Leung v Omnia Inclusive Employment Solutions Ltd

The primary judge dismissed Ms Leung’s claims that Omnia had contravened s 340 of the FW Act on the basis that (a) Ms Leung had not exercised any workplace rights prior to Omnia’s decision to dismiss her, and (b) neither Ms Leung’s dismissal nor any other alleged adverse action were taken because of any alleged exercise of workplace rights (PJ [183]-[184], [186], [198]).

The primary judge dismissed the s 352 FW Act claim advanced by Ms Leung because his Honour was satisfied that Omnia had not dismissed Ms Leung because she was temporarily absent from work (PJ [185], [198]).

The primary judge had otherwise found that Omnia had contravened s 44 of the FW Act by terminating Ms Leung’s employment prior to providing her with a termination letter, contrary to s 117(1) of the FW Act, and without paying her in lieu of notice, contrary to s 117(2)(b) and (3) of the FW Act. His Honour ordered Omnia to pay Ms Leung compensation in an amount of $10,000 because of its contravention of s 44 of the FW Act (PJ [182], [199]).

Ms Leung appeared at the hearing before the primary judge by video link as a litigant in person. Ms Leung also appeared as a litigant in person at the hearing of her appeal, but this time in person. She did engage solicitors for a short period after filing her appeal, but their retainer was terminated prior to the hearing of the appeal.

Ms Leung seeks leave to file a further amended notice of appeal raising nine grounds of appeal. Omnia does not object to leave being granted other than in respect of proposed ground 5.

For the reasons that follow, Ms Leung is to be given leave to file the further amended notice of appeal, other than in respect of proposed ground 5, and the appeal is otherwise to be dismissed.

The primary judge summarised the salient facts at PJ [2]-[4]:

None of those findings are challenged by Ms Leung on appeal.

The only issue to be resolved with respect to Ms Leung’s application for leave to file the further amended notice of appeal is whether that leave, which is otherwise not opposed by Omnia, should include proposed ground 5.

Proposed ground 5 is in the following terms:

In the particulars that Ms Leung provided in support of proposed ground 5, Ms Leung contends that pursuant to an order made on 5 April 2024, she had been required to finalise her statement of claim by 26 April 2024 but the affidavits from the proposed accessory respondents, Ms Kate Fraser, Ms Deborrah Lambourne and Ms Anne Simic, explaining their roles in the decision to terminate Ms Leung’s employment with Omnia (termination decision), were not served until 2 August 2024. An earlier proposed joinder application had been struck out on 16 February 2024, on the basis that no proper basis had been identified to join Ms Fraser and Ms Simic as respondents: Leung v Omnia Inclusive Employment Solutions [2024] FedCFamC2G 175 at [1].

As a preliminary matter, I note that Ms Leung requires an extension of time pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) to advance ground 5 because an application to appeal against an interlocutory judgment must be filed within 14 days of the pronouncement of judgment (r 35.13). Leave to dispense with that requirement should only be granted if “good reason” can be demonstrated: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]. For present purposes, it is sufficient to consider this question at the same time as considering whether leave to raise the ground should be granted. If I am not satisfied that leave to advance the ground should be granted, the question of whether there is good reason to dispense with the requirement falls away.

On 7 December 2023, the primary judge ordered Ms Leung to file and serve an amended application and what was described as a “proper statement of claim” with particulars, including “the joinder of any proper parties”, on or before 9 February 2024.

On 9 February 2024, Ms Leung filed a statement of claim in which she alleged that Ms Fraser and Ms Simic, two senior managers of Omnia, were involved in the alleged contraventions by Omnia of s 44 and s 342 of the FW Act, pursuant to s 550 of the FW Act.

