Murdock v Virgin Australia Airlines Pty Ltd

Cases cited: Agar v Hyde [2000] HCA 41; 201 CLR 552 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 Bahonko v Sterjov [2007] FCA 1244; 167 IR 43 Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Chou v Digital61 Pty Ltd [2021] FCA 640 Clarke v Service to Youth Council Inc [2013] FCA 1018 Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd t/as BHP Billiton Mitsubishi Alliance/BMA [2022] FWC 81; 311 IR 304 Construction, Forestry, Mining & Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87; 203 FCR 371 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 Dare v Pulham [1982] HCA 70; 148 CLR 658 Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 Kassam v Hazard; Henry v Hazzard [2021] NSWCA 299; 396 ALR 302 McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 Michael Iverson v Qantas Airways Ltd [2001] AIRC 810 Newlands Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1512; 147 IR 304 Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 222 FCR 152 Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547 Wolfraad v Serco Australia [2022] FedCFamC2G 1063 Wride v Shulz [2004] FCAFC 216

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 164

Date of last submission/s: 10 May 2023

Date of hearing: 21 April 2023

Counsel for the First, Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Applicants in NSD349/2022 and the Applicants in NSD506/2022: Mr S Prince SC with Mr B Eurell

Solicitor for the First, Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Applicants in NSD349/2022 and the Applicants in NSD506/2022: Ashley Francina Leonard and Associates

Counsel for the First Respondent in NSD349/2022 and the Respondent in NSD506/2022: Mr Y Shariff SC with Mr P Zielinski

Solicitor for the First Respondent in NSD349/2022 and the Respondent in NSD506/2022: Seyfarth Shaw Australia

Counsel for the Second and Third Respondents in NSD349/2022: Mr R P Dalton KC with Mr N Burmeister

Solicitor for the Second and Third Respondents in NSD349/2022: Ashurst Australia

RAZAAN SULEMAN (and others named in the Schedule) Third Applicant

AND: VIRGIN AUSTRALIA AIRLINES PTY LTD ABN 36 090 670 965 First Respondent

JETSTAR AIRWAYS PTY LIMITED ABN 33 069 720 243 Second Respondent

QANTAS AIRWAYS LIMITED (ABN 16 009 661 901) Third Respondent

AND: VIRGIN AUSTRALIA AIRLINES PTY LTD ABN 36 090 670 965 Respondent

order made by: BURLEY J DATE OF ORDER: 5 June 2023

1. The parties confer and by 4pm on 12 June 2023 supply to the chambers of Justice Burley an agreed draft short minutes of order giving effect to these reasons, marked up to reflect any points of disagreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 1.1 The proceedings [1] 1.2 The interlocutory applications [2] 2 THE APPLICABLE LEGAL PRINCIPLES [14] 3 THE CASE PLEADED IN THE MURDOCK ACTION [26] 3.1 The Further Amended Originating Application (FAOA) [26] 3.2 The Further Amended Statement of Claim (FASC) [27] 4 CONSIDERATION OF CRITICISMS OF THE PLEADINGS [55] 4.1 Workplace rights [55] 4.2 Adverse action claims [62] 4.3 Contraventions of s 50 of the FW Act [87] 4.4 Summary of conclusions in relation to the FASC [100] 5 THE EXTENSION OF TIME APPLICATION [102] 5.1 Introduction [102] 5.2 Relevant law applicable [103] 5.3 A preliminary question [108] 5.4 The applicants' position [118] 5.5 The respondents' position [124] 5.6 Consideration [125] 6 DISJOINDER [155] 7 DISMISSAL OF PROCEEDINGS BROUGHT BY MR ATSAS [156] 8 CONCLUSION AND DISPOSITION [160]

1.1 The proceedings 1 In proceedings NSD 349 of 2022 (the Murdock action), Shane Murdock and nine others (Murdock applicants) sue Virgin Australia Airlines Pty Ltd, Jetstar Airways Pty Ltd and Qantas Airways Ltd for relief arising from conduct said to be in breach of various terms of the Fair Work Act 2009 (Cth) (FW Act). The misconduct alleged broadly concerns the steps taken by the respondents in issuing directions that employees receive vaccinations to inoculate them against COVID-19 and the subsequent termination of the applicants from their employment as a result of failing to comply with the directions. In proceedings NSD 506 of 2022 (the Clayton action), Imogen Clayton and two others (Clayton applicants) sue Virgin based on similar allegations.

1.2 The interlocutory applications 2 Before the court are several competing interlocutory applications. 3 The applicants in the Murdock action have filed an interlocutory application seeking an order in accordance with s 370(a)(ii) of the FW Act for leave to make a general protections court application after the prescribed 14 day filing requirement has expired (extension of time application). That application is supported by an affidavit sworn by Captain Murdock and two affidavits sworn by Matthew Hopkins, a solicitor acting on behalf of the Murdock applicants. 4 Jetstar and Qantas have filed an interlocutory application in the Murdock action seeking orders: (1) that, insofar as the claim against them is a general protection court application within s 370 of the FW Act, the application be dismissed pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act); (2) that judgment be given in their favour pursuant to s 31A of the FCA Act or alternatively Federal Court Rules 2011 (Cth) (FCR) r 26.01 in respect of the entire proceedings; (3) alternatively, that the Statement of Claim be struck out pursuant to FCR r 16.21 and, to the extent that liberty to re-plead is granted, the applicant apply for leave to do so within 21 days accompanied by a copy of the proposed second further amended statement of claim; and (4) That, for the Murdock action, applications brought by the Tenth, Eleventh and Twelfth Applicants (being former employees of Jetstar) be disjoined from the proceedings pursuant to s 23 of the FCA Act, with the result that any actions brought by applicants against Jetstar and Qantas are separate from any action brought by applicants against Virgin. 5 I refer to the aspects of relief summarised in (1) and (2) as the summary dismissal application, the relief sought in (3) as the strike out application and the relief sought in (4) as the disjoinder application. 6 Jetstar and Qantas rely on affidavits sworn by Kathy Srdanovic, a partner at Ashurst Australia, and Jessica Tuffin, a solicitor employed under the supervision of Ms Srdanovic, in support of their interlocutory applications and in opposition to the Applicants' interlocutory applications. 7 Virgin has filed interlocutory applications in both the Murdock action and the Clayton action, seeking similar orders to those sought by Jetstar and Qantas for the dismissal or striking out of the proceedings albeit in a different form. It relies on an affidavits given by Philippa Noakes, a solicitors employed by Seyfarth Shaw which represents Virgin, and Lillian Khan, an in-house solicitor at Virgin. 8 Although the relief sought by the respondents is worded differently, it is substantively the same in each of their interlocutory applications. In order to facilitate an efficient hearing, the respondents' counsel cooperated to file and present joint submissions on their respective applications in order to avoid duplication. Each also adopted the others' submissions. Accordingly, except where otherwise noted, I refer below to the respondents' position collectively. 9 The Murdock applicants submit that they arguably commenced a general protections court application under Part 3-1 of the FW Act eight days late, on 11 May 2022. Accordingly, part of the Further Amended Originating Application (FAOA) and Further Amended Statement of Claim (FASC) requires leave before it can proceed in accordance with s 370 of the FW Act. They submit that the principles to be adopted in determining whether leave should be granted were set out in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 and that, by reference to the explanation for the delay, the action taken by the Murdock applicants to contest the application, the prejudice to the respondents, the merits of the application and considerations of fairness point to the grant of leave. The explanation provided by the applicants for the delay is that they were in the hands of a Glen Floyd who purported to represent them and who erroneously failed to file the protections claim in time. 10 The respondents oppose the grant of leave on substantively two bases. The first is that the applicants have provided an inadequate explanation for the delay in seeking leave. In this regard they note that whilst the Originating Application in the proceedings was filed on 11 May 2022, that Application has been amended twice since, and it was not until 11 November 2022 that it took its present form which articulates, for the first time, a general protections court application within s 370 of the FW Act. The relevant delay was from 19 April 2022, when each applicant was issued with certificates pursuant to s 368 of the FW Act and 11 November 2022, which is 207 days. 11 The second basis is that merits of the causes of action set out in the originating application and statement of claim are insufficient to warrant the grant of leave. The second basis overlaps with the interlocutory applications advanced by the respondents insofar as they seek orders either dismissing the FASC or striking out parts of it and requiring those parts to be re-pleaded. 12 It is convenient first to consider the merits of the FASC by reference to the arguments put by the respondents to the effect that all or some of the pleaded case must be dismissed or struck out with liberty to re-plead. 13 The parties filed written submissions in advance of the hearing and agreed that, given the overlap between the Murdock and the Clayton proceedings, rulings made in relation to the former could be applied to the Clayton hearings. As a result, these reasons focus only on the Murdock pleadings and, where I refer below to the applicants and respondents, these terms refer respectively to the applicants and the respondents in the Murdock proceedings. No extension of time application is necessary in relation to the Clayton action.

