Federal Court of Australia

Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd (No 3) [2026] FCA 1478

ORDERS

THE COURT ORDERS THAT:

1.    The further amended statement of claim filed on 30 January 2026 be struck out.

2.    Leave to replead be refused.

3.    The further amended originating application filed on 30 January 2026 be struck out.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

INTRODUCTION

1    Ms Holly Grofski, the applicant, was employed as a haul truck operator at the Coppabella Mine between 18 January 2023 and 23 May 2024, being the day on which her employment was terminated. On 1 November 2024, Ms Grofski commenced this proceeding against Peabody Energy Australia PCI Mine Management Pty Ltd (PEAMM) (the first respondent); Peabody Energy Corporation (PEC) (the second respondent); Mr Jacques du Toit (the third respondent); Mr Trevor Trott (the fourth respondent); Mr Clinton McCarthy (the fifth respondent); Mr Douglas Gleeson (the sixth respondent); and Mr Marcus Triffett (the seventh respondent) under s 1317AC of the Corporations Act 2001 (Cth) seeking relief for contraventions of whistleblower protections under Part 9.4AAA and filed a statement of claim (version 1).

2    Separately, Ms Grofski had commenced proceedings under the Fair Work Act 2009 (Cth) (FWA) in the Federal Circuit and Family Court of Australia (Division 2) (FCFCA) (BRG 535/2024) and under the Coal Mining Safety and Health Act 1999 (Qld) (CMSHA) in the Supreme Court of Queensland (BS 835/2025).

3    The FCFCA proceedings were subsequently transferred to this Court and, on 11 March 2025, Ms Grofski filed an amended originating claim and an amended statement of claim (version 2) seeking relief under Part 9.4AAA of the Corporations Act for contraventions of the whistleblower protections and under Part 3-1 of the FWA alleging unlawful adverse action in response to the exercise of workplace rights concerning health and safety.

4    By an interlocutory application filed on 14 April 2025, Ms Grofski sought leave to join, inter alia, three further corporate entities of the Peabody “group”. Orders were made on 16 May 2025 joining Peabody Coppabella Pty Ltd (PC) (the eighth respondent), Peabody Energy Australia PCI (C&M) Management Pty Ltd (Peabody PCI Management) (the ninth respondent), and Peabody Energy Australia PCI Pty Ltd (Peabody PCI) (the tenth respondent) as respondents to this proceeding.

5    On 25 August 2025, Ms Grofski filed a further interlocutory application seeking, inter alia, leave to file and serve a further amended originating application and further amended statement of claim which would include causes of action under the CMSHA, and seeking leave to join three additional natural persons as respondents. Her affidavit in support of that application annexed a draft further amended statement of claim of 249 pages (version 3). Following a case management hearing on 15 September 2025, that application was listed for hearing on 27 November 2025.

6    At the case management hearing on 15 September 2025, Ms Grofski was also ordered to provide to Chambers and the respondents’ legal representatives the final version of the draft further amended statement of claim that she would seek leave to file. Ms Grofski did so. She served a draft further amended statement of claim of 251 pages (version 4) on 3 October 2025, naming all thirteen respondents.

7    When the application came on for hearing on 27 November 2025, yet a further draft amended statement of claim of 266 pages (version 5), which had been served on the respondents on 13 November 2025, was the subject of the application. This Court ordered that, upon Ms Grofski’s undertaking to discontinue the proceeding filed in the Supreme Court of Queensland, she be granted provisional leave to file, by 30 January 2026, a further amended originating application and further amended statement of claim limited to 60 pages. This order was made to allow Ms Grofski to incorporate her non-dismissal claims under the CMSHA as pleaded in the Supreme Court proceedings and to join Mr Scott Moran (eleventh respondent), Mr John Anger (twelfth respondent), and Mr James Grech (thirteenth respondent) as respondents in respect of the non-dismissal claims that Ms Grofski had made against each of them in the Supreme Court proceedings.

8    On 30 January 2026, Ms Grofski filed, on a provisional basis, a further amended statement of claim of 60 pages (version 6).

9    Following a case management hearing on 12 June 2026, this Court made orders granting Ms Grofski unconditional leave in respect of the further amended originating application and version 6 of the statement of claim, filed provisionally on 30 January 2026, save for certain paragraphs of the statement of claim (paragraphs 504 to 506 and 712 to 775). The respondents were required to file any application seeking to strike out version 6, and to file any submissions and/or evidence dealing with the question of whether unconditional leave ought to be granted in respect of paragraphs 504 to 506 and 712 to 775 (the Disputed Paragraphs), by 3 July 2026. Ms Grofski’s submissions were ordered not to exceed 15 pages (exclusive of any schedule) and the respondents’ submissions were limited to 15 pages and 7 pages in reply (exclusive of any schedule).

10    Despite the 121 documents filed in this matter to date, two interlocutory judgments of the Court (Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd [2025] FCA 1021 and Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd (No 2) [2026] FCA 124), an appellate judgment (Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd (Leave to Appeal) [2026] FCA 921), and six versions of a statement of claim, the respondents contend that a statement of claim in proper form is yet to be filed.

11    On 10 July 2026, the respondents filed applications seeking to have version 6 struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) and submitted that unconditional leave ought not be granted in respect of the Disputed Paragraphs.

12    As appears to be her wont, Ms Grofski filed an inordinate amount of material, despite the Order of 12 June 2026 attempting to limit the length of her submissions. Her submissions, including the schedule, comprised 567 pages, including further proposed amendments to version 6 to take account of some of the respondents’ criticisms of that document, such that a proposed version 7 was before the Court.

13    Version 6 of Ms Grofski’s statement of claim, albeit compliant with the Court’s Order of 27 November 2025 that it be limited to 60 pages, comprises 775 paragraphs in single-line spacing, which is largely a line-by-line narrative of events and conversations with numerous people that occurred between 17 February 2024 and the date on which her employment was terminated. Ms Grofski appears to have interpreted r 16.02(1)(a) as requiring “one fact per paragraph”. Proposed version 7 abandons 45 paragraphs and seeks leave to amend 86 paragraphs.

