Fox v High Trees Primary Gold Coast Limited [2026] FedCFamC2G 213

1. The costs of and incidental to the filing and service of written submissions concerning paragraph 12 of the orders of the Court made on 27 January 2026 be reserved.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order for various reasons including where necessary to remedy clerical errors, accidental slips or omissions (r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)).

1. After an unsuccessful mediation, this matter was listed for directions on 27 January 2026 for the purpose of making interlocutory orders to advance the matter to trial.
2. During the course of the making of submissions, Counsel for the respondents indicated that it may be that after the applicant's case at trial had closed, the second and third respondents might elect to waive their currently claimed pecuniary penalty privilege against self-incrimination.
3. The orders of the Court made on 27 January 2026 were as follows:
   1. The Applicant shall file and serve affidavit evidence on which she intends to rely on or before 4.00pm on 24 February 2026.

2. The First Respondent shall file and serve affidavit evidence on which it intends to rely by 4.00pm on 24 March 2026.

1. The affidavit evidence of the Applicant and the First Respondent will constitute their evidence in chief.
2. The Applicant shall file and serve affidavit evidence in reply on which she intends to rely by 4.00pm on 7 April 2026.
3. The Applicant shall file and serve written submissions on or before 4:00pm on 5 May 2026, such submissions to be in Times New Roman Font Size 12.
4. The First Respondent shall file and serve written submissions on or before 4:00pm on 2 June 2026, such submissions to be in Times New Roman Font Size 12.
5. On or before 4.00pm on 30 June 2026, the parties are to confer with a view to resolving:

a. any objections to affidavit evidence; and

1. the contents of a joint court book setting out all the documents (except those in respect of which there is a valid claim of privilege) to be referred to and relied upon by the parties in the proceeding, with such court book to be indexed and paginated throughout, and delivered to Judge's Chambers in physical form; and

2. the contents of a Statement of Agreed Facts (SOAF) to be agreed and filed jointly by the Applicant and the First Respondent.

3. The parties shall prepare a tender bundle of all relevant documents, indexed, tabulated and paginated in chronological order, for tendering at trial.

4. Following the closing of the Applicant's case at trial, should the Second and Third Respondents, or either of them, elect to give evidence in the proceeding, the Second and Third Respondents, or either of them as the case may be, shall file and serve any amended defence and any affidavit evidence on which they intend to rely by 4.00pm on 22 October 2026.

5. In the event the Second and Third Respondents, or either of them, file an amended defence as contemplated by Order 9 herein, the Applicant shall file and serve an amended reply by 4.00pm on 26 October 2026.

11. The matter be listed for final hearing in two tranches as follows:

a. on 19, 20 and 21 October 2026; and

b. on 28, 29 and 30 October 2026,

commencing at 9.45am on each listed hearing day before his Honour Judge Egan in the Federal Circuit and Family Court of Australia sitting at Brisbane.

1. The Applicant and the Respondents have leave to file and serve submissions on the question of whether the Applicant shall have leave to file and serve affidavit evidence in reply to any affidavit evidence filed by the Second or Third Respondents as contemplated by Order 9 herein in the event of the Second and Third Respondents, or either of them, elect to waive penalty privilege, with such submissions to be filed and serve by 4.00pm on 10 February 2026.

2. Each party have liberty to apply on the giving of two (2) days' notice, each to the other.

14. Costs reserved.

1. Order 9 of the Court's orders of 27 January 2026 permitted the second and third respondents to file and serve an Amended Defence and any affidavit evidence on which they intended to rely in the event of either or both of them waiving the claimed privilege.
2. There was dialogue between the Court and Counsel as to whether, in the event of either or both respondents waiving privilege and filing affidavits in support of their claims, the applicant was entitled to file and serve further affidavit evidence in reply. Paragraph [12] of the Court's orders of 27 January 2026 granted leave to the applicant and the respondents to make submissions on such question.
3. It was submitted on behalf of the applicant that the applicant, in the exercise of the Court's discretion, ought to be entitled to rely on further evidence in circumstances where the provisions of s. 361 of the Fair Work Act 2009 (Cth) (FWA) imposed a reverse onus upon the respondents to establish that any adverse action taken against the applicant was not so taken for a prohibited reason. It was further submitted that although the applicant sought compensation and pecuniary penalty orders, the procedures of the Court when dealing with the claim ought to be those applicable to civil proceedings. It was submitted that the applicant's claims did not seek relief which was penal in nature. There is force in each such submission. [1]
4. It was submitted on behalf of the respondents that discretionary considerations would determine whether or not the Court granted leave for the applicant to file further affidavit evidence in the event of the second and third respondents waiving privilege and filing further affidavit evidence. Rich was relied upon for the proposition that " ... consideration as to whether leave should be granted is not determined in a vacuum but it requires consideration of what evidence the applicant proposes to rely upon in the reopened case... , inter alia, whether the evidence is credible, how probative it is and whether it was previously obtainable by reasonable diligence." [2]
5. At A.1. of the written submissions filed on behalf of the respondents on 10 February 2026, the order proposed by the respondents was as follows:

Should the Second and Third Respondents, or either of them, elect to give evidence in the proceeding as contemplated by Order 9 of the orders dated 27 January 2026, the Applicant may:

1. file and serve any affidavit evidence in reply to that evidence on which she intends to seek leave to rely by 4.00pm on 26 October 2026; and
2. the question of whether the Applicant is to be granted leave to reopen her case and rely on any of the further reply evidence be heard on 28 October 2026.

1. The hearing of the trial will be truncated in that it has been set down for hearing on 19, 20 and 21 October 2026, and on 28, 29 and 30 October 2026. There is force in the submission of the respondents in respect of the order proposed by them.
2. The Court is of the view that it is unnecessary at the present time to determine the issue in dispute. Court orders are not made unless there is a demonstrated need for the making of an order. It may be that the respondents will not seek to waive their privilege after the close of the applicant's case. It may be that the applicant is not minded to file any affidavit evidence in reply in the event of the second and third respondents waiving privilege and filing affidavit material on their behalf. Those are matters which may be determined on 28 October 2026.
3. And it is so ordered.
4. Costs in respect of the filing and service of the written submissions ought to be reserved.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] ASIC v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [14] - [19] per Austin J.

[2] The Movie Network Channels Pty Ltd v Optus Vision Ltd [2009] NSWSC 132 at [4].