2. THE APPLICABLE LEGAL PRINCIPLES 14 There was no dispute between the parties as to the principles applicable to the summary dismissal of proceedings or the striking out of pleadings. 15 In relation to summary disposal, s 31A of the FCA Act relevantly provides: … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. … 16 In Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [25] (French CJ and Gummow J) said: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. 17 In Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57] (Gaudron, McHugh, Gummow and Hayne JJ): … Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. 18 In relation to the striking out of pleadings, FCR r 16.21(1)(c), (d) and (e) provide: (1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading: … (c) is evasive or ambiguous; or (d) is likely to cause prejudice, embarrassment or delay in the proceeding; or (e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; … 19 The fundamental purpose of pleadings is to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against them: Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286 (Mason CJ and Gaudron J); Dare v Pulham [1982] HCA 70; 148 CLR 658 at 664 (the Court). That function is reflected in FCR rr 16.02 and 16.03, which set out the requirements of pleadings. 20 In Wride v Shulz [2004] FCAFC 216, the Full Court stated at [25]: [T]he the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A "reasonable cause of action" for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant. 21 In the context of pleadings, a pleading will be 'embarrassing' if it includes defects resulting in the pleading being 'unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it' or pleadings that are internally inconsistent: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [18]-[19] (Collier J), referring to Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22] (Edmonds J). As a general rule, a statement of claim which pleads a conclusion without pleading material facts is, to that extent, bad: Eastern Colour at [39]. A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out: McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 at [23] (Weinberg J). 22 These principles apply with even more force where the provision relied upon carries a civil penalty, as is the case here. Such allegations are inherently serious. Accordingly, the Full Court has strictly enforced the need for precision in pleading where pecuniary penalties are sought: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [63]-[65] (Logan, Bromberg and Katzmann JJ). 23 Section 340 of the FW Act provides: (1) 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. Note: This subsection is a civil remedy provision (see Part 4-1). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4-1). 24 In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046, Wigney J succinctly summarised the key principles applicable to that section by reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243: 297 First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7]. 298 Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a "substantial and operative" reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140]. 299 Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9]. 300 Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22]. 301 Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7]. 302 Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127]. 303 Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62]. 25 See also Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 at [24]-[26] (Tracey, Reeves, Bromwich JJ).

3.1 The Further Amended Originating Application (FAOA) 26 In the FAOA the applicants seek against each of the respondents: (a) declarations that they took adverse action by "threaten[ing] to injure [them] in their employment" and dismissing them from their employment in contravention of s 340(1) of the FW Act; (b) declarations that they discriminated against them in contravention of s 351(1) of the FW Act; (c) declarations that they coerced them not to exercise a workplace right in contravention of s 343(1) of the FW Act; (d) declarations that they contravened a term of an enterprise agreement in contravention of s 50 of the FW Act; (e) orders for reinstatement; (f) compensation pursuant to ss 22 and 23 of the FCA Act and/or s 545 of the FW Act; (g) pecuniary penalties; and (h) interest thereon.