14    Although the pleading is organised under a series of headings, the pleading is dense, repetitious, uses defined abbreviations haphazardly, relies on extensive cross-referencing, pleads inordinate amounts of evidence, and fails to plead the material facts relevant to each cause of action with sufficient specificity to enable the respondents to defend the claims in any meaningful way.

15    For the reasons that follow, the further amended statement of claim filed on 30 January 2026 must be struck out. Leave to replead is refused.

Principles relevant to strike-out

16    The first to fourth and sixth to thirteenth respondents, all of whom are represented by MinterEllison (the ME Respondents), accept that Ms Grofski possesses causes of action which she may be at liberty to prosecute in the usual way but submit that she has been unable to articulate those causes of action “to a standard upon which the court is duty bound to insist”: Howard v Chevron Australia Pty Ltd [2025] FCA 650 at [48].

17    The ME Respondents and Mr McCarthy (who is separately represented) are ad idem as to the principles relevant to an application to strike out a pleading. Ms Grofski does not necessarily disagree with the principles but contends that, notwithstanding any deficiencies in the pleading, the respondents know the case that is being alleged against them and so, in the words of Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 at [19], “the fundamental function of pleading is still served.” She relies also on a passage in Barron v Australian Financial Complaints Authority (Strike Out) [2026] FCA 673 at [20], where Stewart J observed that: “A strike out order is ordinarily accompanied by an order granting the party leave to replead. Leave will be refused only in a very clear case (citation omitted).” His Honour went on to say in that paragraph:

Leave should be refused if it would be futile to grant it in the circumstances. Separately, if a party has had multiple opportunities to plead a case and has failed to articulate an arguable claim, the Court may not afford a further opportunity to replead. That is to say, at some point the Court must draw a line and say enough is enough. Moreover, “[a] failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success.”

(Citations omitted. Emphasis added.)

18    Rule 16.21 provides the bases on which a statement of claim may be struck out:

(1)     A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)     contains scandalous material; or

(b)     contains frivolous or vexatious material; or

(c)     is evasive or ambiguous; or

(d)     is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)     fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     is otherwise an abuse of the process of the Court.

19    It is trite that pleadings are not “an end in themselves”; they are “an emanation of the requirements of procedural fairness”: Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206 at [10]. They are also critical in framing the scope of any discovery that is ordered and in testing the admissibility of evidence: Gunawardena at [9].

20    In explaining the adversarial system of dispute resolution as it operates within the common law system in Azad v Avant Insurance Limited (No 2) [2025] FCA 853, Colvin J said:

2.    … It brings forth both sides of the case which can then be decided by an independent judge who has not been involved in the inquiries as to what happened or the decisions as to how to formulate the claim or identify possible defences. Each side presents to the judge its evidence as to the facts and its arguments as to the law. The judge then determines the issues that are genuinely in dispute and decides what, if any relief, should be granted.

3.     Consequently, there are rules of procedure which require the parties to give notice of the nature of their case before the hearing so each side can prepare. Indeed, the adversarial system depends upon those procedures. The task of the judge is to supervise those procedures to make sure there is fairness as between the parties and to confine the final hearing to what is necessary to decide the case, ultimately adjudicating between the competing cases.

4.    The process begins with the applicant party explaining the nature of the case that it seeks to advance, both as to the factual and legal basis for the claim. The applicant must also specify the terms of the orders that the Court is asked to make if the case is successful. It is the responsibility of the applicant to be able to describe a valid form of legal claim and of the defendant to identify the parts of the claim that are admitted and the parts that are denied and to otherwise describe the basis for a valid form of legal defence.

5.    Different procedures are adopted by individual courts as to what the applicant must do to commence (or plead) a case. The documents which must be provided have different names, but they have three things in common. First, the applicant must provide a clear and concise statement setting out the essential aspects of what is alleged to have happened that is relevant to the claim. Second, the applicant must specify why those events, if proven to have occurred, mean that there is a recognised basis for a legal claim (often referred to as a cause of action). Third, the applicant must specify the relief that is sought. Importantly, the relief must be of a kind that the law recognises as being available to a person who demonstrates the existence of the alleged cause of action. If the applicant says that the same underlying controversy gives rise to claims against more than one respondent, then each of the three requirements must be met for each respondent.

6.    The responding party is entitled to insist upon the applicant meeting these obligations before the case proceeds. Unless and until they are met, there is great unfairness to the respondent in being able to prepare its own case in response. This is sometimes explained in terms that the respondent is entitled to know the case that it has to meet. What the respondent is entitled to know is the essence of the factual and legal basis for the case advanced by the applicant, not every aspect of the evidence and arguments that will be advanced at the final hearing. The same obligation falls upon a respondent when it comes to the nature of its defence.

7.    The true burden of these procedures is to set out a clear and concise statement of the party's case. Detail is no substitute for clarity.

(Emphasis added.)

21    The pleading rules contained in Part 16 of the Rules are directed at these factors.

22    Rule 16.02 provides:

(1)     A pleading must:

(a)    be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b)    be as brief as the nature of the case permits; and

(c)     identify the issues that the party wants the Court to resolve; and

(d)     state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e)     state the provisions of any statute relied on; and

(f)     state the specific relief sought or claimed.

(2)    A pleading must not:

(a)     contain any scandalous material; or

(b)     contain any frivolous or vexatious material; or

(c)     be evasive or ambiguous; or

(d)     be likely to cause prejudice, embarrassment or delay in the proceedings; or

(e)     fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     otherwise be an abuse of the process of the Court.

version 6

23    As I have already indicated, the pleading is organised under headings; Parts A to N. It is not until Part N that the claims against the respondents are purportedly pleaded. It is necessary to address each Part in turn in order to understand the architecture of the pleading and the difficulties caused thereby.

