McGrory v Horizon One Recruitment Pty Ltd

BACKGROUND

1. The background to the present application is set out in my earlier judgment in McGrory (No 1). In particular, I noted the following:
2. On 1 December 2023 the applicant in this proceeding, Dr McGrory, filed an originating application under the Fair Work Act 2009 (Cth) making claims of adverse action, coercion, undue influence or pressure and misrepresentation against the first and second respondents.
3. To date, no evidence of Dr McGrory has been filed in this proceeding. Her statement of claim filed on 1 December 2023 however sets out her concerns at length. It does not appear to be in dispute that Dr McGrory had a contract of employment with the first respondent (Horizon One) signed 15 June 2023. It further does not appear contentious that Horizon One, which I understand conducts a business as a recruitment agency, placed Dr McGrory as a statistician with its client - the second respondent - on or about 19 June 2023. Ms Robyn White, the Assistant Secretary of the People Branch of the second respondent, deposed in her affidavit dated 27 March 2024 that the second respondent had a contractual relationship with Horizon One, and that the contract relating to the engagement of Dr McGrory with the second respondent was terminated on 14 September 2023.
4. Dr McGrory made an application to the Fair Work Commission (in the form of a Form F8 application) dated 5 October 2023. A copy of the application is annexed to Ms White's affidavit. Dr McGrory identifies herself as the Applicant, being "the person who has been dismissed".
5. In her application to the Fair Work Commission, however, Dr McGrory did not provide the legal name of the employer, as the application form required. Relevant details in the form provided by Dr McGrory were as follows:

• In response to the question "1.1 What date did you begin working for the employer?" Dr McGrory stated "19 June 2023."
• In response to the question "1.2 What date were you notified of your dismissal?" Dr McGrory stated "14 September 2023."
• In response to the question "1.3 What date did your dismissal take effect?" Dr McGrory stated "15 September 2023."
• In response to the question "3.1 Describe the actions of the employer, including any reasons given for your dismissal, that have led you to make this application" Dr McGrory stated: Out of the blue I was told by the host client I worked for via HorizonOne that there would be no more hours for me. The reasons were not adequately explained and came after many odd delays since the start of my employment with them. I received nothing in writing. The procedures for termination of the contract set out in the contract I signed with the HorizonOne recruitment agency were not followed at all.
• In response to the question "3.2 Which section(s) of the Fair Work Act 2009 did the employer contravene when they took, threatened or organised the above actions against you?" Dr McGrory marked as relevant ss 340, 343, and 351 of the Fair Work Act.
• In response to the question "3.3 Explain how the actions you have described in question 3.1 have contravened the section(s) of the Fair Work Act 2009 you identified in question 3.2" Dr McGrory stated: The general protections laws protect most people from harmful (adverse) action and coercion. In addition, the employer should not take or threaten to take adverse action to force an employee to do something because of their features or attributes as that constitutes discrimination. I believe what happened to me while employed under a contract by HorizonOne and working with host client the Australian Federal Government Department of Health contravenes all three prohibited actions mentioned above. Sadly, it is a pattern I have seen repeated many times before since moving to Australia, hence it is crucial to also find out who distributes this type of information and who co-ordinates the discrimination and coercion. It is an ongoing, escalting problem that has caused much devastation not just for me personally. In the lead up to me being dismissed without any cause or justification, and without the proper procedure being followed, I was finding I wasn't being allocated enough work to do in some areas or being given direction when I asked for it. This was then followed by references being made to things that remind me of early childhood traumas, although it was just treated as a joke. Then comments were made again that alluded to things that remind me of how it is often brought up jokily in the Australian workplace that me and my baby sister, and possibly some deceased/missing toddlers, had I ruined some 'engagements' as they seem to put it, for some rich Middle Eastern people, by not performing or doing enough 'work', which in that sense means refusing to perform sex acts for adults (so just to be clear as I find many here claim they don't understand these things, that includes discrimination and harassment over refusal to perform acts on them, or with other children for their entertainment, or with dogs even for them to watch and enjoy), or running away from them if they tried to entice one as a child into their car or something. These incidents that mostly get referred to in the workplace date back to the late 70s before I was born, or to the early 80s when I was at most a toddler, although the owners and ring leaders are still very much active in ongoing crimes of a similar nature. Those rich persons seemed to have been clients of some inexplicably rich kiddie party supplies business formely owned as I understand it, by an airline worker who amassed a great fortune. The key issue in relation to workplace protections though is that then I was told there was no more work for me very soon after which suggests to me that's the real underlying cause of my dismissal here. It falls into a similar pattern to workplace abuse I have previously experienced in Australian workplaces. The way I have been mistreated is shocking and it's destroying my life as the ongoing discrimination, coercive control and organised sham arrangements to bully and depress me have made it almost impossible for me to live, work and provide for my family safely here in addition to being linked to loss of family inheritance back in the 1980s and other payments and rewards for honest, lawful and hard work undertaken by me over the years since. (errors in original)