3.2 The Further Amended Statement of Claim (FASC) 27 In Part A the FASC identifies the applicants, their dates and positions of employment, and contends that the first, second, third, sixth, eighth and ninth applicants (Virgin applicants) were at all material times employees of Virgin who were directed to be injected with two doses of a COVID-19 vaccine by a certain date (vaccine direction) and were dismissed for non-compliance with the direction. It contends that the tenth, eleventh and twelfth applicants (Jetstar applicants) received a similar vaccine direction from Jetstar and were similarly dismissed for non-compliance. The dates of dismissal are identified. 28 Part B is entitled "Applicants' Workplace Rights". 29 Paragraphs [6]-[8] are set out under the heading "Rights under workplace laws". In [6] the applicants plead that at all material times the applicants were subject to workplace laws which "imposed a statutory duty, role and responsibility to take reasonable care to protect their health and safety at work and gave rise to a corelative [sic] workplace right". In the particulars appended to this paragraph, the applicants list particular State work health and safety laws said to be applicable for each applicant. A representative example is given for the first applicant, where s 25 of the Occupational Health and Safety Act 2004 (Vic) is identified. 30 In [7], the applicants plead that at all material times the respondents had a duty under workplace laws to ensure, so far as is reasonably practicable, the applicants' health and safety while at work. The particulars identify the source of this duty again by reference to the same State work, health and safety laws. For the first applicant, s 21 of the Occupational Health and Safety Act 2004 (Vic) is identified. 31 Paragraph [8] provides: In the premises at all material times the Applicants each had a right, under the workplace laws referred to above in paragraphs 6 and 7, in the exercise and the proposed exercise of such right to refuse to follow any direction or instruction from the Respondents as not being lawful or as not being reasonable included but not limited to a direction that: (a) Was given without consultation, or without proper consultation; and/or (b) Exposed them to a risk of physical or mental harm; and/or (c) Created a serious and unjustified risk to their health; and/or (d) Was potentially and unjustifiably hazardous to their health and safety; and/or (e) Otherwise impaired the workplace rights of the applicants. 32 Paragraphs [9]-[12] are under the heading "Rights under workplace instruments". In [9] the applicants plead that at all material times the terms and conditions pursuant to which Virgin employed the Virgin applicants were established by listed workplace instruments said to be applicable to each. In [10] an equivalent pleading applies to the Jetstar applicants. For both, specific enterprise agreements are listed. 33 Paragraph 11 provides: At all material times under the workplace instruments referred to above at paragraphs 9 and 10, each of the applicants: (a) Had a duty to follow lawful and reasonable directions given by the respondents; and (b) Had a corelative [sic] right to refuse to follow directions that were not lawful and/or not reasonable; and/or (c) Reserved to themselves and did not confer on the respondents the right during their employment to make his or her own decisions about medical treatments and procedures to which they would voluntarily submit and/or freely consent; and (d) Had a correlative [sic] right not to be dismissed for the exercise or proposed exercise of the right referred to in (c). 34 Particulars to (b) provide a list of eight matters being: (i) The Respondents had "no authority" to give the direction. (ii) The vaccines had only received provisional approval of the Commonwealth Therapeutics Goods Administration. (iii) The Respondents each adopted a mandatory policy without considering whether or not the vaccines would harm, injure or kill the Applicants and/or failed to ensure that the vaccines would not harm, injure or kill the Applicants. (iv) The Respondents did not provide the Applicants with any or adequate safety information or reasonable warning about the side effects of the vaccines; (v) The long-term side effects of the vaccines were unknown; (vi) The short-term side effects of the vaccines included serious medical conditions and/or death; (vii) The vaccines were ineffective at the material times against the circulating strains of Covid-19; (viii) The direction was unlawful or unreasonable in that it required the Applicants to provide protected medical services information confidential to employees and authorised persons for use by the Respondents adversely to the Applicants in circumstances where the Respondents were not authorised persons. 35 Paragraphs 12 pleads the applicants' exercise of workplace rights by: (a) Raising complaints or inquiries with the respondents as employees of the respondents of or concerning the direction that each be injected with a COVID-19 vaccine; and/or (b) Refusing to follow the direction that each be injected with a COVID-19 vaccine. Particulars are provided by reference to each applicant. For several of the applicants the particulars are vague and give a date range for when objections were made in writing. 36 In Part C the applicants identify the alleged contraventions of Part 3-1 of the FW Act, being in four categories as set out below. 37 The first category is in [13]-[15] and is headed "Adverse action by injuring the Applicants in their Employment". 38 In [13] the applicants plead that, between 29 November 2021 and 4 January 2022, Virgin took adverse action against the Virgin applicants in contravention of s 340(1) of the FW Act in that it (a) injured each of the applicants in their employment; and/or (b) altered the position of each of the applicants to their prejudice: when [Virgin] threatened to dismiss or take other disciplinary action or treated the applicants less favourably than other employees for failure to be injected with a Covid-19 vaccine because they had a workplace right not to comply with the direction to receive a Covid-19 vaccine. 39 The particulars appended to this paragraph identify the date each of the Virgin applicants received the threat to terminate and a letter in which the threat is said to have been made. Paragraph 15 makes an equivalent allegation against Jetstar. In [14] the applicants plead that Qantas imposed a policy on Jetstar by giving a direction to the Qantas Group which required Jetstar to threaten the Jetstar applicants with dismissal or disciplinary action if they did not receive COVID-19 vaccines. 40 The second category is in [16]-[17] and is headed "Adverse Action by Dismissal of the Applicants". In [16] the case pleaded is that: Between December 2021 and 18 February 2022, [Virgin] took adverse action against the [Virgin applicants] in contravention of s 340(1) FW Act a civil remedy provision when it dismissed them from their employment because they: (a) Had a workplace right not to comply with the direction to receive a Covid-19 vaccine; and/or (b) Exercised a workplace right when they complained or inquired about the direction to receive a Covid-19 vaccine; and/or (c) Exercised a workplace right when they refused to follow the direction that exposed them to risks to their health and safety; and/or (d) Exercised a workplace right when they refused to follow directions that were lawful and/or not reasonable. 41 The particulars identify specific termination letters. Equivalent allegations, in the same terms, are made against Jetstar in [17]. These first and second categories concerning adverse action are referred to in this judgment as the adverse action claims. 42 The third category is set out in [18]-[20] and is entitled "Adverse Action by Discrimination against the Applicants". 43 In [18] the applicants plead that Virgin took adverse action "as particularised in [13] and [16]" against the Virgin applicants "because of the Applicant's physical or mental disability in contravention of s 351 of the FW Act a civil remedy provision being a prohibited reason under the Disability Discrimination Act 1992 (Cth)". The particulars appended to this paragraph are as follows: (i) [Virgin] by its servants or agents imputed to the Applicants during their employment with it a disability within the meaning of subsection (k) of the definition of disability under Disability Discrimination Act 1992 section 4 that each is infected with Covid-19 because they were unvaccinated and treated them accordingly when each Applicant had not such condition or disability; (ii) Further or alternatively, [Virgin] by its servants or agents treated the Applicants as having a disorder or malfunction that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour, by reason of each Applicants' exercise or attempted or presumed exercise of their workplace rights alleged in paragraphs 6 to 11 and/or irrationally treated the Applicants as being infectious; (iii) Further or alternatively [Virgin] by its servants or agents discriminated against each Applicant on the ground that at the time of dismissal, each Applicant was treated by [Virgin] as a higher risk of transmitting Covid 19 than employees who were vaccinated against Covid 19 with vaccines when scientifically that was unsupported by any material produced by or available to the manufacturers or [Virgin]; (iv) Other staff and passengers were neither more or less safe or infectious whilst working with the Applicants and each of them within the meaning of each enterprise agreement to which the Applicants were parties. 44 In [19] the same case is pleaded against Jetstar and Qantas. In [20] the applicants allege that they have suffered loss or damage. This category is referred to in this judgment as the disability claim. 45 The fourth category is set out in [21]-[26] and concerns claims that the respondents have engaged in coercion (the coercion claim). 46 In [21] the applicants plead that Virgin organised or took or threatened to organise or take action against the Virgin applicants "with intent to coerce [them] not to exercise a workplace right" within the meaning of s 343 of the FW Act. The particulars of the "workplace rights" refer to [6] to [11]. Particulars are then given of "Intention to Coerce the Applicants" first, by reference to a "Covid 19 Vaccination Policy" adopted by Virgin. Secondly, the particulars state that by issuing, implementing and acting upon the Virgin policy document and/or by issuing the show cause and dismissal letters alleged in [13] and [16], Virgin "thereby exerted pressure which had the practical effect of negating the Applicants' choice to exercise their workplace rights as particularised in 6 to 11 above and which conduct was unlawful and/or illegitimate and/or unconscionable". 47 In [22] the applicants contend that the action that Virgin organised or took or threatened to organise or take against the Virgin applicants was: (a) To require the Applicants to produce vaccination evidence to [Virgin] contrary to the provisions of the Australian Immunisation Register Act section 23; (b) To stand down the Applicants in response to their requests for information pending dismissal; (c) To dismiss the Applicants from their employment as particularised in paragraph 1. 48 Similar allegations are made against Jetstar and Qantas. 49 In Part E at [29]-[46], the applicants plead contraventions of s 50 of the FW Act. 50 In [29] the applicants plead that Virgin and each of the Virgin applicants entered into and was bound by an enterprise agreement which is listed. In [30] they plead that it was an express term of each applicable agreement that the parties "will not support or advance any other or extra claims or rights against each other until 30 June 2024" (which is the "no extra claims" argument). 51 In [31] the FASC pleads that in contravention of s 50 of the FWA, during the period of employment under each agreement, Virgin advanced an extra claim "being a claim or demand by right or as of right or a requirement that unless each applicant consented to injection with Covid-19 vaccine[s] each would be dismissed". 52 After pleading the loss or damage that each applicant alleges that they have suffered and claiming compensation, an alternative claim (the Virgin consultation claim) is put in [34]: Further or alternatively, it was an express term of the Virgin EBAs that [Virgin] will consult with affected Pilots about any major change that is likely to have a significant effect". 53 In [35] it is alleged that in contravention of s 50 of the FW Act, Virgin failed to consult with the applicants about a major change to the employment likely to have a significant effect on each, "namely, the major change, alteration or revision of the EBA to the effect that unless each Applicant submitted to vaccination against the Covid-19 virus he or she would be adversely treated and/or dismissed". 54 Similar allegations are made in relation to the agreements between the Jetstar applicants and Jetstar in [38]-[46].

4.1 Workplace rights 55 Commencing with Part B, the asserted workplace rights, it may be seen that the adverse action alleged in [13] and [15] is said to arise because the applicants "had a workplace right not to comply with the direction to receive a Covid-19 vaccine". The respondents submit that this workplace right has not been adequately pleaded in the earlier paragraphs of the pleading. The "rights under workplace laws" pleaded in [6] and [7] are picked up in [8] with the statement "In the premises", ie, by reference to [6] and [7], "the Applicants each had a right …". 56 The respondents submit that in [6] the pleading that the reliance by the applicants on a "correlative workplace right" arising from the work health and safety laws is not properly explained, pleaded or particularised. They refer to the particulars which identify for the first applicant s 25 of the Occupational Health and Safety Act 2004 (Vic). That section provides, inter alia, that while at work an employee must take reasonable care for his or her own health and safety and take care for the health and safety of persons who may be affected by their actions. 57 I agree with the submission advanced that it is opaque as to how (for instance) s 25 "correlates" to a workplace right, or what that right might be. Nor is it apparent from the pleading how it is said that this right translates from [6] to the right pleaded in [8] being "to refuse to follow any direction or instruction from the Respondents as not being lawful or as not being reasonable" by reason of the matters set out in [6]-[8] (indeed, it is apparent that the FASC is unlikely to be directed broadly to "any direction or instruction" but more specifically to the vaccine direction). 58 Similar criticisms as to the origin of the alleged workplace right may be made of [8] insofar as it relies on the pleading in [7] that the respondents had a duty under workplace laws (for example, s 21 of the Occupational Health and Safety Act 2004 (Vic)) to ensure, so far as is reasonably practicable, the applicants' health and safety while at work. Nowhere do the applicants identify how it is said that this duty translates to a right on the part of the applicants to refuse to follow any direction or instruction from the respondent as not being lawful or reasonable. 59 The respondents level a similar criticism in respect of the pleading of the rights arising under workplace instruments as set out in 11-(d). I accept that submission. Those paragraphs as pleaded are insufficient to enable the respondents to understand the case advanced by the applicants by reference to the origin of the alleged workplace right. 60 A further point is cogently advanced by the respondents in relation to allegations that various acts of the respondents which are pleaded as being "unlawful". In [8] it is said that the applicants had a right to refuse to follow any direction or instruction from the respondents "as not being lawful". In 11 it is pleaded that the applicants had a correlative right to refuse to follow directions "that were not lawful". No particulars are supplied to [8]. The particulars to [11] are set out above and amount to no more than assertion, especially 11(i) and (ii) which appear to have the most bearing on the "unlawful" aspect of the allegation. It is opaque as to the basis upon which it is said that the directions given were unlawful. The only direction pleaded are in [1] and [2] where it is said that Virgin and Jetstar gave the vaccine direction, which, it may be assumed is the direction referred to in [8] and [11]. However, it is incumbent upon the applicants properly to plead and particularise the basis upon which it is said that the giving of those (or any other) directions relied upon were "illegal". 61 In their written submissions the respondents contend that [6]-[8] and 11-(d) ought to be struck out, with the applicants given leave to re-plead. In their oral submissions, they went further and submitted that the case as advanced was so lacking in logic or prospects of success that it is appropriate to order summary dismissal of the claim. However, I am disposed to grant leave to re-plead those paragraphs.