On 16 February 2024, the primary judge had struck out the paragraphs in the statement of claim alleging that Ms Fraser and Ms Simic were involved in Omnia’s alleged contraventions of the FW Act. His Honour, however, also made orders on that date requiring Ms Leung (a) to file and serve an amended statement of claim by 15 March 2024, which “properly articulates the basis for any proposed joiner” of Ms Fraser and Ms Simic and “provides proper particulars and material facts in support of alleged loss and damage referable to the relevant alleged contraventions”, and (b) to file an application for joinder of Ms Fraser and Ms Simic as the respondents, if Ms Leung wished to pursue the joinder, together with a supporting affidavit, by 15 March 2024 and to serve these documents on Ms Fraser and Ms Simic by 22 March 2024.

On 15 March 2024, Ms Leung filed a joinder application and a further amended statement of claim, providing some particulars of the accessorial claims that she sought to advance against Ms Fraser and Ms Simic.

On 3 May 2024, the primary judge dismissed the joinder application. His Honour’s reasons for judgment in Leung v Omnia Inclusive Employment Solutions (No 2) [2024] FedCFamC2G 416 read at [8] as follows:

The decision of the primary judge on 3 May 2024 dismissing the joinder application was interlocutory in nature and involved the exercise of a discretion.

Ms Leung did not make any application to the primary judge to join Ms Fraser, Ms Simic or Ms Lambourne to the proceeding after she received the affidavits on 2 August 2024.

It is well established that in an application for leave to appeal from an interlocutory judgment it is necessary to establish that (a) the judgment, in all the circumstances, was attended with sufficient doubt to warrant it being reconsidered by an appellate court, and (b) substantial injustice would result if leave were refused, supposing the decision was wrong: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at [2] (Sheppard, Burchett and Heerey JJ).

As to the principles applicable to appeals from decisions involving an exercise of discretions, I refer to my recent observations in Elks v Kirk [2026] FCA 460 at [23]-[25]:

Proposed appeal ground 5 does not give rise to sufficient doubt to warrant a grant of leave to raise that ground of appeal. Ms Leung does not appear to contend, and, in any event, I am not satisfied, that the primary judge erred in finding that the further amended statement of claim did not plead the material facts necessary to establish that Ms Fraser and Ms Simic were relevantly involved in the alleged contraventions by Omnia of s 44 and s 342 of the FW Act. Further, Ms Leung has not displaced the presumption in favour of the correctness of the discretionary judgment of the primary judge in dismissing her application to join Ms Fraser and Ms Simic to the proceeding.

The primary judge might have indicated in his 3 May 2024 judgment that no further opportunity should be provided to amend the further amended statement of claim to join third parties, but his Honour did not make any order to that effect. Ms Leung was not precluded by the orders made on 3 May 2024, if by way of example, new information came to light, from making a fresh application to join third parties. A party may of course appeal or seek leave to appeal an order of the Court – not an observation or finding, however forcefully expressed in reasons for judgment.

Further, and in any event, Ms Leung has not demonstrated any substantial prejudice would result if leave were to be refused. The only substantive practical consequence is that Ms Leung would have been deprived of the opportunity of seeking civil penalty orders against three managers of Omnia. Even that prejudice, however, may not arise because if Ms Leung had otherwise been successful on her other appeal grounds, it is likely that the proceeding would have been remitted and Ms Leung could have made a fresh application to join Ms Fraser, Ms Simic and Ms Lambourne to advance accessorial liability contentions.

Ms Leung contends in ground 1 of her further amended notice of appeal that:

Ms Leung relies on five particulars of alleged excessive judicial intervention by the primary judge in the course of the hearing of the proceeding.

The critical issue raised by this ground of appeal is whether “the litigant has had a proper opportunity to advance his or her case”: Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530; [2019] FCAFC 144 at [22] (Greenwood and Rangiah JJ), citing RPS v R (2000) 199 CLR 620 at [11].

The test to be applied is whether the excessive questioning or pejorative comments made by a judge have created a real danger that the trial was unfair, and, in determining whether interventions by a judge have reached the point of unfairness, it is necessary to have regard to “the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions”: Galea v Galea (1990) 19 NSWLR 263 at 281 (Kirby A-CJ, with Meagher JA agreeing).

