FEDERAL COURT OF AUSTRALIA

KTM24 v Rio Tinto Limited (Strike Out) [2026] FCA 1579

ORDERS

THE COURT ORDERS THAT:

Applicant’s interlocutory application

1.    The applicant’s interlocutory application filed on 10 October 2025 be allowed in part.

2.    The applicant have leave to amend the group member definition pursuant to s 33K of the Federal Court of Australia Act 1976 (Cth):

(a)    in the form provided at paragraph [6] of the proposed further amended statement of claim (RT-PFASOC), save for those amendments in relation to paragraph [6(b)(1)–(3), (c)]; and

(b)    in the amended originating application, and to otherwise file and serve the further proposed amended originating application in conformity with the reasons for judgment, pursuant to r 8.21 of the Federal Court Rules 2011 (Cth).

3.    The applicant have leave to replead paragraph [6(b)(1)–(3), (c)] of the RT-PFASOC.

Respondent’s interlocutory application

4.    On the grounds that the Court does not have jurisdiction pursuant to s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the following claims be struck out:

(a)    the applicant’s claim of victimisation under s 47A of the AHRC Act (paragraphs [128]–[130], [147]–[151]); and

(b)    the applicant’s claim of “sexual assault” of group members (paragraph [166(a)]).

5.    Pursuant to r 16.21 of the Rules, the following paragraphs of the RT-PFASOC be struck out: [8.59], [9.16], [159.3(b)], [159.4(b), (h), (i)], [159.5], [160]–[161], [163]–[164].

6.    The applicant have leave to provide further particulars and/or replead the following paragraphs of the RT-PFASOC: [8.59], [9.16], [159.3(b)], [159.4(b), (d2) in relation to the particulars to para [78], (h), (i)], [159.5], [160]–[161], [163]–[164].

7.    The respondent’s interlocutory application filed 29 September 2025, and amended on 7 November 2025, otherwise be dismissed.

Costs

8.    The respondent pay the applicant’s costs, as agreed or assessed.

Variation of orders and embargo

9.    The parties have liberty to apply in relation to any variation of these orders to give effect to the reasons for judgment, by 4.00pm on 6 November 2026.

10.    The reasons of the Court be embargoed until 5.00pm on 23 October 2026 and access to them be granted only to the parties and their representatives during that time.

THE COURT NOTES THAT:

1.    The reasons of the Court are to be embargoed to allow the parties to identify any confidential information in the reasons for judgment as per the orders made on 16 June 2025.

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

ORDERS

THE COURT ORDERS THAT:

Applicant’s interlocutory application

1.    The applicant’s interlocutory application filed on 10 October 2025 be allowed in part.

2.    The applicant have leave to amend the group member definition pursuant to s 33K of the Federal Court of Australia Act 1976 (Cth):

(a)    in the form provided at paragraph [6] of the further proposed amended statement of claim (BHP-FPASOC), save for those amendments in relation to paragraph [6(b)(A)–(C), (c)]; and

(b)    in the amended originating application, and to otherwise file and serve any further proposed amended originating application in conformity with the reasons for judgment, pursuant to r 8.21 of the Federal Court Rules 2011 (Cth).

3.    The applicant have leave to replead paragraph [6(b)(A)–(C), (c)] of the BHP-FPASOC.

Respondent’s interlocutory application

4.    Pursuant to r 16.21 of the Rules, the following paragraphs of the BHP-FPASOC be struck out: [8.67], [9.22], [154.2(b)], [154.3(b), (j), (k)], [154.4], [155]–[156], [158]– [159].

5.    The applicant have leave to provide further particulars and/or replead the following paragraphs of the BHP-FPASOC: [8.67], [9.22], [154.2(b)], [154.3(b), (f) in relation to the particulars to para [70], (j), (k)], [154.4], [155]–[156], [158]–[159].

6.    The respondent’s interlocutory application filed on 29 September 2025, and amended on 10 November 2025, otherwise be dismissed.

Costs

7.    The respondent pay the applicant’s costs, as agreed or assessed.

Variation of orders and embargo

8.    The parties have liberty to apply in relation to any variation of these orders to give effect to the reasons for judgment, by 4.00pm on 6 November 2026.

9.    The reasons of the Court be embargoed until 5.00pm on 23 October 2026 and access to them be granted only to the parties and their representatives during that time.

THE COURT NOTES THAT:

1.    The reasons of the Court are to be embargoed to allow the parties to identify any confidential information in the reasons for judgment as per the orders made on 6 June 2025.

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    The applicants in the proceedings (NSD 1787 of 2024 and NSD 1815 of 2024) are women who worked at several mining sites associated with the relevant respondent company, Rio Tinto Ltd and BHP Group Ltd, respectively.

2    Each applicant brings claims on her own behalf and on behalf of others (group members) under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), and relies on two causes of action: first, a statutory claim of unlawful discrimination under the AHRC Act in respect of alleged contraventions of the Sex Discrimination Act 1984 (Cth) (SD Act); and, second, a claim in negligence.

3    There are two interlocutory applications in each proceeding:

(1)    an interlocutory application filed by the applicant in each proceeding, seeking leave to amend the group member definition pursuant to s 33K of the FCA Act (s 33K application), and to file an amended originating application, and in the case of the Rio Tinto proceeding, to file an amended pleading; and

(2)    an interlocutory application filed by the respondent in each proceeding, seeking that the applicant’s pleading be struck out, in whole or in part, pursuant to: (i) r 16.21(c), (d) and/or (e) of the Federal Court Rules 2011 (Cth) (FCR or Rules); (ii) s 33C(1)(b) of the FCA Act; and/or (iii) on the basis that the Court does not have jurisdiction under s 46PO(3) of the AHRC Act (strike out application).

4    The respondents oppose the s 33K application on the basis that the group member definitions as presently framed are uncertain and do not allow individuals to determine whether they are a group member by reference to the pleading. The respondents also argue that the pleadings are fundamentally defective in both their current and proposed amended forms, such that they ought to be struck out, and, in the case of the Rio Tinto proceeding, leave to file the amended version refused.

5    Rio Tinto contends that the applicant lacks the requisite standing to bring the proceeding on behalf of group members, and that the application fails to comply with s 46PO(3) of the AHRC Act. To the extent that any contention advanced by Rio Tinto is accepted by the Court in the Rio Tinto proceeding, then BHP adopts that contention to the extent that it applies to the BHP proceeding.

6    BHP asserts, in addition, that the applicant has not satisfied the threshold requirement for a representative proceeding under s 33C(1)(b) of the FCA Act, which position is adopted by Rio Tinto.

7    The applicants argue that the respondents’ strike out applications ought to be dismissed, and each of the applicants’ applications granted, with costs. In the event that either respondent succeeds in its strike out application, the applicants seek leave to replead any part of the pleading that is struck out.

8    Rio Tinto does not oppose the applicant serving another amended pleading, and in that event, proposes to notify the applicant’s solicitors as soon as reasonably practicable as to whether it consents to the filing of any amended pleading.

9    For the reasons that follow, the applicants’ s 33K applications are allowed, save for those amendments proposed in relation to para [6(b)(1)–(3), (c)] (Rio Tinto proceeding) and para [6(b)(A)–(C), (c)] (BHP proceeding). The respondents’ strike out application is allowed in part, and the applicants have leave to replead those aspects of the pleadings that are struck out.

BACKGROUND

10    The respondents are mining companies; each the head of their respective corporate group. The primary applicants plead that they were employed at various times and locations by entities that were subsidiaries of, or contractors or agents engaged by the relevant respondent (or a subsidiary or joint venture of the relevant respondent, or contractors or agents thereof).

11    On 6 and 16 June 2025, I granted pseudonym orders in relation to the identity of the applicants pursuant to s 37AF of the FCA Act, on the ground that it was necessary to prevent prejudice to the administration of justice. Accordingly, the applicant in the Rio Tinto proceeding is referred to throughout these reasons as KTM24; and the applicant in the BHP proceeding as KXO24.

AHRC complaints

12    KTM24 and KXO24 each lodged a complaint with the Australian Human Rights Commission (AHRC or Commission) on behalf of themselves and others (class members) on 8 February 2024 and 11 March 2024, respectively, pursuant to s 46P(2)(a)(ii) of the AHRC Act. KTM24’s complaint was made against Rio Tinto; KXO24’s complaint against BHP.

13    The individual aspect of the complaints concerned unlawful discrimination, which was said to have occurred while the applicants were employed at the respondents’ workplaces, from approximately November 2014 (KTM24) and October 2011 (KXO24).

14    The applicants alleged that the impugned conduct constituted sexual harassment in connection with their status as a “worker” or “employee” pursuant to ss 28A and 28B of the SD Act. Alternatively, the complaints relied on harassment on the ground of sex contrary to s 28AA of the SD Act, and/or discrimination on the ground of sex contrary to s 14 or s 16 of the SD Act.

15    The complaints noted that the impugned conduct was undertaken by persons generally wearing shirts bearing the brand of the relevant respondent, or one of its contractors, or both (i.e., co-branded shirts). The applicants asserted that the respondents either “permitted” the alleged conduct and so were liable under s 105 of the SD Act, or were vicariously liable under s 106(1) of the SD Act.

16    The applicants also alleged that the relevant respondent subjected them to detriments in their employment within the meaning of s 14(2)(d) or s 16(d) of the SD Act, and therefore engaged in unlawful discrimination within the meaning of s 5(2) of the SD Act. KTM24 also alleged victimisation within the meaning of s 47A of the SD Act, and discrimination in employment on the ground of pregnancy within the meaning of ss 5, 7 and 14(2) of the SD Act.

17    The representative component of each complaint was made on behalf of class members, comprising all (female) persons who:

(1)    worked at one or more of the relevant respondent’s workplaces at any time during the period 12 November 2003 to the date the complaint was made to the Commission;

(2)    were at or in connection with their work at the respondent’s workplaces exposed to conduct in the claim period (i.e., the time period identified in (1) above) amounting to:

(a)    sexual harassment and/or harassment upon the ground of their sex within the meaning of ss 28A, 28AA and/or 28B of the SD Act; and/or

(b)    discrimination in employment or as contract workers on the grounds of their sex, pregnancy or potential pregnancy, or family responsibilities within the meaning of ss 4A, 4B, 5, 7, 14 and 16 of the SD Act (including if the conduct would be such discrimination if engaged in by the respondent); and

(3)    were subjected to the conduct alleged in (2) above:

(a)    by the respondent;

(b)    where such conduct was permitted by the respondent in the meaning of s 105 of the SD Act; or alternatively

(c)    by agents or employees of the respondent acting in connection with their employment or duties as an agent with respect to the conduct within the meaning of s 106(1) of the SD Act.

18    The applicants relied upon the following reports, said to support “the existence of acts, omissions or practices that amount to unlawful discrimination of [c]lass [m]embers” by the respondents:

(a)    the report of Elizabeth Broderick & Co (commissioned by Rio Tinto) entitled “Report into Workplace Culture at Rio Tinto” (Broderick report) published in February 2022;

(b)    the report of the Western Australia Legislative Assembly entitled “‘ENOUGH IS ENOUGH’ Sexual harassment against women in the FIFO mining industry” tabled on 23 June 2022 (WA report); and

(c)    the report by the Australian Human Rights Commission entitled “Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces” published in or around March 2020 (AHRC report).

19    KXO24’s representative complaint additionally relied on a submission made by BHP to the WA report inquiry, and noted in relation to the Broderick report that, despite it not directly inquiring into BHP’s workplaces, it could reasonably be inferred that the conduct described therein was “shared by other mining industry participants of the same scale and nature”.

20    KTM24’s complaint was accepted as a complaint in her own right alleging unlawful conduct during her employment with Rio Tinto from November 2014. The complaint was also accepted as a representative complaint, alleging discrimination on the grounds of: sex and pregnancy, sexual harassment, sex-based harassment (in relation to alleged conduct occurring on or after 11 September 2021) and a hostile workplace environment (in relation to alleged conduct occurring on or after 12 December 2022). The Commission did not accept KTM24’s claims in relation to family responsibilities discrimination (in respect of her own claim) and victimisation under the SD Act, on the basis that there was insufficient information to support a reasonably arguable claim. As such, the Commission was of the view that those claims did not meet the requirements of a valid complaint as set out in s 46P of the AHRC Act.

21    KXO24’s complaint was accepted as a complaint in her own right, and as a representative complaint, alleging sex discrimination and sexual harassment under the SD Act. The Commission did not accept the claims of sex-based harassment, pregnancy discrimination, family responsibilities discrimination and victimisation, on the basis that the information provided did not support a reasonably arguable claim, and therefore the claims did not meet the requirements of a valid complaint as set out in s 46P of the AHRC Act.

22    The Commission held conciliation conferences between the respective parties on 19 August 2024 (KXO24/BHP) and 24 September 2024 (KTM24/Rio Tinto). Neither complaint was resolved.

23    By notices issued on 10 October 2024 (KXO24/BHP) and 10 December 2024 (KTM24/Rio Tinto), a delegate of the President of the Commission terminated each complaint under s 46PH(1B)(b) of the AHRC Act, on the basis that there was no reasonable prospect of the matter being settled by conciliation.

Federal Court proceedings

24    By originating applications filed on 11 December 2024 (Rio Tinto proceeding) and 16 December 2024 (BHP proceeding) respectively, the applicants commenced representative proceedings in this Court under Pt IVA of the FCA Act and s 46PO of the AHRC Act.

25    The applicants seek relief pursuant to s 46PO(4) of the AHRC Act, including: declarations that there has been unlawful discrimination by the respondents against the applicants and group members contrary to the SD Act; directions that such unlawful discrimination not continue or repeat; damages (under s 46PO(4)(d), and for breach of the alleged duty of care); orders that the respondents develop and implement training for its employees and agents on compliance with the SD Act; and apologies from each respondent by way of full page advertisements in The Australian and The West Australian newspapers. (In the Rio Tinto proceeding, the applicants proposed further amendments to the originating application such that the declarations and directions in respect of the unlawful discrimination are also sought pursuant to ss 21 and 23 of the FCA Act.)

26    On 10 October 2025, the applicants each filed an interlocutory application in their respective proceeding, seeking leave to amend the group member definition pursuant to s 33K of the FCA Act, and to file a proposed amended originating application. KTM24 also sought leave to file a proposed further amended statement of claim (RT-PFASOC). KXO24 relied on a further proposed amended statement of claim (BHP-FPASOC).

27    The group members on behalf of whom the applicants bring the proceedings are defined in the RT-PFASOC and BHP-FPASOC in materially identical terms, being women who:

(a)    worked at one or more of the respondent’s Australian workplaces at any time during all or part of the period 12 November 2003 to 8 February 2024 (Rio Tinto) or 12 November 2003 to 11 March 2024 (BHP) (claim period);

(b)    were, or allege to have been, at or in connection with their work at the respondent’s Australian workplaces:

(i)    sexually harassed within the meaning of ss 28A and/or 28B of the SD Act;

(ii)    from 11 September 2021, harassed on the ground of their sex within the meaning of s 28AA of the SD Act; and/or

(iii)    discriminated against in employment or as contract workers on the grounds of their sex within the meaning of ss 5, 14 and 16 of the SD Act;

where such conduct:

(i)    consisting of discrimination was permitted by the respondent within the meaning of s 105 of the SD Act;

(ii)    consisting of sexual harassment or harassment on the ground of sex occurred after 11 September 2021 and was permitted by the respondent within the meaning of s 105 of the SD Act; and/or

(iii)    was conduct for which the respondent is vicariously liable within the meaning of s 106(1) of the SD Act;

(c)    further or alternatively to subparagraph (b), suffered, or allege to have suffered, loss or damage by reason of one or more of the breaches of the respondent’s duties of care.

28    For the purposes of (c) above, it is pleaded that each respondent owed, and breached, the following duties of care (pleaded in the alternative to one other):

(a)    a direct and/or non-delegable “Akin to Employer Duty”; and

(b)    a direct and/or non-delegable “General Duty of Care”.

29    The Akin to Employer Duty is pleaded to be a duty owed by the respondents to the group members to provide a safe system of work, and/or a non-delegable duty to ensure that the respondents’ subsidiaries (and, in the case of BHP, its joint ventures) provided a safe system of work at the respondents’ workplaces. The General Duty of Care is pleaded to be a novel duty of care, by which the respondents owed a duty to the group members to take reasonable care to avoid materialisation of the “Risk of Harm”, and a non-delegable duty to ensure that reasonable care was taken by the respondents’ subsidiaries, contractors and workers (and, in the case of BHP, its joint ventures) to avoid the materialisation of the “Risk of Harm”. The Risk of Harm is pleaded to be a risk that the applicants and the group members would suffer one or more of hurt, humiliation and distress; inconvenience; mental harm (including mental or emotional distress); physical harm and/or financial loss consequent on the harm, as a result of the alleged conduct.

30    On 29 September 2025, Rio Tinto filed an interlocutory application (which was amended on 7 November 2025), seeking orders that KTM24’s amended statement of claim be struck out in whole or in part.

31    On 29 September 2025, BHP filed an interlocutory application (which was amended on 10 November 2025) seeking like orders in relation to KXO24’s proposed pleading. While BHP’s application purportedly seeks that the pleading be struck out in part only, it was submitted at the hearing that, as the impugned paragraphs are “foundational”, should the Court grant BHP the relief sought, it may be that the entirety of the pleading is defective.

32    The four interlocutory applications were heard together on 21 and 22 January 2026.

STRIKE OUT APPLICATIONS

33    The respondents’ strike out applications raise three issues: first, whether the pleadings comply with the requirements of the AHRC Act (in particular, whether the applicants have standing); second, whether the pleadings satisfy the requirements of s 33C(1)(b) of the FCA Act; and third, whether the pleading is liable to be struck out (in whole or in part) under r 16.21(1)(c), (d), and/or (e) of the Rules.

34    For the reasons given below, the respondents’ strike out applications will be refused, with the exception of certain paragraphs identified in relation to the strike out application pursuant to r 16.21 of the Rules. As regards those paragraphs, as identified above, I grant leave to the applicants to replead and/or furnish further particulars of their claims.

Does KTM24 have standing to bring the representative proceeding?

35    It is uncontroversial that KTM24 has standing to bring a proceeding in this Court in relation to her own claims.

36    However, Rio Tinto disputes that KTM24 has standing to commence a proceeding on behalf of other group members under s 46PO of the AHRC Act. This is on the basis that: first, the group members are not “persons aggrieved” (within the meaning of s 46P) by the acts, omissions or practices alleged by KTM24 in her complaint to the Commission; and second, the application contains allegations that exceed the scope of the complaint terminated by the Commission, contrary to s 46PO(3) of the AHRC Act.

37    For the reasons that follow, s 46P does not confine a complainant to a person who is aggrieved by the same acts, omissions or practices as the persons the subject of the representative complaint. However, both the personal victimisation claim (RT-PFASOC [128]-[130], [147]-[151]) and the group sexual assault claim (RT-PFASOC [166(a)]) fall foul of s 46PO(3). As the parties put it in issue, it is necessary to first address the Court’s jurisdiction over sex discrimination claims.

The Court’s jurisdiction over the claims

38    The Court’s jurisdiction over claims of contravention of the SD Act arises by a combination of the AHRC Act (ss 46PO and 49B) and the SD Act. As outlined below, the parties dispute the scope of s 46PO of the AHRC Act, including the relationship between s 46PO of the AHRC Act and Pt IVA of the FCA Act (which deals with representative proceedings).

The complaints process under the AHRC Act

39    The jurisdiction of the Court is enlivened under s 46PO(1) of the AHRC Act where a “complaint” has been terminated by the President of the Commission: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 at [39(a)] (Collier J). Section 46PO(1) relevantly provides:

46PO    Application to court if complaint is terminated

Making an application

(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.

…

40    However, four steps must occur before an application can be made to this Court under s 46PO of the AHRC Act.

41    Step one requires that a complaint be lodged with the Commission. Section 46P of the AHRC Act sets out the process for lodging an “unlawful discrimination” complaint with the Commission. Section 46P relevantly provides:

46P    Lodging a complaint

(1)    A written complaint may be lodged with the Commission:

(a)    alleging:

(i)    that one or more acts have been done; or

(ii)    that one or more omissions or practices have occurred; and

(b)    alleging that those acts, omissions or practices are unlawful discrimination.

(1A)    It must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.

…

(2)    The complaint may be lodged:

(a)    by a person aggrieved by the alleged acts, omissions or practices:

(i)    on that person’s own behalf; or

(ii)    on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or

…

(3)    A person who is a class member for a representative complaint is not entitled to lodge a separate complaint in respect of the same subject matter.

…

42    There are several elements of s 46P that are relevant to note. First, the subject of the complaint must be “unlawful discrimination”: s 46P(1)(b). The term “unlawful discrimination” is defined in s 3(1) of the AHRC Act as “any acts, omissions or practices that are unlawful” under Pt II of the SD Act. Part II of the SD Act relevantly includes ss 14, 16, 28A, 28AA and 28B (which provisions are the subject of the complaint).

43    In oral submissions, Rio Tinto disputed that the SD Act made “systemic” discrimination unlawful, or that there is any right conferred on an individual to lodge a complaint of systemic discrimination. Rio Tinto contends that the Court has no jurisdiction with respect to alleged “systemic unlawful discrimination”, and rather, those functions are performed by the Commission: s 35L of the AHRC Act. Rio Tinto drew the Court’s attention to ss 35L and 35M of the AHRC Act (which were introduced in December 2022), which provide that the Commission may inquire into any matter that relates to systemic (or suspected systemic) unlawful discrimination, when requested by the Minister, or when it appears to the Commission to be desirable to do so.

44    The applicants submit that the Commission already had powers to inquire into systemic discrimination, and the “new regime” under s 35L is only an “enhanced” inquiry function. As such, the applicants contend that s 35L does not restrict the existing right of individuals to make a complaint about harassment or discrimination that has a systemic component to it.

45    As recently stated by Abraham J in MAN25 v Commonwealth of Australia [2026] FCA 1349, a consideration of s 35L, in the context of the AHRC Act and given its purpose, does not support the contention that it should be read as giving the Commission the exclusive function of addressing systemic unlawful discrimination: at [171]. There is no inconsistency between s 35L empowering the Commission to conduct an inquiry into systemic unlawful discrimination, and an individual or individuals filing a representative complaint based on an allegation of systemic unlawful discrimination: MAN25 at [173].

46    Second, the complaint may be lodged by a “person aggrieved”, on their own behalf and on behalf of “one or more other persons who are also aggrieved by the alleged acts, omissions or practices”: s 46P(2)(a)(ii) of the AHRC Act. As outlined below, the parties are in dispute as to the application of s 46P(2)(a)(ii) in these proceedings.

47    Third, a complaint lodged by the complainant, on behalf of the class members, is a representative complaint: s 3 of the AHRC Act. As noted above, on 8 February 2024, KTM24 lodged a complaint with the Commission on behalf of herself and class members, which the Commission accepted as a representative complaint. A representative complaint must adhere to the conditions identified in s 46PB of the AHRC Act, which relevantly provides:

46PB    Conditions for lodging a representative complaint

(1)    A representative complaint may be lodged under section 46P only if:

(a)    the class members have complaints against the same person; and

(b)    all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    all the complaints give rise to a substantial common issue of law or fact.

(2)    A representative complaint under section 46P must:

(a)    describe or otherwise identify the class members; and

(b)    specify the nature of the complaints made on behalf of the class members; and

(c)    specify the nature of the relief sought.

(3)    In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(4)    A representative complaint may be lodged without the consent of class members.