Part A – Parties [1]-[15]

24    The primary function of these paragraphs is to plead the status of Ms Grofski and the respondents under the CMSHA. To the extent that Ms Grofski seeks to plead the identity of her employer in these paragraphs, she alleges that she was subject to the Peabody Australia Coppabella Enterprise Agreement 2022, which named the first respondent (PEAMM) as the employer, and that the first respondent processed her pay. Several paragraphs plead a relationship between a named respondent and the Coppabella-Moorvale Joint Venture (CMJV) without any plea as to the legal basis for that relationship. Confusingly, both the second and the eighth respondents are said to hold a majority of the interest in the CMJV, being 73% and 73.3% respectively.

25    Ms Grofski pleads that each of the third to seventh respondents, all of whom are natural persons, hold various positions within the CMJV, which is pleaded below to be an unincorporated joint venture with no legal personality.

26    As has been identified, the introductory paragraphs of the pleading introduce a level of confusion from the very beginning.

Part B – Jurisdiction [16]-[20]

27    In these paragraphs, Ms Grofski pleads the jurisdiction of this Court under s 562 of the FWA, s 1337B(1) of the Corporations Act, ss 22 and 32 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and the accrued jurisdiction to determine the claims under the CMSHA. She also pleads the costs protections in s 570 of the FWA and s 1317AH of the Corporations Act.

Part C – CMJV Mine Operator (CMO) [21]-[28]

28    In these paragraphs, Ms Grofski pleads that the Coppabella Mine is part of the CMJV. The CMJV is pleaded to be an unincorporated joint venture but the pleading is silent as to which entities are party to the joint venture, other than the earlier reference to the first and eighth respondents holding essentially the same share. Ms Grofski pleads that the CMO was a “person” within the meaning of the CMSHA and that the “person” was the eighth respondent, or alternatively (whilst denying) the tenth respondent, or in the further alternative and “successively” (whilst denying), the ninth respondent.

29    It is pleaded that the Coppabella Mine operates under a Safety Health and Management System (SHMS) pursuant to the CMSHA. Ms Grofski pleads certain obligations said to arise under various sections of that Act, and that three specified policies and procedures of the SHMS were workplace instruments within the meaning of s 12 of the FWA. The paragraphs are apparently designed to set up later allegations that Ms Grofski exercised workplace rights under the SHMS and that the respondents are joint tortfeasors. The pleading is, however, too vague to support either of the later allegations. The allegation in [25(d)], that the knowledge, conduct, and state of mind of each person appointed to a position within the management structure is attributed to the CMO, is a bare conclusion, unsupported by the earlier allegations.

Part D – Employer of Applicant [29]

30    Contrary to the earlier plea that, pursuant to the Peabody Australia Coppabella Enterprise Agreement 2022, to which Ms Grofski pleads she was subject, Ms Grofski’s employer was the first respondent (PEAMM), at [29], a different corporate entity, the second respondent (PEC), is pleaded to be her employer. It is pleaded that this is because the eighth respondent (PC) was the majority partner in the CMJV and participated in the CMJV as agent of PEC. It is further pleaded that PEAMM held no authority within the CMJV, notwithstanding that it was the entity that paid Ms Grofski’s salary. The third to eighth respondents are identified as exercising substantive employment functions in relation to Ms Grofski through the CMJV. The evidence in support of those allegations is pleaded.

31    In the alternative (although denied), Ms Grofski pleads her employer was PC, or Peabody PCI, or Peabody PCI Management, or PEAMM.

Part E – Recognised Standard 20 [30]-[37]

32    In this Part, Ms Grofski repeats her plea as to the obligations of a CMO (and additionally of the Site Senior Executive (SSE)) under ss 41, 42 and 62 of the CMSHA to develop, implement and maintain a SHMS already identified in Part C above. Notably, ss 31(2) and 37(3) are also pleaded, but no breach of them is subsequently alleged.

33    Ms Grofski pleads that “Recognised Standard 20” (RS20) prescribes the requirements for control of respirable dust in operator enclosures in Queensland coal mines and the dates by which different machine types must comply with RS20.

34    Ms Grofski pleads the obligations imposed by ss 39 and 39A of the CMSHA on all persons who may affect the safety and health of others at a coal mine. Finally, Ms Grofski pleads the documentation requirements of the SSE and CMO contained in ss 55 and 68 of the CMSHA.

Part F – Operator Role [38]-[41]

35    Further confusion as to the identity of Ms Grofski’s employer is introduced in these paragraphs. She pleads that on a particular date she attended a coal mine worker health assessment at which her employer was listed as “Peabody Energy Australia Coal Pty Ltd”, a corporation not hitherto mentioned. She pleads that one month after that assessment, she received and signed an employment contract which was on the letterhead of the first respondent (PEAMM) and signed by Mr Albert Scheepers “Executive General Manager of the CMJV”. This is alleged evidence of the identity of her employer, as to which the pleading is inconsistent.

36    Ms Grofski pleads the terms of the contract of employment, including her duty of care to her own, and others’, health and safety at work, and that the contract was a workplace instrument within the meaning of s 12 of the FWA.

Part G – Hazards [42]-[47]

37    Part G purports to provide the definition of “Hazard” or “Hazards”, as the term is then used throughout the rest of the pleading. The accumulation of hazards purportedly raised between 1 March 2024 and 9 May 2024, however, makes the definition unworkable.

