s.789FC - Application for an order to stop bullying

Mr Aaron Morrison, Xavier Linton, Jamie Stier, Racing Victoria

• [1] An application has been made by Dr Forbes (Applicant) for an order pursuant to Part 6-4B of the Fair Work Act 2009 (Act) to stop bullying. The Application is brought against her employer, Racing Victoria (First Respondent), together with certain named individuals. The matter is presently set down for a three day hearing commencing on 10 December 2025. Pursuant to directions issued on 12 September 2025, the Applicant has filed materials in support of the application. The Respondents are due to file their material on Friday 28 November 2025. The Respondents have sought an adjournment of the application. This decision deals with the adjournment application.

• [2] Written submissions and supporting material have been filed in support of, and in response to, the adjournment application. The adjournment application is responsive to proceedings that were commenced in the Federal Court of Australia by the Applicant against the First Respondent on 30 October 2025, seeking declarations, injunctions, compensation, interest and the imposition of penalties. Those proceedings allege that the First Respondent took adverse action against the Applicant in contravention of sections 340 and 351 of the Act.

• [3] I conducted a brief hearing in relation to the adjournment application on 19 November 2025. Mr Parry KC appeared for the Respondents and Mr Harrington appeared for the Applicant pursuant to permission granted at an earlier stage of the matter. The Respondents had sought the Applicant's agreement to the adjournment prior to the adjournment application being made.

• [4] The basis for the adjournment is that Federal Court proceedings would traverse the same factual matters as the anti-bullying application, and seek substantially the same relief. The Applicant concedes that there is substantial overlap in the conduct that is alleged to have occurred in the two proceedings, but that the anti-bullying application includes some additional matters not presently before the Court. The Applicant strongly disputes the Respondents' characterisation of the relief sought and maintains that the respective proceedings pose different questions for determination. The Federal Court proceedings are listed for their first directions hearing on 6 February 2026. The Respondents seek that the adjournment extend until the Federal Court proceedings are determined.

• [5] It is uncontroversial that the Commission has the power to adjourn matters pursuant to section 589 of the Act. Nor is it contested between the parties that such power may be exercised in the context of multiple proceedings, where the interests of justice require this. The real issue between the parties is whether the current circumstances rise to a level that necessitates an adjournment to serve those interests.

• [6] The parties drew attention to a number of authorities dealing with circumstances in which proceedings in one forum were sought to be stayed or adjourned where related matters were being pursued in an alternative forum. I also considered it appropriate in the circumstances to draw the parties' attention to paragraphs 86-92 of the Revised Explanatory Memorandum for the Fair Work Amendment Bill 2013, which deal with provisions that inserted Part 6-4B of the Act so as to create the Commission's anti-bullying jurisdiction.

• [7] I will deal with the authorities briefly, in line with my advice to the parties that the requirement in the circumstances to deal with the adjournment application swiftly compelled brevity in the reasons for my decision.

• [8] In Sterling Pharmaceuticals v. The Boots Company (Australia)[1] the contest was between proceedings in the Federal Court of Australia and the High Court of New Zealand. The parties in each proceeding were not identical, rather they were matters between respective local subsidiaries of the producers of Panadol (applicants) and Nurofen (respondents) and concerned the accuracy of product claims displayed (in both markets) on the packaging of the latter. The Australian proceedings had advanced to the point of close of pleadings, whereas the High Court of New Zealand had commenced earlier and an application for interim injunction and proceedings in that matter had been heard (and dismissed). In the Federal Court, Justice Lockhart reasoned that both proceedings were substantially concerned with the proper construction of the product claim and its accuracy under consumer laws. Accordingly, if no stay were granted, the proceedings would involve duplication in the preparation for and conduct of the final hearings in both matters, which would be a burden both to the parties and their witnesses, particularly given the proceedings would be conducted in different countries. It was acknowledged that the Applicant was prima facie entitled to have their case heard and determined, notwithstanding the institution of proceedings in a foreign court. Justice Lockhart ultimately found that the interests of justice lay in granting an adjournment. In doing so he express the view that