48    Step two requires that the Commission refer the complaint to the President, if the complaint satisfies s 46P of the AHRC Act: s 46PD of the AHRC Act. The President must consider if the complaint should be terminated, or if an inquiry into the complaint should proceed (including to attempt conciliation): s 46PF(1) of the AHRC Act. KTM24’s complaint and the representative complaint were referred to the President, whose delegate commenced an inquiry.

49    Step three reflects that, if an inquiry commences, the President (or delegate) may exercise various powers under the AHRC Act: s 19(1) read with s 8(1) of the AHRC Act; see also Lu v University of New South Wales (No 2) [2022] FCA 1010 at [32] (Katzmann J). The President (or delegate) may, for instance: require a person to provide relevant information (s 46PI); grant leave to the complainant to amend the complaint (s 46PA(1)); allow the withdrawal of the complaint (s 46PG); replace the complainant of a representative complaint (s 46PC(2)); add a respondent (s 46PF(3)); notify class members of any matter (s 46PC(3)); and cease an inquiry if the complainant does not wish to continue (s 46PF(5)).

50    Step four reflects that the President (or delegate) may terminate a complaint on one or more of the grounds identified in s 46PH(1) of the AHRC Act. The ground of termination determines whether an “affected person” may commence proceedings with or without the Court’s leave: s 46PO(3A) of the AHRC Act. In these proceedings, the complaints were terminated on the basis that there was “no reasonable prospect of the matter being settled by conciliation” pursuant to s 46PH(1B)(b) of the AHRC Act.

51    If a complaint has been terminated under s 46PH(1B)(b) (as is the case in these proceedings), an application may be made by an “affected person” within 60 days of receiving notice in relation to the termination to this Court, alleging “unlawful discrimination” by one or more of the respondents to the terminated complaint: s 46PO(1)–(3) of the AHRC Act. An “affected person” is defined in s 3 of the AHRC Act to mean “a person on whose behalf the complaint was lodged”.

52    As submitted by Rio Tinto, the steps required by the AHRC Act operate as a “filter for claims of unlawful discrimination before they are brought to the [Federal] Court”: Grigor-Scott v Jones (2008) 168 FCR 450 at [19] (Emmett, Lander and Tracey JJ); see also Chadwick v State of New South Wales [2022] FCA 918 at [55] (Cheeseman J).

The scope of s 46PO of the AHRC Act

53    The parties dispute the scope of s 46PO of the AHRC Act, and its relationship to Pt IVA of the FCA Act (which governs representative proceedings).

54    Section 46PO(3) requires that the unlawful discrimination alleged in the application to this Court must either: (i) “be the same as (or the same in substance as)” the unlawful discrimination that was the subject of the terminated complaint; or (ii) “arise out of the same (or substantially the same) acts, omissions or practices” that were the subject of the terminated complaint. Section 46PO relevantly provides:

46PO    Application to court if complaint is terminated

Making an application

…

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(2A)    The application may be made:

(a)    by an affected person in relation to the terminated complaint:

(i)     on that person’s own behalf; or

(ii)    on behalf of that person and one or more other affected persons in relation to the terminated complaint; or

…

Note:    Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.

 (3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

    …

(4A)    In the case of a representative application, subsection (4) applies as if a reference to an applicant included a reference to a person on whose behalf the application is made, other than one who has opted out under subsection 46POB(3).

 (5)    In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).

…

55    Rio Tinto submits that the authorities dealing with the scope of s 46PO(1) make it clear that its purpose is to ensure applications commenced in this Court alleging unlawful discrimination are, in effect, “tethered” to the subject matter, being the unlawful discrimination alleged in the terminated complaint. As observed by Abraham J in MAN25, the scheme of the AHRC Act is such that the statutory cause of action in s 46PO only lies in respect of the subject matter of the complaint before the Commission: at [142], citing Grigor-Scott at [18].

56    Section 46PO(3) requires practical, not “unduly technical”, correspondence between the terminated complaint and the Federal Court proceeding: Hastwell v Kott Gunning [2017] FCA 1557 at [26] (Bromwich J). The provision allows “a degree of flexibility”, and the authorities emphasise that s 46PO(3) is not a rule of pleading, but a practical test of correspondence directed to the “shape” of the complaint at termination: Travers v State of New South Wales [2000] FCA 1565 at [8] (Lehane J); Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46]–[48] (Marshall, Rares and Flick JJ); Whelan v Oldfield Entertainment Pty Ltd [2024] FCA 193 at [59] (Raper J); Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [14]–[18] (White J); Hastwell at [23]–[26].

57    The “shape” has a different emphasis depending on whether one is in the realm of s 46PO(3)(a) or (b).

58    Section 46PO(3)(a) is primarily concerned, not with the allegations of fact made to the Commission, but with the legal character which those allegations can be claimed to bear: Chadwick at [57] (Cheeseman J), citing Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at [37]–[38] (Katz J). Paragraph (a) proceeds on the basis that the allegations of fact made in the proceeding before the Court are the same as those that were made in the relevant terminated complaint. The required identity must exist in the conduct alleged: Cumaiyi at [18] (White J). However, para (a) permits the applicant to claim in the proceeding that those facts bear a different legal character from that which they were claimed in the complaint to bear, provided that the legal character now claimed is not different in substance from the legal character formerly claimed: Chadwick at [57], citing Charles v Fuji at [38].

59    Section 46PO(3)(b) permits the applicant to allege in the proceeding before the Court different facts from those that were alleged in the relevant terminated complaint, provided that the facts now alleged are not different in substance from the facts formerly alleged: Chadwick at [57], citing Charles v Fuji at [39]. Further, the facts now alleged may bear a substantively different legal character from that which the facts alleged in the terminated complaint were claimed to bear.

60    To fall within s 46PO(3)(b), it is not enough that an act is similar in kind to the acts complained of in the terminated complaint: Cumaiyi at [18]–[19], citing Dye v Commonwealth Securities Ltd [2010] FCA 720 at [105] (Katzmann J), which was not disturbed on appeal. The intended operation of s 46PO(3)(b) is that it covers situations in which different instances of unlawful discrimination arise out of essentially the same factual circumstances: Chadwick at [57], citing Charles v Fuji at [40].

61    To demonstrate the flexibility (and, therefore, scope) of s 46PO(3), the applicants rely on the decision of Gao v Macquarie Bank Ltd [2026] FCA 289 at [38]–[41], where Abraham J drew a distinction between instances of the same pattern of conduct, on the one hand, and a new category of conduct, on the other. Her Honour found that assessment of the “shape” of the complaint at the time of its termination allows “some ambit for additional conduct, acts, omissions or practices” to constitute unlawful discrimination: at [37], applying Dye at [46]– [48]. Similarly, the applicants rely on the decision of CPX26 v State of New South Wales [2026] FCA 352 at [16], where Raper J found that “there is capacity to allege different facts that are not in substance different from what was formerly alleged”. In that case, the claims excluded were either expressly not accepted by the delegate of the President (including victimisation, family responsibilities discrimination and breach of human rights, at [18], [47]) or predated the complaint period: at [33], [44]. The applicants submit that, on the approach in Gao and CPX26, any differences in time periods, employers, locations and impacts as between group members, do not take the claims outside s 46PO(3). Rather, they are further instances of the same systemic pattern of sexual harassment and sex discrimination described in the complaint.

62    The authorities relied upon by the applicants, which draw upon the decision of the Full Court in Dye, do not stand for the proposition that certain differences (e.g., in time periods, employers, locations and impacts as between group members) will not take the claims outside s 46PO(3). (While the Court’s finding in Dye regarding s 46PO(3) did not draw a distinction between subparas (a) and (b), their Honours observed (at [48]) that “the terms of s 46PO(3)(b) (in particular) permit of some flexibility”, which is of significance in circumstances where s 46PO(3) presents alternative requirements.) Rather, they beg the question as to whether those differences are in substance different from what was alleged in the terminated complaint. There may be “some ambit” for pleading additional conduct, acts, omissions or practices to constitute unlawful discrimination. However, at a minimum, the unlawful discrimination alleged in the applications must be substantially the same as the unlawful discrimination alleged in the terminated complaint, and it must arise out of substantially the same acts, omissions or practices that were the subject of the terminated complaint.

63    In this regard, there is a distinction to be drawn between the exercise required by s 46PO(3) and considerations of commonality. Section 46PO(3) requires something more: viz., an evaluation of the extent to which any differences in the acts, omissions or practices alleged in the Pt IVA application take the claim of unlawful discrimination outside of substantial correspondence with the terminated complaint. This is not to introduce a gloss on the statutory text, but to emphasise that the identification of differences is not sufficient to deny the claim, nor to validate it.

64    The applicants contend that s 46PO(3) of the AHRC Act should be interpreted “harmoniously” with the requirements for bringing a representative proceeding under Pt IVA of the FCA Act, specifically, ss 33C (which deals with the commencement of a representative proceeding) and 33D (which outlines the standing requirements). Aside from the assertion, little attention was given to the imperative or occasion for that submission: i.e., why the Court should draw upon a statutory regime extrinsic to that of s 46PO(3).

65    In Wilson v Commonwealth of Australia (Strike-out and Further Particulars) [2026] FCA 91, Hill J considered the relationship between s 46PO of the AHRC Act and Pt IVA of the FCA Act, and held that the interpretation of s 46PO(3) of the AHRC Act is not guided by the preconditions in ss 33C and 33D of the FCA Act, and “the provisions have their distinct fields of operation”: at [43], [45]. On that basis, his Honour made orders striking out certain claims as being precluded by s 46PO(3) of the AHRC Act: at [46]. To ‘guide’ or influence is one thing; to constrain is another.

66    His Honour’s finding that “the provisions have their distinct fields of operation” is not a finding that there is no relationship between the two regimes. His Honour acknowledged that they may sometimes overlap in their operation (at [45]). That is an acknowledgement that the two regimes are not coterminous. In my view, his Honour’s finding places emphasis on the onus of the party seeking to imply a constraint on the operation of one regime by reference to the operation of the other. It is not to be assumed that (and how) one regime informs the other simply by reference to an overlap in the respective fields of operation. In that regard, his Honour’s finding in Wilson may not be the sword (Excalibur or of Damocles) that it is wielded to be.

67    The respondents contend that his Honour’s finding in Wilson is clearly correct. As a result, the respondents contend that ss 33C and 33D of the FCA Act cannot be used to broaden the scope of a discrimination claim under s 46PO of the AHRC Act, or to circumvent s 46PO.

68    The applicants submit that the Court should decline to follow the decision in Wilson, as the Court’s reasoning on the relationship between s 46PO(3) and Pt IVA of the FCA Act was reached “without consideration of textual matters” bearing directly on that question (and was not the subject of submissions by the respondent in that matter), and it is, in any event, factually distinguishable.

69    First, the applicants drew the Court’s attention to the language of s 46PO(5) of the AHRC Act, which expressly contemplates that s 46PO proceedings would be conducted as Pt IVA representative proceedings. This is confirmed by the Note to s 46PO(2A) and the Explanatory Memorandum to the Human Rights Legislation Amendment Bill 1998 (Cth) at [195], which on the applicants’ case presupposes that the two regimes operate together.

70    Rio Tinto characterises s 46PO(5) as establishing (at most) a procedural intersection between the two regimes, but not a substantive one, and emphasises that nothing in s 46PO(5) implies that the scope of s 46PO(3) should be expanded to accommodate the breadth of group membership that Pt IVA might otherwise permit. The Note to s 46O(2A) is of even less utility: it acknowledges that Pt IVA allows representative proceedings to be commenced in this Court in certain circumstances; it does not replace s 46PO(3).

71    While there is an express acknowledgment that s 46PO(4) may apply in the context of Pt IVA representative proceedings, that does not answer the question as to the extent to which one regime will inform the other, aside from the limited sense provided for in s 46PO(5), which is a matter of the interpretation of the reference to the term “applicant” in s 46PO(4).

72    Second, the applicants contend that s 46PB(1) of the AHRC Act (which governs the scope of a representative complaint to the Commission) uses language that is substantively identical to s 33C(1) of the FCA Act, and so “adopts the same substantive standard” as Pt IVA: see also Explanatory Memorandum at [132], [136]–[137].

73    Rio Tinto submits that Parliament’s use of parallel language in s 33C demonstrates a coherent legislative design on the question of who may litigate together, but does not demonstrate that the inquiry into scope for the purposes of s 46PO(3) be determined by reference to Pt IVA criteria. The applicants’ construction should be rejected as it would deprive s 46PO(3) of work to do in a representative context because, on the applicants’ case, any proceeding that satisfies Pt IVA would automatically satisfy s 46PO(3). BHP emphasises the “fundamental point” that the legislative texts of s 46PO(3) and Pt IVA are in fact different, which undermines any suggestion that s 46PO(3) should be construed by reference to Pt IVA.

74    I do not find the applicants’ argument compelling on this point. While the conditions are broadly equivalent, there is an important distinction, which is that s 33C(1) is stated to be subject to Pt IVA. It cannot be assumed, therefore, that any similarity in language with s 33C(1) imports a constraint on the interpretation of s 46PB(1) of the AHRC Act, or any other provision of Pt IVA. In any event, it is not evident that this argument takes the applicant far. In the present case, the dispute regarding “the same, similar or related” circumstances appears to be one of fact, rather than of definition.

75    Third, the applicants contend that the present proceedings are factually distinguishable from Wilson. The applicants submit that the proposed expansion of the group member definition in Wilson failed not because the terminated complaint involved “different actors, times and places” (which Rio Tinto says would fall outside the scope of s 46PO(3)), but because the terminated complaint did not include discrimination against a “different class of people” (relevantly, egg donors, cf. persons seeking to conceive a child): Wilson at [45]–[46]. In the present proceeding (and unlike Wilson), the proposed amended group definition does not introduce a categorically distinct class of persons experiencing a different form of discrimination. Rather, the proposed group definition encompasses women who experienced the same conduct at the same workplaces, arising from the same systemic failures.

76    Rio Tinto contends, first, that the Court’s conclusions in Wilson are not confined to their factual context. This is on the basis that the Court engaged in an exercise of statutory construction, including applying key authorities of Dye and Grigor-Scott, in resolving the issue as to whether s 46PO(3) is to be interpreted harmoniously with Pt IVA. Second, Rio Tinto contends that the differences in the present proceeding “are significantly more material” than in Wilson, where all group members relied on the same Commonwealth policy governing access to Medicare benefits that applied to all group members. Here, the alleged unlawful discrimination is not based on a “Rio Tinto policy, applied uniformly”, and (given ss 28A and 28AA of the SD Act) the alleged discrimination experienced by each group member could never be the “same (or substantially the same)” as that alleged by KTM24. Third, Rio Tinto submits that the issue of the relationship between s 46PO(3) and Pt IVA did not arise in Gao or CPX26, neither of which were representative proceedings.

77    The applicants do not demonstrate why different factual circumstances undermine the import of Hill J’s finding in Wilson. In any event, the question whether or not Wilson is distinguishable from the present case is a distraction. For the reasons outlined above, his Honour’s finding that the regimes have their distinct fields of operation, is of limited utility in this proceeding.

Is KTM24 is a “person aggrieved” in respect of the representative complaint?

78    Rio Tinto disputes that KTM24 has standing to commence a representative proceeding under s 46PO of the AHRC Act, on the basis that the group members are not “person[s] aggrieved” (within the meaning of s 46P) by “the acts, omissions or practices” alleged by KTM24 in her complaint to the Commission. It is not in dispute that KTM24 has standing (and is a “person aggrieved”) in respect of her own claims.

79    As outlined above, an application may be made to this Court by an “affected person” in relation to the terminated complaint, on their own behalf and on behalf of one or more other affected persons: s 46PO(2A)(a)(ii) of the AHRC Act. An “affected person” is a person on whose behalf the complaint was lodged: s 3 of the AHRC Act.

80    Rio Tinto submits that the effect of the statutory scheme is that the “affected person” must be a “person aggrieved” within the meaning of s 46P: Cameron v Human Rights and Equal Opportunity Commission (1993) 46 FCR 509 at 519 (Beaumont and Foster JJ); Access For All Alliance at [34]. The term “person aggrieved” is not defined in the AHRC Act. It requires that a person be “aggrieved” based on an objective standard: Budini v Sunnyfield [2019] FCA 2164 at [30]–[34] (Charlesworth J); Access For All Alliance at [41]. Resolution of whether a person is “aggrieved” is a question of both fact and law: Access for All Alliance at [40].

81    Rio Tinto drew the Court’s attention to s 46P(2)(a)(ii) of the AHRC Act, which provides that a representative complaint can only be lodged where the class members are “other persons who are also aggrieved by the alleged acts, omissions or practices” (emphasis added) of unlawful discrimination. Rio Tinto contends that this wording “assumes a level of commonality based on what has occurred”. That construction, on Rio Tinto’s case, is supported by the prohibition upon class members lodging separate complaints in respect of the same subject matter in s 46P(3), and the conditions for lodging a representative complaint in s 46PB. As such, the enquiry as to whether a person is “aggrieved” requires focus on the “alleged acts, omissions or practices” in the complaint and the persons on whose behalf the representative complaint was made: Access for All Alliance at [40]. In Rio Tinto’s submission, lodging a complaint requires a direct connection between the particular alleged acts, omissions or practices, and the complainant.

82    The applicants’ position is that in circumstances where a complaint is brought representatively, standing under s 46P turns only on KTM24 being a “person aggrieved” in respect of the unlawful discrimination she personally experienced. The applicants submit that this does not require KTM24 to possess every statutory cause of action available to affected persons. Such a construction would, in the applicants’ submission, artificially limit the ambit of s 46P(2).

83    The applicants submit further that the issue of standing is expressly dealt with in s 33D of the FCA Act, under which KTM24 has “sufficient interest” to commence a proceeding as she is an “affected person” under s 46PO(2A) of the AHRC Act. On the applicants’ construction, the text, context and purpose of the statutory framework support two “alternative pathways”. The applicants submit that the relevant provisions of the AHRC Act and Pt IVA of the FCA Act must be read “harmoniously” (see above at paras [64]–[65]); they provide separate yet compatible pathways for representative proceedings, in which the AHRC Act refers to the Pt IVA regime. The applicants submit that Rio Tinto’s approach to standing would significantly restrict access to Pt IVA following the AHRC complaints process, and, in any event, is directly inconsistent with s 33C(2)(b)(ii) of the FCA Act, which provides that a representative proceeding may be commenced whether or not the proceeding involved separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

84    The applicants argue that s 46PO(2A)(a)(ii) does not apply to the Pt IVA process and so does not need to be satisfied (although those requirements are, in any event, met). The statutory gateway is triggered by the fact of termination of the complaint. The only constraints following termination are the requirements of s 46PO(3), which are here met.

85    The applicants’ submissions find support in the observation of Abraham J in MAN25 at [176], that a construction of the representative provisions in the AHRC Act such as the one propounded by Rio Tinto in the present case is “so narrow the avenue of complaint to the AHRC would be of limited utility”.

86    The difficulty with Rio Tinto’s submission is that it requires a degree of connection between the complainant and the (collective or common) acts, omissions or practices alleged in the complaint, that is not borne out by s 46PO(2A) or (3) of the AHRC Act. It is also at odds with s 33C(2)(b)(ii) of the FCA Act.

87    However, it is not evident on what basis the applicants claim that the standing provisions of the AHRC Act and Pt IVA of the FCA Act are “alternative pathways” to commencing representative proceedings in this Court. The requirements of both provisions must be satisfied. In particular, s 33D of the FCA Act does not provide an alternative or separate standing requirement. It assumes a “sufficient interest” in commencing proceedings, and is thereby capable of accommodating the particular standing requirements of other statutory provisions (as the applicants appear to acknowledge). Accordingly, s 33D regulates, but does not establish, that interest.

The “alleged acts, omissions or practices” giving rise to the representative complaint

88    As noted above, Rio Tinto submits that, without commonality in “the alleged acts, omissions or practices” giving rise to the unlawful discrimination, there cannot be a representative complaint under s 46P(2)(a)(ii) of the AHRC Act.

89    Rio Tinto draws a distinction between the “alleged acts, omissions or practices” giving rise to KTM24’s complaint (on her own behalf), and the “alleged acts, omissions or practices” giving rise to the representative complaint. Insofar as KTM24 is concerned, the complaint made specific allegations that certain individuals engaged in specific conduct towards KTM24 personally. That conduct is not alleged to have occurred in relation to any other class member.

90    On the other hand, the “alleged acts, omissions or practices” complained of by class members were drawn from general descriptions in the three reports attached to the complaint (the Broderick report, WA report and AHRC report, identified at para [18] above). Rio Tinto submits that there is “nothing in the description of what occurred to any class member that connects to KTM24 at all”, such that the complaint lacks the requisite commonality under s 46P(2)(a)(ii) apropos the “alleged acts, omissions or practices” by which KTM24 and the other class members were said to be aggrieved.

91    Rio Tinto submits that this lack of commonality is evident in the following examples:

(1)    The conduct alleged by KTM24 personally occurred from November 2014, while the conduct alleged in relation to class members occurred from November 2003. Rio Tinto maintains that KTM24 cannot be a person aggrieved in relation to conduct alleged to have occurred 11 years prior to her complaint.

(2)    KTM24 only worked at three of the 55 sites identified as being “Rio Tinto’s Australian Workplaces” in the RT-PFASOC, and cannot be a person aggrieved by conduct alleged to have occurred at a site at which she never worked.

(3)    Allegations of unlawful discrimination under s 16 of the SD Act and harassment on the ground of sex for the purposes of ss 28AA and 28B were made on behalf of class members only. KTM24 cannot be an “affected person” or “person aggrieved” with respect to alleged contraventions of s 16 or s 28B (by reference to s 28AA).

92    Rio Tinto submits that KTM24 has not identified any other women who had the same experience as her, at the same places, at the same time.

93    The applicants rely on the decision of the Full Court in Dye to refute Rio Tinto’s argument that KTM24 lacks standing unless she personally experienced every instance of the alleged systemic conduct across every site and period.

94    The applicants contend that, as observed in Dye, s 46PO(3) is drawn in “sufficiently wide terms” to enable proceedings to include conduct not expressly described in the AHRC complaint where it is the “same in substance”, or arises out of “substantially the same” acts, omissions or practices: at [44]–[45]. In essence, the applicants contend (and Rio Tinto refutes) that the Full Court in Dye confirmed that the boundaries of KTM24’s own experience as expressed in the complaint do not limit the ultimate boundaries of the representative proceeding.

95    The Full Court in Dye had in mind that the precise time or circumstances of some particular occasion of unlawful discrimination allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission. The Full Court acknowledged (at [45]) that it is of the nature of representative proceedings that individual group members may only be informed of the existence of those proceedings well after their commencement. Their individual experiences may fall within a more general or inclusory description in a complaint to the Commission. The applicants submit that the terminated complaint alleged a pattern of company-wide systems and practices, the very sort of “general or inclusory description” contemplated in Dye (at [45]).

96    Nevertheless, the question in s 46PO(3), regarding the correspondence of the complaint in the Pt IVA proceeding with the terminated complaint, is different from the question in s 46PB(1), which is concerned with the correspondence of the complaint as between class members.

97    The applicants submit that ss 46P and 46PB do not require that the complainant’s personal experience cover every temporal or geographic instance of the impugned conduct, and that to require the identification of individual class members would defeat the purpose of the scheme. The applicants also observe that the delegate accepted that KTM24 was a “person aggrieved”, and that the complaint met the statutory requirements for a valid representative complaint.