First, Ms Leung contends that during her cross examination, the primary judge intervened at a very early stage in leading form, stating ''[t]he correct answer was yes'' and warning that unresponsive answers would impact his Honour’s assessment of her credibility, confusing her as to how to answer questions.

The intervention by the primary judge occurred in the following exchange:

The warnings given by the primary judge were robust but were directed at the need to answer questions responsively, not simply to answer questions “yes” or “no”. That Ms Leung did not interpret his Honour’s comments as restricting her to answering questions in the “yes” or “no” manner was demonstrated on the next page of the transcript in the following exchange that Ms Leung had with her cross examiner:

I do not accept that the intervention by the primary judge impacted on the ability of Ms Leung to answer questions in cross examination.

Second, Ms Leung contends that during her cross-examination of witnesses, the primary judge stated his views on matters in issue before the close of evidence, including that Ms Simic was ''not the corporate mind'' and that it was ''perfectly apparent'' Ms Leung was not still on workers' compensation.

Neither observation made by the primary judge denied Ms Leung procedural fairness or deprived her of reasonable opportunity to present her case.

The first observation was made in the following context:

Notwithstanding the rejection of that question and a subsequent question directed at whether Ms Simic was a decision maker, the primary judge allowed Ms Leung to ask the following questions of Ms Simic:

The second observation to the effect that it was “perfectly apparent” that Ms Leung was not on workers’ compensation was made in the following exchange:

The primary judge may have been mistaken as to whether Ms Leung was still on workers’ compensation, but Ms Leung had not given any evidence that she was still on workers’ compensation, and the question as to whether she was still on workers’ compensation was at best of questionable relevance to the adverse action claims that Ms Leung sought to advance in the proceeding.

Third, Ms Leung contends that during her closing submissions, the primary judge made statements forming a negative view of her that were not prompted by Omnia’s submissions, including that it was ''entirely inappropriate'' and ''very unsatisfactory'' for Ms Leung to withhold property and that she had ''no comprehension of privacy obligations in respect of individuals''. Ms Leung submits that these statements were procedurally unfair because the primary judge did not give her the opportunity to respond to them during cross-examination, or by way of reply evidence, and, while she did respond to them in her closing submissions, his Honour “did not appear to listen nor, in any event, would the submission constitute evidence”.

It can readily be accepted that these statements made by the primary judge were consistent with the primary judge forming a negative view about Ms Leung withholding company property, but, as the following extract demonstrates, Ms Leung was given multiple opportunities to respond and, in fact, did respond to his Honour’s statements:

Notwithstanding the confrontational nature of the primary judge’s comments, Ms Leung was given a fair opportunity to respond to the alleged “excessive judicial intervention” by the primary judge. The fact that the response was provided by way of submissions does not negate the fact that the opportunity to respond was provided to, and was taken by, Ms Leung on multiple occasions and, therefore, does not give rise to any procedural unfairness. From the above exchanges, it is clear that his Honour (a) considered Ms Leung’s responses explaining her conduct, (b) warned Ms Leung that the Court might not accept her evidence in this regard, (c) invited Ms Leung to make submissions with respect to this warning, and, ultimately, (d) did not accept Ms Leung’s responses. None of these steps resulted in procedural unfairness to Ms Leung.

Further, I reject Ms Leung’s contention that the primary judge “did not appear to listen” to her responses to his Honour’s comments that it was ''entirely inappropriate'' and ''very unsatisfactory'' for Ms Leung to withhold Omnia’s property. It is clear from the following extract of his Honour’s reasons at PJ [187] that the primary judge did listen to Ms Leung’s explanation for her conduct but did not find it credible, which was a conclusion open for his Honour to reach, having heard from the witnesses and Ms Leung:

Fourth, Ms Leung contends that from the start of Omnia’s closing submissions, the primary judge raised matters frequently in a strong way that gave the impression he had already made up his mind.