7. On 17 November 2023 the Fair Work Commission issued a certificate under s 368 of the Fair Work Act. Relevantly that certificate was in the following terms: CERTIFICATE UNDER SECTION 368 Fair Work Act 2009 s.365 - General protections Matter No: C2023/6081 Applicant: Dr Clare anne McGrory Respondent: Horizon One Recruitment Pty Ltd. COMMISSIONER SCHNEIDER PERTH, 17 NOVEMBER 2023 An application pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act) was made by Dr Clare anne McGrory alleging they were dismissed by Horizon One Recruitment Pty Ltd. In contravention of Part 3-1 of the Act. The Fair Work Commission conducted a conference to deal with the dispute on 17 November 2023. Pursuant to s.368(3)(a) of the Act, the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.
8. At the interlocutory hearing, the respondent relied on affidavits it had filed in the proceedings, being affidavits of its lawyer Ms Louise Hogg dated 10 July 2024, 19 July 2024 and 22 July 2024. Dr McGrory had filed no evidence at the date of the interlocutory hearing.
9. After questioning by me, the respondent narrowed the relief it was seeking to be primarily by way of summary dismissal, or alternatively, strike out without the option being given to Dr McGrory to replead.
10. In summary, the submissions of the respondent were:

• It was not in dispute that Dr McGrory entered into a written employment agreement with the respondent on 15 June 2023 (employment agreement).
• Relevant clauses of the employment agreement included:

12. Standards, Discipline and Grievances If the Employee has any problems or queries concerning work or fellow members of staff it is expected that the Employee will bring them to the attention of the Director or their delegate. As a highly client orientated firm, HorizonOne expects the Employee to observe a high standard of conduct and consideration towards clients and fellow employees at all times. For example, this includes respecting clients' confidences, attention to punctuality, co-operation with other members of staff, etc. HorizonOne also expect the Employee to observe a high standard of care in delivering service to its clients. If the Employee neglects, refuses or is unable for any reason to carry out the duties under this Agreement, or carry out the duties in a manner unacceptable to HorizonOne, HorizonOne shall have the right to give the Employee notice in writing, calling on the Employee to remedy such neglect or default or carry out such duties or rectify unacceptable conduct, within a timeframe acceptable to the Client. If the same is not so remedied HorizonOne shall have the right to do all or any of the following:
13. terminate this Agreement immediately without notice;
14. withhold any monies due to the Employee pursuant to this Agreement but only to the extent that such monies are for work done which is not acceptable to HorizonOne; and/or
15. arrange for any outstanding work to be performed either by itself, another employee or other person HorizonOne undertakes to use its rights under this clause only after discussions with the Employee whereby both parties shall constructively seek to remedy the matters of neglect or default or nonperformance of duties. Any disciplinary action will be considered under the relevant Australian guidelines and regulations.
16. Termination a. Termination of Employment by Employer: Notice Requirements Over and above the provisions of Clause 12, HorizonOne shall have the right to terminate this Agreement early
17. Should this happen, HorizonOne will pay for hours worked and approved by the Client.
18. HorizonOne will not pay for any hours lost from the contract due to termination. b. Termination of Employment by Employer: Serious Misconduct Notwithstanding the provisions in Clauses 12 and 13a, HorizonOne shall have the right to terminate this Agreement immediately and without notice to the Employee if the Employee is guilty of serious misconduct. Examples of serious misconduct include:
19. serious acts of dishonesty;
20. acts and/or omissions of the Employee likely to cause serious harm to the reputation and/or business of the Client or HorizonOne;
21. committing an act of bankruptcy or being convicted or found guilty of any criminal offence or actions which are likely to bring the Client HorizonOne or its associated companies into disrepute;
22. committing any breach of the provisions of Clause I0, including theft of any company property and any breaches of confidence as well as any improper dealings in company securities;