98    I accept that s 46P(2)(a)(ii) of the AHRC Act does not confine a representative complaint to a common corpus of alleged acts, omissions or practices, and does not thereby confine the complainant to a person who is aggrieved by those same experiences. The conditions for lodging a representative complaint in s 46PB(1) make it plain that the circumstances of one complaint may be “related” to those of another complaint, but they need not be coincident. While addressed to a different question, the scope of the complaint in s 46PO(3) is consistent with that analysis.

Do the allegations exceed the scope of the AHRC complaint?

99    Rio Tinto contends that KTM24’s application exceeds the scope of the complaint to the Commission, and as such fails to comply with s 46PO(3) of the AHRC Act. Consequently, Rio Tinto contends that the Court does not have jurisdiction with respect to those allegations.

100    The applicants accept that s 46PO(3) is a jurisdictional constraint. However, the applicants submit that Rio Tinto’s argument misconstrues the nature of the complaint at termination.

101    As observed above, the scheme of the AHRC Act is such that the statutory cause of action in s 46PO only lies in respect of the subject matter of the (terminated) complaint before the Commission: MAN25 at [142]; Grigor-Scott at [18]. The assessment of whether the claims in the applicants’ pleadings arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint, is a factual one: MAN25 at [165].

102    Both parties proceeded on the basis that a claim that is not accepted by the Commission does not form part of the “terminated” complaint for the purposes of s 46PO of the AHRC Act. It should be observed, however, that there is a difference of opinion on that issue in this Court. In Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063, Feutrill J held that it was within the Commission’s power to not accept a complaint if it did not meet the requirements of s 46P of the AHRC Act (at [71]), and consequently the “terminated complaint” would not include a claim rejected by the Commission: at [73], see also Lu at [103] (Katzmann J).

103    In Rawson v South Metropolitan Health Service [2024] FCA 769, Horan J expressed doubt as to whether it is possible for the Commission to “reject” a complaint on the basis of non-compliance with s 46P(1A) or (1B), and considered that this was “too narrow an approach” to the application of s 46PO: at [63]–[64]. His Honour stated (at [65]):

It may be accepted that the ambit of a complaint for the purposes of s 46PO(3) can encompass matters that are added in the course of an inquiry and conciliation, including as the result of an amendment of the complaint, and that the “terminated complaint” for the purposes of s 46PO incorporates “the shape [the complaint] had assumed at the time of its termination”: Turner at [17] (Bromberg J); see also Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46] (Marshall, Rares and Flick JJ). However, this does not mean that allegations which formed the subject of the complaint when it was made can be unilaterally excluded by the President (or his or her delegate) so that they do not form part of the “terminated complaint” within the meaning of s 46PO. If the allegations formed part of the complaint when it was lodged with the Commission, and have not been withdrawn by the complainant under ss 46PA or 46PG, any view formed by the President (or his or her delegate) that the allegations are not reasonably arguable or are otherwise without substance does not prevent those allegations from being agitated in an application subsequently made to the Court under s 46PO.

104    That the complaint must be “terminated” before an application may be commenced in this Court imports considerations of both substance and form. First, the application may only be made after termination of the complaint (which begs the question as to the purpose or utility of this constraint). Second, and relatedly, the term “terminated complaint” should be understood as a reference to the substance of the complaint at the time of termination: Sivwright at [73]. The reference to the “terminated complaint” in s 46PO is necessarily a reference to the administrative action of the President (or his or her delegate). In my view, any concern about ‘unilateral exclusion’ is answered by the availability of judicial review: see, e.g., Heiner v Minister for Home Affairs [2022] FCAFC 81. Further, the reference to the “terminated complaint” would be otiose if regard was had to the substance of the complaint at the time it was lodged, rather than its substance at the time of termination.

105    In any event, Horan J in Rawson considered that the “precise basis and effect” of the delegate’s decision to reject part of the complaints was “not entirely clear”; the delegate did not expressly find that the complaint failed to meet the requirements of s 46P(1A) or (1B): at [62]–[63]. This can be distinguished from the present case, in which the delegate stated that certain claims were not accepted as meeting the requirements of a valid complaint under s 46P of the AHRC Act, on the basis that there was insufficient information to support a reasonably arguable claim under those grounds.

106    Consequently, I consider that the “shape” of the complaint at the time of termination did not include those allegations which the delegate determined did not meet the requirements of s 46P of the AHRC Act (and in respect of which judicial review was not sought and obtained).

107    Rio Tinto identifies three ways in which it alleges that KTM24’s application exceeds the scope of the complaint:

(1)    KTM24 alleges unlawful victimisation in contravention of s 47A of the SD Act, even though the Commission did not accept the allegations of victimisation under the SD Act in the representative complaint (the victimisation claim): RT-PFASOC [128]–[130], [147]–[151].

(2)    The RT-PFASOC contains allegations of “bullying conduct” towards the applicant that were not in the complaint (at [73(c)(iv)]) (the bullying claim), contrary to s 46PO(3)(a) and (b).

(3)    The allegation in RT-PFASOC [166(a)] that group members were subject to sexual assault goes beyond what was alleged in the complaint (the sexual assault claim).

108    In respect of each of the victimisation claim, bullying claim and sexual assault claim, the applicants maintain that the proposed pleading corresponds in substance to the terminated complaint within the meaning of s 46PO(3).

Victimisation claim

109    The applicants accept that the delegate did not accept a victimisation claim forming part of the representative complaint on the basis that there did not appear to be any information alleging victimisation on behalf of the class members. However, the applicants contend that this does not preclude KTM24 from pursing her personal victimisation claim. This is on the basis that, in the KTM24’s complaint: (i) the KTM24 ticked “I have been victimised” on the complaint form; (ii) an incident of reprisal was described in the complaint; and (iii) contravention of s 47A was alleged in terms. The applicants contend that those allegations are now reflected, in substance, at RT-PFASOC [128]–[130], [147]–[151]. The applicants contend that there is no express denial by the delegate of the complainant being able to progress and continue with the victimisation allegation on KTM24’s own behalf.

110    The delegate did not accept that KTM24’s individual (and representative) claim of victimisation met the requirements of a valid complaint under s 46P of the AHRC Act, on the basis that there was “insufficient information” to support a reasonably arguable claim. The rejection was not only of the claim on behalf of class members. In that regard, the delegate noted that there did not appear to be “any information” alleging victimisation on behalf of the class members.

111    It may be accepted that any representative complaint of victimisation falls foul of s 46PO(3). In the absence of any information supporting the allegation, and having been rejected on that basis, it cannot be said to be the subject of the terminated complaint.

112    The analysis is more complicated in relation to the individual victimisation claim, which was also rejected as meeting the requirements of a valid complaint, and so, on that basis, does not form part of the terminated complaint. In those circumstances, the Court cannot make the comparative analysis called for by s 46PO(3)(a) or (b).

113    However, the delegate acknowledged that some (albeit insufficient) information was provided. I have considered whether what is pleaded at RT-PFASOC [128]–[130], [147]–[151] reflects in substance the allegation of victimisation made in the AHRC complaint, as claimed by the applicants.

114    In the complaint (at [18]), KTM24 claimed that she had been victimised and describes an incident whereby she was cautioned by the respondent for swearing, and a record was placed on her employment file. This was described as making the complainant feel victimised. KTM24 claimed (at [26]), in the alternative, that this conduct constituted an act of victimisation within the meaning of s 47A of the SD Act.

115    In my view, those allegations are not reflected in substance at RT-PFASOC [128]–[130], [147]–[151], as claimed by the applicants, although there appears to be substantial correspondence in the allegations at [59]–[63]. The difficulty for the applicants is that this was not the subject of the terminated complaint.

Bullying claim

116    As to the bullying claim, the applicants refer to the complaint, in which “bullying conduct” is alleged (at [23(d)]). The applicants contend that the examples of bullying conduct given at RT-PFASOC [73(c)(iv)] are “examples or further particulars” of the conduct put in issue in the complaint. I accept that submission. Consistent with the approach in Dye, the pleading of additional conduct at RT-PFASOC [73(c)(iv)] does not fall foul of the requirements of s 46PO(3)(a) or (b) of the AHRC Act.

117    The reference to “bullying conduct” at RT-PFASOC [73(c)(iv)] remains inclusive. The allegation of fact is substantially the same as the unlawful discrimination that was the subject of the terminated complaint (albeit more information is provided in the pleading). Those additional acts, omissions or practices are not different in substance from the facts formerly alleged, which are in essence concerned with the (claimed) undue exclusion of KTM24.

Sexual assault (group member) claim

118    As noted above, Rio Tinto takes issue with RT-PFASOC [166(a)]. The applicants suggest that the correct reference is RT-PFASOC [77] particular (a). The former paragraph claims that “Group Member Conduct” (as defined in the pleading) constitutes sexual assault; the latter references sexual assault in the particulars to the pleading that defines Group Member Conduct. In theory, both claims are implicated by the following analysis. As a matter of striking out a claim, RT-PFASOC [77] may have life beyond the impugned particular (a).

119    In respect of the sexual assault claim, the applicants referred to the delegate’s acceptance of the representative complaint, with class members including “[a]ll female persons” who were exposed to conduct amounting to “sexual harassment” within the meaning of s 28A of the SD Act. The applicants submit that conduct which may be characterised as “sexual assault” (which does not appear in the SD Act) may fall within the meaning of “sexual harassment” in s 28A of the SD Act, either by virtue of its ordinary meaning, or as a criminal act (noting that sexual assault has been criminalised in various jurisdictions), relying on Kruger v Thompson [2025] FCAFC 143 at [437]–[438] (McElwaine J). The applicants contend that, in KTM24’s complaint, she provided examples of types of sexual harassment experienced by class members, and that those examples do not limit the claims of sexual harassment that would be made by class members.

120    The applicants refer to the facts in Dye as “illustrative”, in that the inclusion of allegations not expressly mentioned in the original complaint was found not to have transgressed s 46PO(3) because, inter alia, the provision is drawn to accommodate additional acts that arise out of the same pattern while still “filter[ing]” the cause of action so that it corresponds with the complaint (at [43], [49]–[53]). The applicants note the Court’s reference (at [48]) to the flexible approach in s 46PR (“Court not bound by technicalities”).

121    The applicants submit that Rio Tinto’s complaint is similar to that rejected by the Full Court in Dye. The applicants submit that Rio Tinto’s specific criticisms concerning s 46PO(3) in relation to: the victimisation claim; the bullying claim; and the sexual assault claim each fail the practical “shape and substance” test. The applicants maintain that the RT-PFASOC corresponds “in substance” to the terminated complaint, in that the “allegation forms part of the pleaded continuum of conduct at Rio Tinto’s Australian Workplaces and the same systemic failure to prevent sexual discrimination and violence across those sites”.

122    In my view, the decision in Dye does not assist the applicants. It appears to be accepted that the claim of sexual assault of group members was not expressly made in the complaint. It is not evident that the claim of sexual assault of group members at [166(a)] (or [77] particular (a)) of the RT-PFASOC qualifies as “additional acts that arise out of the same pattern”. That sexual assault may fall within the meaning of “sexual harassment” is not apparent, and in any event, belied by the structure of the applicants’ pleading (in which the broader grouping “other sexual misconduct” is pleaded as a separate category at [166(b)]). Furthermore, the pleaded claim does not identify the “additional acts” that would permit such an inquiry. The applicants do not demonstrate that the distinct claim of sexual assault of group members was substantially the same as the unlawful discrimination that was the subject of the terminated complaint for the purposes of s 46PO(3)(a), or that the acts, omissions or practices that constitute the claim arise out of substantially the same acts, omissions or practices that were the subject of the terminated complaint, for the purposes of s 46PO(3)(b).

Part IVA threshold issue – s 33C(1)(b) of the FCA Act

123    BHP seeks to strike out those parts of the applicants’ pleading that make allegations on behalf of group members on the basis that the threshold requirements under s 33C(1)(b) of the FCA Act are not satisfied. The impugned paragraphs are identified at prayer one of the amended interlocutory application: viz., BHP-FPASOC [1], [2], [6], [9]–[9.4], [9.12]–[9.15], [9.17]–[9.18], [9.21]–[10], [69]–[81], [109]–[123], [130]–[145.1], [148]–[150], [153]–[154.6], [158]–[162], [165], [167]–[168].

124    BHP contends that the “huge disparity” in circumstances deprives the group members’ claims of the necessary ‘relatedness’ to satisfy s 33C(1)(b) of the FCA Act; i.e., the claims are not in respect of, or arise out of, the same, similar or related circumstances. That contention is advanced in respect of both the claims under the SD Act, and the claims in negligence (each of which is addressed in turn below). Rio Tinto adopts BHP’s submissions in relation to this issue.

125    In response, the applicants claim that the proceeding is a “course of conduct” or “systems” case, with the “common thread” being the relevant respondent’s role, which satisfies the requirements of s 33C(1)(b) of the FCA Act.

126    For the reasons that follow, I accept that the claims of the group members are related for the purposes of s 33C(1)(b), and decline to make the strike out orders sought by the respondents.

Legal principles

127    Part IVA of the FCA Act relates to representative proceedings. Section 33C relevantly provides (emphasis added):

33C    Commencement of proceeding

(1)     Subject to this Part, where:

(a)     7 or more persons have claims against the same person; and

(b)     the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)     the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2)     A representative proceeding may be commenced:

…

(b)     whether or not the proceeding:

…

(ii)     involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

128    The question as to whether a class action has been validly commenced under s 33C of the FCA Act is a binary assessment that does not call for the exercise of any discretion: ISG Management Pty Ltd v Mutch [2020] FCAFC 213 at [4] (White, Lee and SC Derrington JJ).

129    A “claim” under s 33C(1) is not the cause of action pleaded: Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150 at [43]–[44] (Lee J). It refers to the facts that constitute the causes of action of the plaintiff and the other group members, as well as the legal basis of those causes of action: Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 at [79(4)] (Niall, Hargrave and Emerton JJA). As such, the claims may rely on various causes of action, yet be related by way of a (common) factual substratum: Agnello v Heritage Care Pty Ltd [2021] VSC 838 at [61] (Dixon J).

130    Accordingly, the claims need not be based on the same conduct, and may arise out of disparate transactions. In that regard, the claims of the applicants representing the group, and group members, can be quite different: Dillon at [43]–[44]; Uber at [88]. The legislative scheme contemplates, and provides for, the individuality of claims within a group proceeding: Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 at [104] (Gordon J). As observed by French J in Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384 (at 404):

…the circumstances giving rise to claims by potential group members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual group members and the respondent or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

131    It is not necessary for a representative proceeding to be likely to resolve wholly, or even to any significant degree, the claims of all group members: Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at [28], [30] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). This means that the pleading is not required to allege all of the material facts said to support any individual claim (other than the applicant’s claim); rather, it need only enliven issues potentially associated with each particular claim: Salem v Uber Technologies Incorporated [2020] VSC 885 at [72]–[92] (Macaulay J); Jenkings v Northern Territory of Australia [2017] FCA 1263 at [111(c)] (White J).

132    With that utility in mind, satisfaction of the requirements of s 33C is not a demanding exercise: Agnello at [29] (and the authorities cited therein) (Dixon J), noting at [23] that the relevant provisions of the Victorian legislation are substantively the same; Burt v University of Sydney (Common Question) [2025] FCA 601 at [79] (Lee J).

133    A determination as to whether the requirements of s 33C(l) have been met is to be made by reference to the pleadings: Bright v Femcare Ltd [2002] FCAFC 243 at [126] (Kiefel J). A proceeding that does not satisfy those requirements is not properly commenced and is liable to be struck out: Jenkings at [15], citing Phillip Morris (Australia) Ltd v Nixon [2000] FCA 229 at [125] (Sackville J); see also, Lloyd v Belconnen Lakeview Pty Ltd (No 2) [2020] FCA 698 at [9] (Lee J).

134    As noted above, the parties dispute whether the requirement of s 33(1)(b) of the FCA Act is met, i.e., whether the claims of the group members “are in respect of, or arise out of, the same, similar or related circumstances”. As observed by French J in Zhang, s 33C(1)(b) contemplates “a relationship between the circumstances of each claimant”, and specifies “three sufficient relationships of widening ambit”: at 404.

135    To that observation, it should be added that the relationships (between the circumstances) contemplated must also be considered in light of the reference to claims “in respect of, or arise out of” those circumstances. It is not clear whether the terms “in respect of”, or “arise out of”, are used interchangeably or in the alternative. Either way, they are to be given a breadth of meaning that reflects their ambulatory nature and the utility of a representative proceeding, as outlined above. It is difficult to contemplate a claim that arises out of certain circumstances that is not also a claim in respect of those circumstances. However, the latter expression may import a notion of immediacy that is not present in the former expression. Either way, as stated above, those expressions are to be given broad ambit, i.e., to the outer limits of their potential meaning.

136    In the present case, the battleground is drawn as to whether the claims arise from “similar” or “related” circumstances, although the focus of the parties’ submissions is on whether the circumstances are related for the purposes of s 33C(1)(b).

137    Claims in respect of, or arising out of, “related” circumstances define the “outer limits of eligibility for participation in representative proceedings”: Zhang at 404. As French J stated in Zhang (at 404–405):

The word “related” suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.

138    The respondents accept that the test for ‘relatedness’ is a low threshold. The difference between the approach of the respondents and that of the applicants may be one of emphasis.

139    The respondents rely on the statement by White J in Jenkings (at [43]):

In determining whether claims are in respect of, or arise out of, the same, similar or related circumstances, it is appropriate to have regard to their differences as well as their similarities, and to the complexity of the claims (Guglielmin v Trescowthick (No 2) at [47]). Some differences are to be expected.

140    The applicants, however, submit that the proper approach to assessing relatedness for the purposes of s 33C(1)(b) is to look for points of commonality in the claims of group members, not points of difference: Guglielmin v Trescowthick (No 2) [2005] FCA 138 at [48] (Mansfield J). This is pertinent in “course of conduct” or “systems” cases, which may involve many differences between the positions of the various group members, but are nonetheless valid representative proceedings: see, e.g., Agnello at [36] (Dixon J). The applicants refer to Jenkings, Giles v Commonwealth of Australia [2014] NSWSC 83 and Uber as examples.

141    As the respondents contend, each of the cases relied upon by the parties ultimately turns on its own facts, and as such is illustrative only of the kinds of matters relevant to an assessment of relatedness.

Same, similar or related circumstances

SD Act claims

142    BHP submits that the pleading does not satisfy the threshold requirement of s 33C(1)(b) on the basis that, due to the significant disparity in the circumstances that found the claims, they are not “sufficiently related”. In support of that submission, BHP emphasises four factors: (1) the disparity caused by the 20-year claim period; (2) the vast number (and variable nature) of sites; (3) the lack of a common theme concerning BHP’s involvement; and (4) the individualised nature of the alleged conduct. The applicants contend, in essence, that BHP mischaracterises the nature of the pleading, in that the proceeding is a “systems case”, which is ultimately focussed on BHP’s role as the parent company.

143    BHP addresses each of the above factors through a comparison with the case of Jenkings, which was a class action in which the group member detainees in various youth detention centres in the Northern Territory were variously subject to conduct by those exercising authority, such as false imprisonment, assault, battery and unlawful racial discrimination. Justice White held that the claims were related for the purposes of s 33C(1)(b), and observed that the pleaded case may be “towards the centre of the spectrum” to which French J referred in Zhang: at [45].

144    First, BHP contends that in the present proceeding, the claim period is 20 years, during which time, there would have been significant changes in the way BHP’s workplaces operated. BHP submits that the length of the claim period is not referable to, for instance, the imposition of a particular policy by BHP or the occurrence of an event, to which commonality between the group members’ claims could be drawn.

145    BHP observes that the number of sites is vast. Therefore, group membership includes any women who worked at any of “BHP’s Australian Workplaces”, which is defined in the pleadings as the operations and projects listed in the Schedule to the pleadings (of which there are 57), and any processing, administration, recreational and/or accommodation facilities associated with each operation or project: BHP-FPASOC [4(b)]. BHP emphasises that its ownership of the sites, and the work environments and nature of the sites, vary widely. The disparity between the group members is therefore more significant than in Jenkings, in which the claim period was 10 years, and group members were detained in youth detention centres in the Northern Territory, of which there were seven.

146    The applicants submit that, in the present proceeding, the workplaces, at which the respondents’ policies applied, are all within the “Australian Mining Industry” (as that term is defined in the pleadings). The applicants contend that these are “similar or related circumstances”, and that the number of workplaces, or differences in their nature, does not bear on the matter of principle.

147    Second, BHP submits that, in Jenkings, the youth detention centres in the Northern Territory were governed by “common legislative and regulatory provisions”: at [45(b)]. However, in the present proceeding, the 57 sites were located across the country and subject to different state and territory legislative and regulatory requirements, which changed over the duration of the claim period.

148    The applicants submit that first, the SD Act is applicable to the conduct occurring in all of the workplaces, and second, the same issue arose in Uber (in which the alleged offences arose under different state-based transport legislation), yet this did not prevent the representative proceeding from complying with s 33C(1)(b): Uber at [83]–[92]. The applicants contend that the fact that the SD Act applies to conduct at all of the workplaces is a similar or related circumstance for the purposes of s 33C(1)(b). The applicants point out that in Jenkings, the applicants’ claims were in relation to acts done pursuant to Northern Territory legislation, and for that reason it was relevant that the youth detention centres were governed by common legislative and regulatory provisions: Jenkings at [18], [22]. While the applicants acknowledge that various work health and safety legislation is pleaded at Section C (BHP-FPASOC [7]–[8.3]), the applicants contend that this is relevant to foreseeability and the assessment of the standard of care in the negligence claims.

149    Third, BHP observes that in Jenkings, there was a direct relationship between the group members and the Northern Territory (i.e., the officers and staff engaging with the group members were representatives of the Northern Territory at the detention centre), whereas, in the present proceeding, there is a lack of a direct relationship between the group members, the alleged perpetrators, and the relevant respondent. As such, the nature of BHP’s alleged role in respect of alleged incidents will vary significantly, and will be impacted by the role of other entities, for instance, the employer of the complainant/alleged perpetrator(s) or the entity operating the site. As to the latter, BHP took the Court to the Schedule, in which BHP’s interest in each of the sites is identified by way of a percentage. BHP submits that the applicants fail to identify the nature of those interests (whether direct or indirect ownership), and points to gaps in the Schedule as to the relevant operator of the site. Further, in oral submissions, BHP relied upon the “wide ranging” and “broad” definitions of the terms “Contractors” and “Workers” (which describe persons who worked at BHP’s workplaces) as indicative of the tenuous connections between the claims: BHP-FPASOC [5], [8.11], [8.54].

150    The applicants submit that the “direct relationship” between the officers and staff, and the group members, in Jenkings did not form part of the Court’s reasons in holding that the circumstances were sufficiently related: Jenkings at [45]. In any event, the applicants submit that for the s 105 component of the SD Act claims and the negligence claims, there is no requirement for any contractual or other relationship between BHP and the alleged perpetrators.

151    Fourth, BHP submits that the alleged conduct giving rise to the group members’ claims is “substantially more wide-ranging” than that of Jenkings. Unlike Jenkings, where the conduct at issue arose from “a form of systemic conduct by officers or staff members” (at [45(c)]), there is no such allegation of “systemic” conduct, and the alleged conduct will be highly individualised.