Ms Leung identifies the following examples of statements made or questions asked by the primary judge that she contends gave the impression that his Honour had “already made up his mind”:

Each example, however, has to be considered in its relevant context, not least because it is entirely unexceptional that a judge in the course of closing submissions may seek clarifications from counsel of matters, including matters that might be adverse to the interests of parties for whom the counsel did not appear.

Further, the complaint that the primary judge put these views to counsel for Omnia “for the most part, without first hearing from him” is misconceived. As the primary judge stated at the commencement of counsel for Omnia’s address:

Having reviewed the whole of the transcript of the closing submissions made by counsel for Omnia, I am satisfied that the primary judge was, in substance, seeking confirmation of the manner in which Omnia was advancing its case using the shorthand expressions “as I understand it” and “is that correct?”. I do not accept, contrary to the submissions made by Ms Leung, that the primary judge had moved into “self-persuasion” and moved beyond putting provisional views to counsel.

Further and in any event, as stated by the plurality of the High Court in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13]:

Fifth, Ms Leung contends that the interventions by the primary judge were frequent, commenced early in the trial, and undermined her ability to properly present her case and gave an appearance of prejudgment and bias.

I accept that the interventions made by the primary judge can fairly be characterised as frequent and that they commenced early in the trial. I do not accept, however, that the interventions prevented or precluded Ms Leung from presenting her case or gave an appearance of prejudgment or bias.

In a much-quoted passage, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated in Johnson v Johnson at [13]:

I am satisfied that, viewed as a whole, and accepting that at times the judicial temperament was less than exemplary and the primary judge did not disguise his frustration, the interventions by the primary judge can fairly be characterised as interventions principally directed at seeking to ensure that Ms Leung focused on the issues to be determined in the proceeding, evidence that was admissible and relevant, and were made to ensure that Ms Leung was acutely aware of the primary judge’s concerns with the case that she was seeking to advance.

Ms Leung contends in ground 2 of her further amended notice of appeal that:

Ms Leung relies on the particulars of excessive judicial intervention she advances in support of ground 1.

Ms Leung also relies on allegedly gratuitous negative views expressed by the primary judge in his Honour’s reasons for judgment to the effect that Ms Leung had not suffered any work place injury, the “only cause of her injury was her own misconduct”, and she had left the workplace because “she appreciated that she was about to be fired”. Ms Leung says that these views were not put to her in the course of the hearing and “were unnecessary”, particularly given that Omnia had conceded that she had suffered a work-related injury.

The expression of views in reasons for judgment that might be construed as reflecting poorly on the credit of a party or demonstrating that the primary judge had formed a view after hearing and considering all the evidence and submissions is not sufficient to give rise to a reasonable apprehension of bias. Rather, a fair-minded lay observer would expect that a judge, after hearing all the evidence and considering all the submissions, would have formed definitive views as to the merits of a parties case.

Further, I do not accept that, when viewed in their context, the views of which Ms Leung complains can be characterised as “gratuitous”. They were findings that formed part of the dispositive reasoning of the primary judge.

The “only cause of her injury was her own misconduct” finding was made in the following context at PJ [180]:

The “she appreciated that she was about to be fired” finding was made in the following context at PJ [193]:

The views expressed by the primary judge were not gratuitous and were conclusions that were open for the primary judge to reach based on the factual findings that he had made, having heard from each of Ms Fraser, Ms Simic, Ms Lambourne and the appellant.

Ms Leung contends in ground 3 of her further amended notice of appeal that:

Ms Leung relies on five particulars of a denial of procedural fairness by the primary judge in the course of the hearing of the proceeding.