• Horizon One's position as pleaded in the defence was that it terminated Dr McGrory's employment effective from 14 September 2023 in accordance with para 13(a) of the employment agreement, and in particular, that the Department had communicated to Horizon One that it had ended the assignment with Dr McGrory as:
  • Dr McGrory was not delivering work to a satisfactory standard; and
  • Dr McGrory was sharing inappropriate content on an open work forum that was distressing to other workers of the Department.
• The respondent sought to have struck out much of the statement of claim which contained irrelevant material.
• Dr McGrory's substantive application constituted an abuse of the process of the Court because there was a complete lack of a pleaded or available cause of action, in circumstances where:
  • Dr McGrory was a casual employee with no guarantee of ongoing employment and a clear ability of the respondent to terminate employment agreement early;
  • Dr McGrory had not pleaded anything which could be categorised as a workplace right, there was no reference to an alleged action with an intent to coerce, and references to discrimination were made without reference to the required attributes;
  • Section 344(a)-(e) of the Fair Work Act 2009 (Cth) (Fair Work Act) referable to undue influence did not apply to Dr McGrory's circumstances;
  • In para 1 of her statement of claim, Dr McGrory sought, inter alia, an internal investigation of the Department, which was not an order available to Dr McGrory under s 545 of the Fair Work Act;
  • It was unclear which allegations in the statement of claim related to the respondent, as distinct from the Department which was no longer a party;
  • Dr McGrory had declined to engage with the respondent or its lawyers as invited, including to agree to consent orders to have her amend her pleadings.

1. Dr McGrory was unrepresented at the hearing before me. I note, however, that Dr McGrory also filed written submissions, on which she relied, although a large proportion of those written submissions were addressed to alleged conduct on the part of the Department.
2. After Counsel for the respondent concluded her submissions, Dr McGrory asked the Court whether mediation remained an option. I stood the proceedings down for a short time. On return, the parties informed me that no resolution had been reached.
3. Accordingly, I requested Dr McGrory to make her submissions.
4. Dr McGrory then submitted, in summary:

• The punitive costs order sought by the respondent against her was contrary to Court processes. Her claim was not vexatious or embarrassing - it was important to her. Dr McGrory had no means to meet any costs of the respondent.
• The respondent had shown no willingness to engage with her through the proceedings.
• Despite her educational qualifications, she was treated "like an idiot by a lot of these people and constantly humiliated and put down and gaslit so that I look stupid" (transcript p. 47 lines 1-5).
• The major central themes in her submissions regarding the general protections which should protect everyone from the forms of discrimination and adverse action that she experienced in the workplace.
• She had faced an escalating pattern of humiliation after her move to Australia. In particular, Dr McGrory submitted: DR McGRORY: I can't prove this, but my working theory for why all this has happened is just because when you move to a new country, obviously they investigate who you are, you have to - when you're a foreigner and ..... I went to work in academia - you have to get police character checks and checks for the visa - all that kind of thing. And what seems to have happened - and this goes back to something that I do have vague recollections of back in the 80s - although ..... people worked ..... Scotland, but then I moved over here. They don't understand ..... what they see as a past related to someone that they call by different names - like someone's cousin - a few people's ..... cousins - or sometimes they will call me the Dutch Ayr - the A-y-r is a place in Ayrshire in Scotland, so I'm not - I'm not a man called William Alexander. I never said I was, and never claimed ..... definitely don't know them. Never blackmailed anyone. Never had anyone else's stuff. As you can see, I have enough difficulty just getting my own things in life, so even when I do a job ..... pay me. I don't even get child support for the last however many years, because ..... occasion, because they find it funny because they know - they seem to know more about who our great-grandparents are than we even do, and it's a great source of entertainment. But yes, I got beaten up, coerced - so they weren't ..... I had to sign away my rights to that under threat of being left homeless. It hasn't been much fun at all. Even my sister couldn't get a job anywhere upon graduation after they explained how - what was it - the Dutch heir or Elizabeth's cousin really wants her over here and somehow that was just ..... sister ..... want my sister to move over. I would have loved if I had ..... kids got to grow up together. But again, no, that was all banned. But again, it was made to seem like it was some inappropriate or dirty or something like that, which it really wasn't. But that has been the theme - the same sad theme that - I'm sorry - after almost two 1decades, I'm just so tired of - that I've been having here in Australia. But obviously, the focus here is about what actually happened to me in that specific workplace. But I say it is a matter of wider public interest, because this kind of thing should not be happening. It shouldn't be happening to people who have got - they're educated people - they're in positions of authority. The damage they can do is absolutely massive. And I think it has reached the point where anyone can look around the world in recent years and realise that there is a lot of disharmony - complete breakdown in a lot of communication channels and, you know, international diplomacy. And it might seem to some people that these issues aren't relevant, but I think the complete opposite is true. I think it's directly relevant to all these things and these sad kind of disagreements that some people have brought up and quarrels they've made between people that don't even know each other in a lot of cases. I think it is important - not just for me - to try and get some justice and also peace, and get away from this - get it out of my life and my children's life - is to find out who did this and why, or just try and get some action on that - someone actually - instead of me always getting called stupid or having to explain, you know, I really did go and in and do my exams like everyone else. It wasn't that I showed a photo of the Dutch heir - some guy in an awkward situation. It was me they were trying to take the photos off. I was a little kid. They were paedophiles, you know. I shouldn't have to go around saying that everywhere I go ..... you know, the university didn't lie for me because I had blackmail material. I really did my own degree. I really did this. Or you hear about these great things - the Dutch heir - that's just someone using a different name for me. I don't use that name for me. Basically, it has derailed everything in my life, you know, from work, relationships - my ex-husband turned very abusive when we got here. I don't know whether he knew these things before and just kind of took advantage of how isolated I was, or whether he was honestly also confused trying to figure out who this other person he maybe thought I had connections to was ..... actually wasn't anyone else - it was just me. But it has derailed my entire life, so I would like to find out who did these things. I've been told that the counsel has enlightened me that she doesn't think your court has the power to order that, but there might be some things that could be ordered, because I think the way she worded it - which I wrote down - was they have…