152    BHP also takes issue with the pleaded “Group Member Complaint Conduct”, which alleges that at times during the claim period, some group members who were subjected to the alleged conduct made a formal or informal complaint via BHP’s complaint services, which resulted in detriment in employment: BHP-FPASOC [70]. The particulars provide examples of the kinds of detriment alleged to have been suffered by the group members, which are not particularised by material facts, and are described only by “all-encompassing broad categories”. BHP claims that the spectrum of alleged conduct, from “poor information handling” to “termination”, demonstrates that the circumstances of the claims vary widely.

153    In response, the applicants contend that the alleged conduct in Jenkings was substantially wide ranging, extending to false imprisonment; assault; battery; excessive, unreasonable, unnecessary, inappropriate and/or unlawful use of force, restraint, search and/or isolation; being accommodated in “substandard conditions”; and being “from time to time” deprived of food, water, clothing and bedding as punishment: at [18]. The applicants submit that, in the present proceeding, the alleged conduct relates to the group members’ sex or gender, broadly described as sexual harassment, and that the circumstances of the alleged conduct are similar or related.

154    Fifth, the alleged conduct in Jenkings concerned unlawful racial discrimination under s 9 of the Racial Discrimination Act 1975 (Cth), which did not require consideration of the subjective attitude of the person subject to the discriminatory act. BHP contends that the legal test for sexual harassment under s 28A of the SD Act involves both objective and subjective elements that require consideration of matters that are specific to the person harassed and their relationship with the alleged harasser: Hughes v Hill (2020) 277 FCR 511 at [22]–[23], [26] (Perram J, Collier and Reeves JJ agreeing at [1], [2]). As such, determination of satisfaction of the requirements of s 28A of the SD Act will be highly fact-specific. BHP also points to the fact that, as is apparent from the terms of s 28A of the SD Act, the circumstances in which sexual harassment may occur are wide and varied. (BHP also contends that the same issues arise in respect of claims of harassment on the ground of sex under s 28AA of the SD Act, and discrimination in employment/against contract workers under ss 14 and 16 of the SD Act.)

155    BHP contends that the SD Act claims of group members are pleaded at a very high level of generality, in the absence of material facts, and as such do not show a coherent basis upon which “highly fact specific incidents” could be said to be sufficiently related: BHP-FPASOC [69], [70]. BHP complains that the pleadings simply repeat the statutory language, provide broad categories of what the alleged conduct might entail (e.g., “sexual assault”, “requests for intercourse”), and state that material facts and further particulars in respect of individual group members will be provided after trial of the applicants’ claims and common questions: BHP-FPASOC [69], [70] particulars. A similar approach is taken throughout Section D.6 (“Group Members”): BHP-FPASOC [69]–[70], [73]–[78], [80]–[81] particulars. In Section E (“Unlawful Discrimination: Vicarious and Auxiliary Liability”), a formula is repeatedly pleaded to the effect that cognate claims of group members arising from the alleged conduct are not proposed to be pleaded or particularised until after the initial trial: BHP-FPASOC [114.1], [122.1], [137.1] and [145.1]. In this way, BHP contends that the applicants do not identify, even at a high level, the facts and circumstances of group members’ claims under the SD Act.

156    By contrast, BHP observes that each instance of alleged sexual harassment pleaded by the applicants (in respect of their own claims) is highly fact-specific, and includes pleas of specific circumstances of alleged conduct, involving certain alleged perpetrators, at particular mine sites, while the applicants were employed by identified entities.

157    Ultimately, BHP claims that the manner in which the group members’ claims are pleaded demonstrates the inability to plead the requisite degree of commonality between those claims. BHP accepts that there is room for considerable diversity in circumstances that might support individual claims, but that the connection between the circumstances of the claims is too tenuous or remote to attract the application of Pt IVA in the manner described by French J in Zhang (at 405):

At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.

158    As such, BHP submits that the present proceeding is more analogous to Phillip Morris than to Jenkings (the applicants characterise Jenkings as being “on all fours” with the present case). Relevantly, Phillip Morris concerned a representative proceeding brought against various tobacco companies, in which the applicants pleaded misrepresentations and negligence in inducing people to take up and continue smoking without adequate warning of the health risks. In that case, Sackville J noted that “[t]he possible combinations of factual circumstances [were] virtually limitless” (at [149]), and that “[t]he allegations made against each of the respondents concern diverse conduct over a period of nearly 40 years” (at [164]). As such, the proceeding was not an appropriate one to commence as a class action, with Sackville J observing that the case involved “vastly different forms of advertising, promotions and other public statements” (at [165]), and that the “circumstances of each of the thousands of claims pleaded in the statement of claim are so disparate and involve such varied conduct on the part of the several respondents that they cannot be said to arise out of related circumstances” (at [166]).

159    The applicants reiterate that the applicability of the SD Act to all of the workplaces is a similar or related circumstance for the purposes of s 33C(1)(b), and that the fact that a proceeding comprises group members with variable circumstances and is complex, wide-ranging or broad, does not mean that s 33C(1)(b) will not be met.

160    The applicants rely on the staged nature of Pt IVA proceedings, the objective of which is to determine one or more common issues of fact or law that arise across the class, leaving any individual questions to be determined later under ss 33Q and 33R of the FCA Act. The applicants submit that differences in individual claims are envisaged by the legislative scheme, and that the usual process is that enquiries specific to group members (i.e., findings as to the subjective attitude of group members) are made after the determination of the applicants’ claims and common questions: see, e.g., Jenkings at [27]. Only if the common issues are resolved favourably will there be occasion for any subsequent individual trials. Further, the applicants caution that BHP’s approach would undermine the utility of the class action regime, i.e., no class action could be commenced where each group member’s subjective response to the conduct the subject of the claim needed to be assessed.

161    In response, BHP says that the applicants’ approach impermissibly expands the scope of representative proceedings by giving little work to the language of s 33C(1)(b) to do. BHP submits that the applicants appear to conflate s 33C(1)(b) and (c), and observes that the statutory test of s 33C(1)(b) does not require a focus on commonality, rather, it requires an assessment of the “relatedness” of the group members’ claims.

162    The applicants submit that Jenkings is a “course of conduct” or “systems” case that is not relevantly distinguishable from the present proceeding. They observe that the arguments presented by BHP in the present case are almost identical to those rejected in Jenkings: viz., that the alleged conduct was capable of “almost infinite variety” due to the ten year claim period; the diverse places at which the alleged conduct was said to occur; the number of alleged perpetrators involved; the variety of alleged conduct; and the content of the relevant law and regulations which were in force from time to time: see Jenkings at [35]–[38].

163    It is also submitted that BHP’s reliance on Phillip Morris is misplaced, as the decision: (i) proceeded on the false assumption that each applicant and group member had to establish a claim against each respondent (BHP disputes that the “wrong assumption” in Phillip Morris infects the entirety of the judgment); and (ii) is distinguishable on the basis that an allegation of a collective course of conduct was not pleaded; in the present case, there is only one respondent, and it is that respondent’s course of conduct or system that is put in issue.

164    The applicants contend that BHP’s focus on the differences (which approach is criticised in the authorities), misses the “most obvious common thread: the [r]espondent’s role”. The applicants submit that the group members’ claims are in respect of, or arise out of, at least the following similar or related circumstances:

(1)    all group members are women;

(2)    all group members worked at one or more of the respondents’ “Australian Workplaces” (as that term is defined in the pleadings);

(3)    all group members worked in the “Australian Mining Industry” (as that term is defined in the pleadings);

(4)    common policies and procedures, developed and implemented by the respondents, applied to all of the respondents’ “Australian Workplaces” and to all persons working at those workplaces (i.e., the group members and alleged perpetrators);

(5)    the respondents are said to have assumed responsibility for the health and safety and human rights of all group members;

(6)    the respondents are said to have assumed responsibility for “Workplace Culture” at the “Australian Workplaces” (as those terms are defined in the pleadings);

(7)    the risk of sexual harassment at the respondents’ “Australian Workplaces” is said to have arisen due to the respondents’ failure to implement adequate policies, procedures and training, monitoring and auditing processes to address that risk;

(8)    the risk of sexual harassment at the respondents’ “Australian Workplaces” is said to have been known by the respondents; and

(9)    the SD Act applied to conduct occurring at all of the respondents’ “Australian Workplaces”.

165    The further significance of BHP’s argument, as contended by the applicants, is that it is brought as a strike out, rather than as a declassing application or summary dismissal. This is significant as the strike out is concerned with the “basic threshold question” in s 33C, at a point where the Court does not engage in findings of fact based on evidence. BHP replies that nothing should be inferred from the fact that BHP has not yet brought a declassing application, and that the question of declassing properly arises once the threshold question of whether Pt IVA has been properly engaged has been resolved.

166    BHP submits that the first, second and third factors are not sufficient to demonstrate that the claims arise out of related circumstances. In particular, BHP contends that it is unclear how the reference to the “Australian Mining Industry” adds to the analysis – i.e., if each group member worked at a BHP “Australian Workplace”, then presumably they worked in the “Australian Mining Industry”.

167    As to the fourth factor, BHP contends that the applicants do not itemise or specify the specific policies and procedures, explain why they are inadequate, or link them to the “highly fact-specific and individualised” alleged conduct. BHP submits that the applicants make no attempt to grapple with the complexities of changing policies and procedures developed, maintained and implemented by different entities in accordance with various contracting arrangements, across the 57 worksites, and the 20-year claim period. In relation to the ninth factor, BHP submits that it is not apparent how the application of particular legislation advances the applicants’ argument on relatedness.

168    BHP submits that in Uber, the circumstances of all the drivers across the States were similar due to Uber’s uniform practices: Uber at [89]. In Agnello and Jenkings, an institutional facility was in issue (i.e., an aged care facility and Northern Territory-based detention centres, respectively). In Zhang, there was one course of action in issue, relevantly, an alleged failure of decision-makers to give refugee applicants an oral hearing. However, in the present proceeding, BHP submits that there is no such identified uniformity; rather, the circumstances are “completely disparate”.

Negligence claims

169    BHP says that its submissions in relation to its SD Act claims apply equally to the applicants’ claims in negligence. BHP characterises the spectrum of potential conduct for the negligence claims as “vast”.

170    BHP contends that the negligence claim of each group member must arise from the specific conduct of an individual perpetrator towards the group member, or the detriment allegedly flowing to the group member from a complaint about that conduct, otherwise there would be no breach of duty. BHP points to paras [149] and [153] of the proposed pleading, which state that the duties of care will depend in part on “any additional matters specific to the individual circumstances of the Group Members”. BHP contends that, in essence, the applicants plead that whether BHP owed the alleged duty of care will turn on the individual circumstances of each particular group member. BHP submits that this, in itself, indicates that the circumstances giving rise to the claims are not sufficiently related so as to satisfy the threshold requirements of s 33C(1)(b).

171    While in negligence, damage is the gist of the action, the applicants submit that the negligence claims arise out of the respondents’ role, actions and failures; i.e., it is BHP who is alleged to owe the duty of care, to have breached that duty, and to have caused the relevant damage, notwithstanding that the harm was immediately caused by the alleged perpetrators. The existence of a duty of care will depend on all the circumstances, some of which will be common to all group members, and others which will be specific to the individual: Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 283 CLR 507 at [46]–[48] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ).

172    The applicants submit that, in the usual course, the common circumstances are determined first. BHP retorts that there is no actionable breach unless the applicants can identify conduct giving rise to the breach.

Consideration

173    In my view, the claims of the group members are (at least) related for the purposes of s 33C(1)(b) of the FCA Act.

174    The essence of the respondents’ complaint appears to be the absence of particularity in the pleading, giving rise to an almost limitless, and therefore incalculable, variety of circumstances. There is some merit in the complaint about particularity, but the appropriate remedy in the present case is not to strike out the pleading as a whole. In examining the requirement in s 33C(1)(b), while it is appropriate to have regard to the differences as well as the similarities between claims (indeed, one may be the corollary of the other), the differences do not assume significance in the application of s 33C(1)(b) unless they are such as to deny any relationship between the claims that might be described as the same, similar or related.

175    While the alleged conduct giving rise to the group members’ claims may be more wide-ranging than that of Jenkings, the suggested analogy with Phillip Morris is not convincing on the basis of the finding in that case that the pleadings did not include a claim that the (several) respondents engaged in a collective course of action: at [165]–[166]. That was the basis of the disparity in conduct which led to the conclusion that such varied conduct on the part of the respondents cannot be said to arise out of related circumstances.

176    Analogies can be helpful, indirectly, to test the parameters of a broad concept or low threshold. However, they are not a substitute for an analysis of the pleading in question, vis-à-vis the statutory language or threshold.

177    In the present case, the pleadings reveal that there is a common core of factual circumstances alleged, viz., that:

(1)    all group members are women who worked at one or more of the respondents’ “Australian Workplaces” (as that term is defined in the pleadings; I agree that the reference to the “Australian Mining Industry” is an expression of the commonality found in the description of the respondents’ “Australian Workplaces”); and

(2)    policies, standards and procedures (including reporting mechanisms, training, monitoring and counselling programs) relating to health and safety, environment and community (and other matters), referred to as “centralised processes”, applied to, or were required to be respected and supported by, persons working at the respondents’ “Australian Workplaces” (i.e., the group members and alleged perpetrators).

178    On the basis of those core factual circumstances, it is alleged that the respondents:

(1)    assumed responsibility for the health and safety, and upholding of human rights, of all group members, including protection from harassment, sexual harassment and discrimination, as well as responsibility for “Workplace Culture” (as that term is defined in the pleadings);

(2)    knew or ought to have known of the Risk of Harm (as that term is defined in the pleadings) at the respondents’ “Australian Workplaces”; and

(3)    failed to implement adequate policies, procedures, training, monitoring and auditing processes to address that risk.

179    The conduct in question is said to constitute a form of discrimination under the SD Act. Those matters also constitute the core factual substratum of the negligence claims.

180    It may be accepted that the content of the “centralised processes” altered over the course of the claim period, but that variation does not deny the related circumstance of the application of those processes, in respect of which the respondents are said to have assumed responsibility for certain treatment of group members. This is an answer to BHP’s claim that there would have been significant changes in the way BHP’s workplaces operated over the course of 20 years, which, in any event, presents in the way of an assumption.

181    This proceeding is one step removed from the scenario in Uber, where each of the alleged offences arose under different state-based transport legislation. Even so, that factor did not deny the connection between the claims sufficient to qualify as “related”. Here, the same claimed processes are alleged to have applied at the “Australian Workplaces” at all material times throughout the claim period. In that respect, as in Uber at [89], the practices may be said to be uniform. The fact that the number of sites may be “vast” does not detract from that conclusion; it affects only the scope of control or influence.

182    BHP’s complaint that the applicants do not itemise or specify the specific policies and procedures; explain why they are inadequate; or link them to the alleged conduct, is best addressed by the provision of further particulars (noting that the pleading particularises various policies, reports and other material and that some of these complaints call for submissions), perhaps after discovery has been obtained, noting the early evidentiary stage at which the enquiry in s 33C is undertaken, and accepting that satisfaction of the requirements of s 28A of the SD Act will be fact-specific. In that regard, it is not surprising that the pleading is replete with references to the provision of further particulars in respect of individual group members after trial of the applicants’ claims and common questions.

183    This does not deny the requisite connection between the claims for the purposes of s 33C(1)(b). The link between the “centralised processes” and the alleged conduct on the part of the alleged perpetrators is apparent in the claims of permissive conduct and vicarious liability of the respondents. In any event, it is to be remembered that that the conduct the subject of the SD Act claims (and the claims in negligence) is that of the respondents in administering these processes (and failing to implement adequate ones), not that of the (immediate) perpetrators.

184    BHP complains of a lack of a direct relationship between the group members. That may be a matter of perspective, and, in any event, it is not necessarily a disentitling factor. The relevant relationship or connection for the purpose of s 33C(1)(b) is that between the claims. While the relationship between the group members will inform that question, whether the relationship is direct or indirect will not answer the question as to whether the circumstances giving rise to the claims are “similar or related”.

185    Differences in individual claims are not anathema to a Pt IVA proceeding, where it is anticipated that common questions will be addressed before determining the idiosyncrasies of individual claims. In my view, Pt IVA is an appropriate vehicle for a class action of this nature. I do not agree that the breadth of the action is such as to give little work to the language of s 33C(1)(b) to do, or that it conflates subpara (b) with (c).

186    I do not accept, as BHP claims, that the manner in which the group members’ claims are pleaded demonstrates the inability to plead the requisite degree of commonality between those claims. In my view, the manner in which the group claims are pleaded is indicative of: (i) the early evidentiary stage of consideration of the question in s 33C(1)(b); and (ii) the nature of the claim as one of systemic conduct of the respondents.

187    For the foregoing reasons, I consider that the claims of the group members are in respect of, or arise out of, the same, similar or related circumstances for the purposes of s 33C(1)(b) of the FCA Act.

Rule 16.21 of the FCR

188    Barring success on the jurisdictional and threshold arguments, the respondents contend that the amended statements of claim should be struck out, in whole or in part, pursuant to r 16.21(1)(c), (d) and/or (e) of the Rules. Rio Tinto also asserts that the RT-PFASOC does not cure the deficiencies in the amended statement of claim and accordingly, leave to file the pleading should be refused.

189    The respondents take issue with the following categories of pleadings: (i) the pleas that the respondents are vicariously liable for the alleged conduct within the meaning of s 106 of the SD Act; (ii) the pleas that the respondents “permitted” the alleged perpetrators to engage in the alleged conduct within the meaning of s 105 of the SD Act; and (iii) the negligence claims. Each category is addressed in turn below.

190    Rio Tinto also seeks that certain paragraphs of KTM24’s personal claim be struck out on the basis that they are affected by many of the deficiencies identified in respect of the group members’ claims.

191    The principal complaint is that, as pleaded, critical components of the pleadings are “rolled up and conclusory”, and are not supported by material facts. Absent identification of the bases upon which the claims are said to rely, the respondents argue that they are unable to know the case that they are required to meet and to properly respond to the pleadings.

192    The applicants contend that the pleadings, read as a whole, give fair and clear notice of the case to be met at trial.

193    For the reasons that follow, I accept that the amended statements of claim should be struck out in part. However, I give leave to the applicants to replead the impugned paragraphs that warrant clarification or circumscription, as identified below.

Legal principles

194    Rule 16.21 provides:

16.21    Application to strike out pleadings

(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.

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

195    The principles applicable to strike out applications under r 16.21 are well-established, and not in contention, but some aspects bear repeating.

196    Rule 16.21 must be interpreted and applied in light of s 37M of the FCA Act, which provides that the purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: KTC v David [2022] FCAFC 60 at [118] (Wigney J). The power to strike out is discretionary, and should only be exercised “sparingly”, in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: KTC at [125].

197    The primary purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [21] (Weinberg J); Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 at [6]–[7] (Emmett, Bennett and McKerracher JJ). The question whether the pleading gives clear and fair notice of the case to be met at trial is a question of degree, influenced by s 37M and case management principles: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ, Gaudron J); Altrad Australia Pty Ltd v Dropulich [2025] FCA 342 at [7] (Feutrill J); Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82 at [4]–[9] (Martin CJ).

198    A statement of claim must allege a cause of action with sufficient particularity and not simply make allegations in general terms: Young at [7]. The adequacy of a statement of claim is to be assessed by reference to whether the cause of action is pleaded at a level of particularity that is sufficient to define the issues and inform the other party of the case that it has to meet, in the context of the particular allegations (including the factual foundation for the case that is alleged): Young at [7]. A pleading that simply pleads a conclusion (that is, without all of the relevant facts necessary to support it and disclose a reasonable cause of action) is embarrassing and should not be permitted to stand: Young at [7]. A pleading that “simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out”: McKellar at [23]. Similarly, a pleading may be struck out if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects that result in it being unintelligible, ambiguous, vague or too general: KTC at [120]; Young at [6]–[7].

199    If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the “residue would be confusing”: KTC at [124]. That is not the present case.

Part IVA proceedings

200    In Phillip Morris, Sackville J addressed the application of the general principles relating to strike out in the context of Pt IVA proceedings (in relation to the predecessor to r 16.21): at [129]–[137], see also Jenkings at [110]–[111]. Part IVA does not abrogate the general pleading requirements applicable to proceedings in this Court: Jenkings at [111(a)]. However, context is relevant to their application.

201    Applicants are not bound to plead material facts specific to each group member: Phillip Morris at [131]; Jenkings at [111(c)]. Depending on the circumstances of the particular case, it may be sufficient for the applicant to plead the case of each group member at a “reasonably high level of generality”: Phillip Morris at [133]; Jenkings at [111(e), (f)]. As observed by Sackville J, unless the rules of pleading permit this degree of flexibility, serious inroads would be made into the utility of the representative procedure established by Pt IVA: Phillip Morris at [134].

202    However, the level of generality should not be so great that a respondent cannot be reasonably expected to know, with some precision, the case which it is to meet: Jenkings at [112], citing Peter Hanne & Associates Pty Ltd v Village Life Ltd [2008] FCA 719 at [42] (Jacobson J).

203    The applicants submit that the Court assumes the parties’ considerable background knowledge, of which the Court is ordinarily unaware, which may have the effect of making the parties sufficiently aware of the issues in a way that may not be readily apparent to an outside observer who reads the pleading in the abstract: Redflex Traffic Systems Pty Ltd v Acusensus IP Pty Ltd [2025] FCA 1382 at [5] (Jackman J). There are a number of assumptions in that submission, which in any event, does not take the applicants far.

SD Act claims

204    BHP contends generally that the group members’ claims under the SD Act are pleaded in a conclusory way, and do not rise higher than a recitation of statute and description of very broad categories of conduct (which contention was advanced in respect of s 33(1)(b) of the FCA Act above, at paragraphs [154]–[156]). Consequently, BHP contends that the respondents do not have fair notice of the case that they have to meet, and the pleadings fail to disclose a reasonable cause of action. As BHP acknowledges, this submission is closely linked with the reasons why the group member claims do not satisfy the threshold requirements for a representative proceeding. Accordingly, this submission is rejected for the reasons given above in relation to the operation of s 33(1)(b) of the FCA Act. The peculiarities of the SD Act claims are otherwise addressed below.

SD Act claims: s 106 pleas

205    The respondents contend that the claims of vicarious liability should be struck out, on the basis that the impugned paragraphs fail to plead material facts.

206    In each proceeding, the applicants contend that the relevant respondent is liable pursuant to s 106 of the SD Act for the misconduct to which the applicants (and the group members) were subjected. Section 106 of the SD Act imposes vicarious liability for an act done by an employee or agent of an employer, and relevantly provides:

106    Vicarious liability etc.

(1)    Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a)    an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b)    an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

…

207    The central complaint is that the applicants do not plead material facts establishing a “critical plank” of the applicants’ claims, viz., that identified wrongdoers were the respondents’ “employee or agent” within the meaning of s 106(1) of the SD Act. BHP submits that it is incumbent on the applicants to articulate how, in circumstances where none of the alleged perpetrators were employed by BHP, they could nevertheless be an “employee” or “agent” of BHP. Consequently, BHP submits that the impugned pleadings fail to disclose a reasonable cause of action, contrary to r 16.21(1)(e) of the Rules.

208    The impugned paragraphs plead that: (i) the alleged perpetrators were agents (or employees) of the relevant respondent; (ii) the alleged conduct was done in connection with the alleged perpetrators’ duties as agents (or employees) of the relevant respondent; and (iii) the relevant respondent is vicariously liable for the alleged conduct pursuant to s 106(1)(b) of the SD Act.