"...relevant considerations to be taken into account in the present case include the following:

• Which proceeding was commenced first;
• Whether the termination of one proceeding is likely to have a material effect on the other;
• The public interest;
• The undesirability of two courts competing to see which of them determines common facts first;
• Consideration of circumstances relating to witnesses;
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation work might be wasted;
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues;
• How advanced the proceedings are in each court;
• The law should strive against permitting multiplicity of proceedings in relation to similar issues;
• Generally balancing the advantages and disadvantages to each party."

• [9] In Bower & Ors v. DP World Melbourne & Ors[2], an application was made, by a respondent to an application for a stop bullying order, for the anti-bullying proceedings to be stayed pending judgement in Federal Court proceedings, the hearing of which had already concluded. Those proceedings did not concern identical principal parties, an applicant in the Federal Court proceeding and the respondent to that proceeding were among the respondents to the anti-bullying matter, however two of the applicants in the anti-bullying matter had been witnesses in the Federal Court proceedings. There was some factual overlap and submissions had been made concerning the credit of those witnesses. The Federal Court proceedings concerned a General Protections application. Deputy President Gostencnik considered the matters raised in Sterling Pharmaceuticals (also relied on by the Respondents in the present matter) and noted that the relevant considerations identified in that matter were neither exclusive or prescriptive, that case management considerations were relevant and that each case needed to be decided having regard to its own circumstances. In the result, there was no stay granted. This reflected judgement as to where the interests of justice lay in those particular circumstances, including the minimal factual overlap, the likely opportunity to take into account any submissions concerning the Federal Court's judgement prior to the decision in the anti-bullying matter being published and the fact that the nature of the proceedings and the nature of the legal questions that were required to be answered were discernibly different.

• [10] In Teys Australia v. AMIEU[3], Justice Bromberg expressed a view in favour of the Commission not proceeding to hear and determine a matter before it which he considered (and the parties did not dispute) raised the "same substantive question" as the matter before him, concerning the proper construction of an enterprise agreement and in particular whether extraneous content had been validly incorporated into it. His Honour considered that a determination of where the interests of justice lay called for the consideration of the following six matters:

• The final determination of legal rights and liabilities is a specialist function of the Court, not the Commission;
• The Commission is an inferior tribunal that would be assisted by the reasons of the decision in the court;
• The complexity of the issues involved deserved the attention of superior court;
• The issues were of general importance in a particular industry, given the practices at the centre of the dispute were widespread in that industry;
• There was potential of the substantive question to be determined differently, which could be avoided by the early determination of the issue by the Court;
• Whilst the delay in the Commission proceedings would ensue the order sought by the Respondent were granted, the delay would likely be minimal because the Court would be able to move quickly.

• [11] In OGWA v. University of Melbourne[4] the Respondent was granted a stay by Justice Ryan of the Federal Court in circumstances where there were additional proceedings on foot in the Federal Magistrates Court (as it then was) and the High Court. His Honour noted that the presumption arising of vexation or abuse stated in Moore v. Inglis[5] that arises from instituting proceedings in a second court in respect of the same factual matters in the first court was subject to qualifications, and that where differences in the two actions are great enough, it can be sufficient to displace the presumption. The proceedings in the Federal Court contained allegations of fact that had been struck out in the pleading in the Federal Magistrates Court, but also contained a new cause of action. His Honour considered it would be vexatious for the respondent to "fight simultaneously on two fronts, each in a different court". There were also interlocutory matters in the other proceedings which had been subject to appeal yet to be finally determined, and orders for costs adverse to the applicant which had not yet been complied with. His Honour further reasoned that the additional cause of action that the applicant sought to ventilate was capable of being determined in either the instant proceeding or the Federal Magistrates Court proceeding, subject to an extension of time being granted.

