Kiss v National Australia Bank Limited [2025] FedCFamC2G 1308

1. On 28 August 2024, Mr Jeremy Kiss (applicant) commenced proceedings in this Court against National Australia Bank Limited (respondent) alleging inter alia that the respondent had contravened several provisions of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act).
2. However, it was not until 11 March 2025 that the applicant filed an application in a proceeding for interlocutory relief and sought inter alia an order that, until the hearing and determination of his claim for final relief, the respondent be restrained from terminating his employment.
3. The application in a proceeding for that interlocutory relief (which was opposed) ultimately came before the Court for hearing on 1 August 2025. The applicant appeared in person and the respondent was represented by Ms Campbell of Counsel. At the conclusion of that hearing the Court reserved its decision.
4. For the reasons explained below, the application for interlocutory relief will be dismissed.

1. The following narrative represents a synthesis of what the Court understood to be uncontroversial or agreed facts.
2. The applicant commenced working from home with the respondent on 21 March 2022 as a Senior Consultant in the Cloud Engineering team.
3. Since at least late 2023, if not earlier, the applicant has raised various concerns with the respondent. The respondent in turn, had reason to address allegations made against the applicant with him. In early 2024 the applicant began escalating, what he regarded as, complaints to the respondent's employee relations team, his manager and others.
4. The applicant has been on extended leave (some paid sick and annual leave but largely unpaid), since the middle of 2024. The respondent says it has attempted to develop a better understanding of the applicant's medical condition and capacity from his treating doctor in pursuit of a return to work plan.
5. The applicant commenced proceedings in the Fair Work Commission in the middle of 2024 (which were discontinued after these proceedings had commenced).
6. In late 2024 the respondent's attempts (which included what was said to be a lawful and reasonable direction to the applicant) to understand the applicant's medical condition and capacity for work became more formalised.
7. As a result of what the respondent regarded as the applicant's failure to co-operate in this process, on 20 January 2025 the applicant was issued a Show Cause Letter which said (inter alia):
   1. You have engaged in a significant period of unpaid sick leave since 2 April 2024.
   2. With the exception of returning to work on 4 November 2024, you have not otherwise performed any work since 3 July 2024, which was also a half day of work for the purposes of completing online training.
   3. NAB has made reasonable attempts to try and support you in returning to work however despite these attempts, you have either not engaged with NAB on this, or remained unfit for work.
   4. You have not provided NAB with any medical information in relation to your significant absences, despite multiple requests and reasonable direction being given to you.

Ongoing employment with NAB

With strong consideration being given to:

1. the significant length of your absence with NAB to date, particularly following agreement on a Return to Work plan; and

2. you having not provided NAB with any medical information in relation to your medical condition or capacity for work;

we hold serious concerns in relation to your ability to return to work and perform the inherent requirements of your role, both now and in the foreseeable future.

Next Steps

After considering all of the available and relevant information, NAB is now considering terminating your employment.

Prior to NAB making a final decision, we request that you provide any further information in writing for NAB to consider.

1. By that time there had been two directions hearings in the substantive proceedings before Registrar Wilson and the applicant had already been given the opportunity to file an amended statement of claim. After he had done so, and at a directions hearing on 25 February 2025, orders were made for the applicant to file his application for an interim injunction and the respondent to also file an application for an order that the applicant's amended statement of claim to be struck out and both matters to be referred to a judge.
2. The applicant then provided a modified Employee Medical Consent form on 27 February 2025 to the respondent (three months later than the original requested response date). The consent form permitted the respondent to contact the applicant's doctor "for medical information relevant to [his] injuries/illnesses sustained through [his] employment..."
3. The form of the substantive case put forward by the applicant has been (repeatedly) criticised by the respondent. The applicant filed several iterations of a statement of claim, (in an effort to put a proper pleading before the Court) before agreeing (in the face of his failure to do so) on 4 June 2025 to orders for filing points of claim setting out his allegations of contravention of Part 3-1 of the FW Act.
4. Following the hearing on 4 June 2025, the respondent attempted to elicit a response from the applicant's treating doctor to questions regarding the applicant's capacity for work.
5. On 21 July 2025, the applicant filed a 46-page document (which the respondent has not yet responded to) that purported to be his points of claim.
6. By this time the respondent had received correspondence from the applicant's treating doctor that said (inter alia), the applicant had "[G]eneralised anxiety, depression, chronic stress and PTSD as a result of difficulties in the workplace" and recommended "a move from a combative stance to a more collaborative interaction to prevent further injury and financial hardship and facilitate a return to work".
7. As at the date the interim injunction application was heard, a response to further follow up questions to the applicant's treating doctor about the applicant's capacity was outstanding.[1]