The following summary of the Court’s obligation to assist an unrepresented litigant was recently provided by the Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479; [2020] FCAFC 138 at [51]-[57] (Markovic, Derrington and Anastassiou JJ):

It is readily apparent from this summary that a litigant in person must be informed of relevant practices and procedures to allow them to make informed decisions as to how to conduct a proceeding but at the same time, the Court must be astute to ensure that a litigant in person is not put in a more favourable position, or that their contentions are not treated with less rigour and detachment, than a represented party.

First, Ms Leung contends that she was not offered the opportunity to give reply evidence or told she could give responsive evidence by way of re-examination, unlike Omnia’s witnesses.

Notwithstanding the absence of any order for the filing of reply evidence, Ms Leung did seek to rely at the hearing before the primary judge on affidavits in reply dated 24 September 2024 and 25 September 2024, but they were not admitted. The primary judge rejected the 24 September 2024 affidavit on the basis that it went solely to credit, on relevance grounds and because it was not in compliance with his orders. His Honour rejected the 25 September 2024 affidavit on the basis of relevance and a failure to comply with his orders.

Nor do I accept that the failure to offer Ms Leung an opportunity to give further evidence by way of re-examination after she had been cross examined gave rise to any denial of procedural fairness. It can of course be inherently problematic for a litigant in person to conduct what is in effect an examination of themselves following cross examination. It cannot proceed by way of questions and answers, and all too often simply becomes a response more in the nature of a submission than evidence. In practice, to the extent that matters might need clarification or a litigant in person has been prevented from answering a question in full, it is usually more appropriate for the judge to ask the litigant in person questions, rather than for the litigant in person to conduct a re-examination of themselves.

In any event, from my review of the transcript of the cross examination of Ms Leung, it was largely a matter of counsel for Omnia putting to Ms Leung the evidence given by Omnia’s witnesses rather than challenging Ms Leung on matters that she had not already considered or asking her questions that required clarification in the sense that Ms Leung had not been given a fair opportunity to answer questions that had been put to her.

Second, Ms Leung contends that the primary judge did not explain her role as cross-examiner and repeatedly interrupted her questions without clear explanation.

Ms Leung contends that the primary judge failed to explain her role as a cross examiner, the types of questions she could ask and repeatedly interrupted her during cross examination to disallow her questions, in a manner that was at times “abrupt and curt”. She says the nature and frequency of the interruptions, and the failure to explain clearly the reason for the interventions, impacted her ability to present her case.

Having reviewed the transcript of the cross examinations undertaken by Ms Leung, I do not accept that there was any denial of procedural fairness by reason of any failure to explain Ms Leung’s role as a cross-examiner or the manner in which questions were rejected by the primary judge. I acknowledge that the transcript reveals that the primary judge had a pronounced and unfortunate tendency to reject questions in a manner that could be fairly described as “abrupt and curt”, but that does not establish procedural unfairness.

The primary judge explained to Ms Leung at the commencement of the hearing the procedure to be followed, including her entitlement to cross examine the witnesses called by Omnia and expressly brought to her attention, and asked her to confirm that she understood, that:

Ms Leung responded that she did understand that was the case.

Further, in the course of rejecting questions asked by Ms Leung, the primary judge generally explained why the questions were being rejected, including because the questions were unintelligible, misstated the witnesses earlier evidence, contained multiple questions, were not relevant, failed to identify the matter being asked about or were statements not questions.

The obligation to ensure that a litigant in person is not deprived of procedural fairness does not extend to reformulating their questions in cross examination to make them more intelligible.

Third, Ms Leung contends that she was not given an opportunity to respond to objections to her affidavit evidence and that important evidence was rejected, including that Ms Simic made comments about her management ability and a medical letter from Dr Khan.

In many cases a judge might invite oral submissions in response to evidentiary objections but a decision not to invite submissions does not give rise to any denial of procedural fairness. The exclusion of probative and admissible evidence might well give rise to appealable error, but that cannot be equated with a denial of procedural fairness.

