceeding in whole or in part, where a party fails to comply with a direction given by the Court about the practice and procedure to be followed in the proceeding. Rule 5.23(1)(b) of the Rules permits a respondent to apply for an order that a proceeding be stayed or dismissed where an applicant is “in default” (which, pursuant to r 5.22, includes where a party fails to comply with an order of the Court or to attend a hearing in the proceeding).

20    Plainly, Ms Zhao is “in default” in this sense. She has not filed a statement of claim, despite having been ordered to do so by 16 February 2026 (at which time she was legally represented). She has also failed to file any evidence or submissions pursuant to the orders that I made on 12 June 2026 and has not appeared at any hearing in the proceeding. The question is what order, as a matter of discretion, should be made in these circumstances.

The approach of the Court

21    The power conferred by r 5.23(1)(b) was said by the Full Court in Professional Administration Service Centres Pty Limited v Commissioner of Taxation [2012] FCAFC 180 at [35] (Edmonds, McKerracher and Nicholas JJ) to be similar to the power formerly conferred by O 10 r 7 of the Federal Court Rules 1976 (Cth). The exercise of power under the earlier rule was discussed in Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 395-397 (Lenijamar), where Wilcox and Gummow JJ said:

It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

…

The observations which we have just made about the scope of O 10, r 7 are not intended to convey the impression that any failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding. On the contrary, the rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim … We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.

The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

22    In Meshram v Bing Lee Electrics Pty Ltd (No 2) [2026] FCA 737 at [63]-[64] (Meshram), considering the analogous power to dismiss an appeal for non-compliance under r 36.74(1) of the Rules, Stellios J said:

While the interests of the appellant are material to the exercise of the discretion, there are also other interests to consider. In terms applicable to dismissal for failure to prosecute, but equally applicable to dismissal for non-compliance, Stewart J said the following in Nandutu [v Chapman (No 2) [2021] FCA 45] (at [22]–[23]): 

I accept that dismissal of an appeal for want of prosecution is a drastic remedy that should be sparingly resorted to, that a court should not lightly deprive a litigant of their right of appeal, and that each case turns on its own facts and circumstances. It is also the case that the respondent to an appeal has a key interest in being able to enjoy the fruits of the judgment that is appealed from and to bring the appeal to a reasonably quick and efficient conclusion. These divergences in interests must be balanced. 

However, there are also other interests that must be brought into consideration. These include the overarching purpose of the civil practice and procedure of the Court which is to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible”: s 37M(1) of the [Federal Court] Act. Parties to a civil proceeding, including an appeal, must conduct the proceeding in a way that is consistent with the overarching purpose: s 37N(1) of the [Federal Court] Act. These provisions, and the jurisprudence of the Court, recognise the broader public interest and the interest of other litigants in other cases in having proceedings brought to a just and efficient conclusion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at  [5]  and [30] per French CJ, [93]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. 

Accordingly, in considering the dismissal applications, account must be taken of the interests of all parties and the institutional and systemic interests in maintaining a system for the administration of justice that is both just and efficient. 

The circumstances of Ms Zhao

23    It is likely that Ms Zhao is suffering from one or more conditions that affect her mental health, although the nature and severity of those conditions are not clear. Ms Zhao has not adduced any evidence in response to the dismissal application, and the evidence that she filed earlier in the proceeding did not include a medical report in admissible form. However, the respondents’ legal representatives, having had access to the material produced on subpoena, did not rely on any of that material in order to suggest that the medical certificates annexed to Ms Zhao’s unsworn affidavit of 6 March 2026 were not genuine or overstated Ms Zhao’s condition. Those certificates (which are not formally before me on this application but whose existence it is appropriate to note) suggest that when they were drafted Ms Zhao was significantly incapacitated by illness.

24    Counsel for the respondents accepted, appropriately, that there were reasons to be concerned about Ms Zhao’s mental health. Ms Zhao has repeatedly asserted (albeit not by way of admissible evidence) that she is bedridden and in a state of medical emergency where any requirement to engage with the proceeding involves danger to her, and I have proceeded on the basis that this reflects a genuine belief. (Following the case management hearing on 12 June 2026, at my request, staff at the Court’s Victorian Registry attempted to organise a welfare check on Ms Zhao. However, her address for service turned out to be the address of a business and she was not able to be located.)