1. Dr McGrory continued with similar submissions as follows: DR McGRORY: Ayr. So what I'm saying is, my best guess as to why I've been so bullied since I came to Australia, and I think this is again on the same theme, you know, with the stuff like Magic Mike, the male stripper reference and stuff. Which I got at UQ as well, when I used to work there, among other things - - - HER HONOUR: So your name's McGrory, isn't it? DR McGRORY: Yes, yes, yes. No, but there was lots of jokes about my - it's just in general the connotations about male revues or male strippers. So again - - - HER HONOUR: I don't understand what you're talking about. DR McGRORY: So there was lots of nasty rumours spread about me since I came here, including but not limited to, one that something that happened either my hen night or something. Someone's stag do. Which happened to be around a year - or nine months or so. HER HONOUR: So what's this got to do with your - with the first respondent? DR McGRORY: Because I've been horrifically bullied and abused. Because ever since I've come here, my work is sabotaged. They tell me to expect this or that, and then it all seems to disappear. And from - as far as I can guess, the whole crux of the entire thing has just been nasty, slander, and rumours, and people's horrific judgments they've made of things that are completely untrue and completely made up. And the heir, in Ayr, highly important, because it explains why some people seem completely unable to understand that when some people were talking about some money or property people used to own, literally from the Victorian era, was from Ayr, which is A-y-r, the Ayrshire area in Scotland, which they want to farm. HER HONOUR: Can I just say, I think you're making cultural references which mean - - - DR McGRORY: It's not - - - HER HONOUR: - - - absolutely nothing here. DR McGRORY: No, not at all. I think it's the opposite. I think people here are class obsessed. I think they're very - - - HER HONOUR: All I'm - sorry, sorry. So, all I'm saying is, Ayr, is as far as I know a town in North Queensland. DR McGRORY: To me, it's a place in Scotland. It's where some of my - - - HER HONOUR: So, all right - - - DR McGRORY: - - - ancestors are from. HER HONOUR: I just note, a query whether the cultural references you have mean anything at all here. Because I have no idea what you're talking about. But anyway, so let's continue. DR McGRORY: So the reason - if I can clarify - the reason is Ayr it was the last time anyone in our family owned anything that we might have inherited, so that was all. Because it was about an origin of money. HER HONOUR: Well, that has nothing to do with the first respondent. DR McGRORY: Because why do I face so much hate and constant scrutiny into my life? It's as if they're obsessed with this idea that I've got money from the Dutch heir, and they think it means - - - HER HONOUR: The Dutch heir? DR McGRORY: A Dutch - yes. HER HONOUR: What does that mean? DR McGRORY: H-e-i-r. I presume it means a male in the Netherlands, I don't know. That's my assumption. HER HONOUR: All right. I have no idea what you're talking about, but anyway, keep going. DR McGRORY: So the point is, I've been discriminated against. I've been made a fool of. My past that's been taken out of context has been brought up. This goes right back to my early childhood. It's used to make a fool of me. It's used to make me feel anxious, and then it's done in tandem with them sabotaging my ability to do any work. And then they treat me like 5 I'm an ineffective idiot who hasn't done, like they've said here, they've made out that I wasn't working to a high enough standard. It's complete nonsense. It's unfair, and it's just part of a massive bullying and gaslighting situation. As I say, that is my best guess as to why, is because they think, they have some confusion, I believe, I could be wrong, but I think this was the origins. I think they had some confusion about some little bits of information they had heard about where our family were from or who we should have inherited money from. But actually I didn't inherit any family money at all, is the truth. I have no idea whether anything turned up in 2005. Because sometimes, in the United Kingdom, anyway, they have deceased estates if they're unclaimed. Some people technically have a legal duty to try and find the heirs, h-e-i-r-s. I know I have a vague recollection of my childhood that back in the 80s, some money meant for us is supposedly disappeared. They said they can never trace it. I've never heard anything from that again. And I have no idea if that meant someone else got it or if they just said they lost it, or what. But all I know is, since I came here, I've just been, it's like I constantly get pounced upon and attacked. And it's as if some people seem to think I should have to explain myself, or justify myself, or prove I haven't been involved in something wrong or deceitful. And I've just had a very ordinary life. And as I say, since I've come here as an educated woman, I've just fill my life in the workplace. And even as a mother, with the bullying and stalking and even my kids and people messing with their head, has been an absolute nightmare. And I'm not trying to say, you know, is somehow worse or whatever this happens to me than anyone else. This shouldn't happen to anyone at all. No one should go through this, and I wouldn't wish it upon anyone. But coming back to this employment. The simple facts by how I present it are, I took a job with them in good faith. It was all ordinary. I had an interview, definitely qualified to do it. Then that's when the messing about started.