4.2 Adverse action claims 62 In relation to the first category of alleged contravention of Part 3-1 of the FW Act, "Adverse action by injuring the applicants in their employment", the respondents submit that [13] and [15] contain an impermissible melding of the essential elements of s 340 being the allegations of adverse action, the reason why it is alleged that the decision maker engaged in the adverse action and the identification of the specific adverse action alleged in relation to each applicant. 63 I accept that submission. Taking [13] as an example, the allegation is that the first respondent threatened to dismiss (etc) the applicants "because they had a workplace right not to comply with the vaccine direction". That pleading is embarrassing, because nowhere is there a pleading of (a) the state or mind of the relevant decision maker; (b) the decision maker who is alleged to have the state of mind by reference to details in the letter; or (c) which of the earlier workplace rights pleaded in [6]-[11] is said to have been the subject of the adverse action. This aspect of the case must be re-pleaded. 64 In this regard I note that during oral argument, Mr S Prince SC, senior counsel for the applicants, properly conceded that it would be better if these paragraphs were re-pleaded to explicitly allege the exercise by the applicants of a workplace right. For this reason too [13] and [15] must be re-pleaded. 65 I have noted that [14] contains a pleading that Qantas imposed a policy on Jetstar requiring implementation of a COVID-19 policy. However, no pleading is advanced to identify how it is that Qantas is liable for the conduct of Jetstar. The applicants submit that the requisite elements of Qantas' liability may be gleaned from [5] of the FASC. However, that is not sufficient. Absent a clear pleading of how action of Qantas is alleged to lead to culpability on the part of Jetstar, [14] must be struck out with liberty to re-plead. 66 In relation to the second category, "Adverse action by dismissal of the applicants", I note that [16] and [17] respectively plead the workplace rights claimed by the applicants against Virgin and Jetstar. This pleading is contingent upon the proper pleading of the workplace rights previously mentioned. One consequence of the defects that I have identified in those paragraphs is that [16] and [17] will also have to be re-pleaded. 67 In relation to the third category, adverse action by discrimination, the respondents contend that [18] and [19] ought to be summarily dismissed with no liberty to re-plead because those paragraphs depend on an allegation that the respondents by their servants or agents "imputed to the applicants" a disability within the meaning of subsection (k) of the definition of disability under the Disability Discrimination Act in s 4. They contend, in the alternative, that the disability claim paragraphs should be struck out because no material facts have been pleaded in support of the allegedly imputed mental disability and that the third basis pleaded is indistinguishable from an allegation that vaccination status is itself a disability. 68 In order to address this argument it is necessary to refer to the legislative scheme in which this allegation appears. 69 Section 351(1) of the FW Act relevantly provides that "An employer must not take adverse action against a person who is an employee … of the employer because of the person's … physical or mental disability …". 70 Section 351(2) relevantly provides that (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". The relevant antidiscrimination laws applicable to s 351 are identified in s 351(3) and include the Disability Discrimination Act. 71 The reversal of onus under s 361 applies for actions based on s 351. A pleaded basis under s 351 must be shown to be a or the operative cause of the discrimination; s 360. 72 It would appear, as a matter of the plain words of s 351(1), that the physical or mental disability must be possessed by the person alleging discrimination. This arises from the natural meaning of the words "the person' s … physical or mental disability". 73 In Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547, O'Callaghan and Thawley JJ considered the statutory scheme. Their Honours noted that there is no definition in the FW Act of "disability" but that the word is defined in the Disability Discrimination Act in s 4 as follows: disability, in relation to a person, means: (a) total or partial loss of the person's bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future (including because of a genetic predisposition to that disability); or (k) is imputed to a person. To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability. 74 It will be noted that this definition includes in (k) a disability that is "imputed to a person". As their Honours note at [113], that definition does not apply to the FW Act, but is relevant context because it is clear that the intention was for s 351(1) and the Disability Discrimination Act to operate harmoniously. Significantly, by s 351(2), any action that is not unlawful under the Disability Discrimination Act will not be unlawful under s 351(1). However, the converse does not apply so as to mean that the words "physical or mental disability" in s 351(1) must be taken to include a disability that is imputed to a person. Indeed there are good reasons why it would not be so taken. 75 In Bahonko v Sterjov [2007] FCA 1244; 167 IR 43, Jessup J considered the application of s 170CK(2)(f) of the Work Relations Act 1996 (Cth) (WR Act) which relevantly provided that an employer must not terminate an employee's employment for a number of listed reasons included "race, colour, sex, sexual preference, age, physical or mental disability" and others. In the proceedings, the applicant's allegations included a claim that she suffered an imputed physical or mental disability within s 170CK(2)(f) of that the WR Act because, although she did not have that disability in fact (and there was no evidence that she did), the relevant decision-makers Ms McEwan and Mr Sterjov assumed that she had it and imputed it to her (at [94], [95]). 76 Jessup J rejected the applicant's claims saying at [103]: Neither is there any evidence of any physical or mental disability which the applicant had while employed by La Kosta. It is not, in my view, sufficient that she allege an "imputed" disability. The provisions of s 170CK(2)(f) are designed to protect employees who in fact fall within the categories referred to - those who in fact have family responsibilities or who in fact are pregnant, for example. That is consistent with the received construction of the reverse onus provision which finds expression in s 170CQ, as discussed above … Indeed, as I have said above, it was the applicant's case that she did not in fact have a disability at all. For this reason, as their counsel made clear in his final address, the respondents did not give evidence that the applicant's disability was not the reason for the termination of her employment. Neither need they have. It would have been embarrassing and invidious to have expected them to discharge the reverse onus by reference to a fact situation which was not referred to in s 170CK(2)(f) and which was not part of the applicant's factual case. Nonetheless, I would, should it be necessary, find that no perception of a disability of any kind on the part of the applicant was a reason why she was dismissed by La Kosta… (Emphasis added.) 77 The respondents submit that the characteristics of a person identified in s 351(1) of the FW Act must be established as a matter of objective fact. They submit that a person's unvaccinated status cannot of itself be a disability, citing the reasoning of Judge Cameron in Wolfraad v Serco Australia [2022] FedCFamC2G 1063 at [55] and that an imputed disability does not fall within the term "physical or mental disability" in s 351 of the FW Act. 78 The applicants submit that s 351(1) is designed to prevent conduct which is directed to employees "believed" to fall within the categories identified such that once it is established as an objective fact that the claimant is an employee, it is sufficient for the applicant to allege that the employer believed that the employee had one of the characteristics in s 351(1) (being race, colour, sexual orientation, age, physical or mental disability, pregnancy etc) for the reverse onus to apply such that the employer must rebut that allegation. They submit that where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual, citing Western Union at [116]-[117]. This, they contend, supports their construction. They submit that the respondents have not established that their argument has no reasonable prospect of success, that Bahonko may be distinguished because it concerns the WR Act and not the FW Act, and that Wolfraad does not assist the Court because the part of the decision upon which the respondents rely turned on the applicant's pleaded characterisation of the disability. 79 In my view part of the answer to the applicants' submissions may be found in Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [119], where Jessup J (Allsop CJ and White J agreeing) made the following observations: … that involved, with respect to counsel, a very superficial reading of the provision which took account neither of the long history of corresponding provisions in previous legislation nor of the many first-instance judgments of this court in which it has been treated as uncontroversial that the party making an allegation that adverse action was taken "because" of a particular circumstance needs to establish the existence of the circumstance as an objective fact: see Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 [161]-[162]; Bahonko v Sterjov (2007) 167 IR 43, 75-77 [96]-[101]; Lever v Australian Nuclear Science and Technology Organisation [2007] FCA 1251 at [27]; Police Federation of Australia v Nixon (2008) 168 FCR 340, 360-361 [68]; Rojas v Esselte Australia Pty Limited (No 2) (2008) 177 IR 306, 321-322 [49]-[50]; Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22, 27-28 [10]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, 578-579 [329]-[331]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [59]; Stephens v Australian Postal Corporation [2014] FCA 732 at [13]. I consider that we would be diverting the law from its proper course were we to accept a submission along the lines of that apparently contained in the appellant's supplementary outline, even if expressed as a concession. 80 The objective fact that must be established cannot sensibly be said to be "imputed knowledge" on the part of the decision maker, but rather the objective fact of whether or not, here, the applicants have a physical or mental disability that is the or a cause of the adverse action. Having regard to these matters, in my view the causes of action pleaded in [18]-[20] of the FASC must be summarily dismissed in accordance with s 31A of the FCA Act. 81 In relation to the fourth category, adverse action by coercion, the respondents advance three primary submissions. The first is that the case set out at [21]-[22] and [24]-[25], concerning the action said to have been coercive of Virgin and Jetstar respectively in breach of s 343 of the FW Act, must be re-pleaded because it again relies on the inadequately pleaded workplace rights earlier in the FASC. I agree with that submission, which depends for its success on the findings I have made above in relation to the pleading of the workplace rights. 82 I also agree with the second submission advanced by the respondents that, even if the workplace rights had been adequately pleaded, the content and detail of the pleading at [21]-[22] and [24]-[25] is manifestly inadequate. The applicants have failed to plead the elements required to maintain a contravention of s 343 of the FW Act by failing: (a) to identify the action organised, taken or threatened by Virgin or Jetstar; (b) to allege the relevant respondents to have a "particular intent" being an intent to negate choice, and a "particular reason" or purpose (being one or more of those set out in s 343(1)(a) or (b)); and (c) to allege the conduct is unlawful, illegitimate or unconscionable. In this regard, the decision of the Full Court in Hall at [24]-[26] (Tracey, Reeves, Bromwich JJ) is instructive as to key elements required for such a claim. I accept that the pleading in its current form does not adequately meet those requirements. 83 Thirdly, the respondents contend that the coercion allegations should be struck out without liberty to re-plead because the core allegations made in [22] and [25] are that the respondents' conduct in requiring the applicants to produce vaccination evidence, to stand down the applicants in response to their requests for information pending dismissal and to dismiss the applicants from their employment are contrary to intermediate appellate court authority, citing Kassam v Hazard; Henry v Hazzard [2021] NSWCA 299; 396 ALR 302 at [95]-[99] (Bell P, Leeming and Meagher JJA agreeing). They submit that this proposition has been upheld on numerous occasions in the Fair Work Commission, including by Full Benches, citing, amongst others, Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd t/as BHP Billiton Mitsubishi Alliance/BMA [2022] FWC 81; 311 IR 304 at [170]. The applicants contend that the factual circumstances in Kassam were quite different, Kassam being concerned with public health orders that did not involve a vaccine mandate and contained no sanction for non-compliance. 84 It is apparent that the applicants intend in the proceedings to attempt distinguish Kassam and argue that decisions of the Fair Work Commission are incorrect or inapplicable. No single or Full Court authority in this Court addresses the point. In such circumstances, I do not consider that the issue has sufficiently poor prospects to determine that it cannot proceed to trial. However, as I have noted, the pleading is inadequate and for that reason must be struck out, with liberty to re-plead. 85 Having said that, in 22 the respondents submit that the applicants make a misconceived reference in FASC to s 23 of the Australian Immunisation Register Act 2015 (Cth) with the consequence that this paragraph must be struck out without liberty to re-plead. Section 23 makes it an offence for a person to obtain protected information and to disclose or make a record of that information unless authorised by s 22. Section 26(1)(c) provides that s 23 does not apply if the making of the record or disclosure or use of the protected information is in accordance with the express or implied consent of the person to whom in the information relates. The respondents contend that s 23 has no work to do in respect of the applicants because they declined to provide any evidence relating to their vaccination status. 86 In my view, this contention raises a factual matter that, if established as a matter of fact, would demonstrate that the pleading at 22 is unsustainable. I was directed to no evidence on the subject for the purpose of the present application. However, the applicants must now re-plead. If the contention advanced by the respondents is correct, then this aspect of the pleaded case is unsustainable, and the applicants will no doubt reconsider their position.