1. As provided for in the orders of Registrar Wilson made 25 February 2025 , the applicant filed an application for an interim injunction. By his application in a proceeding filed 11 March 2025 the applicant sought the following orders:

1. The Applicant be reinstated, should it be required.

1. The Respondent must not termiante [sic] Kiss's employment whilst this matter is in train.
2. Pecuinary[sic]/Damages
3. Liberty to apply.
4. Any further orders the Court deems just and appropriate.

1. The applicant also filed an affidavit the same day upon which he relied along with an affidavit in reply of 5 May 2025[2].
2. The respondent filed a response to the application in a proceeding along with an outline of submissions on 1 April 2025. The respondent also relied on the following affidavits:

(a) affidavit of Paul Roney, Executive, Core Platforms, 1 April 2025;

(b) affidavit of Roman Panovski, Senior Consultant, Employee Relations, 1 April 2025;

(c) affidavits of Steven Spurrell, Core Platforms Engineering Manager, filed 4 April 2025 & 25 July 2025; and

(d) affidavit of Steven Day, Chief Technology Officer, 9 April 2025.

1. Mr Spurrell has been the applicant's manager since November 2024. Mr Spurrell reports to Mr Roney and Mr Roney reports to Mr Day. Mr Panovski is a Senior Consultant in Employee Relations and has been involved with the applicant since late 2023.

1. In his affidavit of 11 March 2025 (which was in large part made up of submissions), the applicant's position on the question of whether there was a serious question to be tried was set out at paragraphs [20]-[24]. The applicant referred to events between August 2024 and February 2025 as each of them at the "very least" making out a prima facie case. By the same token, there were what were in effect, submissions addressing the balance of convenience at paragraphs [25]-[54] of the same affidavit including that:

(a) he was suffering from the opportunity to pursue work;

(b) there was value and importance in being in work;

(c) the workplace was a tangible and critical source of social support;

(d) ongoing injury to his reputation, financial loss, lost opportunity to practice his craft should be prevented;

(e) he had been "deemed not fit for work" "due to the ongoing medical implications" of the show cause letter and that he was not being paid;[3]

(f) preserving the status quo will allow him to maintain his sense of self worth and respect;

(g) it would be difficult to be reinstated, seek new employment and there would be a impact on his reputation which may affect his career prospects; and

(h) any return to work was "subject to him being assessed by his doctor being fit to do so".

1. In submissions before the Court the applicant's position was the interim injunction was necessary as the "intent to terminate remains unwithdrawn [sic]" but also said he remained "medically unfit for work". The applicant submitted that damages would not be an adequate remedy and as you "cannot reverse psychological harm". Beyond these submissions, there was however no explanation as to why given the applicant hadn't worked for 12 months, and was medically unfit (and had provided no indication as to when that would change), as to why damages would not be an adequate remedy.

1. The affidavit material upon which the respondent relied, rehearsed the history of each deponents' involvement with issues concerning the applicant,[4] joined issue with and denied the claims made by the applicant of adverse action being taken (or threatened) against him for any of the claimed prohibited reasons. The respondent's affidavit material addressed the reasons the respondent issued the show cause letter[5] as well as the difficulties and prejudice any interim injunction would cause the respondent.[6]
2. The respondent's written submissions addressed the question of whether there was a serious question[7] (contending there wasn't evidence sufficient to so find) and the balance of convenience (arguing it pointed strongly to not granting the interim injunction).[8]
3. Beyond abjuring the need to rely on the absence of any undertaking as to damages by the applicant[9] as another ground against the application, Counsel for the respondent relied on her client's written submissions, contending the prejudice to the applicant without an interim injunction would be "low", and in any event he had available to him the "benefit of the operation of the legislation" as well reinstatement and compensation "if there was hypothetically a termination".