Fourth, Ms Leung contends that the primary judge refused her request to use an interpreter when cross examining Omnia’s witnesses, despite English being her second language and stress affecting her ability to cross examine and disallowed approximately 18 of her questions as ”unintelligible”.

The primary judge allowed Ms Leung to use an interpreter at various times while she was being cross examined. The use of an interpreter, however, given that Ms Leung was appearing by video link and the transcript records that she answered many questions directly in English, was not a straightforward exercise, as the following extract from the transcript indicates:

It was in that context that the primary judge had the following exchange with Ms Leung when she asked for an interpreter to assist her in cross examining Omnia’s witnesses:

The anxiety raised by Ms Leung was having to ask questions of a person she alleged had bullied her, not that she could not ask her questions in English. The primary judge had clearly formed a view by this time that Ms Leung was capable of conducting her case in English and that the anxiety claimed by Ms Leung was overstated because Ms Leung remained online and was not in the same room as Ms Fraser.

Ms Leung submits that the primary judge should have reconsidered his decision not to permit her to use an interpreter given his rejection of 18 of the questions that she asked in cross examination on the basis that they were unintelligible.

Having reviewed the transcript of Ms Leung’s cross examinations of the Omnia witnesses, it is apparent that the reasons for the primary judge’s rejections of questions asked by Ms Leung extended well beyond concerns about the use of infelicitous language by a person who was not a native English speaker. Rather, as with many litigants in person, Ms Leung struggled with (a) the distinction between asking questions and making statements, (b) framing questions that did not include premises that had not been established, (c) asking questions that did not include multiple clauses, and (d) confining her questions to matters in issue in the proceeding. I am satisfied that, on balance, the use of an interpreter would not have materially assisted Ms Leung in conducting the cross examinations. The interpreter would not have been able to reframe or recast questions asked by Ms Leung to overcome the difficulties encountered by Ms Leung in her cross examinations.

Fifth, Ms Leung contends that the primary judge made adverse credibility findings that the Appellant was unresponsive, evasive and advocating her case, which findings were unreasonable given she was a litigant in person, who had been denied procedural fairness.

Given my finding that Ms Leung was not otherwise denied procedural fairness this particular does not give rise to a contention that the primary judge erred by making adverse credit findings against a litigant in person. Such a contention must fail. A primary judge is not precluded from making adverse credit findings against a litigant in person.

Ms Leung contends in ground 4 of her further amended notice of appeal that:

Ms Leung contends that Ms Turecek’s probationary employee performance evaluation of 6 October 2022 (Turecek performance evaluation) citing Ms Turecek’s “'disrespectful and insubordinate'” behaviour towards her and other managers as requiring improvement was a material consideration that was not considered by the primary judge. Ms Leung says that it was a material consideration because it demonstrates that Omnia was concerned about Mr Turecek’s behaviour towards her and should have caused Omnia to reconsider the termination decision.

The Turecek performance evaluation made plain that her “disrespectful and insubordinate” behaviour was directed at all managers, not simply Ms Leung.

Moreover, the critical issue in the lead up to the termination decision was not whether Ms Turecek had engaged in conduct that might be construed as “disrespectful and insubordinate” towards Ms Leung, but rather that as a manager Ms Leung was expected to develop a better working relationship with Ms Turecek.

On 18 August 2022, Ms Leung attended a meeting with Ms Fraser, her manager, and Ms Turecek. The primary judge made the following findings as to what occurred at that meeting (PJ [104]-[105]):

None of those factual findings are challenged by Ms Leung. Irrespective of any observations made in the Turecek performance evaluation, Ms Fraser was not only aware of but had personally observed Ms Turecek engaging in disrespectful behaviour towards Ms Leung prior to the termination decision. Therefore, it follows that any subsequent reference to Ms Turecek’s disrespectful conduct recorded in the Turecek performance evaluation would not have required any reconsideration by Omnia of, nor would have impacted upon, the termination decision. The termination decision was made notwithstanding Omnia’s knowledge of Ms Turecek’s disrespectful conduct for the reasons accepted by the primary judge.