4.3 Contraventions of s 50 of the FW Act 87 In relation to the no extra claims pleading, in [31] of the FASC the Virgin applicants plead that Virgin advanced an "extra claim" against each Virgin applicant outside the scope of the enterprise bargaining agreement, being "a claim or demand of right … that unless each applicant consented to injection with Covid-19 vaccine[s] each would be dismissed". This is said to contravene the EBA ([30]) and thereby entitle the applicants to remedies under the FW Act. 88 Virgin submits that the terms of the EBAs relied upon do not disclose a basis for this cause of action, and must be dismissed. It submits that the applicants contend (although it is not said in such terms) that the EBAs each provide in effect a code as to the relationship between employer and employee, such that neither the collective parties to it, nor the individual employees could make any claim about any matter pertaining to the employment relationship between them. This, Virgin contends, is not supported by the language of the EBA or the authorities. 89 Clause 7 of the "Virgin Australia Narrow Body Aircraft Pilots' Enterprise Agreement 2021", which the parties agree is a suitable representative sample EBA, provides: No extra claims 7.1 The parties agree that this Agreement satisfies all claims of the Parties against each other. 7.2 It is a term of this Agreement that the Parties will not support or advance any other or extra claims against each other for so long as this Agreement remains within its nominal term. 7.3 It is also a term of this Agreement that the Parties will not engage in any industrial action in support of or for the purpose of advancing any other or extra claims against each other for so long as this Agreement remains within its nominal term. (Emphasis added.) 90 Clause 3.4 provides that the agreement does not exclude State laws dealing with occupational health and safety and workers compensation. Clause 81 provides that if a catastrophic event (other than an industrial matter) occurs that is beyond Virgin's control, Virgin may be prohibited from operating to its normal route structure and may need to stand pilots down and, following consultation in accordance with the EBA, has the right to do so "for any cause for which it cannot reasonably be held responsible". 91 The Virgin applicants submit that the EBAs confirm that Virgin will not pursue any further claims relating to any matter or employment condition during the life of the agreement. They further contend that the EBA does not make it a condition of employment that Virgin can direct medical treatment nor override fundamental rights to bodily integrity, nor terminate for failure to acquiesce. They submit that clause 81 went into the EBA during the pandemic and that by implementing the policy which had the characteristic of imposing an enterprise-wide condition on employment it was, in effect, a claim against the employees. 92 In my view the claim advanced by the applicants in [31]-[33] is untenable and must be dismissed pursuant to s 31A of the FCA Act. 93 As pleaded, the contravention alleged is that the requirement to vaccinate is outside the terms of the EBA. That being so, it cannot logically be the case that such conduct is within its terms. Moreover, no term in the EBA prevents Virgin from making claims or demands outside its scope. Nor do the applicants plead that the EBA provides a comprehensive code that limits all other claims. Nor does the pleading identify how it is that the introduction of a policy amounts to a "claim"; cf Newlands Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1512; 147 IR 304 at [27] (Dowsett J). 94 Were I to assume that the FASC at [31]-[33] pleads that the EBA represents a code, in my view it nonetheless cannot sensibly be said that by clause 7 the collective bargaining agreement covers the field of action that Virgin may take vis-à-vis individual employees. Clause 7.2 prohibits "any other or extra claims", which most naturally would be understood to be claims additional to or further beyond those within the ambit of the agreement but within the contemplation of the parties pursuant to the agreement. The history of such provisions is explained by the Full Court in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 222 FCR 152 at [44]-[59], which support the view that "extra claims" clauses concern collective rights, rather than the implementation of policies directed to the health and safety of workers. 95 In Construction, Forestry, Mining & Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87; 203 FCR 371, the Full Court was concerned with a similarly worded provision in an EBA. The employer sought to implement a mandatory random drug testing procedure where the EBA contained a drug and alcohol policy which prohibited employees from working whilst under the influence of drugs and alcohol. The policy did not deal with drug and alcohol testing. It was argued that the "no extra claims clause" meant that the introduction of mandatory testing was excluded by necessary implication. Separately, cl 16 of the EBA provided that nothing in the EBA would take precedence over State occupational health and safety laws, which required the employer, so far as is reasonably practicable, to provide and maintain a safe working environment. The Full Court held: 50 The problem with the CFMEU argument is that, despite cl 50, the agreement should not be construed as dealing comprehensively with all matters relating to the employment relationship (Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 287-288). Statutory instruments (such as awards and the agreement) operate concurrently with contracts of employment, but they do not entirely supplant them (Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 418-421, 456). Most importantly, it was not the intention of the agreement to inhibit either party taking steps to improve safety at the workplace. Cl 50 is to be read subject to cl 16. 96 The facts of that case are relevantly indistinguishable. In Wagstaff the employer sought to impose a policy not dealt with permissively in the EBA. It was contended that this amounted to an "extra claim". That was rejected. The application to the present case is clear. Clause 3.4 of the present agreement does not exclude State laws dealing with occupational health and safety. In the circumstances, it is not apparent how the applicants could re-plead this cause of action to produce a cause of action that satisfies the minimum standard in s 31A of the FCA Act. 97 In relation to the Virgin consultation claim, in FASC [35] the Virgin applicants plead that Virgin failed to consult by reason of a major "alteration or revision of the EBA to the effect that unless each applicant submitted to vaccination against the Covid-19 virus he or she would be adversely treated and/or dismissed". 98 Virgin contends that the pleading proceeds upon two mistaken premises, first that Virgin proposed to or did alter or revise its enterprise agreement, and secondly that Virgin could make a unilateral change to its industrial instruments. Neither is correct. The applicants concede that the pleading is inadequate and must be re-pleaded. Leave will be granted to do so. 99 In relation to the Jetstar consultation claims, in their written submissions, the respondents' contend that the claims set out in [38]-[45] should be struck out. The applicants accept in their written submissions in response that the pleading is inadequate and seek leave to re-plead. It is unnecessary to address this aspect further. I grant liberty to re-plead.