38    Ms Grofski pleads that she raised various safety hazards on six dates in March 2024, on two dates in April 2024 and on two dates in May 2024. This Part does not plead with whom or how the hazards were raised, save for identifying that certain hazards were raised with the regulator, Resources Safety and Health Queensland. The hazards are pleaded cumulatively: [43] refers to three allegedly raised on 1, 4 and 5 March; [44] refers to those in [43] and adds one, allegedly raised on 15 and 18 March; [45] refers to those in [44] (presumably four) and adds another, allegedly all raised on 28 March and 16 April; [46] refers to those in [45] (presumably five) and adds three, allegedly all raised on 23 April, 3 and 9 May. Paragraph 47 identifies a further three hazards, allegedly also raised on 9 May with the regulator.

Part H – Background and Material Events [48]-[476]

39    This Part is a chronological narration of events that Ms Grofski pleads as “necessary context”. In the course of the narrative, she purports to plead the persons with whom she raised the hazards, and how, by referring back to Part G. The difficulty is that, on several occasions and despite the details provided, the pleading does no more than raise an inference that Ms Grofski did indeed raise the hazard with the relevant person in accordance with the SHMS that is pleaded in Part C. For example, Ms Grofski pleads:

63.     On 1 March 2024, Ms Grofski met with Mr Panton to raise the Hazards as pleaded at 43.

64.     Ms Grofski had documented the issues on Hazard Forms provided by the company.

65.     Mr Panton lodged one Hazard Form into the hazard management system.

66.    Mr Panton instructed Ms Grofski to take the remaining Hazard Forms to the Safety Committee Meeting scheduled for 14 March 2024.

40    One of the difficulties illustrated by this example is the need to revert to the earlier paragraph ([43]), and to deduce whether the three hazards referred to in that paragraph are pleaded as non-compliance with RS20 or any other relevant instrument. Further, it is unclear: which “company” is alleged to have provided the Hazard Forms; which of the various pleaded entities is alleged to have employed Mr Panton, who is identified only as a “Crew Supervisor”; what was Mr Panton’s relevant alleged authority as “Crew Supervisor” to receive Ms Grofski’s “Hazards”; and whether each of the three hazards were in fact raised with Mr Panton which, as pleaded in [63], was apparently Ms Grofski’s purpose in meeting with Mr Panton. One is left to infer that Ms Grofski in fact did so.

41    Similarly, at [72], it is pleaded that on 5 March 2024, Ms Grofski had a conversation with Mr Gleeson. The content of the alleged conversation is pleaded at [73(a)] to [73(g)]. Paragraph 73(b) pleads:

Mr Gleeson said words to the effect that that [sic] Ms Johnson was attending the meeting and could raise the Hazards on Ms Grofski’s behalf;

42    The word “Hazards” is defined in Part G at [42] to mean “the health and safety matters raised by Ms Grofski”. As Part G is drafted, the word includes several matters allegedly raised between 1 March 2024 and 9 May 2024. One is again left to infer to which “Hazards” Ms Grofski is intending to plead.

43    At [73(h)], it is then pleaded that Ms Grofski had an understanding that Mr Gleeson knew that she had “Hazards” pleaded at [43] to raise at the meeting, not that Mr Gleeson did in fact know. This infelicity is then compounded by [481], which pleads, inter alia, that Mr Gleeson knew the matters discussed in the 5 March conversation “as pleaded at 72-73”.

44    Most of Part G is, however, the content of numerous conversations and accompanying actions involving the dramatis personae of the proceeding, which are characterised by the following sub-headings: 1 March - Safety Committee Meeting Events; 15 March - SSHR Request for Assistance Events; 16-18 March Incident Form Events; 18 March Escalation to CEO and Safety Director; 19 March - First Stand Down; 28 March - Conference call with John Anger and Scott Moran; 10 April - Return to work events; 14 April - Truck inspection with Acting Superintendent; 16 April - morning events; 16 April – afternoon – 2nd PIN; 16 April – afternoon - 1st PIN; Truck inspection with Clinton McCarthy; 23 April - Escalation to HSSE Committee; 24 April - CEO Investigation Findings; 2 May - HSSE Committee Disclosure Investigation; 9 May - Escalation to RSHQ; 10 May - Second stand down and show cause; 23 May - Dismissal; 27 May - RSHQ Findings; 1 July - HSSE Committee Investigation Findings.

45    Some examples of the paragraphs pleaded in these various categories will suffice:

52.    Multiple workers expressed disagreement.

…

79.     Ms Johnson was upset. Mr Panton told Ms Johnson she could still attend the meeting.

…

95.     At 5.30am Mr Gary Walsh, Acting Crew Supervisor, commenced the daily safety briefing. At the conclusion of the briefing, Mr Walsh asked if there were any questions.

…

115.     Mr Trott stated he was ‘very busy’ and would read the SSHR Request for Assistance in full shortly.

…

145.     There was no slide relating to the incident in the PowerPoint presentation.

…

172.     That evening, Ms Grofski and her colleagues were sitting in a group in the outdoor area between the food hall and bar at camp accommodation.

…

221.    Ms Grofski addressed inaccuracies concerning the roles of safety representatives on site.

…

257.     Ms McLeod said words to the effect that there were no matters requiring Ms Grofski’s assistance.

…

280.    Ms Grofski asked, “What’s IR stand for, what’s IR mean?”

…

307.    Mr Panton stated words to the effect, “I am not going to issue this.”

…

348.    After further discussion, Mr McCarthy entered the cabin and sat in the passenger seat.

…

374.    Later, on 24 April 2024, Ms Grofski attended a video conference with Mr Anger, Mr Moran, and Ms Newman.

…

385.    On 3 May 2024, Ms Grofski replied asking several questions and attached a range of documents, all of which Ms Grofski relies on in full.