I do not accept that this ground of appeal has any merit.

Ms Leung contends in ground 6 of her further amended notice of appeal that:

Ms Leung contends that the following alleged inconsistencies objectively contradicted the termination narrative advanced by Omnia and were not addressed by the primary judge:

The first alleged inconsistency is in substance the same as ground 7 and is addressed below.

The other alleged inconsistencies are not material.

As to the second alleged inconsistency, Omnia called evidence from the relevant decision makers concerning the circumstances in which the termination decision was made that was accepted by the primary judge. The absence of a specific reference to a termination decision in an “investigation statement” prepared 12 days after the termination decision is very different to a positive statement that there had been no termination decision on 18 August 2022. The absence of any written contemporaneous corroboration is relevant but not decisive, particularly given the evidence of Ms Fraser, Ms Simic and Ms Lambourne, that was accepted by the primary judge that the termination decision was made on 18 August 2022.

The third alleged inconsistency is of little moment. Ms Simic states in her affidavit that Ms Fraser met with her “at around 3.00 pm on 18 August 2022”. She was not purporting to provide a precise time. More relevant is that each of Ms Simic and Ms Fraser give evidence that on the afternoon of 18 August 2022, Ms Fraser had a meeting with Ms Simic in Ms Simic’s office and had a discussion about Ms Leung and Ms Tureck and then each attended a meeting with Ms Lambourne later that afternoon, a meeting that is also corroborated by Ms Lambourne. That Ms Simic and Ms Fraser had a meeting before the meeting with Ms Lambourne is consistent with the inherent logic of events. It explains why Ms Simic accompanied Ms Fraser to the meeting with Ms Lambourne.

Ms Leung contends in ground 7 of her further amended notice of appeal that:

Ms Leung contends that the alleged termination decision was made on 18 August 2022, within days of her reporting bullying on 10, 16 and 21 August 2022, taking sick leave on 19 August 2022 and reporting a workers’ compensation claim on 20 August 2022. She submits that the primary judge reversed the statutory onus in s 361 of the FW Act by accepting Omnia’s explanation without requiring proof that these instances of her exercising workplace rights played no part in the termination decision.

This ground is misconceived.

There was no misapplication of the statutory presumption in s 361 of the FW Act. The effect of the presumption was correctly summarised by the primary judge at PJ [197] in the following terms:

The primary judge then concluded that Omnia had meet the presumption, stating in the balance of PJ [197]:

As Omnia submitted, it met the onus by leading evidence from the relevant decision makers. The leading of direct evidence is a recognised means by which the presumption under s 361 can be rebutted and it is a matter for the court to decide whether that evidence is reliable and should be accepted: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [43]-[45] (French CJ and Crennan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 at [8] (French CJ and Kiefel J).

Ms Leung contends in ground 8 of her further amended notice of appeal that:

Ms Leung contends that at the “time of termination”, she was on certified medical leave supported by a certificate of capacity, and the primary judge made no finding whether termination occurred during a protected absence period, nor considered s 352 of the FW Act or s 248 in Part 8 of the Workers Compensation Act 1987 (NSW).

The insurmountable hurdle to this ground of appeal is that the primary judge found the termination decision was made on 18 August 2022 prior to her absence from work. It necessarily followed that s 352 of the FW Act could therefore never be engaged. She could therefore not have been dismissed at a time when she was temporarily absent from work due to illness, injury or leave. Rather, as the primary judge found at PJ [195]:

Again, the primary judge was otherwise satisfied at PJ [197] that Omnia had met the reverse onus.

Ms Leung contends in ground 9 of her further amended notice of appeal that:

Ms Leung contends that the primary judge accepted the termination decision was made on 18 August 2022 “before protected activities”, without analysing whether the implementation of the termination decision in November 2022 was influenced by those activities. She says that by treating the termination decision as the relevant “action”, the primary judge failed to examine the causal connection between the protected conduct and her dismissal.