25    On the other hand, Ms Zhao’s filed material, and her emails to the registry to the extent that I have seen them, indicate that she is able to express herself forcefully and usually coherently in writing and to invoke provisions of the Rules to support an outcome that she seeks. She is highly educated and it is far from obvious that she is so incapacitated as to be completely unable to engage with the proceeding. Ms Zhao was legally represented in the early stages of the proceeding, Gorval Lynch has been corresponding with GHD on Ms Zhao’s behalf from at least July 2022, and her solicitors do not appear to have expressed any concern about her capacity to give instructions. There was no suggestion, for example, that a litigation representative should be appointed.

26    Nor is there evidence to the effect that Ms Zhao cannot obtain legal representation. Although referral for pro bono assistance was one of the orders proposed in the 11 June application, she has not adduced evidence of impecuniosity or taken any step to bring the 11 June application on for hearing. The fact that she was represented earlier in the proceeding, before terminating the retainer of her most recent solicitors, is an indication that she is able to obtain representation without the Court’s assistance.

27    Whatever the true position as to Ms Zhao’s ability to conduct the proceeding might be, it is clear that, at least since early March 2026, her energy has been devoted to preventing the proceeding that she commenced from moving forward rather than prosecuting it.

28    Significantly, also, Ms Zhao has been ill since around October 2021 and there is no clear evidence about the trajectory of her condition. To put it another way, if it is the case that she is currently unable to engage with the proceeding so as to move it towards resolution, there is no basis to conclude that that position will change in the foreseeable future. As the discussion in Lenijamar indicates, dismissal of a proceeding may be an appropriate response to an “inability or unwillingness” to bring the proceeding to trial within an acceptable period.

The respondents and the administration of justice

29    Ms Zhao did not perform the duties of her role at GHD after January 2022. To the extent that her complaints concern events in the workplace and interactions with co-workers, therefore, those events and interactions necessarily took place more than four and a half years ago. Even if a statement of claim were filed now and further steps in the proceeding were taken efficiently, witnesses at the trial would be giving evidence about things that happened more than five years earlier. That situation is prejudicial to the respondents, who face applications for civil penalties, and particularly the individual respondents: potential witnesses may not be able to be located and their memory of events will inevitably have faded.

30    Further delay is also inimical to the interests of the administration of justice, as reflected in the “overarching purpose” (expressed in s 37M(1) of the FCA Act), of resolving disputes according to law and “as quickly, inexpensively and efficiently as possible”. Ms Zhao’s conduct of the proceeding so far has been inconsistent with the obligation, imposed on parties by s 37N(1), to conduct proceedings in a way that is consistent with that overarching purpose.

Resolution

31    In the case cited in Meshram (quoted at [22] above), Stewart J described the dismissal of an appeal for want of prosecution as a “drastic” remedy. If anything, that description applies more forcefully to the dismissal of a proceeding in the original jurisdiction for default. Such an order deprives the applicant of a hearing of their claim for relief.

32    In the present case, while Ms Zhao’s failure to comply with the order to file a statement of claim (and other orders) and her subsequent attempts to prevent anything further from happening are unacceptable, the reasons why these things have occurred are somewhat unclear. Additionally, and perhaps more importantly, neither party has put any evidence before the Court seeking to establish when (if ever) the proceeding will be able to move forward if it is not dismissed.

33    For these reasons, I am not persuaded that the “drastic” step of dismissing the proceeding should be taken now. However, a firm line does need to be drawn under the present period of resistance on the part of Ms Zhao.

34    I will therefore make a “guillotine” order along the lines suggested by the respondents as an alternative to dismissal. The proceeding will stand dismissed if Ms Zhao does not file a statement of claim by the specified date. Ms Zhao will be entitled to apply to have the orders varied or set aside. However, any such application will be very unlikely to succeed unless it is supported by admissible medical evidence which establishes both the extent of Ms Zhao’s current impairment and when she will be in a position to move the proceeding towards a hearing.

Associate:

Dated:    25 September 2026

SCHEDULE OF PARTIES