4.4 Summary of conclusions in relation to the FASC 100 For the reasons set out above I have found that paragraphs [6]-[8], 11, (c) and (d), [13]-[17], [21]-[25], [35] and [38]-[45] of the FASC must be struck out, with liberty to re-plead. I have found that the cases of action pleaded in [18]-[20] and [31]-[33] should be dismissed pursuant to s 31A of the FCA Act. 101 I now turn to consider the extension of time application.

5.1 Introduction 102 The applicants contend that the general protections application set out in Part C of the FASC should have been filed by 3 May 2022, but it was filed eight days late on 11 May 2022, and accordingly that part of their claim requires an order allowing them to proceed in the action pursuant to s 370(a)(ii) of the FW Act. The respondents oppose the grant of leave to maintain the general protections claims on the bases that the merits of the claim as set out in the FASC are insufficient to warrant the grant of leave and the inadequacy of the explanation for the delay. They contend that, properly understood, the delay is between 19 April 2022 (when the applicants were issued with certificates pursuant to s 368 of the FW Act) and the date of filing of the FASC on 11 November 2022, which is some 207 days.

5.2 Relevant law applicable 103 Section 365 of the FW Act provides: If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. 104 Section 370 of the FW Act provides: A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) both of the following apply: (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute; (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or (b) the general protections court application includes an application for an interim injunction. Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728). Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988. 105 In Brodie-Hanns, Marshall J summarised the principles applicable to the grant of an extension of time under s 170EA of the Industrial Relations Act 1988 (Cth), which is similarly worded to s 370(a)(ii) of the FW Act, at 299-300 as follows: (1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend; (2) Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time; (3) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time; (4) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time; (5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time; and (6) Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion. 106 In Clarke v Service to Youth Council Inc [2013] FCA 1018, White J at [7] further observed: Brodie-Hanns was decided before the High Court's decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said (at 553): A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. Similarly, Toohey and Gummow JJ said (at 547): The discretion … is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. 107 These statements were adopted by Abraham J in Chou v Digital61 Pty Ltd [2021] FCA 640 at [11], [12].

5.3 A preliminary question 108 The applicants contend that only the case pleaded in [16] and [17] (adverse action by dismissal) requires leave. The respondents contend that leave is also required in respect of the case pleaded in [13]-[15] (adverse action by injuring the applicants in their employment), [18]-[20] (adverse action by discrimination) and [21]-[25] (adverse action by coercion). This dispute depends on the proper construction of s 370 in the context of the FW Act as a whole. 109 Subdivision A of Division 8 of Part 3-1 contains sections 365-371 and is entitled "Contraventions involving dismissal". 110 Section 370 requires that a person "who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute" unless the FWC has issued a certificate under s 368(3)(a) and a general protections court application is made within 14 days after the certificate is issued. 111 A "general protections court application" is defined in s 368(4) to be "an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part". Part 3-1 encompasses the general protections provisions upon which the applicants presently rely. 112 By s 365, if a person has been dismissed "and … alleges that the dismissal was in contravention" of Part 3-1, the person "may apply to the FWC for the FWC to deal with the dispute". By s 366, an application under s 365 must be made within 21 days after the dismissal took effect, or within such further period as the FWC allows. However, the FWC may only allow a further period if it is satisfied that "exceptional circumstances" apply. 113 Subdivision B of Division 8 is entitled "Other contraventions" and contains sections 372-375. 114 Section 372 provides a separate mechanism to that identified in subdivision A. It provides that if a person alleges a contravention of Part 3-1 and "the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute" the person may apply to the FWC under s 372 for the FWC to deal with the dispute. Separate regulations and provisions apply to such an application. 115 In the present case, the applicants have brought claims within Part 3-1 under: (a) s 340(1) of the FW Act for adverse action by injuring the applicants in their employment ([13]-[15]); (b) s 3401(1) for adverse action by dismissal of the applicants ([16]-[17]); (c) s 351 for discrimination ([18]-[20]); and (d) s 343 for coercion by the respondents ([21]-[26]). Is it necessary for them to obtain leave out of time under s 370 in respect of (b) only, or in respect of each of (a)-(d)? 116 In my view leave is required only in respect of (b), the adverse action for dismissal. 117 The regime of subdivision A as identified in s 365 concerns where a person has been dismissed. That person is entitled ("may apply") to the FWC to deal with "the dispute". Section 370 is confined in its operation to persons who are entitled to make an application under s 365. Only such persons may advance a general protections court application in relation to that dispute, but only if the prerequisites identified in s 370(a) or (b) are satisfied. The evident purpose is to ensure that if the aggrieved person wishes to take up the issue of their dismissal, they must do so in the first instance before the FWC in a timely fashion, and only after that process has failed to resolve the dispute may a general protections court application be advanced (again, in a timely fashion). In this context the "dispute" in s 365 and s 370 concerns only the dismissal. Other applications (concerning "a non-dismissal dispute") are addressed within the statutory regime in subdivision B. In the case of non-dismissal disputes, the requirements regarding timing of applications and the provision of a s 368 certificate do not apply. It would be odd if an applicant had a claim in respect of non-dismissal were to be kept out from their claim because it happened to be filed in the pleading as a dismissal claim.