• [12] In Lucas v. Qantas[6], Commissioner Ryan acceded to an application to stay two applications to resolve disputes arising under an enterprise agreement (and brought to the Commission pursuant to section 739 of the Act) pending the outcome of a Federal Court penalty proceedings alleging a breach of that enterprise agreement. The proceedings in the Commission were due to commence being heard the following day, and the Federal Court proceedings had been commenced after the referral of the dispute to the Commission. Commissioner Ryan considered of particular significance that there was an overlap in the substantive issues that required determination in the proceedings, relating to the proper construction of the enterprise agreement.

• [13] In UGL Rail Services v. CEPU[7], Justice Collier made injunctions restraining the respondent union, whom was the applicant in a dispute resolution proceeding before the Commission that involved its members employed by the applicant in the Federal Court matter. The Commission proceedings were seeking an outcome that members be paid for days on which they did not work. The Federal Court proceedings relevantly sought a declaration that no such entitlement existed. The injunction was granted largely on the basis that the entitlement to wages would be decided in the Federal Court proceedings and there was potential for conflicting results.

• [14] In Visy Board v. Rustemovski & Anor[8] a Full Bench of the Commission dismissed an Appeal from an interlocutory decision of the Commission to adjourn an unfair dismissal matter. The Full Bench discussed whether the principles that emerged from the decision of the Supreme Court of NSW in McMahon v. Gould[9] bound the Commission in determining an application for an adjournment pursuant to the statutory discretions conferred on the Commission. The Full Bench found that they were not binding, but rather "may be of some assistance, by way of broad guidance", noting that elevating those principles to a rigid test, as conditions precedent to the exercise of a statutory discretion, obfuscates the requirement to address the central question of what justice requires in the given circumstances. The self described "guidelines" set out in McMahon v. Gould were concerned to a substantial degree with the interaction between civil and criminal proceedings, and were as follows (with citations omitted):

• Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;
• It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
• The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;
• Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
• The court's task is one of "the balancing of justice between the parties";
• Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors);
• One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. However, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;
• The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;
• In this regard factors which may be relevant include:
  • the possibility of publicity that might reach and influence jurors in the civil proceedings;
  • the proximity of the criminal hearing;
  • the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
  • the burden on the defendant of preparing for both sets of proceedings concurrently;
  • whether the defendant has already disclosed his defence to the allegations;
  • the conduct of the defendant, including his own prior invocation of civil process when it suited him;
• The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;
• In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.

• [15] Ultimately the present matter calls for the exercise of the statutory discretion conferred by section 589 of the Act. The exercise of that discretion is relevantly informed by the general obligation the Commission has pursuant to section 577 of the Act, to perform its functions and exercise its functions in a manner that is fair and just and, inter alia, promotes harmonious and cooperative workplace relations.

• [16] There is no real disagreement between the parties that the Federal Court proceedings will necessitate factual findings being made as to whether conduct alleged in the bullying application in fact occurred. That necessarily raises the possibility of inconsistent findings. But whether that arises on the basis of the same evidence being led in both proceedings is currently at large. The Respondent is, as things stand, required to provide its evidentiary material in just over a week, whist the Federal Court proceedings will not see a directions hearing until February. This is clearly not a case where there is any risk that the parties will be obliged to be simultaneously preparing and conducting proceedings in two forums. I note that the concurrency of obligations was regarded as a matter of some significance in both OGWA and Sterling Pharmaceuticals. In any event, there is no suggestion that the entirety of the exercise of preparing evidence as to the occurrence of conduct in the present matter would be a wasted exercise.