209    The paragraphs identified in the respondents’ written submissions are: RT-PFASOC [9.13(c), (g)], [8.52]–[8.54], [22.3], [22.5(b)], [32.3], [32.6(b)], [50.3], [50.5(b)], [73] and [150]; BHP-FPASOC [86], [93], [98], [103], [108], [113] and [121]. Two qualifications should be made. First, the paragraph identified by one respondent in their respective pleading may have an equivalent paragraph in the other pleading. Second, while the impugned paragraphs identified by Rio Tinto in written submissions are those focused on agency, Rio Tinto confirmed in reply submissions that it also takes issue with the pleas of employment.

210    The applicants contend that the pleading contains sufficient material facts and particulars from which employment or agency can be inferred, and that the respondents misconceive the operation of s 106 of the SD Act.

211    For s 106 to be engaged, the conduct complained of must be that of an “employee or agent” of the person sought to be made vicariously liable: Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) (2020) 273 FCR 189 at [59] (Flick, Robertson and Rangiah JJ). Rio Tinto submits that the question of whether a person was an “employee” or “agent” for the purposes of s 106(1) is one of fact and law, which requires pleas of material facts: Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 4) [2024] FCA 179 at [13] (Goodman J); Bishnoi v Star Track Express Pty Ltd [2024] FCA 808 at [31], [41] (Neskovcin J).

212    BHP drew the Court’s attention to Bishnoi, in which the applicant alleged that the first respondent, Star Track Express Pty Ltd, was vicariously liable under s 106(1)(b) of the SD Act for the unlawful sexual harassment by persons (the second to fifth respondents) who were alleged to be employees or agents of the first respondent. In striking out aspects of the statement of claim, Neskovcin J held that the statement of claim did not plead the acts, facts or matters on which the applicant intended to rely to allege agency, and that the allegation of employment was a “bare allegation”: at [31], [41]. BHP contends that the pleadings in these proceedings suffer from the same kinds of defects.

213    The applicants emphasise the breadth of the terms “employment” and “agency”. The applicants observe that the term “employment” is defined in s 4 of the SD Act in a non-exhaustive manner (which definition was amended on 11 September 2021, to include subpara (d) and Notes 1 and 2: Sch 1 item 37 of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth)). Section 4(1) relevantly provides:

employment includes:

(a)    part-time and temporary employment;

(b)    work under a contract for services; and

(c)    work as a Commonwealth employee; and

(d)    work as a State employee of a State.

Note 1:    Other parts of speech and grammatical forms of “employment” (for example, “employer” and “employee”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).

Note 2:    See also sections 108 (Commonwealth employee) and 109 (State employee).

214    The applicants submit that “employee” and “agent” are not defined in the SD Act, and as such, their content turns on statutory construction. The applicants contend that the definition of “employment” is not constrained by the expression at common law, which is concerned with the relationship of employee and employer formed (exclusively) under a contract of employment: see Ryan v Commissioner of Police, NSW Police Force (2022) 290 FCR 369 at [89] (Griffiths, Rangiah and Perry JJ), citing Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [16] (French CJ, Bell and Keane JJ). In Ryan, the Court construed the terms “employee” and “employer” for the purposes of the Disability Discrimination Act 1992 (Cth) (which does not define “employee” or “employer” and contains a substantively identical definition of “employment” to that in the SD Act). The Court held that the statutory definition of “employment” was broader than the common law meaning and was capable of referring to an “employee” in the sense of a person paid for performing work on a regular basis at the request and direction of another person: at [103]–[104], [116].

215    In relation to the term “agent”, the applicants submit that it is an inclusive term and extends to those who, in fact, represent or act for the putative principal in connection with the relevant employment: Bishnoi at [27], [31]. Like “employee”, the term “agent” is broad.

216    The applicants ultimately rely on the breadth of the terms “employee” and “agent” to support their submissions that the pleading contains sufficient material facts and particulars from which those relationships can be inferred. The applicants contend whether such relationships existed is a matter for trial, and there is enough in the pleading to establish the basis upon which the applicants make the claims: Healthsafe Australia Pty Ltd v Patterson (No 2) [2023] WASC 217 at [15] (Master Sanderson). (Rio Tinto replies that Healthsafe can be distinguished, as it concerned a narrow allegation that the defendants collected rent for a property owner as the owner’s “agent”, in circumstances where “there [was] enough” in the pleading to establish the basis on which the claim was made: at [14]–[15].)

217    The applicants also submit that a pleading expressed as a conclusion may nonetheless state a material fact: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [18]–[21] (Mortimer J). In response, Rio Tinto contends that Chang does not justify a departure from the approach that material facts must be pleaded to support an allegation of employment or agency.

218    The respondents advance similar arguments in support of their positions. Rio Tinto argues, first, that the applicants do not identify material facts to support pleas that “Workers” were employees or agents of the respondents, and second, that the logic of the applicants’ case treats the respondents and their subsidiaries as a “single operational reality”, which is unsupported by material facts. BHP contends, more broadly, that material facts going to agency or employment are not pleaded.

“Workers”

219    Rio Tinto contends that the alleged perpetrators are all pleaded, in effect, to be “Workers”, which is defined in the pleading to be “Subsidiary Direct Employees”, “Contractor Direct Employees” and/or “Independent Contractors” who worked at Rio Tinto’s “Australian Workplaces” at all material times during the claim period (RT-PFASOC [8.45]). Those terms are defined as follows (at [8.9]):

(a)    persons directly employed by Rio Tinto’s Subsidiaries (Subsidiary Direct Employees);

(b)    persons directly employed by Rio Tinto’s Contractors (including labour hire companies) (Contractor Direct Employees); and

(c)    independent contractors (Independent Contractors),

220    Rio Tinto submits that the definition of “Workers” appears to concede that Rio Tinto is not the “employer” of “Workers” for the purposes of the SD Act. Further, Rio Tinto takes issue with the breadth of the definitions, which it describes as “obviously problematic”.

221    The applicants submit that the term “Workers” brings together three types of workers at Rio Tinto’s workplaces, and the pleading later asserts at para [9.13] (Section CH.2) that Rio Tinto exercised control over all “Workers” working at the workplaces, which is a common issue to all group members.

222    Rio Tinto contends that para [9.13(c), (g)] ought to be struck out. Those subparagraphs state (amendments in markup):

(c)    requested, Rio Tinto or one of Rio Tinto’s Subsidiaries requested on Rio Tinto’s behalf, requested or directed Workers to work at Rio Tinto’s Australian Workplaces;

…

(g)    by reason of the matters referred to in the Schedule and Section CD.2 above, Rio Tinto controlled the physical conditions in which Workers worked.

223    As to subpara (c), Rio Tinto submits that acts of subsidiaries are generally not attributed to their parent, and exceptions to this rule are limited: McConnell Dowell Constructors (Aust) Pty Ltd v Gas Transmission Services WA (Operations) Pty Ltd [2007] VSC 301 at [21]–[25] (Habersberger J). Rio Tinto contends that no such exceptions are pleaded by the applicants. It is argued that the applicants elide Rio Tinto with its subsidiaries, and its subsidiaries’ contractors, as “a single operational reality”, making the need for pleas of material facts “all the more acute”. On that basis, Rio Tinto submits that the pleading is embarrassing, not supported by underlying material facts, and ought to be struck out.

224    The applicants contend that this plea does not require further material facts, and if Rio Tinto’s position is that such requests or directions were not made on its behalf, then that is a matter for its defence. Rio Tinto retorts that the overarching purpose is not served by the denial of bare conclusions, and then dealing with steps such as discovery and evidence without knowing the basis on which the applicants allege those conclusions.

225    As to subpara (g), Rio Tinto contends that the matters referred to in the Schedule and Section CD.2 do not justify the plea that Rio Tinto “controlled the physical conditions in which the Workers worked”. The Schedule lists the workplaces, and claimed percentage of Rio Tinto’s interest therein. Rio Tinto draws attention to the definition of “Workplaces”, which captures workplaces in which Rio Tinto has no direct interest – e.g., a workplace owned and operated by a Rio Tinto subsidiary.

226    In Section CD.2, the applicants plead as to physical characteristics of, and security measures taken at, the “Workplaces”. Rio Tinto advances the following submissions:

(1)    At para [8.52], the applicants plead that: “Rio Tinto supplied the Workplace Accommodation to Workers”; an “agent managed the Workplace Accommodation on Rio Tinto’s behalf”; and that Rio Tinto required that the “Workplace Accommodation” be “subject to routine inspections and ongoing investment and maintenance programmes”. Rio Tinto contends that this plea is a conclusion and is not supported by any material facts; in particular, it is not apparent on what basis Rio Tinto is said to have “supplied” the “Workplace Accommodation”, where it is not the direct owner or operator of the workplace. The applicants respond that the material facts are set out in the subparagraphs of [8.52], and rely on Chang (at [18]–[20]) for the proposition that a pleading expressed as a conclusion may nonetheless state a material fact.

(2)    At para [8.53], the applicants plead inter alia that the design and layout of the “Workplaces” was “designed on Rio Tinto’s behalf”; “designed on behalf of one of Rio Tinto’s Subsidiaries”; and/or “adopted by Rio Tinto when it or one of Rio Tinto’s Subsidiaries purchased an interest” in a workplace. Rio Tinto submits that no facts are pleaded to support the conclusion that the design and layout was “adopted”. Further, the plea that the “Workplaces” were designed on behalf of Rio Tinto’s subsidiaries is an “unjustified elision of Rio Tinto and its subsidiaries”. The applicants characterise Rio Tinto’s submission as a request for evidence, and a matter for their defence.

(3)    At para [8.54], the applicants plead that certain security measures were procured and maintained “on Rio Tinto’s behalf”. Rio Tinto submits that the pleading is unclear, and in the event that Rio Tinto’s subsidiaries engaged third parties to undertake works, that suggests that the works were done on the subsidiary’s behalf, not on behalf of Rio Tinto.

227    Rio Tinto submits that, once subparas (c) and (g) are struck out, all that remains in para [9.13] are the allegations that Rio Tinto (as the parent company) set policies and minimum training standards. Rio Tinto contends that this is a manifestly insufficient basis to conclude that persons who had an employment or other contractual relationship with a subsidiary (or a subsidiary’s contractors) were employees or agents of the parent company.

228    The applicants submit that the pleaded case of control over “Workers” does not rely on policies alone: it includes direction, deployment, supervision, audits, discipline pathways and physical controls which, taken together, are capable of establishing employment or agency. Ultimately, the applicants contend that Rio Tinto’s submissions do not expose any true pleading deficiency.

229    I agree. A claim that matters do not justify a plea can be addressed in a defence, and ultimately, in submissions. So, too, the claim of elision to create “a single operational reality”. In the present context, the claims do not expose any deficiency that warrants a strike out. There are sufficient material facts and particulars for the respondents to understand the case that is put against them. That is not to say that the case would not benefit from further particularity, which is anticipated by the applicants, and which might make the respondents’ defences a more useful response to the applicants’ claims. I add that, in my view, and contrary to the submission of the applicants, the breadth of the terms “employee” and “agent” calls for (rather than shields them from) greater particularity in pleading the facts that it is said sustain those terms. However, that does not mean that the respondents cannot comprehend the case that is put against them, as unmeritorious as they may claim it to be. In that regard, I do not accept that the pleading is evasive or ambiguous, or otherwise fails to disclose a reasonable cause of action. Nor do I consider that the present state of the pleadings is likely to visit any prejudice upon the respondents, or otherwise cause embarrassment or delay in the proceedings.

“Employee” or “agent”

230    The respondents contend that the pleading fails to identify with sufficient specificity, the material facts in support of the allegation that the alleged perpetrators were employees or agents of the respondents.

231    Rio Tinto emphasises that, in the complaint, KTM24 identifies various entities as her employers during different periods (Sodexo Remote Sites Australia Pty Ltd, Paull Warner Resources Pty Ltd (PWR), and Pilbara Iron Company (Services) Pty Ltd). Sodexo and PWR are each described “contractor[s]” of Rio Tinto, and Pilbara Iron is described as a subsidiary of Rio Tinto. KTM24 also identifies an individual (by their position) who is alleged to have engaged in certain conduct. Despite this, no other companies, subsidiary body corporates of Rio Tinto, or any individuals, are named as respondents in the complaint (or the present proceeding). As such, Rio Tinto submits that the sole basis upon which Rio Tinto is said to be liable is that it permitted, or is vicariously liable for, the acts of its employees and/or its agents. However, it is argued, there is little to no factual basis to establish those relationships.

232    BHP submits that the applicants do not refer to any specific arrangements with BHP to substantiate the allegations; facts such as the alleged perpetrators wearing a company’s branded t-shirt, living at accommodation or undertaking training, do not sufficiently articulate how BHP could be said to have conferred authority on an individual to act as its agent or employee: see, e.g., BHP-FPASOC [33.3], [33(f)].

233    The applicants point to the fact that the alleged perpetrators are contended to be “Workers”, which “carries with it” the allegations that “Workers” were required to undertake training on the code of conduct, comply with the respondents’ policies, and the fact that some “Workers” lived at “Workplace Accommodation”: see, e.g., RT-PFASOC [8.16(e)], [8.24]–[8.25], [8.51(a)]. The applicants contend that these allegations are part of the factual matrix relating to agency. The applicants emphasise the pleas that the alleged perpetrators wore Rio Tinto/BHP branded t-shirts, and submit that the wearing of insignia or a company uniform is relevant both as an indicium of employment under the common law test (see Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 at [175], [187] (Gordon J)), and as ostensible authority in relation to agency (see Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [36]–[38]).

234    In any event, the applicants contend that with respect to the group members’ claims, the employee and agency relationships are pleaded at RT-PFASOC [85]–[86]. Those paragraphs plead that the alleged perpetrators were employees/agents of Rio Tinto within the meaning of s 106 of the SD Act, and in the particulars, refer to and repeat Sections CD.1 (“Workers”) and CH.2 (“Control over Workers”). The particulars also state that the material facts and further particulars of employment and agency will be provided following the trial of the applicants’ claims and common questions.

235    The applicants dispute that it is necessary to refer to any specific arrangements with the respondents to substantiate the allegations of employment or agency, and submit that they have pleaded the case as best as they can prior to discovery given the “information asymmetry”.

236    BHP submits that this is a reason to strike out the pleading, as it reveals that the applicants cannot articulate a case of employment or agency, and are “trying to use discovery to find a case”. In a similar vein, Rio Tinto contends that the overarching purpose (presumably of s 37M of the FCA Act) is not served by the respondents denying bare conclusions, and then dealing with steps such as discovery and evidence without knowing the basis on which the applicants allege those conclusions. Rather, precise pleadings are required to assist with the efficient conduct of litigation.

237    I do not accept that the respondents cannot know the basis on which the applicants allege an employee or agent relationship. The claim that the applicants do not substantiate the allegations may be addressed in the respondents’ defences. Further, I do not accept that the applicants have not sufficiently articulated how BHP could be said to have conferred authority on an individual to act as its agent or employee. The basis of the agency allegation is articulated as the wearing of a shirt that bore the name of the relevant respondent (see BHP-FPASOC [33.3] and [33(f)]) in a context in which it is alleged the respondent exercised control over the workplace. Once again, the view that the basis is inadequate may be addressed by way of pleading a defence and making submissions.

238    It is not embarrassing, as that term is understood in the context of r 16.21(1)(d), to ask the Court to infer authority from what the applicants claim is ostensible affiliation with the respondent (in the same way that the wearing of a uniform might convey a relationship between the alleged perpetrators and the respondent). This, of course, is not a comment on the merits of the allegation, nor a concession that the pleading would not benefit from further particulars (as is anticipated following discovery) in identifying the nature or scope of that affiliation or relationship.

239    Finally, BHP submits that the pleadings (BHP-FPASOC [155]–[156], [158]–[159]) should be amended to make clear that the applicants do not advance any claims of vicarious liability at common law. This is a matter of clarifying what is not in the pleading. Insofar as it seeks to narrow the claim, with a view to the overarching purpose of s 37M of the FCA Act, I would grant leave to amend the pleading accordingly.

SD claims: s 105 pleas

240    Rio Tinto submits that the allegations of liability under s 105 of the SD Act are not “sufficiently pleaded” and consequently suffer from “critical deficiencies”, such that the relevant paragraphs should be struck out.

241    BHP’s complaint is focussed on paras [154.3] and [154.4] of the proposed pleading, which pertain to both the s 105 plea and the negligence claims. As such, BHP’s submissions are addressed below in relation to the negligence claims.

Permit another person to do an act

242    The applicants allege that Rio Tinto permitted some or all of the alleged perpetrators to engage in the alleged conduct, within the meaning of s 105 of the SD Act: RT-PFASOC [89]. That allegation is made by reason of the matters referred to in Sections CH and CI, and paras [159.4] and [159.5] of the pleading. In essence, the applicants plead that Rio Tinto knew, or ought to have known, that the group members would be exposed or subject to the alleged conduct or Risk of Harm (Section CI); that Rio Tinto had control over the risk of the alleged conduct occurring, and over the Risk of Harm (Section CH.1); and that Rio Tinto had control over the “Workers” (Section CH.2).

243    Section 105 of the SD Act relevantly provides:

105    Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 3 or 5 of Part II shall, for the purposes of this Act, be taken also to have done the act.

244    Rio Tinto submits that the plea at para [89] of the RT-PFASOC is untenable for three reasons, outlined below.

“Control over Risk of Harm”

245    First, Rio Tinto submits that Section CH.1 (“Control over Risk of Harm”) is insufficiently pleaded. In Section CH.1, the applicants plead that Rio Tinto had control over the risk of the alleged conduct occurring, and control over the Risk of Harm (RT-PFASOC [9.10]–[9.12]), by way of control of the location, design and layout, existence and extent of “Security Measures” at Rio Tinto’s “Workplaces” (RT-PFASOC [9.10(g)–(i)]). Rio Tinto contends that those pleadings are not substantiated by material facts. As to para [9.10(j)], where the applicants plead that Rio Tinto controlled the availability and/or supply of alcohol at Rio Tinto’s “Workplaces”, Rio Tinto submits that this plea is not justified by matters raised in the pleadings. Accordingly, this leaves set policies or minimum training standards to be implemented by subsidiaries as the sole basis upon which to allege control over the “Workplaces”. Rio Tinto contends that this is not a sufficient basis to sustain a plea of “permitting” conduct for the purpose of s 105 of the SD Act.

246    In circuitous fashion, the essence of this complaint appears to be that the applicants have not provided material facts of allegations supporting the “Control over Risk of Harm” plea, which allegations the applicants characterise themselves as material facts. I do not consider the want of further particulars to cause this aspect of the pleading to fall foul of r 16.21. In my view, the basis of the claim is apparent, and not embarrassing.

“Control over Workers”

247    Second, Rio Tinto contends that Section CH.2 (“Control over Workers”) is flawed for the reasons identified in relation to the s 106 plea above (in particular, regarding para [9.13]). On that basis, Rio Tinto describes para [89] of the RT-PFASOC as “untenable”. For the reasons outlined above in relation to the s 106 plea, this aspect of Rio Tinto’s argument in relation to s 105 is not accepted.

248    The applicants dispute that Sections CH.1 (“Control over Risk of Harm”) and CH.2 (“Control over Workers”) are not substantiated by material facts. The applicants point to the various cross-references, which include pleadings on group-wide policies, direction of work, and supervision mechanisms through which Rio Tinto exercised authority over the “Workplaces” (including its direction of work, approval of site-level policies, appointment of senior site managers and requirements that subsidiaries implement Rio Tinto’s code of conduct and training programs): RT-PFASOC [9.10]–[9.14].

249    The applicants also rely on the interpretation of the term “permit” (within the meaning of s 105 of the SD Act) to support their position that the material facts going to the s 105 claim are pleaded. The applicants submit that the concept of “permit” has been interpreted broadly. In Elliott v Nanda (2001) 111 FCR 240, Moore J found that a person may “permit” discrimination if, before the unlawful act occurs, they knowingly place the victim in a situation where there is a real, and something more than a remote, possibility that the discriminatory conduct will occur, in circumstances where they have the power to prevent or control it: at [163].

250    As with the s 106 claim (see para [229] above), the breadth of the concept does not assist the applicants in resisting a claim of lack of particularity. The larger scope of potential application, in my view, calls for greater particularity in a pleading that relies on the concept, in order to clearly identify the particular aspect(s) of the concept relied upon.

251    The applicants submit that s 105 extends beyond express authorisation and encompasses wilful blindness or institutional acquiescence, and that knowledge or suspicion may be inferred from the collective knowledge of those officers through whom the corporation acts: see Nanda at [170]. That is the contention. Rio Tinto’s efforts to distinguish Nanda on the basis that, in that case, the Commonwealth had knowledge of sexual harassment/discrimination by a doctor in a particular employment environment, only reinforces the legal contest, which appropriate for trial.

252    The applicants submit that, consequently, a claim pursuant to s 105 of the SD Act does not depend on proof that Rio Tinto directly instructed or approved the alleged conduct. It is sufficient to allege, as is the case in this proceeding, that Rio Tinto knew (or is to be taken to have known) of the real risk of the alleged conduct occurring in the impugned workplaces, and that Rio Tinto had the power to prevent the alleged conduct through governance, supervision and policy regimes, and failed to do so. On the applicants’ case, those are the requisite material facts. Given the arguable breadth of the concept of permission as it has been applied in the context of discrimination, I accept that the claim is properly pleaded.

“Knowledge and Reasonable Foreseeability”

253    Third, Rio Tinto submits that Section CI (“Knowledge and Reasonable Foreseeability”) is deficient, on the basis that the particulars do not provide a sufficient basis for the allegation of corporate knowledge spanning the 20-year claim period.

254    The applicants plead, at para [10], that Rio Tinto knew or ought to have known that there was a real (and more than a remote) possibility that the applicant and group members would be exposed or subjected to the alleged conduct and Risk of Harm. The particulars to para [10] of RT-PFASOC: (i) refer to and repeat paras [8.13], [8.23], [8.33] and [8.38]; (ii) make reference to several reports and surveys by the Human Rights and Equal Opportunity Commission/Australian Human Rights Commission regarding sexual harassment in the workplace; and (iii) allege that the mining industry was a male dominated workplace (and senior and supervisor positions were predominantly held by men) at all times during the claim period.

255    Rio Tinto submits that paras [8.13], [8.23] and [8.38] do not provide a basis for the allegation of knowledge in para [10], referring to the cited reports, “most of which came into existence more than 10 years after the start of the [claim period]”. Rio Tinto submits that it is not clear whether the applicants say that it should be inferred that Rio Tinto knew of the reports, or the matters reported therein. As to para [8.33], Rio Tinto contends that it is “wholly unsupported” by the particulars given for it, and suggests that it is apparent that the applicants seek to substantiate the allegation by way of discovery. The applicants respond that the criticism is not understood, as particulars support the allegation.

256    I do not consider the timing of the reports to be a basis upon which to strike out the relevant claim. It might suggest limitations on knowledge, but this is a matter for pleading. Furthermore, in circumstances where the applicants have drawn attention to specific pages of the reports, the distinction between knowledge of the report and the matters contained therein, is artificial when one considers that the purported distinction is effectively one between knowledge of an event because it has been brought to one’s attention, and knowledge of an event because it happened. There is no suggestion that the applicants are positing the latter, which is evidently circular.

257    Rio Tinto contends further that nothing is pleaded as to how the knowledge is to be attributed to Rio Tinto, i.e., through which natural persons, and if it is proposed to rely on a theory of aggregation of knowledge within a corporation: cf. Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421 at [66]–[67] (Allsop CJ). Rio Tinto also takes issue with the definition of the alleged conduct (at para [9]), which is in turn defined by reference to “Workers” (para [8.45]). As submitted in relation to the s 106 pleas, Rio Tinto contends that the definition of “Workers” is problematic due to its breadth.