1. Part 3-1 of the FW Act contains s 340(1) of the FW Act which provides:

A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

1. The term 'workplace right' is defined in s 341(1), which provides:

A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

1. The term 'adverse action' is defined in s 342 of the FW Act. An employer takes adverse action against an employee if the employer (inter alia):

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee's prejudice; or

(d) discriminates between the employee and other employees of the employer.

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, natural extraction or social origin.

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or...

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

1. Section 361 puts the onus of proof on the employer to establish that an action was not taken for a reason that contravenes a provision in Part 3-1 of the FW Act. Subsection 361(1) provides:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

1. The High Court authority on the provisions of Part 3-1 of the FW Act includes Board of Bendigo Regional Institute of Technical & Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500.
2. Three matters must be alleged in a cause of action based on a person or persons having allegedly contravened s 340(1) of the FW Act. First, the person must have taken "adverse action against another person". That expression is defined in the table contained in s 342(1) of the FW Act. The second matter is that the employee against whom the employer has taken adverse action has, or has exercised, or has not exercised, a "_workplace righ_t". That expression is defined in s 341(1) of the FW Act. The third matter that must be alleged in a cause of action based on an alleged contravention of s 340(1) of the FW Act by an employer is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason, namely, the existence of, or exercise of, or the failure to exercise, a workplace right.
3. An important aspect of determining whether, in any given case, a person has taken adverse action for a proscribed reason, that is, "because" of one or more of the matters specified in s 340(1) of the FW Act, is s 361(1) of the FW Act. In Alam v National Australia Bank Limited [2021] FCAFC 178, 288 FCR 301 at [14], the Full Court of the Federal Court of Australia noted that several matters bear on the application of s 361 of the FW Act in relation to s 340.
4. The elements of a contravention of s 351(1) of the FW Act are as follows:

(a) the employee has one or more of the attributes identified in s 351(1) (relevant attributes).

(b) the employer has taken adverse action against the employee.

(c) the employer has taken the adverse action because the employee has one or more of the relevant attributes.

1. An "injunction" is "an order that a person do something or refrain from doing something"; and an "interim injunction" is "an order of that kind made pending some further event, most often the final resolution of the matter in which the interim order is made". Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 158, at [42].
2. Under s 545(1) of the FW Act, this Court has power to make any order the Court considers appropriate, if the Court is satisfied a person has contravened, or proposes to contravene, a civil remedy provision. Subsection 545(2) of the FW Act identifies a non-exclusive list of orders the Court may make. These include an order granting an "interim injunction".
3. The principles that guide the Court when considering an application for interim injunction are well-established. In Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FCA 1265, Snaden J summarised them at [38]-[41] as follows:

[T]he principles that govern the court's discretion to grant interlocutory injunctive relief are well-settled and not in dispute. In order to qualify for the relief that it seeks, Metro Trains must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 , 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co Ltd v Apple Inc. (2011) 217 FCR 238 , 261 [67] (Dowsett, Foster and Yates JJ).

In Bullock v FFTSA [1985] FCA 19; (1985) 5 FCR 464 , Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):

...an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

An applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 , 153 (Mason ACJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726; (2009) 184 IR 333 , 339 (Greenwood J).[10]

1. In relation to the treatment of s 361 of the FW Act in interlocutory applications such as the present, in Transport Workers' Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602; 398 ALR 124 at [120], Lee J noted that the law in this respect had become "somewhat unsettled". In Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [64], Mortimer J (as Her Honour the Chief Justice then was) had referred to the competing views on its treatment in an interlocutory application and determined the application then before the Court without taking s 361(1) into account.

1. There are two main inquiries involved in determining whether to grant the interlocutory relief sought by the applicant. As explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at 81-82 [65] (and see also at [19] per Gleeson CJ and Crennan J), those main inquiries are whether:

(a) the applicant has a prima facie case in the sense of a sufficient likelihood of success to justify the granting of the interlocutory relief which is sought; and

(b) the inconvenience or injury the applicant would be likely to suffer if an injunction were refused outweighs the injury the respondent would suffer if the injunction were granted.

1. The two inquiries are related, as the Full Court explained in Warner-LambertCo LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632 at 646 [70] (Allsop CJ, Jagot and Nicholas JJ):

Whether an applicant for an interlocutory injunction has made out a prima facie case and whether the balance of convenience favours the grant of such relief are related questions. It will often be necessary to give close attention to the strength of a party's case when assessing the risk of doing an injustice to either party by the granting or withholding of interlocutory relief especially if the outcome of the interlocutory application is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages, or an award of compensation pursuant to the usual undertaking, are likely to be inadequate.