• [17] The issue of how the undesirability of factual findings in different forums operates needs to be understood in light of the respective functions of the two proceedings. As alluded to earlier, the institution of the anti-bullying jurisdiction was a legislative response to an identified need to act quickly to prevent harm, in a manner that could coexist with some other less responsive interventions:

86. The amendments in Schedule 3 to the Bill are part of the Government's response to the House of Representatives Standing Committee on Education and Employment Inquiry report Workplace Bullying "We just want it to stop" (Committee recommendations 1 and 23). Schedule 3 amends the FW Act to include a new Part 6-4B to enable a worker who is bullied at work to apply to the FWC for an order to stop the bullying.

87. The Government announced the House of Representatives Committee Inquiry into workplace bullying in May 2012 in response to increasing community concerns about the impact of bullying across workplaces and industries. The Committee completed its inquiry and tabled its report, Workplace Bullying "We just want it to stop" , in November 2012. The Committee made 23 recommendations to eliminate and prevent bullying in the workplace and support workers and employers to respond more effectively to allegations of bullying.

88. One of the key issues highlighted by the Committee was the difficulty many workers face in trying to find a quick way to stop bullying so they do not suffer further harm or injury. The Committee recommended that the Government provide an individual right of recourse for persons who are bullied at work to help resolve the matter quickly and inexpensively.

89. The amendments implement the Government's response to the Committee's recommendation, by enabling a worker who reasonably believes that they have been bullied at work to apply to the FWC for an order.

90. The FWC is required to start dealing with a matter within 14 days after the application is made. If the FWC is satisfied that the worker has been bullied, and there is a risk that the worker will continue to be bullied, it may make an order to prevent the worker being bullied at work. The power of the FWC to make an order does not extend to ordering reinstatement of a person or the payment of compensation or a pecuniary amount.

91. The FWC may refer a matter to a work health and safety (WHS) regulator where it considers this necessary and appropriate.

92. In making its recommendation the Committee sought to emphasise that WHS regulators should not perceive individual remedies as a replacement for penalties enforceable under WHS and criminal legislation. The amendments in Schedule 3 are not intended to preclude investigation and prosecutions under WHS and criminal law.[10] (emphasis added)

• [18] The burden that the Respondent faces in the preparation of material for two matters needs also to be weighed against the nature of the interest sought to be protected by the anti-bullying matter. The anti-bullying jurisdiction is self-evidently concerned with reducing risks to a person's safety. The allegations in the present matter are that there have been behaviours that have impacted the Applicant's health, and she is seeking interventions to reduce or eliminate the risks of further harm. These are serious matters that do not easily lend themselves to being outweighed by generalised assertions of an investment in time and resources in preparing material for hearing.

• [19] The nature of the adjudicative tasks to be exercised by the Commission and the Court in the two proceedings are also dissimilar. There can be no suggestion that the substantive legal questions are the same or that the Commission is being asked to determine the legal rights that arise for adjudication in the Federal Court proceeding. The Commission will not be called upon to assign a reason to the conduct complained of in order to grant the Applicant the relief she is seeking, whereas the Federal Court will necessarily need to concern itself with what actuated the particular conduct alleged (if it finds it occurred). There will however potentially be some overlap in determining whether any of the conduct complained of in both matters constituted an "injury in employment" as a category of adverse action as alleged in the Federal Court proceeding or created a risk to health or safety in the Commission proceedings.