…

393.    Ms Grofski met several colleagues at the bar for about 45 minutes and consumed two mid-strength beers.

…

422.    Ms Grofski laughed and cried during the gathering.

…

453.    On 16 May 2024, Mr Hunt, Mechanical Engineer of CMJV, issued an Information Brief regarding Breathesafe systems.

…

469.    On 11 June 2024, Ms Grofski emailed Mr Batterson asking for a copy of both the MREs.

Part I – Hazards Raised [477]

46    This paragraph purports to plead the dates on which Ms Grofski raised coal mine safety issues, made a complaint, or contacted an official, within the meaning of s 275AA(1)(a) or (b) of the CMSHA and with whom or to whom such issues, complaints or contact was made. Section 275AA(1) provides that “[a] person must not cause, or attempt to conspire to cause, detriment to another person because of, or in the belief that, the other person” has (a) made a complaint or raised a coal safety issue as defined in s 275AA(7), or (b) has contacted or given help to an official in relation to such an issue.

47    Ms Grofski pleads 11 occasions said to fall within the ambit of s 275AA(1)(a) or (b) “cumulatively and in the alternative”. There is an obvious difficulty with the logical possibility of 11 different incidents being both cumulative and alternative. Further, each pleaded incident requires recourse to numerous prior allegations. For example, [477(a)] pleads that matters were raised “on 1 March 2024, to Mr Panton as pleaded at 63-66”. As has already been observed above, [63] then refers back to “Hazards as pleaded at 43”. The ambiguity arising from these paragraphs has already been discussed above.

48    Paragraph 477(g) pleads Ms Grofski raised matters “on 14 April 2024, to Mr King as pleaded at 259-260”. Those paragraphs plead:

259.     On 14 April 2024, Open Cut Examiner (OCE) Mr Ben King conducted machine inspections with Ms Grofski.

260.    Mr King said words to the effect that “Doug requested this ride-along due to some concerns you [Ms Grofski] apparently had about dust issues within the haul truck cabs”.

49    Several questions arise from this particular plea. Is the allegation that Ms Grofski has made a complaint to Mr King or to “Doug”? Is it that she has raised a coal mine safety issue with one or both of them? Is the allegation that Mr King is an “official” within the meaning of subsection (b) of s 275AA(1) to whom Ms Grofski is said to have made contact or given help? Mr King is identified in [259] as an “Open Cut Examiner” but, assuming it is the same Mr Ben King, is pleaded to be “Acting Superintendent” in [326]. The CMSHA defines “official” in Schedule 3. An “Open Cut Examiner” is not mentioned. Secondly, one is left to assume that “Doug” is the sixth respondent, Mr Gleeson, referred to in [8]. Thirdly, it might be inferred from the heading to this Part that “Hazards” refers to those “Hazards” purportedly defined in Part G. There is, however, no reference in Part G to a Hazard being raised on 14 April 2024. It is therefore entirely unclear what Hazard(s) referred to in Part G is within the ambit of [477(g)].

Part J – Workplace Rights [478]

50    This is one of the most difficult paragraphs of the pleading and occupies almost two and a half pages. It attempts to plead every workplace right under s 341 of the FWA, and every complaint made, safety issue raised, contact made, or help given by Ms Grofski under s 275AA(1) of the CMSHA, which she “had, exercised or proposed to exercise”, between 1 March 2024 and 9 May 2024. In total, fifty workplace rights are pleaded across 17 occasions. In respect of each such right, the pleading makes no distinction between having the right, exercising the right, or proposing to exercise the right within the meaning of s 340(1)(a) of the FWA. Further, the possession of each right, its exercise, or the proposal to exercise such a right, is pleaded “cumulatively or in the alternative”. There are, therefore, some 150 possible variations of workplace rights pleaded in [478].

51    By way of example, subparagraph (a) pleads:

a.    on 1 March 2024, with Mr Panton as pleaded at 63-66, cumulatively or in the alternative:

i.    s 341(1)(a), being her role or responsibility as a coal mine worker under ss 39-39A of the CMSH Act;

ii.    s 341(1)(a), being her role or responsibility under the SHMS and its constituent policies and procedures as pleaded at 27;

iii.    s 341(1)(b), being her ability to initiate or participate in a process under the SHMS and its constituent policies and procedures as pleaded at 27;

iv.    s 341(1)(c)(i), her ability to make a complaint or inquiry to a person having capacity under a workplace law to seek compliance with a workplace law or instrument, being Mr Panton in his capacity as Crew Supervisor.

52    As this example illustrates, it is again necessary, in respect of the 17 occasions pleaded, to engage in extensive cross-referencing in order to understand the allegation. While some cross-references are expressly pleaded in [478] and in the paragraphs referred to therein, there are several matters pleaded to which it is necessary to have resort to an electronic search of the document as a whole to interpret the plea. In an apparent effort to demonstrate that her pleading has been prepared in the most effective format, Ms Grofski submits that:

The cross-references are live links For example, if using Adobe PDF Viewer, the short cut back to your position is Alt + Left Arrow, meaning it is possible to click through a layer deep, read, and then return by the same pathway instantaneously to where you are reading. No scrolling is required and the process is instant.

53    That may be so, but once again Ms Grofski fails to understand the issue. The extensive cross-referencing makes the pleading unworkable. Further, a document that requires technology to enable it to be navigated effectively rather highlights the complaints made by the respondents as to its inaccessibility.

54    The below table demonstrates the scope of the cross-referencing required to understand [478].

55    In addition to the cross-referencing, the sub-paragraphs are needlessly repetitious. Each of the 17 subparagraphs pleads that Ms Grofski has a workplace right under s 341(1)(a) of the FWA by reason of “her role or responsibility as a coal mine worker under ss 39-39A” of the CMSHA. One must return to [35] to discover which obligations under ss 39 to 39A have been pleaded.

56    Four sub-paragraphs plead that Ms Grofski also has a workplace right under s 341(1)(a) of the FWA because of “her role or responsibility under the SHMS and its constituent policies and procedures as pleaded at 27” and under s 341(1)(b) because she is able “to initiate or participate in a process under the SHMS and its constituent policies and procedures as pleaded at 27”. Paragraph 27 does not plead what Ms Grofski’s “role or responsibility” is under the SHMS, nor describe the process in which she is said to have the “ability to initiate or participate in” under the SHMS.