Ms Leung submits that the decision of Ms Lambourne to “wait to terminate” until after Ms Leung’s worker’s compensation claim was resolved necessarily means that the claim was a factor in the timing of the adverse action and made that protected workplace right an inseparable part of the decision-making process. She says that by focusing exclusively on the termination decision, which his Honour accepted had been made on 18 August 2018, the primary judge made two critical errors. The first error being that his Honour did not have regard to Ms Leung’s “protected activities”, as they post-dated the termination decision, and the second error being that his Honour failed to examine whether Ms Leung’s conduct between the termination decision and the implementation of the termination decision in November 2022, including sick leave, workplace complaints and compensation claims, influenced the “final implementation” of the termination decision.

The decision by Ms Lambourne not to implement the termination decision until after Ms Leung’s worker’s compensation claim had been resolved, in circumstances where Ms Leung had been absent from work since the making of the termination decision, does not carry with it any necessary implication that any subsequent purported exercise of a workplace right is relevant to the decision to terminate. The primary judge accepted the evidence of Omnia’s witnesses that the termination decision had been made on 18 August 2018 prior to the exercise of any workplace right by Ms Leung. The adverse action may have ultimately been the implementation of the termination decision, but the primary judge unequivocally found that the decision had been made before the purported exercise of any workplace right by Ms Leung. There was no erroneous conflation of a termination decision and the taking of adverse action; the deferral of the implementation of the termination decision was for a discrete reason unconnected to the making of the termination decision, namely the resolution of Ms Leung’s worker’s compensation claim.

Omnia seeks its costs of drafting an outline of submissions in response to submissions that Ms Leung had filed in this proceeding on 17 September 2025 (September 2025 submissions). At that time Ms Leung was a litigant in person.

Section 570(1) of the FW Act provides that a party to a proceeding in relation to a matter arising under the FW Act may be ordered to pay costs incurred by another party to the proceeding only in accordance with s 570(2).

Secction 570(2)(b) of the FW Act relevantly provides:

On 7 October 2025, Ms Leung appointed solicitors to act for her. On 22 October 2025, Ms Leung’s then solicitor swore (and lodged for filing) an affidavit in which he stated that he had been informed by Ms Leung that she had generated the September 2025 submissions with the assistance of generative artificial intelligence, “namely, ChatGPT”.

Omnia submits that notwithstanding that Ms Leung was a litigant in person at the time she prepared the September 2025 submissions and may not have appreciated the dangers of using generative artificial intelligence, “a cursory glance at her submissions would have revealed that most of the cross-references to evidence and cases were wrong, and many of the arguments were confusing”. It contends that the filing of the September 2025 submissions was an unreasonable act within the meaning of s 570(2)(b) of the FW Act that caused Omnia to incur costs.

Ms Leung submits that work done by Omnia in response to the September 2025 submissions cannot properly be characterised as costs thrown away because it “informed” the submissions ultimately filed by Omnia on 27 February 2026. Omnia’s submissions were filed in response to the revised submissions of Ms Leung filed on 13 February 2026, at a time by which she had again become a litigant in person.

The inherent dangers and risks of using generative artificial intelligence should be well understood by both lawyers and litigants in person. At the same time, the specific extent of any “costs thrown away” is not readily apparent, given the overlap in contentions advanced by Ms Leung in the September 2025 submissions and Ms Leung’s revised submissions. More generally, the filing by a litigant in person of a submission that could have incorrect references to evidence and cases would not typically be expected to give rise to a costs exposure under s 570(2)(b) of the FW Act.

In these circumstances, I am not satisfied that the order for costs sought by Omnia against Ms Leung should be made.

Leave to file the further amended notice of appeal should be granted, other than with respect to proposed ground 5, the appeal is otherwise to be dismissed and there is to be no order for costs.