258    The applicants contend that Rio Tinto’s criticism that the particulars do not provide “a sufficient basis for the broad allegation of corporation knowledge” is not the correct test to apply in relation to the strike out application. Rather, this is a matter for evidence. The applicants observe that the relevant test is whether Rio Tinto is on notice of the allegation made against it.

259    In that regard, the applicants submit that the assertion that “nothing is pleaded” in relation to attribution of knowledge, fails to read the pleading as a whole. Rio Tinto’s knowledge is pleaded as arising through Rio Tinto’s governance organs (i.e., the Board and sub-committees), to which reports of misconduct were escalated: RT-PFASOC [8.33]–[8.38]. The applicants submit that the relevant state of knowledge may properly be attributed to the corporation through those directing minds and bodies: Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506–512 (Lord Hoffman).

260    In my view, Rio Tinto is on notice of the allegation made against it. Rio Tinto’s complaint is a legal issue to be determined at trial.

261    Rio Tinto also identifies deficiencies in RT-PFASOC [134], [137], [142] and [145], and contends that they should be struck out. In each of those paragraphs, the applicants seek to establish liability against Rio Tinto by, first, relying on s 106 to allege that the relevant subsidiary of Rio Tinto is vicariously liable for the alleged conduct, and second, relying on s 105 to allege that Rio Tinto is liable as it “permitted” the subsidiary to engage in the alleged conduct. Rio Tinto contends that this misconstrues the operation of s 105 of the SD Act, which applies where a person “permits” another person “to do an act that is unlawful”. Where s 106 applies to a Rio Tinto subsidiary “as if [it] had also done the [employee’s] act”, that does not mean that the subsidiary actually did the act in question. There is no plea of an “act” actually done by the Rio Tinto subsidiary, and as such there is no “act” that Rio Tinto is alleged to have permitted it to do (such as to fall within the scope of s 105 of the SD Act).

262    As the applicants contend, this submission is also a legal issue to be determined at trial.

Negligence claims

263    The applicants bring a claim in negligence for breach of two duties of care, pleaded in the alternative to one other: the Akin to Employer Duty, and the General Duty of Care: see BHP-FPASOC [148]–[153].

264    The Akin to Employer Duty alleges that, in essence, a party akin to an employer (i.e., Rio Tinto or BHP) owes a duty of care to workers to provide a safe system of work, akin to the duty owed by employers to employees. The applicants cite several authorities, which they say support the pleaded duty of care: Kondis v State Transport Authority (1984) 154 CLR 672; Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1. The applicants submit that Kondis, Stevens and TNT Australia are authority for the proposition that a party who engages independent contractors to do work which might as readily be done by employees, in circumstances where there is a risk to them of injury arising from the nature of the work, owes a duty of care to the contractor to provide a safe system of work.

265    The General Duty of Care is a novel duty of care advanced by the applicants, relying on the multi-factorial approach set out in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [100]–[105] (Allsop P), whereby the Court undertakes a “close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references [sic] to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury”: at [102]. An inclusive list of the factors relevant to the “evaluative task of imputation of the duty and the identification of its scope and content” is set out in Caltex Refineries at [103]: see [104]–[105].

266    The respondents contend that the pleas of negligence are liable to be struck out. To that end, Rio Tinto advances two arguments.

267    First, as observed above in relation to the s 106 claims, Rio Tinto contends that the pleas of Rio Tinto’s control over “Workers” and “Workplaces” (in Section CH), and Rio Tinto’s knowledge of the impugned conduct (RT-PFASOC [8.33], [10]), are liable to be struck out. In reliance on those submissions, Rio Tinto contends that the claims of negligence are liable to be struck out, as the same pleas are relied on to substantiate each of the Akin to Employer Duty, and General Duty of Care: RT-PFASOC [154], [156]. The applicants contend that those aspects of the RT-PFASOC are sufficiently pleaded and particularised to give Rio Tinto notice of the case against it.

268    It follows from my analysis above in relation to the s 106 claims, that insofar as the same pleas are relied on to substantiate each of the pleaded duties of care, this argument fails. I consider that Rio Tinto is on notice of the case against it.

269    Second, Rio Tinto submits that the Akin to Employer Duty sought to be established by the applicants cannot be sustained (RT-PFASOC [154]–[155]), as the High Court has repeatedly rejected attempts to expand vicarious liability beyond formal employment to alleged relationships: Bird v DP (2024) 283 CLR 45. Consequently, the General Duty of Care (RT-PFASOC [156]–[159]), which Rio Tinto submits is “differently described” but the same in substance as the Akin to Employer Duty, cannot be sustained either.

270    The applicants submit that the respondents:

(1)    have misunderstood the nature of the Akin to Employer Duty, which is a primary duty, and not a claim for vicarious liability, such that the High Court’s observations in Bird (at [48]–[50], [63]) are inapplicable;

(2)    mischaracterise the General Duty of Care as being “differently described”; it is a conventional plea of a novel duty of care, which is pleaded on an alternative basis; and

(3)    fail to take into the account the authorities relied upon by the applicants to support the Akin to Employer Duty: i.e., Kondis; Stevens; TNT Australia. Both Rio Tinto and BHP dispute that these cases support the Akin to Employer Duty, in circumstances where it is alleged that the respondents are liable to independent contractors who it did not engage, but rather, who were engaged by the respondents’ subsidiaries.

271    Ultimately, these are disputes to be had at trial. They do not demonstrate any pleading deficiency such as to invoke r 16.21 of the Rules.

272    BHP advances four arguments in support of its position that the pleas of negligence should be struck out. (The remainder of BHP’s submissions focus on paras [154.3] and [154.4], which are addressed separately below.)

273    First, BHP drew the Court’s attention to the fact that both of the alleged duties of care include pleas that the relevant respondent was in a position “akin or analogous” to an employer, vis-à-vis the applicant and the group members: see BHP-FPASOC [148(c)], [149], [150(h)]. However, BHP submits that the proposed pleading alleges that at least some of the group members were “BHP Direct Employees”, i.e., persons employed directly by BHP: BHP-FPASOC [8.11(a)], [74(a)] and [75(a)]. To the extent that BHP was the actual employer of a group member, BHP submits that it does not make sense for BHP to have a duty of care “akin or analogous” to that of an employer.

274    This is, essentially, an argument of redundancy. It can readily be addressed as such in any defence and at trial.

275    Second, BHP submits that the pleading fails to elucidate the basis of the alleged duties and merely advances “rolled up conclusions”, i.e., a conclusion stated “by reason of the matters in” various sections of the pleading: see, e.g., BHP-FPASOC [148(b)]. BHP emphasises that there is no clear articulation of the basis upon which it is said that BHP was in a position “akin or analogous” to the applicants’ true employer, in circumstances where the applicant and/or group members were employed by other entities. If the applicants’ case is that BHP was in a position akin to an employer by reason of day-to-day control or supervision, BHP contends that this is not reflected in the pleading, given the absence of material facts that go to the control or supervision by BHP.

276    The applicants contend that the elements of the Akin to Employer Duty are addressed in the pleadings, at BHP-FPASOC [148] and RT-PFASOC [154]. The applicants submit that cross-referencing is an orthodox manner of pleading, and that it is not the same as “rolling up” allegations in the sense described in Deputy Commissioner of Taxation v Kocic (No 3) [2024] FCA 972 at [17] (Abraham J).

277    In Kocic, Abraham J did not accept that “extensive cross-referencing” rendered parts of the pleading unintelligible. Her Honour observed that whether that is so depends on the pleading: at [17]. As in Kocic, the cross-referencing used here enables the claim to be succinctly articulated while avoiding unnecessary repetition. By that cross-referencing, the various bases of the conclusion stated, e.g., at BHP-FPASOC [148(b)], are clearly articulated and the conclusion capable of being understood.

278    Third, BHP submits that the applicants’ pleading does not adequately explain how BHP foresaw, or ought to have foreseen, that KXO24 and/or group members might suffer a “recognised psychiatric illness” in the circumstances relied upon: BHP-FPASOC [9.22]. In particular, BHP contends that the pleading does not provide: (a) particulars that explain BHP’s state of mind (despite the requirements of r 16.43 of the Rules); nor (b) material facts or particulars as to the “circumstances of the … Group Members”. BHP submits further that the “circumstances” relied upon in the particulars (presumably for both KXO24 and the group members) are a “non-exhaustive laundry list of paragraph references” in the absence of an adequate explanation as to how the paragraphs listed translate into foreseeability of a “recognised psychiatric illness”.

279    The applicants submit that the particulars of foreseeability have been provided in accordance with r 16.43 of the Rules, and material facts and particulars as to the circumstances relied upon will be provided after trial of the common issues, in accordance with the usual process.

280    It is not apparent that BHP’s complaint is one of substance, rather than form. It is possible to ascertain the basis on which the applicants say that BHP foresaw, or ought to have foreseen, certain events by reference to the circumstances pleaded in the paragraphs cited in the particulars to BHP-FPASOC [9.22], which include reporting mechanisms (Section CB.3) and certain Commission reports on sexual harassment in the workplace dated during the claim period (particulars to [10]). In examining foreseeability, a distinction between knowledge of the report, on the one hand, and knowledge of its contents, on the other, may have some utility. Here, the question is not the basis of the respondent’s (present) knowledge of certain events, but the basis of the responding auguring the future occurrence of those events. In the context of pleading foreseeability, it is not evident whether the applicants rely on this distinction and assert one (knowledge of the report) over the other (knowledge of the events reported). This is a matter readily clarified, for which I would grant leave to replead.

281    Fourth, BHP submits that the pleading of causation (BHP-FPASOC [155]–[156], [158]–[159]) does not sufficiently explain how the generalised allegations of breach are said to have caused any loss or damage for KXO24 or a group member, in the specific circumstances of the alleged conduct. Rather, the plea of causation merely lists the alleged conduct and breaches of duty, and appears to combine both the SD Act claims and negligence claims. BHP submits that this amounts to a failure to disclose a reasonable cause of action, and does not put BHP on fair notice of the case it is required to meet.

282    The applicants submit that the allegations of control and knowledge are sufficiently pleaded and particularised to give Rio Tinto notice of the case against it. The applicants submit that causation is pleaded in the orthodox way, and the “explanation” sought by BHP is a matter for evidence.

283    I accept that causation is pleaded in the “orthodox” way, as claimed. However, in the circumstances of the particular allegations against BHP, there is merit in BHP’s claim that it is not on notice of the case it is required to meet. By pleading that the conduct of the alleged perpetrators “and/or” BHP’s breaches of duty has caused certain loss and damage, the role of BHP’s breaches of duty in causing that loss and damage is not apparent. That is, it is not apparent how the alleged breaches are said to have caused any loss or damage in the specific circumstances of the alleged conduct (that is also said to cause the loss and damage). This is not simply a matter for evidence. It calls for further clarification. In the absence of discovery and evidence, and with the overarching purpose of s 37M of the FCA Act in mind, I would grant the applicants leave to replead in order to outline the basis on which it is said that the breaches of the relevant duties have caused loss and damage.

Paragraphs [154.3]–[154.5] of the BHP-FPASOC

284    Paragraphs [154.3] and [154.4] of the BHP-FPASOC are marshalled in support of: (i) the pleading of breach in respect of the negligence claims; and (ii) the allegation that BHP “permitted” the alleged conduct by the alleged perpetrators (see BHP-FPASOC at [81]).

285    BHP contends that paras [154.3] and [154.4] are liable to be struck out on the basis that the material facts do not contain the degree of specificity necessary to define the issues and inform BHP of the case it has to meet: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557 at [6]–[7] (French J), cited in Chang at [19]. In the event the Court accepts BHP’s submission, then para [154.5] is also liable to be struck out, as it will have no work to do.

286    The crux of BHP’s submission is that the applicants do not identify with the requisite specificity: (a) what BHP allegedly did; or (b) why what BHP did was unreasonable (i.e., what BHP should have done), across the relevant (57) sites during the extended (20 year) claim period. BHP drew the Court’s attention to Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited [2017] NSWSC 1406, in which Ward CJ in Eq struck out most of the pleading, including on the basis of lack of specificity. Her Honour stated (at [139]):

No material facts are alleged engaging with the relevant standards and then identifying what a reasonably competent auditor would have done in relation to the requirements of such standards. As a result, the allegations fail to articulate, with specificity and in relation to any given complaint as to the conduct of the audit, what a reasonably competent auditor should have done and how the audit work performed by PwC departed from that standard.

287    The applicants submit that in Smith, the alleged breach of duty of care was “pleaded simply as the failure to take reasonable care” to avoid economic loss, with particulars as to what it is asserted a competent auditor exercising reasonable care would have done “framed in very general terms”, which is a “far cry” from the ten specific breaches of the alleged duties of care pleaded at para [154.3] of the proposed pleading: cf. Smith at [26]–[27].

288    In relation to para [154.3], BHP emphasises that each of the sites have their own “complexities”, viz., the nature of the sites; BHP’s interests in the different sites; the regulatory environment and jurisdiction in which the sites operate (over time); policy and procedures and approaches to training at the sites; different employers and individuals providing different services; different leadership; and different “Security Measures”.

289    In response, the applicants characterise BHP’s application as, essentially, a request for more detail. The applicants contend that the pleading provides copious detail of actions that BHP is alleged to have taken and failed to take. The applicants submit that discovery and evidence have not occurred, which matters will usually bear on pleadings, particularly so where there is information asymmetry (as is said to be the case here): Sunlea Enterprises Pty Ltd as trustee for Drummond Cove Unit Trust v Pollock (No 3) [2015] WASC 330 at [19] (Allanson J).

290    Further, the applicants contend that criticisms of particulars are misplaced in an application for strike out, particularly where BHP has made no application for an order for particulars under r 16.45 of the Rules. In that context, BHP’s complaint is an attempt to probe for evidence, rather than material facts or particulars: Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 3) [2011] FCA 539 at [10(2)] (Katzmann J).

291    BHP provides the following seven examples of deficiencies in relation to para [154.3] to demonstrate the inability to comprehend the nature and scope of the case advanced against it. The applicants submit that the claimed deficiencies have no merit, and that BHP is on notice of the case against it.

292    First, the pleading alleges breach of the duties of care, by reason of BHP’s alleged failure to develop and implement policies, procedures and training, and alleged deficiencies in BHP’s “Code of Conduct” and policies: BHP-FPASOC [154.3(a), (e), (e1), (g)]. BHP characterises these pleadings as “broad conclusions” which fail to identify any policies, procedures or training, or explain with sufficient specificity why they were deficient. This is not cured, on BHP’s case, by the policies particularised at para [8.28], as the alleged deficiencies in the policies remain unidentified. As to the “Code of Conduct”, which is said to lack a sufficiently “strong and detailed” statement of intention condemning discrimination and harassment, BHP contends that the applicants do not engage with what the “Code of Conduct” actually said (or what it ought to have said).

293    In response, the applicants contend that the deficiencies are outlined in the particulars, and that the applicants are not required to specify what terms are included in every policy or procedure document to establish that BHP’s system for avoiding sexual harassment was unreasonable. In any event, the applicants submit that this is matter for evidence, and the applicants would be unable to provide such information prior to discovery. As to the “Code of Conduct”, the applicants drew the Court’s attention to particular (a) (to BHP-FPASOC [154.3(a)]) which states that “The Code of Conduct did not contain a strong and detailed statement of intention condemning discrimination, harassment or sexual harassment in the workplace until February 2024”. As such, the applicants submit that BHP is on notice that the “Code of Conduct” dated February 2024 had a sufficiently strong and detailed statement of intention.

294    In my view, the pleading at para [154.3(a), (e), (e1), and (g)] provides sufficient detail of BHP’s alleged acts and omissions to allow BHP to understand the case put against it. Moreover, the list of BHP’s alleged failures provided in the particulars to the relevant pleadings outlines what was not done, and by corollary or inference, what should have been done. This answers BHP’s complaint that the pleading does not identify in what respect BHP’s conduct was unreasonable, in reliance on Smith. In that context, I do not accept BHP’s submission that the applicants’ appeal to the prospective fruits of discovery masks a poorly articulated claim or reveals an intention to use discovery to fish for a case.

295    Second, the pleading alleges that, in breach of the duties of care, “BHP allowed the Workplace Culture…to develop or subsist in a way that condoned the [alleged conduct]” or “alternatively, condoned a lack of respect towards and dignity of female Workers”: BHP-FPASOC [154.3(b)].

296    BHP submits that this plea appears to be primarily based on the Broderick Report, which is a report into a different corporate group (Rio Tinto), as well as articles and academic reports not specifically directed to BHP. In that regard, the applicants refer to the public statement of BHP’s Chief Executive Officer (which is referenced in the particulars) to the effect that “there was nothing in the Broderick Report where BHP did not see instances of similar behaviours at BHP” (BHP-FPASOC [11.17(c)]). The applicants characterise BHP’s complaints as matters concerning evidence, rather than providing a basis to strike out the pleading. In this respect, I agree.

297    However, BHP also submits that, as in Forshaw v Qantas Airways Limited [2023] FCA 957 at [27] (Snaden J) (which concerned an allegation that the “workplace in which Ms Forshaw was employed was… hostile to women”), the pleading is “unsatisfactorily imprecise” and does not sufficiently explain how BHP allowed the workplace culture alleged to develop or subsist. For instance, in the particulars to para [154.3(b)], the applicants contend that executive leadership at BHP failed to make “regular and visible company-wide statements”, and that BHP’s “Employee Perception Survey” was not “fit-for-purpose”. BHP contends that it is not clear what is meant by the allegation that statements were not “regular and visible”, or the basis on which it is said that the “Employee Perception Survey” was allegedly unfit (or how it should have been conducted). Further, there is a circularity in the applicants relying on the alleged breaches of duty to support the proposition that BHP allowed the workplace culture to develop in a way that condoned the alleged unlawful conduct.

298    I do not accept that the pleading is circular. An allegation of condoning certain conduct is different from an allegation of a breach of duty giving rise to certain conduct. However, an act of permission may be positive or passive, and I accept that an inference of condonation may be drawn from the nature of the alleged breach of duty regarding the alleged failure to develop and implement adequate policies and procedures.

299    The applicants submit that the balance of the particulars cite matters from which it is inferred that the workplace culture at BHP was “tribal and/or hyper-masculine”, and that inferences are a permissible form of particular.

300    The difficulty is not with the form of the particulars; the inference sought to be drawn from matters ‘pleaded’ in particulars (to another pleading) is a way of repeating those particulars for the purposes of the instant pleading. In my view, the pleading is ambiguous, in several respects:

(1)    it is not apparent who or what is condoning the alleged conduct at BHP’s “Australian Workplaces”;

(2)    it is not apparent what “matters in Section CJ” give rise to the stated inference; and

(3)    the alternative plea that something or someone “condoned a lack of respect towards and dignity of female Workers” is akin to what Snaden J described in Forshaw at [27] as an “inherently nebulous allegation”.

301    The applicants distinguish the current pleading from that impugned in Forshaw, on the basis different terminology is deployed: i.e., the terms “tribal”, “masculine”, “hyper-masculine” and “toxically masculine” are used, which it is said have a concrete meaning reflected in Commission reports, academic literature and common parlance, details of which are provided in the particulars to BHP-FPASOC [8.67]. The applicants argue that, in contrast, Forshaw concerned a workplace culture pleaded as “hostile to women”, which was criticised on the basis that a “workplace – at least as a physical location – cannot exhibit hostility”: at [27].

302    BHP replies that the terms deployed in para [154.3(b)] are as impermissibly vague and subjective, and inherently nebulous, as the term “hostile to women” in Forshaw, irrespective of whether they are terms that might be used by academics or in reports. In that regard, I add that the particulars to BHP-FPASOC [8.67], which seek to define those terms, only compound the ambiguity. The pleading should be struck out on that basis.

303    Third, the pleading alleges that, in breach of the duties of care, BHP failed to reasonably support complainants of the alleged conduct: BHP-FPASOC [154.3(f)]. BHP contends that the use of “reasonable” is opaque, and the pleading does not identify what support BHP is alleged to have provided or why that support was not reasonable. For instance, the particulars to para [154.3(f)] appear to accept that BHP’s Employee Assistance Program was available, but do not explain why it was unreasonable, or what specific counselling programs should have been provided instead. Similarly, the suggestion that BHP failed to provide a support person or service to complainants prior to 2021 does not clearly articulate the basis of the allegation, or identify at which sites a support person/service was not provided.

304    The applicants contend that the allegation that BHP’s actions (or inactions) were not reasonable is an objective test, capable of assessment by the Court. The applicants emphasise that the proceeding is a systems case, and that material facts concerning the lack of support for individual complainants are not required (and in any event, the pleading alleges that the KXO24 was not given support, and that some group members were not given support: particulars to BHP-FPASOC [19], [56(c)], [70]). Further, the applicants contend that the allegation that BHP’s Employee Assistance Program was unreasonable is a matter for its defence, and further, that BHP is on notice of the case against it.

305    In my view, the particulars to para [154.3(f)] make plain what support was not provided, and therefore what support should have been provided, as a measure of what the applicants contend is reasonable. The particulars to paras [19] and [56(c)] provide further context for the claim of lack of reasonable support, although the particulars to para [70] only beg the question by reference to the lack of “appropriate support by human resources”. That alone is not a reason to strike out the claim.

306    Fourth, the pleading alleges that BHP failed to design and implement a system of “Security Measures” at its workplaces to avoid or minimise materialisation of the Risk of Harm: BHP-FPASOC [8.63], [154.3(h)]. BHP submits that the plea does not identify what BHP should have done, and how this would have avoided or minimised the alleged materialisation of the pleaded Risk of Harm. I accept the applicants’ submission that the material facts alleged, and particulars, place BHP on notice of the case against it, and that further details as to “how” BHP failed to do the things alleged in the particulars is a matter for evidence.

307    Fifth, the pleading alleges that, in breach of the duties of care, BHP failed to impose limits on alcohol supply at the “Workplaces” (beyond the restrictions imposed by liquor licences) prior to around 2021: BHP-FPASOC [154.3(i)]. BHP alleges that this does not make clear what limits should have been imposed and at which sites (including whether the allegation is limited to facilities allegedly associates with a mine site, such as accommodation; or accommodation owned and operated by BHP; or the mine sites themselves). I accept the applicants’ submission that the material facts have been pleaded, and that if BHP imposed limits on alcohol supply or consumption at any of BHP’s “Workplaces”, this is a matter for its defence.

308    Sixth, the pleading alleges that, in breach of the duties of care, BHP failed to reasonably audit compliance by its subsidiaries, contractors, joint ventures and workers with the “Code of Conduct” and policies relating to HSEC (health, safety, environment and community) or sustainability: BHP-FPASOC [154.3(j)]. BHP contends that this does not identify what BHP is said to have done to audit compliance in the manner asserted, nor what it should have done instead if it was acting “reasonably”. The allegation is also embarrassing when read with para [154.3(a)], which alleges deficiencies in “the Code of Conduct and the BHP Policies”.

309    The applicants contend that the material facts are sufficiently clear, and that the reasonableness of BHP’s audit processes will be assessed by the Court, with reference to evidence. The applicants emphasise that discovery is required before further particulars can be provided, as no documents relating to BHP’s audits of compliance with its “Code of Conduct” or relevant policies are publicly available. The applicants refute the submission that the allegation is embarrassing when read with para [154.3(a)], on the basis that both can be true: i.e., the “Code of Conduct” and BHP’s policies were deficient in the way they addressed the risk of sexual harassment; however, they did address the health and safety of workers more broadly, and compliance with those health and safety policies ought to have been properly audited.