57    In some sub-paragraphs, Ms Grofski pleads that she has a workplace right under s 341(1)(c) of the FWA because of her ability “to make a complaint or inquiry to a person having capacity under a workplace law to seek compliance with a workplace law or instrument” but without articulating the basis for such an allegation. In the example above, at sub-paragraph (a)(iv), that person is said to be Mr Panton. However, Mr Panton is not pleaded elsewhere as being such a person. Rather, Ms Grofski pleads that she made a complaint or inquiry to him in his capacity as “Crew Supervisor”. That is not a role identified under the CMSHA.

Part K – Knowledge [479]-[514]

58    In these paragraphs, Ms Grofski attempts to plead the knowledge of 11 individuals, the Health Safety Security Environment Committee (HSSE Committee), and MinterEllison. Ms Grofski also seeks to attribute the knowledge of those 11 individuals, the HSSE Committee, and MinterEllison, variously, to the CMO, the Employer, and to PEC, again “cumulatively and in the alternative”. These paragraphs also rely on extensive cross-referencing back to large slabs of evidence.

Part L – Culture [515]

59    This paragraph pleads, broadly described, an alleged poor culture within the Coppabella Mine in relation to the raising of hazards and towards those who exercised safety functions. The culture of the Coppabella Mine is not an element of any of the 10 claims made by Ms Grofski. The plea in relation to culture has emerged, I infer, from Ms Grofski’s submission at the case management hearing on 23 July 2025 that “in [her] effort to understand how [she intends] to plead the corporate entities, and understanding vicarious liability and learning all the different models … the one that [she thinks] is of interest is the organisational blameworthiness one”.

60    To the extent that Ms Grofski wishes to plead some cause of action in systems intentionality or the like, she has not done so: see Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27; 281 CLR 338 at [108]-[110] (Gordon J), [236]-[242] (Edelman J).

Part M – Joint or Concurrent Tortfeasors for CMSHA Claims [516]-[518]

61    Although Ms Grofski purports to identify a common design in order to sustain a plea that each individual respondent and the CMO were joint tortfeasors for the purposes of her claim under s 275AA of the CMSHA, the pleading goes no further than identifying that they each occupied roles within a single statutory structure and, as a result, are responsible for the tortious wrongs of all other respondents. What is required is an allegation of an agreed, concerted or common action between the alleged tortfeasors as to particular steps to be taken, in the course of which one commits a tortious wrong: Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748; 293 ALR 272 at [23]; Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; 186 CLR 574 at 581. Paragraph 516 does not disclose a reasonable cause of action.

62    Nor can the allegation that the respondents were concurrent tortfeasors survive. Ms Grofski has not pleaded that she suffered one “indivisible harm”: Nilon v Bezzina [1988] 2 Qd R 420 at 424 citing The Koursk [1924] P 140.

Part N – Claims [519]-[775]

63    It is not until this Part that the ten claims on which Ms Grofski relies are pleaded.

64    Claims 1 to 4 are brought against Mr Gleeson and Mr Triffett under each of the CMSHA and the FWA. The first problem with the pleading is that most elements of the causes of action are pleaded simply by wholesale repetition and reliance on previous paragraphs. The difficulties already identified with many paragraphs of the pleading up to this point, for example, [477] and [478], to the extent they are repeated and relied upon, are simply repeated. Similarly, the misconceived pleas in relation to concurrent and joint tortfeasors are repeated.

65    Further, in each of the FWA claims, there is an attempt to plead accessorial liability on the part of the CMO, Mr Gleeson, and Mr Triffett.

66    Section 550(1) of the FWA provides that a person who is involved in a contravention of a civil remedy provision of the Act is taken to have contravened that provision. Section 550(2) defines the circumstances in which a person is involved in a contravention:

(2)     A person is involved in a contravention of a civil penalty provision if, and only if, the person:

(a)     has aided, abetted, counselled or procured the contravention; or

(b)     has induced the contravention, whether by threats or promises or otherwise; or

(c)     has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)     has conspired with others to effect the contravention.

67    Ms Grofski appears to rely only on subsections (a) and (c) but the pleading provides no specificity as to how those subsections are engaged beyond a plea that the CMO, Mr Gleeson, and Mr Triffett “knew the essential matters constituting the contravention”.

68    In Fair Work Ombudsman v Sushi Bay (in liq) (No 2) [2024] FCA 76, Katzmann J explained what was required to establish accessorial liability:

[381]     To participate in a contravention and therefore be concerned in it, the person must have engaged in conduct which implicates or involves her or him in the contravention or “assents to or concurs in the conduct which constitutes the contravention”, so that there is a “practical connection” between the person and the contravention. It is unnecessary, however, that the person physically do anything to bring about the contravention if, by their statements and with their agreement what they said and agreed to do became associated with the conduct constituting the contravention.

[382]    To be liable, whether by aiding, abetting, counselling or procuring, a putative accessory must intentionally participate in the contravention, which means that the person must know “the essential matters” that go to make up the events.

[383]    To be knowingly concerned in a statutory contravention, the person must have been an intentional participant with knowledge, at the time of contravention, of the essential elements constituting it.

[384]     It is not necessary, however, that the person also knows that the elements amount to a contravention. Put another way, a person may be an accessory without knowing that the conduct in which they are involved is unlawful.

    (Citations omitted. Emphasis added.)

69    There is no allegation that the CMO, Mr Gleeson, or Mr Triffett knew the conduct about which Ms Grofski complains was tainted by unlawful considerations, or were themselves motivated by unlawful reasons in furthering the employer’s conduct. By way of example, in relation to Mr Gleeson, Ms Grofski pleads, at [561], that he knew the “essential matters constituting the contravention” (which she alleges to be the 14 March exclusion), “as pleaded by his personal conduct in deciding and instructing the exclusion pleaded at 87, 91-92 and 97”. Those paragraphs provide:

87.     On the evening of 13 March 2024, Mr Gleeson directed management that Ms Grofski was not to attend the 14 March 2024 Safety Committee Meeting.