CONSIDERATION

1. A helpful summary of the principles to which the Court may have regard in considering an application for summary judgment pursuant to s 31A of the Federal Court Act was set out by Jackson J in Quach v Commissioner of Taxation [2019] FCA 1729. In that case, his Honour at [12] observed: (1) It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45]. (2) It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]; see also at [22]. (3) As the combined effect of s 31A(2) and 31A(3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52]. (4) The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46]. (5) Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60]. (6) Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court 'may' give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; 259 ALR 319; [2009] FCAFC 117 at [28]. (7) A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].
2. Justice Feutrill in Mpinda v Fair Work Commission [2022] FCA 1111 adopted those principles referable to s 31A Federal Court Act but continued:
3. Rule 26.01(1) also includes 'no reasonable cause of action is disclosed' as a ground for judgment. It seems to me that there is not a great deal of difference between an absence of a reasonable cause of action and a proceeding or part of a proceeding for which there is no reasonable prospect of a successful prosecution. However, there may be circumstances in which a reasonable cause of action is disclosed yet there is no reasonable prospect of successfully prosecuting that cause of action. For example, because the evidence necessary to prove the material facts at trial is not available: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [51]. Otherwise, if it is demonstrated that no reasonable cause of action is disclosed for the purposes of summary judgment under r 26.01(1), as opposed to the failure to disclose a reasonable cause of action in a statement of claim for the purposes of a strike-out under r 16.21(2), it will also be demonstrated that there is no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding to which the applicable cause of action relates.
4. Section 31A is not an appropriate procedure for applying to strike-out the relief sought in an originating application. The relevant question on an application under s 31A is whether the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. Put another way, the question is not whether the applicant has no reasonable prospect of obtaining the relief claimed in the originating application. The Court gives judgment in respect of the issues as these amount to a cause of action in the proceedings. If the applicant proves facts that amount to a cause of action, the Court will give judgment for the applicant on the cause of action and fashion the relief to which the applicant is entitled. If the applicant fails to prove facts that amount to a cause of action, the Court will not give judgment by dismissing the relief claimed, but by dismissing the proceedings: Noble Investments at [34].
5. Pursuant to r 6.01, if a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the court for an order that the matter be struck out of the document. Therefore, if a respondent is able to demonstrate that the applicant could not obtain any part of the relief claimed, that part of the originating application may be struck out, but that is not to give judgment for the respondent on that part of the relief claimed: Noble Investments at [40]. Also, pursuant to r 8.21(1)(a), an applicant may apply to the Court for leave to amend an originating application for any reason, including to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding. Accordingly, a claim for relief that is struck out may be capable of cure by adding a claim for relief if the material facts set out in the document accompanying the originating application disclose a reasonable cause of action for that relief.
6. It is also relevant to note that pursuant to r 1.32, the Court may make any order that the Court considers appropriate in the interests of justice. Pursuant to r 1.34, the Court may dispense with compliance with any of the Rules, either before or after the occasion for compliance arises. Pursuant to r 1.40, the Court may, at any stage of the proceeding, exercise a power mentioned in the Rules in the proceeding on its own initiative.
7. I gratefully adopt the observations of Jackson J and Feutrill J in their respective judgments.
8. Applying these principles, it is plain that Dr McGrory has no reasonable prospect of successfully prosecuting the proceeding in terms of s 31A(2) of the Federal Court Act. Alternatively, I am also satisfied that almost all of the statement of claim should be struck out as including frivolous or vexatious material, or material that fails to disclose a reasonable cause of action against the respondent, such that the entirety of the statement of claim should be struck out: KTC v David [2022] FCAFC 60 at [124].
9. The statement of claim seeks to plead contraventions of the Fair Work Act, in particular s 340 (adverse action), s 343 (coercion) and s 351 (discrimination), and further that Dr McGrory was dismissed without any cause or justification or without proper procedure being followed. In respect of Dr McGrory's statement of claim, in summary:

• Paragraph 1 refers by name only to adverse action, discrimination, coercion, undue influence or pressure and misrepresentation;
• Paragraph 2 makes reference to proper procedure not being followed in communicating the termination of the contract;
• Paragraph 3 refers to Dr McGrory's concern regarding events following the termination of employment agreement, and events at the hearing of the Fair Work Commission;
• Paragraph 4 indicates that Dr McGrory felt treated in a disrespectful manner or with a lack of care, and was subject to a discriminatory delay in receiving the written employment agreement;
• Paragraph 5 makes reference to her dismissal without cause or justification without proper procedure being followed, that she was allocated insufficient work by the Department, and there were references to matters that reminded her of her early childhood trauma;
• Paragraph 6 referred to comments that were made in the workplace that alluded to things that reminded her of matters jokingly brought up in Australian workplaces in the past, as well as - separately - allegations and rumours concerning members of her family;
• Paragraph 7 refers to what the applicant described as criminal conduct of paedophiles in the community, including hearsay that the applicant was targeted in childhood because she was suspected to be a descendant of Queen Victoria;
• Paragraph 8 refers to a "pattern of discrimination or some type of bizarre unlawful punishment being served upon her by deranged persons", possibly referable to a belief on the part of "the ring leaders" that she or her sibling or another child was found "running away from potential abductors or child abusers back in the early 1980s when they, who seem known in some way to highly influential persons in our country, may have tried to entice the Applicant and/or her sibling or other related children, into their car…"
• Paragraphs 9 and 10 referred to a colleague performing an impromptu karaoke performance that could trigger distressing memories for survived child trafficking victims, and sharing private information about the applicant and misuse of personal background information, as well as other references to "Kate Middleton", adultery between persons in Syria, "Lady Diana" and the applicant's family;
• Paragraph 11 referred to a work folder provided in training referring to the film "Magic Mike" and alleged that this was in the same theme as jokes made about the applicant previously, as well as a "missing child" and other "terrible tragedies across the world";
• Paragraphs 12 and 13 referred to the applicant seeking details of those who were behind organised abuse and crimes in Australian workplaces;
• Paragraph 14 indicates that Dr McGrory received positive feedback on her work after commencing the employment agreement, but she was then abruptly terminated, there had been unusual incidences, and that "this" was the underlying cause of Dr McGrory's dismissal;

1. None of the matters to which Dr McGrory refers in her statement of claim appeared to relate in any way to the respondent, much less any cause of action Dr McGrory could have against the respondent. Rather, they seemed to refer to matters that occurred in the workplace with the Department as opposed to the respondent, as well as to historical matters involving previous workplaces of the applicant, members of the applicant's family, persons unknown and apparently members of the British Royal Family.
2. The statement of claim is silent in relation to any of the required elements of ss 340, 343 or 351 of the Fair Work Act. Rather, the contents of the statement of claim appear to reveal a preoccupation on the part of the applicant with recollections of asserted historical events from the 1980s and 1990s, feelings of the applicant triggered by memories to which she refers, and third parties, including issues related to her childhood, her family members, alleged comments by unknown persons to both her and her parents in Scotland, obscure cultural references to (for example) the Scottish town of Ayr, as well as broad ranging comments concerning paedophilia, terrorism, films and karaoke.
3. These themes continue from the applicant's statement of claim into her correspondence with the Court (for example her email of 13 February 2024), her statements in the Fair Work Commission, and her written and oral submissions in the present proceedings.
4. While the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly, in light of what can only be considered fatal defects in Dr McGrory's claims, I am satisfied that this is a case where Dr McGrory has no reasonable prospect of successfully prosecuting her case for the purposes of s 31A(2) of the Federal Court Act. Her substantive application should be dismissed on that basis.
5. Alternatively, I am satisfied that Dr McGrory's statement of claim should be struck out entirely on the basis that almost all of the material pleaded is frivolous, vexatious, fails to disclose a reasonable cause of action and is embarrassing.
6. The applicant objected to her pleadings being described as "embarrassing", however as Tamberlin J explained in Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393, under the Federal Court Rules:
7. … a court may at any stage in the proceedings order that the whole or any part of a pleading be struck out where it has a tendency to cause prejudice, embarrassment or delay in the proceedings. "Embarrassment" in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing…. (emphasis added)
8. I note further comments to this effect made by Abraham J in Webb v Commonwealth [2021] FCA 1215 at [11] and Needham J in Benjamin Hornigold Ltd v John Bridgeman Limited (No 3) (Strikeout, Representation, and Costs) [2025] FCA 94 at [13].