310    In my view, the pleading is deficient in that it is not possible to know, or infer, from the matters pleaded what BHP is said to have done to audit compliance in the manner asserted, nor what it should have done acting reasonably. The particulars to para [154.3(j)] indicate that the pleading is to be inferred from the matters in para [11.17]. However, that pleading merely points to a result or outcome; it does not implicate any particular process that is deficient or standards by which a process should be assessed as being reasonable. I accept that both paras [154.3(a)] and [154.3(j)] can be true, and that discovery may be required before further particulars can be provided, but that response does not negate or cure the deficiency in giving BHP notice of the case against it.

311    Seventh, the pleading alleges that, in breach of the duties of care, BHP’s risk management and internal control systems did not reasonably account for the risks to health and safety of “Workers” arising from the alleged conduct: BHP-FPASOC [154.3(k)]. BHP contends that this does not identify: (i) the relevant risk management and internal control systems; (ii) how those systems operated; and (iii) how the systems should have operated to reasonably account for the identified risk. BHP “cannot guess” why it is said its systems were allegedly deficient. In response, the applicants say that the material facts are clear, and the absence of particulars is due to lack of publicly available information (and further particulars will be provided following discovery).

312    This pleading fails for the same reasons as para [154.3(j)]. Both pleadings should be struck out.

313    As to para [154.4], BHP submits that it is liable to be struck out as it contains a “rolled-up allegation” that BHP did not take the precautions identified at para [154.2(b)]. Paragraph [154.2(b)] alleges that a reasonable person in the position of BHP would have exercised reasonable care and skill in the selection of contractors; arranging the terms of engagement; or confirming that the contractors had taken (or would take) appropriate steps to discharge duties in relation to security measures, workplace accommodation and the availability or supply of alcohol. BHP claims that both paras [154.4] and [154.2(b)] are liable to be struck out as they do not identify the basis of BHP’s responsibility, how BHP approached such matters, and why that approach is said to be unreasonable (i.e., there is no identification of the criteria which BHP ought to have applied in selecting contractors or arranging terms of engagement).

314    The applicants submit that the plea that BHP did not take the reasonable precautions identified is a standard and essential plea in negligence claims, citing MTH v State of New South Wales [2022] NSWSC 884 at [68] (Garling J) (in relation to the Civil Liability Act 2002 (NSW)). The applicants say that the material facts are clear, and the absence of particulars is due to lack of discovery (and further particulars will be provided following discovery).

315    I accept BHP’s claim that para [154.4] read with para [154.2(b)] does not identify the basis of BHP’s responsibility. There is no identification of the criteria that BHP ought to have applied in selecting contractors, arranging terms of engagement, or in confirming that contractors ought to have taken “appropriate steps” to discharge certain duties.

316    The applicants offer to provide further particulars in relation to BHP-FPASOC [154.2(b)] and [154.3(b), (f), (j) and/or (k)] and/or RT-PFASOC [159.3(b)] and [159.4(b), (d2), (h) and/or (i)], should the Court consider it necessary. BHP contends that if the applicants are able to articulate the case in a way which addresses BHP’s concerns, then that should occur now (and should already have occurred).

317    In terms of my findings in relation to paras [154.2(b)] and [154.3(b), (f) in relation to the particulars to para [70], (j) and (k)], and therefore the corresponding paras in the Rio Tinto proceeding (RT-PFASOC [159.3(b)] and [159.4(b), (d2) in relation to the particulars to para [78], (h) and/or (i)]), I do consider it necessary. Accordingly, with a view to the overarching purpose in s 37M of the FCA Act, leave is granted to provide further particulars to those paragraphs and/or replead in line with my reasons above.

318    As only certain subparas of [154.3] and [154.4] are liable to be struck out, para [154.5] continues to have work to do.

KTM24’s personal claim

319    Rio Tinto submits that KTM24’s personal claim suffers from many of the deficiencies identified above in relation to the group members’ claims, specifically in relation to the absence of material facts supporting the relevant pleas.

320    First, Rio Tinto takes issue with the plea that Rio Tinto requested or directed KTM24 to work at a certain workplace: RT-PFASOC [16.0], [25.0] and [37] (it is apparent that this should be [37.0]). This is a personalised version of the plea in para [9.13(c)], raised above in relation to the s 106 pleas. Rio Tinto contends that the relevant cross-references do not contain allegations of material facts.

321    I do not agree. The pleadings contain assertions of requests or direction “by reason of” the factual matters pleaded in the cross-references. In that regard, as KTM24 contends, the pleading alleges a factual basis for the allegation that Rio Tinto requested or directed KTM24 to work at a certain workplace. The question of the sufficiency of that factual basis is a matter for pleadings and trial.

322    Second, Rio Tinto describes paras [22], [32] and [50] (each of which deals with Rio Tinto’s liability under the SD Act) as being “akin” to para [9.13], and therefore suffer from the same deficiencies and are liable to be struck out. Once those paragraphs are struck out, Rio Tinto submits that it follows that paras [22.1], [22.2], [22.5(a)], [32.1], [32.2], [32.6(a)], [50.1], [50.2] and [50.5(a)] are also liable to be struck out (as they rely on paras [22], [32] and [50]).

323    For the reasons outlined above in relation to para [9.13] (by reference to the s 106 plea), this aspect of Rio Tinto’s argument is not accepted.

324    Third, Rio Tinto submits that the pleas of agency are unsupported by material facts, and are liable to be struck out: RT-PFASOC [22.3], [32.3] and [50.3]. If that submission is accepted, then it is said that paras [22.5(b)], [32.6(b)], [50.5(b)], [94], [99], [104], [122] must also be struck out.

325    Fourth, similarly Rio Tinto submits that the pleas of conduct by agents are liable to be struck out, as they are not supported by material facts of agency: RT-PFASOC [73] and [150]. The defect in para [73] is also said to affect paras [130] and [130.1].

326    I do not accept Rio Tinto’s submission regarding the pleas of agency, which are supported by material facts, including inferences to be drawn from material facts, sufficient to apprise Rio Tinto of the case to be met. It is not clear how the conduct pleaded at para [73(b)] (i.e., being informed of certain matters by KTM24’s former trainee) is that of Rio Tinto’s agents. However, this can be addressed in any defence and at trial.

327    Fifth, Rio Tinto submits that para [41(cc)], which alleged that Rio Tinto controlled the physical conditions in which KTM24 worked, is liable to be struck out in circumstances where it relies on Section CD.2 (which Rio Tinto contends is deficient) and para [37.1] (which pleads as to the characteristics of the relevant worksite). If that submission is accepted, then it is argued that: (i) para [42] ought to be struck out; (ii) if para [42] is struck out, then paras [43] and [44] ought to be struck out; and (iii) if para [43] is struck out, then paras [127] and [130] ought to be struck out.

328    Contrary to the submission of Rio Tinto, there is a factual basis for the claim that Rio Tinto controlled the physical conditions in which KTM24 worked by reference to the matters pleaded in Section CD.2 and para [37.1]. The sufficiency of those matters to support the claim is a question to be determined at trial.

329    Finally, Rio Tinto submits that para [123] is flawed as it relies on para [10] and Section CH.1, both of which Rio Tinto has argued should be struck out.

330    For the reasons outlined above in relation to the group members’ claims, I do not accept this submission. There is a factual basis for the claim that Rio Tinto knew of, and assumed responsibility to avoid the materialisation of, the risk of harassment within its workplaces for the purposes of ss 105 and 106 of the SD Act.

331    As the applicants contend, Rio Tinto’s submissions regarding KTM24’s personal claim effectively restate the deficiencies claimed in respect of the group members’ claims. They are addressed consistently with my findings in relation to those claims.

SECTION 33K APPLICATIONS

Application for leave to amend group member definition

332    The applicants seek leave to amend the group member definition pursuant to s 33K of the FCA Act, in the form provided at para [6] of the BHP-FPASOC and RT-PFASOC. The proposed group member definitions are also reflected at para [14] of the applicants’ proposed amended originating applications, which the applicants seek leave to file.

333    The respondents oppose the proposed amendments, and seek that the group member definition be struck out to the extent that it relies on ultimate findings sought in respect of each group member’s claim. The group member definition is said to be “defective”, as it describes the group membership by reference to legal conclusions. Consequently, the respondents contend that the group member definition fails to satisfy the requirements of s 33H(1)(a) of the FCA Act, as it does not permit persons (or the Court) to ascertain, with certainty, who is a group member by reference to the pleadings.

334    BHP also contends that the proposed amendments to the group definition should not be accepted, as they would impermissibly expand the claim to include new group members who were not in the scope of the terminated complaint. Further, in the event that the Court accepts any contention advanced by Rio Tinto, BHP adopts that contention to the extent that it applies to the BHP proceeding.

335    For the following reasons, I will grant leave to the applicants to make the proposed amendments, save for those in relation to paras [6(b)(A)–(C), (c)] and [6(b)(1)–(3), (c)], respectively, of the proposed pleadings.

Legal Principles: identifying group members

336    Section 33H of the FCA Act sets out the requirements for an application commencing a representative proceeding. Section 33H provides:

33H    Originating process

(1)    An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:

(a)    describe or otherwise identify the group members to whom the proceeding relates; and

(b)    specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c)    specify the questions of law or fact common to the claims of the group members.

(2)    In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.

337    Section 33K of the FCA Act empowers the Court to grant leave to amend an originating application to alter the description of the group members. Section 33K relevantly provides:

33K    Causes of action accruing after commencement of representative proceeding

(1)    The Court may at any stage of a representative proceeding, on application made by the representative party, give leave to amend the application commencing the representative proceeding so as to alter the description of the group.

…

338    The purpose of describing or identifying group members – as required by s 33H(1)(a) of the FCA Act – is to ensure that the identity of persons on whose behalf the representative proceeding has been commenced will be ascertainable from the commencement of the proceeding, and during the currency of the class action: Krisoula El-Helou v Mercedes-Benz Australia/Pacific Pty Ltd (2025) 77 VR 51 at [19] (Nichols J). As observed by the Court in Impiombato v BHP Group Ltd (2025) 308 FCR 250 at [52] (Beach and O’Bryan JJ), the requirements of s 33H are fundamental to the operation of Pt IVA of the FCA Act, including to: (i) identify both the class of group members who are represented in the proceeding, and the claims made on behalf of the group members, so that group members can decide whether they wish to opt out of the proceeding in accordance with the procedures governed by s 33J; and (ii) define the claims of group members for which the running of any limitation period is suspended under s 33ZE. Rio Tinto cautions that an inability to determine who is a group member will obstruct the fundamental mechanics of Pt IVA procedures (e.g., the opt out process): see Mercedes-Benz at [19]; Ethicon Sàrl v Gill (2018) 264 FCR 394 at [38] (Allsop CJ, Murphy and Lee JJ).

339    The ultimate requirement is that “group membership be certain”; the “notion of certainty is fundamental”: Ethicon at [24] and [38]; Impiombato at [53] (Beach and O’Bryan JJ). As has been said on many occasions, it must be possible for persons who may be within the represented group to ascertain, from the originating process or pleadings, whether they are in fact group members: Impiombato at [53]. The parties dispute whether the group member definition satisfies this requirement.

340    If the description of the group incorporates a reference to conduct alleged in the pleadings, the person (or their legal adviser) should be able to, by reading the description and the relevant portion of the pleadings, reasonably determine whether the person is a group member: J Wibsey & Associates Pty Ltd v UBS AG [2021] FCA 36 at [16] (Beach J). The fact that inquiries might need to be made by a person uncertain of whether they are a group member does not deprive the description of objective criteria by reference to which membership or non-membership may be established: J Wibsey at [16]; Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85 at [34] (Moore J, Jessup and Dodds-Streeton JJ agreeing at [81]). As indicated, the inquiry is an objective one: Impiombato at [55] (Beach and O’Bryan JJ).

341    The applicants contend, and BHP accepts, that it is open to define the group members by reference to conduct alleged in a pleading: Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61 at [24]–[25] (Sackville J), citing King v GIO Australia Holdings Ltd [2000] FCA 1543 at [11] (Wilcox, Lehane and Merkel JJ). The applicants also contend that it is permissible for a group definition to be drafted by reference to a causation element, or by reference to loss or damage suffered by group members: Mercedes-Benz at [37]. The Full Court in King (at [11]) did not consider this to constitute a definition by reference to potential outcomes, but rather by reference to “matters that are capable of being ascertained objectively”.

342    The applicants submit that the question of whether a pleading complies with ss 33C and 33H(2) is determined on the presumption that the allegations it contains can be established at trial: Mercedes-Benz at [39]. As Nichols J observed in Mercedes-Benz (at [40]), what makes group membership certain is not the fact that nothing about the description of the group is subject to future determination, but that it is clear from the pleading (whether the definition by itself or read with the pleading) that the claims in the pleading are made in respect of a defined group of people.

343    Rio Tinto, however, drew the Court’s attention to Lee J’s observation as to the “logical difficulty” that arises where group membership is defined, for example, by reference to a causally connected loss criterion, or a “legal conclusion that may turn out to have never existed”: Perera v GetSwift Ltd (2018) 263 FCR 1 at [78]–[81]; see also Cannan v Dollarama Australia Pty Ltd (2026) 316 FCR 114 at [51]–[53] (Lee J). Such a criterion may result in uncertainty because a claimant who ultimately fails to establish loss or damage would retrospectively fall outside the class definition, and therefore never have been a group member at all (the “collapsing class theory”): Cannan at [51]–[53]; see also Mercedes-Benz at [35]– [36].

344    Justice Lee was of the view that the conceptual difficulty identified in Perera is avoided if the group is defined in a way which makes explicit that membership turns upon the making of a claim, that is, for example, by reference to persons whom the applicant alleges have suffered loss or damage by reason of the impugned conduct: Cannan at [58]. His Honour did not consider that “the difficulty is resolved by treating a criterion expressed as a matter of fact as if it were merely an allegation. A definition which states, in terms, that group members are persons who satisfy a particular factual or legal condition is not the same thing as a definition which identifies persons who are alleged to satisfy that condition. The former purports to define a class by reference to a state of affairs said to exist; the latter makes explicit that membership depends upon an assertion”: Cannan at [56].

345    However, it is not apparent that there is any difference in the result as to whether one considers the definition to be constituted by express or implied allegations, or “matters that are capable of being ascertained objectively”: King at [11]. That is, the class will not collapse should those allegations be rejected (the class remains constituted by the allegations) or those matters not be ascertained as pleaded (the matters remain capable of being ascertained objectively). Furthermore, the consequences of such a distinction will differ depending on the pleading (as discussed further below).

346    The requirements of s 33H(1) should be construed bearing in the mind the function that the provision is intended to perform under Pt IVA, and as such, an “unduly narrow or technical approach” should not be taken: J Wibsey at [13]. As Nichols J observed in Mercedes-Benz at [29]–[30], there must be tolerance for some ambiguity, however, the pleading must not give rise to significant uncertainties and ambiguities. There is an evaluative distinction between the two.

347    Rio Tinto raised the prospect of an inconsistency between this finding in Mercedes-Benz and the Full Court decisions of Ethicon and Dyczynski v Gibson (2020) 280 FCR 583, but did not identify nor call for the resolution of any such inconsistency on this application, on the basis that the group member definition has more than a “trace” of ambiguity; it is an “entirely uncertain definition”. In any event, the ‘tolerance’ for ambiguity will be measured by reference to the objectively identified ability of a person to ascertain whether they are a group member.

Application for leave pursuant to s 33K of the FCA Act

348    As noted above, the applicants seek leave to amend the group member definition pursuant to s 33K of the FCA Act. The Court’s power to grant leave pursuant to s 33K is discretionary: Impiombato at [183] (Beach and O’Bryan JJ).

349    As stated in Impiombato (at [183]), s 33K is appropriately characterised as a provision with respect to practice and procedure, and is therefore subject to the considerations stated in s 37M of the FCA Act. It follows that the discretion conferred by s 33K should be exercised in the way that best promotes the overarching purpose stated in s 37M to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Impiombato at [183].

350    In granting leave to amend the group member description, the range of relevant considerations is broad, and the Court has power to do what is “just and convenient”: Rod Investments (Vic) Pty Ltd v Clark (No 3) [2007] VSC 306 at [10] (Hansen J).

Whether proposed group member definition is certain

351    The proposed group member definition in each of the proceedings is relevantly identical, with the exception of the claim period and the name of the relevant respondent. Accordingly, they are addressed on the same basis.

352    The proposed group member definition in the BHP proceeding is set out below, and includes amendments reflected in the amended statement of claim and further proposed amended statement of claim (collectively, in markup):

6.    The persons on behalf of whom the Applicant brings this proceeding Group Members are all women who:

(a)    worked at one or more of BHP’s Australian Workplaces at any time during all or part of the period 12 November 2003 to 11 March 2024 (Claim Period);

(b)    were, or allege to have been, at or in connection with their work at BHP’s Australian Workplaces exposed to conduct in the Claim Period amounting to:

(i)    sexual harassment and/or harassment upon the ground of their sex sexually harassed within the meaning of sections 28A, 28AA and/or 28B of the Sex Discrimination Act 1984 (Cth) (SD Act); and/or

(ii)    from 11 September 2021, harassed on the ground of their sex within the meaning of section 28AA of the SD Act; and/or

(iii)    discriminated against discrimination in employment or as contract workers on the grounds of their sex within the meaning of sections 5, 7, 14 and 16 of the SD Act (including if the conduct would be such discrimination if engaged in by a person liable pursuant to s 106);

(c)    were subjected to the conduct alleged in paragraph (b):

where such conduct:

(i)    by BHP;

(A)    where such conduct consisting of discrimination was permitted by BHP within the meaning of section 105 of the SD Act; or alternatively

(B)    consisting of sexual harassment or harassment on the ground of sex occurred after 11 September 2021 and was permitted by BHP within the meaning of section 105 of the SD Act; and/or

(C)    by agents or employees of BHP acting in connection with their employment or duties as an agent with respect to the conduct was conduct for which BHP is vicariously liable within the meaning of section 106(1) of the SD Act; and

(d)    suffered hurt, humiliation and distress and/or economic loss as a result of the conduct alleged in paragraph (b).

(c)    further or alternatively to subparagraph (b), suffered, or allege to have suffered, loss or damage by reason of: one or more of the Breaches of BHP Duties of Care (as defined in paragraph 154.5 below),

(i)    one or more of the Breaches of BHP Safety Duties (as defined in paragraph 154.5 below); and/or

(ii)    the Breaches of BHP PEL Duty (as defined in paragraph 154.13 below),

    (Group Members).

353    The applicants submit that the proposed group member definition is narrower than previous iterations, with the exception of the amendments to para [6(c)], which relate to the negligence claim. The applicants identify four key amendments proposed to be made to the group member definition.

354    First, subpara (a) defines the group by reference to persons who worked at particular workplaces (during the claim period). Those workplaces were previously given an open-ended definition, but are now narrowed by enumerating a closed list in the Schedule, removing any interpretative aspect from the definition.

355    Second, subpara (b) clarifies and narrows the part of the definition referring to the SD Act claim by reference to the statutory language.

356    Third, subpara (c) potentially broadens the definition, to include group members with only a negligence claim (and not also a claim under the SD Act).

357    Fourth, subparas (b) and (c) add the words “or allege to have been” and “or alleged to have suffered”, such that the group definition does not require findings as to legal conclusions, in order to address the respondents’ collapsing class theory (i.e., that a group definition cannot refer to potential outcomes or legal conclusions). The applicants contend that this does not expand the number of group members, on the basis that whether a person was sexually harassed, or alleges to have been sexually harassed, it will describe the same person. (As Lee J observed in Cannan at [56], and as discussed further below, a definition which states that group members are persons who satisfy a particular condition, is not the same thing as a definition which identifies persons who are alleged to satisfy that condition.) The applicants submit that the formulation “allege to have suffered” is of common usage in pleadings: see, e.g., Jenkings at [18]; Impiombato at [77]–[78] (Beach and O’Bryan JJ).

358    The respondents claim that the group member definition is “defective”, and that it must be struck out on the basis that it does not permit persons (or the Court) to ascertain, with certainty, who is a group member by reference to the pleadings. This is for two reasons.

359    First, Rio Tinto takes issue with the reference to “Workplaces” in para [6(a)] (and defined in para [4(b)] of the RT-PFASOC, with reference to the Schedule). Rio Tinto submits that this includes workplaces of which Rio Tinto was the “ultimate owner”, but which were owned by subsidiaries and staffed by persons not employed by Rio Tinto (rather, by subsidiaries or other companies). As such, Rio Tinto submits that group members will not be able to ascertain Rio Tinto’s liability to them, absent Court findings.

360    That may be so, but it is not necessary for putative group members to ascertain Rio Tinto’s liability to them in order to ascertain whether or not they have worked at one or more of Rio Tinto’s “Australian Workplaces”, which are specifically identified, and therefore circumscribed, in the Schedule to the pleadings. In that way, this aspect of the description of the group is certain.

361    Second, the respondents take issue with the identification of group members by way of “ultimate legal conclusions” – i.e., legal findings as to breach of the SD Act and alleged duties in negligence (as outlined in subparas (b) and (c) of the group member definition). The respondents contend that the definition depends on a series of legal findings, which will not be made until the determination of a putative group member’s claim. Rio Tinto submits that the proposed amendments to subparas (b) and (c) – viz., to add the words “or allege to have been” and “or allege to have suffered” – do not cure the problems with the class definition to the extent that the claim incorporates an ultimate legal finding of liability and loss under the SD Act or in negligence.

362    The respondents did not take issue with the definition on the basis that it requires reference to be made to the respondent’s conduct as pleaded: see Petrusevski at [24]. In my view, that resolves the respondents’ objection to the identification of group members by reference to “ultimate legal conclusions”. That is, as the definition of the group is by reference to the allegation, it is not necessary to determine a putative group member’s claim in order to ascertain whether or not a person is a member of the group. In that way, as Nichols J observed in Mercedes-Benz (at [40]), a group defined by reference to matters that are alleged, is defined by matters that are capable of being objectively ascertained.

363    Embracing the distinction drawn by Lee J in Cannan at [56], it may be said that the addition of the words “or allege to have been” and “or alleged to have suffered” in defining the group, introduces a second class of group members: i.e., (a) those who allege that they were the subject of the impugned conduct, as distinct from (b) those who “were” the subject of such conduct. However, that addition does not introduce any ambiguity such that the group member definition is not certain. While there will be a category of persons who allege to be the subject of the impugned conduct, who (upon the Court’s determination) were or were not actually the subject of such conduct, practically, there will be no further separate category of those who do not make the allegation. This raises the question of the utility of the word “were” (alongside the “or allege to have been” in para (b) of the definition) or “suffered” (alongside “or alleged to have suffered” in para (c)) in defining the group, but it does not render the word (or the definition) ambiguous or uncertain.

364    BHP contends that a person cannot reasonably determine that they are a group member unless they form a view on whether, for example, BHP “permitted” the alleged discrimination or sexual harassment; or was vicariously liable for the alleged conduct as pleaded (see, e.g., subparas (A)–(C) of the definition). BHP submits that these are matters of legal conclusion for the Court to decide.

365    That these are matters of legal conclusion may be accepted. However, in my view, the proposed definition does not call for the resolution of these matters in order to identify the group members; it follows from the allegation.