…

91.    Mr Tairakena said words to the effect that Ms Grofski was not permitted to attend the Safety Committee Meeting.

92.     Ms Grofski replied that she had spoken with Mr Gleeson about attending on 5 March 2024. Mr Tairakena stated words to the effect: “Doug spoke to management late last night and said that you were not to attend the meeting”.

…

97.    Mr Walsh responded stating: “Only one representative is allowed – the decision has been made above my head.”

70    The matters pleaded go no further than an allegation that Mr Gleeson directed another person to permit only one safety representative to attend the Safety Committee Meeting. That may be one of the essential matters that goes to make up the alleged contravention. That is not sufficient.

71    As has been often observed in this Court, there is a need for precision in pleading, particularly in civil penalty proceedings. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 the Full Court observed, at [63]-[65]:

[63]    …a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less …

[64]    Litigation is not a free for all …

[65]    The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met.

72    In addition to the frustrating repetition and reliance on previous paragraphs, many allegations are pleaded “cumulatively and in the alternative”, for example, in [523], that the raising of each Hazard:

…constituted, cumulatively and in the alternative:

a.    raising a coal mine safety issue;

b.    making a complaint;

c.    and in 522(b) contacting an official in relation to a coal mine safety issue within s 275AA(1)(b).

73    Such a pleading is unnecessarily onerous.

74    As to causation, in both claims 1 and 3, Ms Grofski pleads that her “protected activity” was a “substantial ground” for her exclusion from the Safety Committee Meeting. To support this statement, in claim 1, Ms Grofski pleads that she relies on the matters in [531] and [532], and in claim 3, Ms Grofski pleads that the matters in [580] and [581] “support [this] inference”. In each claim the two paragraphs are relied upon, again, “cumulatively and in the alternative”.

75    In respect of claim 1, for example, [531] in fact pleads that the reasons for the exclusion were:

… to prevent Ms Grofski from raising Hazards in the Safety Committee Meeting where they would require acknowledgement within the SHMS, and to demonstrate to A crew that their elected Safety Representative would not be permitted to raise coal mine safety issues on their behalf, in the context of the culture pleaded at 515 …

[Emphasis added.]

76    Twelve “particulars” (although not identified as such) to [531] are provided to support that allegation “in the context of the culture pleaded at 515”. The “particulars” are, again, repetitive of evidence previously pleaded.

77    On the current state of [519]-[617], it is impossible to discern the material facts said to support the allegations against Mr Gleeson and Mr Triffett.

78    Claims 5 and 6 against Mr Trott suffer from the same vices already identified above, including the misconceived pleas in relation to joint and concurrent tortfeasors. As with the claims against Mr Gleeson and Mr Triffett, the reader is left similarly to speculate as to the material facts said to support the allegations against Mr Trott.

79    Claims 7 and 8 are claims under the FWA only, brought against Mr McCarthy and Mr du Toit. In her written submissions, Ms Grofski abandons her claim against Mr McCarthy that he was involved in the alleged contraventions of s 340 of the FWA by her employer (whoever that may be). Consequently, Ms Grofski consents to the striking out of the following paragraphs of version 6: [494]; [675]; [677]; [679]; [680]; [683]-[685]; [698]; and [705]-[711].

80    She also consents to the following paragraphs being struck out to the extent that they raise allegations against Mr McCarthy: [460]; [516]-[518]; [718]; and [741].

81    As Mr McCarthy submits, [688] to [689] cannot remain valid pleas in respect of Mr McCarthy and must also be struck out at least as against him.

82    The paragraphs in which allegations remain against Mr McCarthy and Mr du Toit adopt the unnecessary and ambiguously repetitive manner of pleading discussed above. Many of the matters repeated and relied upon have nothing to do with the case against either Mr McCarthy or Mr du Toit. Notably, Parts C, E and F are repeated and relied on in their entirety but make no allegation against Mr McCarthy or Mr du Toit.

83    Further, to the extent that the pleas in [718] and [741], concerning claim 9, include Mr McCarthy and Mr du Toit as individual respondents in breach of the CMSHA, the pleading is ambiguous. Ms Grofski pleads at [516] to [518] above that “each individual respondent” is a joint and concurrent tortfeasor. On their face, [516] to [518] include Mr McCarthy and Mr du Toit because they are “individual respondents”, ie, natural persons. However, [714] defines the “Individual Respondents” as “Mr Grech, Mr Moran, and Mr Anger”, at least for the purposes of claim 9.

84    Claim 9 is brought against Mr Grech, Mr Anger, and Mr Moran under the CMSHA. In essence, Ms Grofski seeks to make the claim that an investigation into her CEO Disclosure (defined in [182]: being an email sent to Mr Grech and Mr Anger regarding the Hazards pleaded at [42]-[44]), and the delivery of findings that the Hazards were “unsubstantiated”, which she alleges were “authorised” by Mr Grech, could be a detriment within the meaning of s 275AA of the CMSHA. She pleads that this detriment was caused by Mr Grech, Mr Anger, and Mr Moran because Ms Grofski raised a coal mine safety issue. Such a cause of action is not reasonably arguable. It presupposes that any investigation that does not validate an alleged safety issue is of itself detrimental to the person who raised the issue, or alternatively, is subject to merits review by the circuitous process used in this pleading.