1. The applicant must establish that he has been subjected to unlawful adverse action in contravention on s 340(1) of the FW Act. As this is an interlocutory hearing, the applicant does not have the benefit of the statutory presumption that a prima facie case exists.
2. The applicant contends that there is at least a prima facie case that the adverse action to which it is alleged that he has been, (or is about to be) subjected was (or is to be) taken because, or for reasons that include that, he has exercised or proposed to exercise workplace rights, or for another prohibited reason, in breach of ss 340 and 351 respectively.
3. Without being gratuitously critical of the applicant illustrative of the sort of difficulties he has had agitating his substantive case and this interim application, is his assertion in his affidavit filed 11 March 2025, that the prima facie case is established by his Fair Work Commission case C2024/4491 and his substantive application in these proceedings.
4. The prima facie case that the applicant needs to establish is not that the reasons proffered by the respondent are not the actual reasons for which identified conduct has been, or will be, engaged in; the applicant must, instead, establish a prima facie case that the reasons for that conduct are reasons that Part 3-1 of the FW Act proscribes.
5. The respondent's submissions were that the evidence didn't establish the applicant had been (or would be) subjected to unlawful adverse action in contravention of s 340. The respondent submitted the show cause process was only started due to the applicant's failure to follow a lawful and reasonable direction (i.e. not cooperating with the respondent's requests to enable it to assess his medical capacity for work) and had been paused.
6. The applicant's case may ultimately turn, as such cases invariably do, upon the subjective reasons that have animated the respondent's conduct to date. The evidence that the respondent relied on (as referred to in submissions) "expressly disaggregated" any prohibited reason or protected attribute from their motivations in the show cause process and any potential termination of the applicant's employment.
7. The respondent's written submissions were filed prior to the most recent attempts by the respondent (in the last 2 months) to engage with the applicant's treating doctor about the applicant's medical restrictions, prognosis and capacity for work and having it had (it said) "paused" the show cause process pending the outcome of the applicant's interim injunction application.
8. In Rugg v Commonwealth of Australia as represented by the Department of Finance [2023] FCA 179 Mortimer J said:
   1. In the employment jurisdiction, unless there is something obviously persuasive and incontrovertible in early documentary material produced by an applicant, or there are substantive and core admissions made by the respondent(s), claims of this kind invariably involve starkly different accounts being given by the key participants. It is only through the trial process that a Court can ascertain whose account it considers reliable. That is before the Court even reaches the further two substantive matters of the proper construction of the statutory provisions relied upon, and the application of the law to the facts as found.
   2. In my opinion, on this application the appropriate approach for the Court to take is to recognise that there is a serious question to be tried, that there are arguments of fact and law which may tend to favour the applicant and that there are arguments of fact and law which may tend to favour the respondents. It is neither possible nor appropriate for the Court to go further, because that would involve making findings on contested matters of fact, and contested matters of statutory construction.
9. And although reversal of the onus of proof provided by s 361(1) of the FW Act does not apply in cases where interlocutory injunctions are sought (s 361(2)), it is still to be taken into account in determining the strength of the prima facie case when the grant of an interlocutory injunction is being considered: Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590 at [17]; Police Federation of Australia v Nixon [2008] FCA 467, 168 FCR 340 at [69]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 at [63]; Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661 at [12]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 at [45]; Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24 at [44].
10. It is not necessary or appropriate at this stage to resolve the question as to whether adverse action has been (or is proposed to be) taken against the applicant for a prohibited reason. In this case, noting the respondent's direct evidence disputing the allegations made by the applicant, there is nonetheless a temporal connection between the events in question and the asserted protected attributes or prohibited reasons.[11] Whether a causal link exists as apparently asserted by the applicant appears more the subject of speculation than inference. Insofar as the prima facie case arises as a matter of inference, it is, in my view, weak, if not very weak. However, given the approach in the authorities above I will turn to consider the balance of convenience.

1. An applicant for interim injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy.[12]
2. Further, in assessing the balance of convenience, I do not look only to the detriment that the applicant claims to have suffered, or to the inconvenience that the respondent relies upon should an interim injunction issue. Neither is determinative. Rather, as Thawley J stated in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd [2024] FCA 805 at [60]:

"the Court should assess and compare the prejudice and hardship likely to be suffered by the respondent, third parties and the public generally if an injunction is granted, with that which is likely to be suffered by the applicant if no injunction is granted", and the "question of whether damages will be an adequate remedy will ordinarily be considered as part of the balance of convenience".