5.4 The applicants' position 118 The applicants accept in their written submissions that their case as pleaded in [16], [17] of the FASC and orders 1(b), 5(b) and 9 of the Amended Originating Application requires leave pursuant to s 370(a)(ii) of the FW Act because the first version of their pleading in this Court was filed on 11 May 2022, some eight days late. In oral submissions they changed their position and contended that no leave is required because Glen Floyd, whose role I address further below, attempted to file the first version on 3 May 2022, which was within time and adequate for the purposes of s 370(a)(ii). 119 The applicants rely on the explanation for the delay of eight days given by Captain Murdock, if it is required. 120 In his affidavit, Captain Murdock says that Mr Floyd is an "industrial advocate" who appeared for Captain Murdock in the Fair Work Commission during the proceedings conducted there. Mr Floyd held himself out to him to be knowledgeable about employment law and competent to draft, file and appear at the Commission. Upon the issuing of the s 368 certificates, Mr Floyd offered to assist Captain Murdock and the applicants with an application in this Court. Captain Murdock and the other applicants accepted that offer. On 3 May 2022, he and the other applicants received an email from Mr Floyd advising that they were "in court" which he took to mean that the first version of the originating application had been filed. Captain Murdock deposes that at some point in September 2022, the applicants decided to engage professional legal services, which commenced on 6 October 2022. He gives evidence in [13] of his affidavit that he "was surprised" when he was informed by his solicitor that the application had been filed outside the 14 day time period for filing. In order to obviate the need for cross examination of Captain Murdock on this point, Mr Prince SC, by consent, clarified when reading the affidavit that the point of surprise was not that objection was taken to the late filing - as much had been communicated in writing to him by the solicitors acting for the respondents in July 2022 - but rather he was surprised that his own solicitors should express that view too. 121 Captain Murdock gives evidence that upon being made aware of this, he instructed his lawyers to make the present application. He concludes: I would like to advise the Court that it has been my unwavering and unequivocal intention to seek remedy for the circumstances in which my employment was terminated as I verily believe my termination was unlawful. 122 The applicants submit that delay in filing the application is explained by the conduct of Mr Floyd, who erroneously represented to the applicants that he had initiated the proceedings on time and failed to communicate that fact to Captain Murdock. They submit that Mr Floyd may have embellished his legal knowledge and capability. 123 The applicants submit that the evidence supports a finding that representative error is the explanation for the delay, citing Michael Iverson v Qantas Airways Ltd [2001] AIRC 810 at [11] (Boutlonn J, Drake DP and Deegan C), and that it would be unfair to not to accept an application made out of time as a result of errors made by the applicants' representative. The applicants also submit that the applicants have since their dismissal contested its validity, that there is no conceivable prejudice to the respondents in permitting the matter to proceed in circumstances where there has been a delay of only eight days and that in the ultimate merits of their case "will turn on the Court's acceptance of expert evidence adduced to support the particulars set out in FASOC at paragraph 8". They also submit that considerations of fairness support the grant of leave, having regard to the analogy between the present case and cases where extensions were granted where technical difficulties prevented filing from being within time for self-represented litigants.

5.5 The respondents' position 124 The respondents submit that the explanation given for the delay is unsatisfactory. The relevant delay is from 19 April 2022 until 11 November 2022, being 207 days, because the first version of the originating application filed by Mr Floyd cannot reasonably be described as an application made under division 2 of Part 4-1 of the FW Act for orders in contravention of Part 3-1 of the FW Act within s 368. They submit that the circumstances of the present case are quite different to those in Iverson because the applicants embraced the position adopted by Mr Floyd, and it is not a case where the only error was that of Mr Floyd. They submit that on 13 June 2022 they put the applicants, as well as Mr Floyd, on notice that the first version of the originating application was out of time but the applicants took no action until November 2022, expressly denying that their claim was a general protections claim. The applicants otherwise rely on their criticism of the pleading insofar as it concerns the general protections claims advanced.