85    Further, Ms Grofski does not plead that the reasons for the “unsubstantiated” findings were “to cause, or attempt or conspire to cause [her] detriment” within the meaning of s 275AA(1)(a). Rather, she pleads (at [733]) that “the reasons for the conduct were to discourage Ms Grofski from her belief that risk was not ALARA, to pre-empt and discredit any external disclosure Ms Grofski might make, and to create a formal record characterising the Hazards as without merit, in the context of the culture pleaded at 515, as supported by [a series of nine factors].” Ms Grofski does not plead how those nine factors would have been known, or the knowledge would have been attributed, to Messrs Grech, Anger, and Moran at any relevant time. The proposed amendments to [733] do not cure these difficulties.

86    Claim 10 purports to plead that, by delivering findings to Ms Grofski, which characterised her CEO Disclosure and her HSSE Committee Disclosure (defined in [369]: being an alleged disclosure made by email to the members of the HSSE Committee on 23 April 2024) as “unsubstantiated” and lacking sufficient evidence, PEC caused Ms Grofski detriment within the meaning of s 1317ADA of the Corporations Act. Ms Grofski purports to attribute the conduct of Mr Grech, Mr Moran, and Mr Anger to PEC. It is once again difficult to understand how PEC, in delivering findings in relation to the CEO Disclosure, and, through Ms Dixon of MinterEllison, in delivering findings regarding the HSSE Committee Disclosure, that her complaints were unsubstantiated, thereby caused, attempted to cause or conspired to cause her detriment. It would be impossible to conduct investigations into eligible disclosures were findings adverse to the whistleblower considered sufficient “detriment” for the purposes of s 1317ADA. It defies logic.

87    What Claim 10 really attempts to do is embark on a merits review of the CEO Disclosure and the HSSE Committee Disclosure. No reasonable cause of action arises in this regard.

Matters Ms Grofski submits ought be taken into account

88    Without conceding any deficiency in her pleading, Ms Grofski submits there are four matters the Court should take into account in determining this application, even if the pleading is considered deficient.

89    The first is the ordinary interest of a litigant in the determination of an arguable claim on its merits. She submits that her status as a self-represented litigant is not a matter of choice and that she should be permitted to pursue her claims nonetheless. She points to persistent efforts to obtain representation from mid-2024 to date from the union, private firms, pro bono clinics and direct approaches to counsel. As deposed to in her affidavit filed on 15 May 2026, in April 2026, Ms Grofski received sufficient monies to pay a legal practitioner to draw a pleading in proper form. Ms Grofski deposes to having contacted only two law firms, one of which declined even to provide a quote, the other of which “declined to provide service when [Ms Grofski] insisted on at least one CMSH Act claim” being included.

90    The second matter to which Ms Grofski points is “the interest Parliament itself attached to ss 275AA-275AB of the CMSH Act in the endeavour of extracting a public resource”. She points to the scheme set up by the Act by which Parliament provided two enforcement pathways for reprisal protections: action by the regulator and individual action. As Ms Grofski has frankly conceded in her affidavit filed on 15 May 2026, the regulator, Resources Safety and Health Queensland, declined to take any action as it was satisfied there had been no reprisal.

91    The third matter is that there has been no judicial consideration of ss 275AA to 275AB of the CMSHA.

92    The fourth matter Ms Grofski argues should be considered is the legislative history of the protective regimes engaged in this proceeding. She contends that it is significant that Parliament has legislated reverse onus provisions for whistleblowers and employees, personal liability for individuals, and has increased the penalty.

93    Ms Grofski contends that when all of these interests are considered together, an application of s 37M of the FCA Act – so as to facilitate the just resolution of disputes according to law – means that her individual action should proceed because this Court is the only forum still seized of the dispute, the regulator having declined to take any action. Ms Grofski contends that the only burden on the respondents’ side is “the ordinary cost of defending an arguable claim” and, in such circumstances, striking out the pleading, without leave to replead, is the most resource-expensive order available.

94    Taking the last matter first, the burden on the respondents is more than the ordinary cost of defending an arguable claim. Although Ms Grofski’s self-represented status is not a matter to be counted against her, the reality, as has already been demonstrated in this case, is that the respondents are put to a great deal more effort and expense when a complex claim can not be properly articulated as would be expected from properly qualified and experienced legal practitioners. The respondents’ burden is exacerbated by Ms Grofski’s insistence on bringing claims on untested legislation, particularly in circumstances where she has frankly said that she is not seeking simply to vindicate adverse action allegedly taken against her, but is seeking generally to have the law under the CMSHA “clarified” and to “price [the] deterrent”. In other words, she is seeking to agitate these claims in the public interest, not merely on her own behalf, and without any evidence that so doing is in the public interest. It is evident that the regulator did not consider the allegations worthy of the expense of public money to pursue any broad public interest.

95    It is also telling that the union did not wish to support her in this pursuit, nor did two law firms who were offered proper payment. Ms Grofski’s submission that being self-represented was not a matter of choice loses significant force in light of these refusals, and her evidence that she has only approached two law firms since coming into funds. The respondents’ position is therefore further exacerbated by the breadth of the claims Ms Grofski seeks to bring, in order to “price the deterrent” of reprisal action, within an essentially no-costs jurisdiction. Even if the respondents are successful at trial, they will have to overcome the hurdles of s 570 of the FWA and s 1317AH of the Corporations Act.

96    I have given deep consideration to whether Ms Grofski should be permitted one last opportunity to replead. She has, however, already been given numerous opportunities and, on each occasion, her pleading has become more, rather than less, difficult to grapple with. She has also been adamant that the causes of action involving the CMSHA are critical to her claims against the respondents. She has not been prepared to consider abandoning those claims, despite suggestions during case management hearings that it might be preferable for her to seek to vindicate her claim for alleged adverse action only.

97    In my view, the time has come to “draw the line”; enough is enough.

Disposition

98    For these reasons, the further amended statement of claim filed on 30 January 2026 must be struck out. Leave to replead is refused. It follows that the further amended originating application filed on 30 January 2026 must also be struck out.

99    There will be no costs order.

Associate:

Dated:    8 October 2026

SCHEDULE OF PARTIES