COSTS

1. Dr McGrory's application seeks relief under the Fair Work Act. As such, an award of costs can only be made pursuant to s 570 of the Fair Work Act which provides: Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings.
2. The respondent has sought its costs in the proceeding on the basis that Dr McGrory has instituted them vexatiously or without reasonable cause.
3. As I noted earlier in this judgment, Dr McGrory opposes an order for costs against her on the basis of, inter alia, impecuniosity.
4. In Murdock v Virgin Australia Airlines Pty Ltd (No 3) [2024] FCA 227 Burley J summarised relevant principles concerning s 570 of the Fair Work Act as follows:
5. The policy behind s 570 reflects a choice on the part of the legislature that costs should not ordinarily follow the event, but rather that they should ordinarily be borne by the party incurring them: Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115; (2003) 129 FCR 271 at [10] (Black CJ, Tamberlin and Sundberg JJ); Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd [2020] FCAFC 194; (2020) 283 FCR 123 at [102] (White J, with whom Middleton J agreed at [89]). It has been said that the policy ensures that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings: Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 at [64] (Mortimer J); Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ). The discretion must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction, and a case for its exercise should be clearly demonstrated: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] (Bromberg J). That is because, absent caution, there is a potential to discourage parties in the complete and robust pursuit of claims for contravention of the FW Act. Accordingly, a person will rarely be ordered to pay the costs of the proceedings. However, it is not necessary to prove that there are exceptional circumstances warranting the making of an order: Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [74] (Logan J, Bromberg J agreeing at [161], Charlesworth J in dissent on the question of costs); Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 at [7] (Dowsett, McKerracher and Katzmann JJ).
6. The discretion must be exercised judicially according to the terms defining it.
7. Plainly, the respondent bears the onus of establishing that the applicant instituted the proceedings vexatiously or without reasonable cause, or that her unreasonable act or omission caused the respondent to incur the costs.
8. In Tsilibakis v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048, White J refused an award of costs pursuant to s 570 of the Fair Work Act for the following reasons: [20] However, I am not willing to characterise the applicant's conduct as being the kind of unreasonableness to which s 570(2)(b) refers. In my opinion, the Court should be circumspect before doing so. It commonly occurs that applicants have difficulties in pleading appropriately an adverse action claim and an associated breach of contract claim. Experience also indicates that, despite inadequate pleadings, a matter can often proceed to trial without undue embarrassment to the opposing party. A somewhat robust approach to pleadings is often appropriate in actions of the present kind, and not that adopted in substantial commercial litigation between sophisticated and experienced litigants.
9. I gratefully adopt the principles explained by their Honours in Murdock and Tsilibakis. However, unlike those cases, in the present case, I am persuaded that the respondent is entitled to an award of costs. Notwithstanding what appears to be Dr McGrory's sincerity in commencing the proceedings, she had no complaint of substance against the respondent. Her complaints were against the Department, and historically against unknown persons who had nothing to do with the present litigation. This is not a case where the statement of claim contained deficiencies which could have been amended, or where the respondent could have met Dr McGrory's case without undue embarrassment.
10. Dr McGrory has submitted that she would be unable to meet a costs order in favour of the respondent. However the respondent has been required to incur legal costs in the proceedings which Dr McGrory instituted against it without reasonable cause.
11. Accordingly, the discretion of the Court under s 570 of the Fair Work Act to award costs has been enlivened. Dr McGrory's alleged impecuniosity is not a relevant consideration in determining whether the Court should award costs: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [35]-[36]; VDCL v Purcell [2024] FCA 107 at [24].
12. The respondent should be awarded its costs of and incidental to the proceedings. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.