• [20] The Respondent contended that the relief sought in the Court was identical in practical terms to the relief being sought in the Commission, being the reinstatement of the Applicant to her position on the same contractual terms as she previously enjoyed. That was to give rise to the proposition that the regulatory gap that the anti-bullying provisions sought to address did not arise in this instance. At a general level, it is correct that some circumstances where bullying is alleged may be amendable to being addressed on the basis that the bullying complained of (or some of it) constituted adverse action taken for a reason proscribed by Part 3-1 of the Act. But beyond this, I find the submission unpersuasive. Firstly, the relief sought in the Federal Court extends not only to injunctive relief but also to pecuniary penalties, compensation and interest. Secondly, the injunctive relief is described as an injunction directing the Respondent to permit the applicant to carry out her duties and an injunction restraining the Respondent from unilaterally altering or varying her terms and conditions of employment by precluding her from carrying out particular mandatory veterinary inspections. The orders sought in the Commission include an order that the Applicant be reinstated to her duties undertaking the same particular equine health assessments as one element of a broader order extending to other matters, including whom the Applicant may met meet with, what directions ought not be given to the Applicant, that the named respondents undertake training, and that the order be reviewed at 90 and 180 day intervals. Viewing the claims for relief as a whole, there is clearly an overlap but it is a mischaracterisation to say those two claims are identical in practical terms. The Respondents asserted that none of what they described as the "ancillary" aspects of the proposed bullying order could have any effect unless the order requiring reinstatement to the specific disputed equine health duties was made. I note that the Applicant does not contend in her material that those particular duties are her only duties, but perhaps the Respondent intends to prove otherwise (i.e. that it has determined that the Applicant shall not perform any of the duties of her employment). This is not the occasion to resolve a factual dispute of that nature. In any event, the test to be applied to the grant of an injunction in the Federal Court is different to the test set out in section 789FF of the Act for an order to stop bullying. The relief sought, and the legal questions that must be answered to determine its appropriateness, are different.

• [21] Secondly, the presence or absence of an alternative avenue to gain final relief that overlaps to some degree with what is sought in the Commission does not mean that the proceedings in the Commission lack utility. The Commission proceeding provides an opportunity for the Applicant's concerns about her safety to be considered and addressed relatively quickly. Some of those concerns might well also be addressed in an application for interlocutory relief in the Federal Court proceeding, but no such application has been made. It is no part of my function to compel the Applicant to make such an application or refuse to exercise the Commission's jurisdiction on the basis that she might make such an application in the future.

• [22] The extent to which the Applicant would be disadvantaged by a delay in the finalisation of the Commission proceedings is difficult to assess. On the one hand, being deprived of the opportunity to proceed when the hearing of the matter is figuratively "just around the corner" is a relevant consideration. But the present state of the evidence in the substantive matter, as characterised in the Applicant's submissions on the adjournment application, is that the "Applicant is presently unwell and not fit for any contracted duties at RV". There is thus some uncertainty as to when, if any orders were made in the Commission, they would commence conferring any benefit on the Applicant.

• [23] The considerations in this matter are finely balanced, however I consider the interests of justice are best served by allowing the matter before the Commission to proceed. I also consider that such a result provides a quick and less formal route to determine whether cooperative relations can be restored between the parties. For these reasons, I do not accede to the application to adjourn the proceeding on the basis upon which that application has been brought at this time. But that is not the end of the matter.

• [24] In hearing the adjournment application and considering a record of correspondence between the parties' respective representatives that was placed before me, it was apparent that there had been and continued to be a dispute concerning whether the Applicant would agree to undergo an examination by an independent medical examiner or the conditions under which she would do so. Having regard to the pre-requisite for the making of an order under section 789FF(1)(b)(ii) of the Act, I consider that were such an examination to occur and a report to be produced, it may be material to the question of whether such relief was available.[11] Should circumstances transpire such that a report was to become available in short order, I would consider any resultant request for an adjournment or for an opportunity to re-open the matter (had it otherwise reserved for decision at that point).

• [25] The Applicant is competently represented and I consider that the state of the medical evidence as it currently stands is a product of strategic choice. Absent the availability of new evidence, I am content for the matter to proceed but will entertain any request for the issue of the availability of any relief in these circumstances to be determined as a preliminary issue.

[2] [2014] FWC 7326

[3] [2025] FCA 1033

[4] [2005] FCA 1139

[5] (1976) 9 ALR 509

[6] [2023] FWC 1136

[7] [2024] FCA 860

[8] [2018] FWCFB 1255

[9] (19820 7 ACLR 202.

[10] Revised Explanatory Memorandum to the Fair Work Amendment Bill 2013.

[11] See at Shehu [2020] FWC 4544 at [31].

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