1. If (as the applicant asserts), the respondent does proceed to terminate the applicant's employment in contravention of Part 3-1 of the FW Act he will (having complied the appropriate statutory requirements), have a remedy in damages and compensation. If the applicant does succeed in showing a contravention by the respondent of Part 3-1 of the FW Act he will also have the very real benefit of a public vindication in the form of the declarations which the Court is likely to make in that event. This would no doubt go some way to addressing some of the detriments the applicant relied on. Together these are important considerations in the balance of convenience.
2. There was no evidence of irreparable injury or harm, for which damages would not be an appropriate remedy. There was no financial information on behalf of the applicant to evidence financial detriment such that a failure to grant injunctive relief might imperil him in any substantial way. Accepting that the applicant hasn't worked for most of the last 12 months, there was no evidence that the respondent is (if he was to be terminated) the only employer able to employ the applicant. There is no suggestion that the respondent would not make good on an order for damages or compensation if one was made. Moreover, there is no evidence that the applicant's rights might be damaged in a way that rendered the substantive proceedings futile.
3. On the other hand, and acknowledging that the respondent is a large organisation, if the interim injunction is granted, but the applicant ultimately fails in his claim, the respondent will have been forced to have maintained in its employment an employee who has not worked for over 12 months, has in the past failed to co-operate with attempts to identify suitable employment and would be unable to be dealt with even for serious misconduct in the interim.
4. Given the above, I accept the respondent's submission that the evidence points strongly against granting the injunction, noting the respondent's concerns that:

(a) there is a risk, given the evidence of the history of the matter, any interim injunction will likely lead to a frustration of the respondent's attempts to engage the applicant in a return to work process;

(b) the applicant is presently not being paid (at least on a regular basis), so any financial loss or loss of enjoyment from his role is limited;

(c) the respondent is not presently permitted to "backfill" the applicant's' role, which is having an impact on the Core Service team and its output; and

(d) the injunction could be in place for an extended period, which will prevent the respondent from terminating the applicant' employment for any reason - including, for example, serious misconduct.

1. Accordingly, for the reasons set out above, in my view the applicant has not demonstrated that damages would be an inadequate remedy should he be successful in his substantive application. Nor has he demonstrated that the balance of convenience favours the grant of the interlocutory relief he seeks.

1. In the circumstances, the application for interlocutory relief will be dismissed.
2. The proceeding will otherwise be remitted to the Adverse Action List for further case management as contemplated by Order 4 of the orders made by Registrar Wilson on 25 February 2025.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.

[1] Moreover, as the applicant had discontinued the proceedings in the Fair Work Commission, he disclaimed reliance (as another reason for an injunction) on an alleged breach of a dispute procedure in the respondent's enterprise agreement.

[2] This was an affidavit in reply to that of Mr Spurrell filed 4 April 2025 (where he disputed Mr Spurrell's claims)

[3] This submissions is made at paragraph [35], [38], and again at [39].

[4] See for e.g. affidavit of Paul Roney filed 1 April 2025; affidavit of Steven Spurrell filed 4 April 2025.

[5] See for e.g. affidavit of Paul Roney filed 1 April 2025 at paragraphs [46]-[51]; affidavit of Steven Spurrell filed 4 April 2025 at [27]-[46]; affidavit of Steven Spurrell filed 25 July 2025 [29]-[30]; affidavit of Roman Panovski filed 1 April 2025 at [44]-[58].

[6] See for e.g. affidavit of Steve Spurrell filed 4 April 2025 at [56]-[57]; affidavit of Roman Panovski filed 1 April 2025 at [54]-[57]; affidavit of Paul Roney filed 1 April 2025 at [53].

[9] The undertaking as to damages is often referred to as "the price of an injunction"; Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd [1981] HCA 75; (1981) 146 CLR 249.

[10] see also Dixon v United Workers Union [2023] FCA 1526 at [22]- [26]

[11] However, the respondent would say in effect this would be to engage in a 'post hoc fallacy'.

[12] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148; CEPU v Blue Star Pacific [2009] FCA 726.