366    Rio Tinto submits by way of example that, in circumstances where a potential group member worked at a “Workplace” and considers that she was subject to the type of “conduct” identified in the group member definition at para [6(b)(i)–(iii)], she will then face the difficulty of working out whether the criteria in para [6(b)(1)–(3)] (which correspond to para [6(b)(A)–(C)] in the BHP proceeding) are satisfied. Rio Tinto contends that this is not ascertainable by the potential group member (or the Court) with certainty. If it is considered sufficient that the potential group member alleges that Rio Tinto was liable for that conduct under ss 105 or 106 of the SD Act, this is a “complete and distinct alternative” to the group member definition pleaded at para [6(b)]. On that basis, Rio Tinto submits that para [6(b)] should be struck out.

367    In my view, pleading in this respect does not present a “complete and distinct alternative” to the group member definition pleaded at para [6(b)]. It is an additional, and critical, element of the allegation regarding the respondent’s conduct, i.e., that the conduct the subject of the allegation in para [6(b)(i)–(iii)] was permitted by the respondent, or was conduct for which the respondent is vicariously liable.

368    Rio Tinto contends that the definition confuses the claims of a group member with their identity, as cautioned against in Dillon at [50] (Lee J) (approved by the Full Court in Ethicon at [25]):

It is important to bear in mind another fundamental concept which, although simple, is sometimes obscured: a group comprises persons and not the claims of persons. The best way of avoiding confusion is by imagining that a list of group members is always a list of names but, when actual names are not used, the “list” of persons is defined by a criterion (or more usually criteria) specified at the time the group is described. The identity of all persons is ascertainable and the characteristics describing membership, subject to leave under s 33K, will necessarily all be in existence immediately prior to the commencement of the proceeding on their behalf. The claims which are the subject of the proceeding are the entirety of the claim of each of those persons, which each existed separately from the proceeding.

369    The caution expressed by Lee J in Dillon is allayed where the allegation is made by reference to “matters that are capable of being ascertained objectively” (as the Full Court put it in King at [11]).

370    The applicants contend that the group member definition, which ties the harm experienced by the group members to the respondents’ alleged conduct by reference to causes of action (i.e., the SD Act claims and negligence claims), is both permissible and conventional.

371    In that regard, the applicants relied on the group member definitions in Jenkings at [18] and Giles at [11] (Garling J). The applicants emphasised that, in Jenkings, the group member definition referred to persons who “suffered or allege to have suffered” the alleged conduct (i.e., false imprisonment, assault, battery), which formulation is reflected at para [6(b)] of the group member definition in this proceeding. Similarly, the group member definition in Jenkings included a “liability limb” by which liability for the alleged conduct was attributed. The applicants say that this approach is reflected in paras [6(b)(A)–(C)] (BHP proceeding) and [6(b)(1)–(3)] (Rio Tinto proceeding), respectively, of the group member definitions in these proceedings. In that way, both definitions comprise alleged conduct and include causes of action or findings that the Court would ultimately need to make at trial.

372    BHP submits that the group member definitions in Jenkings and Giles were not the subject of challenge (to be precise, the challenge in Jenkings was brought on the basis of s 33C of the FCA Act). In any event, in my view, the analogy especially with the group definitions in both cases does not assist the applicants in their reliance on paras [6(b)(A)–(C)] (BHP proceeding) and [6(b)(1)-(3)] (Rio Tinto proceeding), respectively, of the group member definitions in these proceedings.

373    On the applicants’ case, in relation to the SD Act claims, the putative group member can assess whether they fall within the definition (insofar as it relates to the SD Act claims) by asking themselves a series of questions: (i) are they a woman; (ii) did they work at one or more of the respondents’ “Australian workplaces” during the specified period; (iii) were they (or are they alleging that they were), at or in connection with their work at the workplace, sexually harassed, or harassed on the ground of their sex, or discriminated against on the ground of their sex in employment or as contract workers; (iv) was that conduct permitted by the respondent or was the respondent vicariously liable for it?

374    Bearing in mind that the question is whether these concepts are objectively ascertainable, and not whether they are ultimately ascertained correctly, I accept the applicants’ submission in relation to the first three elements, but not in relation to the fourth (being the element of permission and vicarious liability). In that regard, there is no analogy with the group definitions in Jenkings at [18] and Giles at [11]. The fourth element in Jenkings and the third element in Giles do not plead causes of action; they identify those responsible for the pleaded acts or omissions. In that regard, those elements are objectively ascertainable. This is to be contrasted with the pleading of (allegations of) conduct in para [6(b)(i)–(ii)], which is said in paras [6(b)(A)–(C)] and [6(b)(1)–(3)] to have been permitted by the respondents, or for which the respondents are vicarious liable. It is not evident how a person would be able to identify whether or not they satisfy the group definition on that basis. That the claim is couched as an allegation does not avert the ambiguity or uncertainty.

375    Furthermore, it is not apparent from the pleading that these elements pertain to, or reflect, the characteristics of group members, as distinct from the workplace and the respondents’ control over that workplace. As such, they appear to relate to the first element of the group definition in para [6(a)], viz., that the women worked at one or more of the respondents’ “Australian Workplaces” (as that term is defined in the pleadings).

376    Paragraph [6(c)] is in a similar category, in that it asks a putative group member to identify whether or not they suffered, or allege to have suffered, loss or damage “by reason of” breaches of the respondents’ duties of care, which are defined in the pleading as the Akin to Employer Duty (which as pleaded is concerned with the conditions of work at the respondents’ “Australian Workplaces”) and the General Duty of Care, which in substance imposes the same duties as the Akin to Employer Duty. This is not simply a claim to have suffered loss or damage from specified acts or omissions of the respondents, but calls for the putative group member to make a further assessment as to the connection between the loss or damage and those acts or omissions, which is unnecessary, and more importantly, uncertain.

377    In other words, the aspects of the group member definition that pertain to permission and vicarious liability do not describe the characteristics of group members, but elements of the relevant cause of action, and in that way are pertinent to the relationship between the immediate perpetrator of the impugned conduct and the respondents. Those elements are pleaded elsewhere in the pleadings, so their inclusion in the group member definition is not only productive of uncertainty, contrary to the requirements of s 33H(1)(a) of the FCA Act, it is also superfluous.

378    Accordingly, I would not grant leave to make the proposed amendments to paras [6(b)(A)–(C)] and [6(b)(1)–(3)]. I acknowledge that the reference to “permission” in para [6(b)(A)] and [6(b)(1)] is not the subject of an amendment. The paragraph should be struck out on the same basis, consistently with the treatment of paras [6(b)(B)–(C)] and [6(b)(2)–(3)] of the respective pleadings.

Allegations made after commencement of litigation

379    Rio Tinto submits that the group definition cannot embrace persons who did not make the allegations identified prior to commencement of this litigation, thereby significantly limiting the size and scope of the class. Otherwise, the group member definition would be defective, as it would depend on an event which impermissibly post-dates the commencement of the proceedings. In response, the applicants submit that the respondents do not cite any authority in support of the contention that group members who “allege” to have been sexually harassed or to have suffered loss must have made that allegation prior to commencement of the litigation. The applicants say that the obvious reading of the present tense “allege” is “allege by way of the claims in the present representative proceeding”. Rio Tinto characterises the applicants’ reading as “circular”, and an unacceptable approach, as the criteria for group membership must be met and ascertainable prior to the commencement of the proceeding. It is not evident why an allegation identified after the commencement of litigation means that the criteria for group membership was not met and ascertainable prior to the commencement of the proceeding. In any event, I accept the applicants’ reading of the term “allege”, which leaves open the possibility that those who did not make the specified allegations prior to commencement of the litigation may nevertheless satisfy the group definition. The term is not constrained as the respondent suggests.

380    BHP’s observation that, if certain of the pleaded claims are liable to be struck out, then the group member definition will not be able to stand, will ultimately depend on what, if anything, is struck out. Even if the definition did not embrace persons who made the specified allegations after commencement of litigation, that would not mean that the pleading should be struck out. More would need to be demonstrated than the resultant limitation of class size (assuming, of course, it meets the statutory threshold).

Whether the proposed group member definition impermissibly introduces new complainants

381    The respondents each advance arguments that the proposed group member definition cannot stand as it extends beyond the class membership definition in the terminated complaints.

382    First, the respondents contend that the proposed group member definition impermissibly introduces new complainants that are not the subject of the terminated complaint for the purposes of s 46PO(1) and not “affected persons” for the purposes of s 46PO(2A) of the AHRC Act. BHP submits that the decision of Hill J on the scope and operation of s 46PO(3) in Wilson supports BHP’s argument in this regard. In the context of the operation of s 46PO, those arguments are addressed above.

383    BHP has not identified who the new complainants would be. It may be accepted, as the applicants contend, that the proposed amendments narrow the definition in three ways: (i) in para [6(b)(iii)], removal of the reference to s 7 of the SD Act (discrimination on the ground of pregnancy or potential pregnancy); (ii) in para [6(b)(ii)], clarification that the claim in respect of harassment on the ground of sex is only on and from 11 September 2021; and (iii) removal of the criterion that group members were subject to the alleged conduct “by BHP” (or “by Rio Tinto”), which makes clear that the applicants are not contending that the respondents engaged directly in the alleged conduct. However, it is not apparent whether this contraction meets BHP’s complaint. To the extent that it does not, as indicated, BHP’s argument on the operation of s 46PO is addressed above.

384    Second, Rio Tinto argues that inclusion of the persons who “allege to have been” subject to the alleged conduct departs from the class membership in the complaint, which was limited to persons who had, in fact, been exposed to such conduct. Rio Tinto submits that, in the complaint, class membership comprised of those where were exposed to conduct which may be characterised as sexual harassment by reference to s 28A of the SD Act (but without identifying the basis on which such sexual harassment was said to be unlawful by reference to s 28B, or those other forms of adverse conduct for which Rio Tinto is said to be liable).

385    In response, the applicants argue that this is an unrealistic reading of the group member definition, as whether a person was sexually harassed, or alleges to have been sexually harassed, will in reality describe the same person.

386    In the present case, I agree that there is no such practical distinction. As discussed above, the amendment may not be necessary, but it serves the purpose of clarifying that it is not necessary to know the outcome of the proceeding in order to qualify as a group member. While the amendment may create, in theory, two classes (i.e., those who are subjected to conduct and those who allege being subjected to conduct), for the purposes of bringing the claim to this Court, the allegation is common to both. It will be affirmed or denied on the basis of the determination of the Court, and not in any a priori sense.

387    Third, Rio Tinto submits that the proposed group member definition allows a person to be a group member if they suffered, or allege to have suffered, loss by reason of the alleged breach of the duties of care, and that this marks a significant expansion of class membership from the complaint: para [6(c)]. Rio Tinto argues that KTM24 does not have standing in respect of persons who are group members by virtue of para [6(c)] (but not para [6(b)]). Despite this, the applicants plead claims against the respondents for alleged unlawful discrimination on behalf of group members generally, not a specific subset thereof; consequently, those paragraphs are liable to be struck out: RT-PFASOC [77]–[89], [105]–[118.1], [131]–[146.1].

388    The applicants observe that it is trite to say that a representative proceeding may be brought on behalf of persons with claims outside the SD Act, and contend that such claims do not need to have gone through the AHRC Act process.

389    In my view, the crux and effect of Rio Tinto’s submission is that an affected person the subject of a terminated complaint cannot represent those persons who are group members in respect of claims that are not concerned with discrimination (because they were not made in the terminated complaint), but which nevertheless arise out of the same, similar or related circumstances, and give rise to a substantial common issue of law or fact (for the purpose of s 33C). That approach is unduly limiting and contrary to the operation of s 33C. Further, I do not consider that it is dictated by s 46PO, which preserves the utility of the Commission’s consideration of the complaint. The permissive regime for the commencement of proceedings per s 46PO(2A) does not supplant the permissive regime for the commencement of proceedings per s 33C. The regimes co-exist to allow an affected person in relation to the terminated complaint to bring a claim on their own behalf and on behalf of other affected persons alleging unlawful discrimination, and to do so in relation to other claims that meet the requirements of s 33C.

Application for leave to file the proposed amended originating application

390    The second aspect of the applicants’ interlocutory applications is the request for leave to file a proposed amended originating application (PAOA).

391    On the first day of the interlocutory hearing, Rio Tinto objected to the applicants being granted leave to file the proposed amended originating application, contending that it suffers from certain deficiencies. The applicants sought to address the matters raised by Rio Tinto by way of a further proposed amended originating application (FPAOA) handed up on the second day of the hearing. Rio Tinto did not object to the provision of the FPAOA, but reserved its position in relation to those amendments.

392    Rio Tinto’s objections to the PAOA are detailed below, and are considered in light of the proposed amendments in the FPAOA, which relate to paras [1]–[3] and [14]–[16] of the PAOA/FPAOA.

393    For the reasons that follow, leave is granted to the applicants to make the amendments sought, noting that I accept that the term “workplace participant” calls for further clarification in the manner described in para [415] below.

Legal principles

394    A party may apply to the Court for leave to amend an originating application for any reason: r 8.21(1) of the Rules. Rule 8.21 identifies amendments that may be the subject of an application in subparas (a)–(g), however, the list is not exhaustive: McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211 at [23] (Allsop CJ, Jagot and Yates JJ).

395    The onus is on the party seeking leave to persuade the Court that such leave should be given: University of Sydney v ObjectiVision Pty Ltd [2016] FCA 1199 at [62] (Burley J), citing Dye at [17].

396    Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose in s 37M(1) of the FCA Act: ObjectiVision at [61].

397    The principles relevant for the Court to consider are those articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, which were summarised by Gleeson J in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 at [127]:

Relevant matters the Court is to consider include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

(6)    The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

Paragraphs [1]–[3] of the (further) proposed amended originating application

398    Paragraphs [1]–[3] FPAOA detail the declarations sought by the applicants. Those paragraphs state (amendments in the FPAOA identified in markup):

1.    An order declaration pursuant to s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and/or ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) declaring that there has been unlawful discrimination by the Respondent against the Applicant and Group Members in the form of sexual harassment contrary to s 28B 28A of the SD Act and directinga direction that the Respondent not continue or repeat such unlawful discrimination.

2.    An order declaration pursuant to s 46PO(4) of the AHRC Act and/or ss 21 and 23 of the FCA Act declaring that there has been unlawful discrimination by the Respondent against the Applicant and Group Members in the form of harassment on the grounds of sex contrary to s 28B 28A of the SD Act and directinga direction that the Respondent not continue or repeat such unlawful discrimination.

3.    An order declaration pursuant to s 46PO(4) of the AHRC Act and/or ss 21 and 23 of the FCA Act declaring that there has been unlawful discrimination by the Respondent against the Applicant and Group Members in the form of discrimination in employment contrary to s 14 or s 16 of the SD Act and directinga direction that the Respondent not continue or repeat such unlawful discrimination.

399    In relation to paras [1] and [2], Rio Tinto contends that the declaratory relief sought apropos of contraventions of s 28A (and/or s 28AA, to the extent that the reference in para [2] to s 28A is a typographical error and ought to be a reference to s 28AA) is not possible, as those sections are definitions and cannot be breached.

400    The applicants have sought to rectify this in the FPAOA, by replacing the references to s 28A with a reference to s 28B. I consider that the proposed amendments to paras [1] and [2] rectify the problem identified by Rio Tinto, and leave to make the proposed amendments is granted on that basis.

401    In relation to para [3], Rio Tinto complains that the applicants seek declaratory relief by reference to s 14 of the SD Act only (which deals with discrimination in employment), without mention of s 16 (which deals with discrimination against contract workers). This is said to be inconsistent with the description of the group members at para [14] of the FPAOA, which relevantly describes group members as women who inter alia were or alleged to have been discriminated against in employment or as contract workers on the grounds of their sex within the meaning of ss 5, 14 and 16 of the SD Act: at para [14(b)(iii)].

402    Rio Tinto further submits that while the FPAOA refers to s 14 of the SD Act generally (at paras [3], [14(b)(iii)] and [15(c)]), it is presumed that the applicants intended to rely on s 14(2)(b) and (d), being the provisions referred to in the RT-PFASOC (and that this should be specified). Rio Tinto contends that the respondent needs to know and understand the relief sought, the basis of the claim, and the particular statutory provisions relied upon to support that claim.

403    In the applicants’ written submissions, leave is sought to amend the declaration sought in para [3] of the PAOA to include a reference to s 16 of the SD Act. That proposed amendment is reflected in the FPAOA. As outlined below, the applicants also seek in their FPAOA to amend para [15(c)] to include a reference to s 14(2)(d) of the SD Act (although paras [3] and [14(b)(iii)] retain the reference to s 14, without specifying the applicable subparagraph).

404    Leave is granted to make the amendments sought by the applicants in relation to para [3], which serves to clarify and thereby narrow the case against Rio Tinto.

Paragraph [14] of the (further) proposed amended originating application

405    Rio Tinto takes issue with para [14(b)(i), (iii)] of the group member definition in the PAOA, on the basis of lack of specificity.

406    Paragraph [14(b)] of the PAOA (which is relevantly identical to the FPAOA) relevantly provides (amendments in markup):

14.    The Group Members to whom this proceeding relates are women who:

…

(b)    were, or allege to have been, at or in connection with their work at Rio Tinto’s Australian Workplaces exposed to conduct in the Claim Period amounting to:

(i)    sexually harassed sexual harassment and/or harassment upon the ground of their sex within the meaning of sections 28A, 28AA and/or 28B of the SD Act; and/or

…

(iii)    discriminated against discrimination in employment or as contract workers on the grounds of their sex within the meaning of sections 5, 7, 14 and 16 of the SD Act (including if the conduct would be such discrimination if engaged in by Rio Tinto); and

407    As to para [14(b)(i)], Rio Tinto submits that the PAOA does not identify which provision of s 28B is relied upon, and the time period in which it is relied upon, observing that s 28B assumed different forms during the claim period.

408    As to para [14(b)(iii)], Rio Tinto submits that ss 14(2) and 16 rely on the definition of “sex discrimination” in s 5 of the SD Act, which describes two mutually exclusive forms of sex discrimination in s 5(1) and (2) respectively. Rio Tinto submits that identification of all material facts as to the elements of each form of discrimination is required (Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247 at [13]–[16] (Bromberg J)), yet the PAOA at para [14(b)(iii)] refers only to s 5 generally.

409    This is not a complaint about the proposed amendments to the PAOA, but rather a complaint about the lack of specificity as to what is already pleaded. This is a curious complaint in the context of a group member definition, the object of which is to encompass all of the (common) circumstances of the group; that is, in the present case, to encompass the “distinct definitions of direct and indirect discrimination in s 5” (which the applicants acknowledge) where relevant, and the various iterations of s 28B throughout the claim period where relevant. On that basis, I see no reason not to grant leave to file the PAOA (noting that the FPAOA does not propose any further amendments in this regard).

Paragraphs [15] and [16] of the (further) proposed amended originating application

410    Paragraphs [15] and [16] of the FPAOA state (amendments in the FPAOA in markup):

Details of claim under the AHRC Act

15.    The Applicant claims that:

(a)    at the material times she was a workplace participant at Rio Tinto’s Australian Workplaces for the purposes of s 28B of the SD Act and/or an employee of Rio Tinto for the purposes of s 14 of the SD Act;

(b)    she was at those times subjected to sexual harassment or harassment on the grounds of sex contrary to s 28B of the SD Act; and, or alternatively

(c)    she was at those times subjected to a detriment in her employment or contract work in connection with those episodes of sexual harassment or harassment on the grounds of sex contrary to s 14(2)(d) of the SD Act.

16.    The Applicant claims that Rio Tinto is liable for the sexual harassment, or harassment on the grounds of sex, or in subjecting her to a detriment in her employment pursuant to ss 105 or 106 of the SD Act.

411    Rio Tinto raises four objections to paras [15] and [16].

412    First, Rio Tinto takes issue with the term “workplace participant” in para [15(a)] of the PAOA. The term “workplace participant” was previously defined in s 28B of the SD Act, which relevantly provided prior to September 2021:

28B    Employment, partnerships etc.

…

(6)    It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.

(7)    In this section:

place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

workplace participant means any of the following:

(a)    an employer or employee;

(b)    a commission agent or contract worker;

(c)    a partner in a partnership.

413    Section 28B(6) and (7) were repealed in September 2021, and the term “workplace participant” removed from the SD Act: Sch 1 item 63 of the Amendment Act 2021. Relevantly, the Amendment Act 2021 also introduced s 28AA (harassment on the ground of sex): Sch 1 item 60.

414    Rio Tinto submits that in circumstances where “workplace participant” has a specific meaning, the applicants’ claim is consequently “limited” (although, Rio Tinto notes that it does not know whether the use of the term “workplace participant” was intended by the applicants, or whether it is a typographical error).

415    I have no difficulty in accepting that the term “workplace participant” in relation to “the purposes of s 28B of the SD Act” is intended to refer to the definition of that term in s 28B prior to its removal. That is confirmed by the proposed amendment, which tethers “workplace participant” to s 28B of the SD Act. Insofar as the term is intended to apply to a period (within the claim period) from September 2021, then I accept that the term calls for clarification (i.e., further definition).

416    Second, Rio Tinto observes that the PAOA alleges at para [15(b)] that the applicant was subjected to harassment on the ground of sex, at the time that she was a “workplace participant”. However, the concept of harassment on the ground of sex was introduced by s 28AA of the SD Act, which was inserted in September 2021, when s 28B(6) and (7) (and the concept of a “workplace participant”) was repealed (i.e., the provisions are mutually exclusive from a temporal perspective).

417    Third, Rio Tinto takes issue with the reference to s 14 of the SD Act in para [15(c)], contending that the applicants ought to specify which ground of s 14 is relied upon.

418    Fourth, Rio Tinto characterises the allegation of Rio Tinto’s liability, pursuant to s 105 or s 106 of the SD Act, as “very confusing and unclear”.

419    In oral submissions, the applicants explained that they have sought to address the deficiencies raised by Rio Tinto, by way of the FPAOA, which includes the following proposed amendments: (i) broadening the scope of para [15(a)] by including a statement as to the applicant’s status as an “employee” of Rio Tinto (and clarifying the concept of “workplace participant” by reference to s 28B of the SD Act, to which it is tethered necessarily prior to its removal); (ii) removing the reference to “harassment on the grounds of sex” in paras [15] and [16]; and (iii) including a reference to s 14(2)(d) of the SD Act in para [15(c)]. In this way, I consider that the deficiencies identified by Rio Tinto are addressed, and leave is granted to make them.

CONCLUSION

420    The orders in relation to the strike out application acknowledge that any acceptance by the Court of an argument advanced by one of the respondents is adopted by the other respondent, to the extent it is applicable to that proceeding. As such, while I have ordered that certain paragraphs of the proposed pleadings be struck out, the orders contemplate that the corresponding paragraphs in the other pleading are to be similarly struck out. As such, the parties have leave to apply to vary the orders, to reflect the reasons for judgment.

421    Finally, as the applicants have each been largely successful in: (a) obtaining leave to make the proposed amendments to their pleadings; and (b) resisting the strike out of several of their pleadings, they should be awarded their costs of, and in relation to, the interlocutory applications. While I am cognisant that the applicants have not been entirely successful in their claims, I see no cause to depart from the usual position that costs should follow the event, being in this case the “overall result in the sense of a party’s substantive success”, which does not entail success on every issue: Fanatics LLC v FanFirm Pty Ltd (Costs) [2025] FCAFC 111 at [9] (Burley, Jackson and Downes JJ).

Associate:

Dated:    23 October 2026