5.6 Consideration 125 I reject the submission advanced orally by the applicants that they do not in fact require an extension of time at all, because Mr Floyd attempted to file the first version of the originating application on 3 May 2022, which was within time. The fact is that that version was not accepted for filing. It is not contended by the applicants that it was wrongly rejected by the Registry. The statutory requirement is that a general protections court application must be "made" within the prescribed time; s 370(a)(ii). Such an application is made to the Court when it is filed. 126 Below I address the duration of the delay, the explanation offered by Captain Murdock and the merits of the claim before turning to the exercise of discretion. 127 The first version of the originating application, filed on 11 May 2022, was described by senior counsel for the applicants as follows: So your Honour, the - it's - it is plain that the applicants were not well-represented. It's plain that the initiating application was appalling and - but there couldn't be any doubt, in my respectful submission, that somewhere, in all of those poorly articulated complaints, was a complaint that they had been treated badly because they had insisted on their rights to not be vaccinated, and that this was something that emanated from proceedings in the Fair Work Commission, ..... something to which a section 368 certificate was relevant and, indeed, the fact that we're having this argument in Murdock but not in Clayton underscores the injustice that would arise because the application was accepted in Clayton but rejected in this case. 128 The description of "appalling" is apt. It is a confusion of submission, mixed terminology and allegation. It is 27 pages in length plus an additional 20 pages of annexures, which include the s 368 certificates. However, there are several indications that it does not include an allegation that the applicants' dismissal was in contravention of Part 3-1 FW Act. 129 First, insofar as it can be discerned that relief is sought in the first version of the originating application at [63]-[69], it is couched in terms that the allegedly unlawful terminations constituted breaches of equitable or fiduciary obligations arising from the employment contract, or obligations under the provisions of various Acts. Nowhere is it apparent that the claim advanced under the regime of protections set out in Chapter 3, Part 3-1 of the FW Act. Amongst a welter of Acts and provisions, there is a reference on page 12 of the document to s 351 of the FW Act, which refers to discrimination in the industry "where Southwest Airlines, Delta, American Airlines and Boeing have refused to introduce Covid-injection policies". However, no direct allegation is made of discrimination against the respondents in that context. 130 Secondly, the first version of the originating application adopts FCR Form 80 and on its face appears as an application under s 773 of the FW Act, being an application under the unlawful termination provisions of that Act. 131 Thirdly, the attachment of the s 368 certificates issued by the FW Commission do not of themselves indicate that the claim may be characterised as a claim under Part 3-1 of the FW Act. The apparent purpose of the attachment is set out at [24] of the document, which is to identify the dates upon which the employment of the applicants was terminated. 132 Fourthly, even allowing for the fact that the pleading was not prepared by a legal practitioner, nowhere does the first version of the originating application include facts, matters and circumstances from which it may broadly be discerned that claims for dismissal in contravention of Part 3-1 are advanced. In this regard, I do not consider that the attachment of s 368 certificates is itself sufficient to warrant characterisation of the first version of the originating application as one advanced a claim under Part 3-1 of the FW Act. 133 Fifthly, this construction of the first version of the originating application is supported by statements made by Mr Floyd and also Captain Murdock. 134 The first version of the originating application was served on Virgin on 31 May 2022. By a letter dated 13 June 2022, Ms Khan wrote to Mr Floyd pointing out that the applications brought before the FW Commission by the applicants were pursuant to s 368 and that: (a) the correct form for a general protections claim ought to have been Form 79; (b) the first version of the originating application used a Form 80 which was not appropriate for such a claim; and (c) that claim was in any event eight days late having regard to the requirements of s 370(a)(ii) of FW Act. The letter referred to statements made by Mr Floyd that he was assisting the applicants on a pro bono basis, and said that it was apparent that he had "encouraged the applicants to file their claim and articulate it in the misconceived manner set out in the originating application". The letter strongly encouraged the applicants to seek independent legal advice. 135 In answer, on 20 June 2022, Captain Murdock sent an email in which he contended that Ms Khan's remarks were "highly defamatory as professionals making our own collective decision in seeking proper recourse in the judicial process … This is our case and our decision". Later, the letter repeats the view that the suggestion that Mr Floyd had misled the applicants was defamatory of "our own personal and professional decision-making capacity … all submission decisions are ours alone as self-litigating applicants". Attached to the email is a lengthy note signed by each of the applicants (including Captain Murdock), stating that as a result of the rejection by the FW Commission of their claim, they considered it "pointless" to pursue the same case in the Federal Court and so the present application is a "ground-zero claim", which I infer to mean a claim that is based on a separate legal basis to that advanced before the FW Commission, which was reliant on Part 3-1 of the FW Act. Paradoxically, the note then asserts that the dismissal of the applicants was unlawful having regard to a number of matters, including "adverse action", "coercion" and "the general protections provisions if adverse action has been taken against us". 136 The note repeats Captain Murdock's earlier sentiment that Mr Floyd is not representing the applicants where "we are all educated professionals and ALL the decisions and all the submissions are ours alone; Mr Floyd prepares the paperwork for us and we decide its merit and we make the submissions …". The also states that Mr Floyd "merely assists with administration and has NEVER given legal advice". 137 On 15 August 2022, the applicants filed two documents, the first entitled "Amended Originating Application" and the second entitled "Statement of claim", both of which were prepared on their behalf by Mr Floyd. No claim under Part 3-1 of the FW Act is advanced. 138 On 30 August 2022, Mr Floyd wrote to Ashurst on behalf of the applicants (all of whom were copied in) saying "if you actually read the sealed Statement of Claim and Originating Application you would have noted that this is NOT a case about ANY Fair Work Act breaches at all!!". Later the email says We have no claims of Breaches of the Fair Work Act that you imply and now significantly narrowed the scope of the case down solely to two pleadings: 1. Breach of Employment and EBAs and; 2. Issuance of an Unlawful directive to undertake Medical Treatment experimental Covid-Injections and consequent sacking where both are a Breach of Contract. 139 The email also says: This is NOT a proceeding or a carry on or a multiplicity of FWC proceedings and none of the following apply: • Unfair Dismissal • General Protections Dismissal • Unlawful Termination 140 This email is copied to all of the applicants. 141 I have noted above the content of the affidavit sworn by Captain Murdock. In [13] he says he was surprised to be informed by his solicitors that the originating application had been filed outside the 14 day time limit. That "surprise" is said to be because he had rested assured that the application was filed within time. It cannot have been that he was unaware that there was a live dispute about whether or not a general protections claim arising from his dismissal had been advanced within time, because on 13 June 2022 at least Virgin had informed him of their view of that fact. Indeed, in the note, he had responded to that in terms, denying that such a claim was advanced. 142 In [14] he says that upon receiving that information he immediately instructed his lawyers to make an extension application. In [15] he says: I would like to advise the Court that it has been my unwavering and unequivocal intention to seek remedy in the circumstances in which my employment was terminated, as I verily believe my termination was unlawful. 143 There is a disturbing lack of candour in this statement. Whilst no doubt it is true that Captain Murdock has sought such relief, it cannot have escaped his attention that a central question posed in the leave application is not a more general one about the unlawfulness of his termination, but rather specifically whether or not he had advanced a claim that his termination was unlawful by reason of wrongful dismissal arising from the general protections provisions of the FW Act. Indeed, by the note from the applicants on 20 June 2022 he professed that the claim was a "ground-zero" one, indicating that there was no need for him to seek an extension of time because he did not advance the general protections claim that he had run before the FW Commission. Any ambiguity that may have arisen from later references to claims in the note is dispelled by Mr Floyd's later email of 30 August 2022 in which it was unequivocally said that he did not advance any claim under the FW Act. 144 Yet the applicants instead instructed their solicitors to advance a case that it was Mr Floyd's fault that no application was filed before now. The correspondence does not support that case. Indeed, the applicants by Captain Murdock explicitly emphasised that they had each taken personal responsibility for the conduct of the proceedings and had formed independent views about it. In the face of that correspondence, it was incumbent upon the applicants to explain. 145 A party seeking the leave of the Court for an extension of time under s 370 of the FW Act must be frank as to his or her position. At the very least, one would have expected Captain Murdock to confront the content of this correspondence and explain his apparently contradictory positions. Although he says that he always maintained an intention to seek a remedy for his dismissal, how can it be said, in the face of the first version of the Originating Application and subsequent correspondence written by or approved by him, that he always maintained the position that this was by way of a general protections claim? Having regard to the matters to which I have referred, in my view that is to be doubted. I consider that at best the position is obscured by the absence of candour to which I have referred. In an application such as the present, that is unsatisfactory. 146 In my view the evidence to which I have referred indicates that this is not a case where the delay can be principally explained by the conduct of Mr Floyd. The evidence, including emails under Captain Murdock's own hand, indicates that the applicants were not captured by Mr Floyd and unwittingly left everything to him. They were conscious that he was not a legal practitioner and (as Captain Murdock said in his email of 20 June 2022 and all of the applicants made clear in their note of the same day), made their own decisions. In those circumstances, contrary to their submission, I do not accept that the evidence supports a finding that representative error is the explanation for the delay or that the case is analogous to Iverson at [11]. I am left with no cogent explanation for the delay. 147 I now turn to take into account each of the relevant factors set out in Brodie-Hanns. 148 For the reasons stated, in my view there has been an unacceptable explanation for the delay. The materials leave open the inference, which I make, that it was a deliberate decision taken by the applicants not to seek an extension because they chose to pursue a claim for dismissal that was not based on Part 3-1 of the FW Act. 149 Turning to the substantive merit of the case, I refer to Section 4 above. I have found that the applicants' pleading of their workplace rights are sufficiently poorly pleaded as to warrant striking out, but not so poorly pleaded that they must be summarily dismissed pursuant to s 31A of the FCA Act. Paragraphs [16] and [17], which rely on the identification of workplace rights, must suffer the same outcome. It is not possible at present to identify whether all of the workplace rights are sustainable, particularly those that depend upon the so-called "correlative" workplace rights. I take these matters into account. 150 Furthermore, this is the third version of a pleading that has been filed in the Murdock proceeding. This weighs against the grant of leave. 151 The question of prejudice also weighs against the grant of leave. The application for leave was brought on 13 December 2022. No case for dismissal based on Part 3-1 of the FW Act has been pleaded until the present FASC. 152 In this regard, the prejudice caused by delay may be insidious and unable to be positively proved, as the respondents submit. As McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 at 551: For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [(1972) 407 US 514 at 532] "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. (See also Herron at 253 (McHugh JA)). 153 In the balance in relation to this factor are two further points, which weigh in both directions. The first is that the respondents have been aware since shortly after their dismissal that the applicants wished to advance a claim in respect of their adverse dismissal. Given that a s 368 certificate was issued, they may also have been aware that general protections claims were in the prospect. The second is that, until articulated in a properly pleaded statement of claim, it is unclear how the case advanced against the respondents is put. 154 Weighing all of these matters together, I consider that the circumstances do not warrant the exercise of discretion in favour of the grant of leave.

6. DISJOINDER 155 The respondents submit that the applicants' case against Virgin concerns a distinctly different factual matrix to the applicants' case against Jetstar and Qantas. They submit that in any further pleading the Murdock proceedings and the Clayton proceedings should be separated into two proceedings, one being a case between former Virgin employees and Virgin and the other between former employees of Jetstar and Jetstar. In the course of argument, the applicants did not oppose that course. In my view it is appropriate for this separation to be maintained. The two actions can then be managed together and, should the conditions suggest that it is desirable to do so, the two can take divergent paths in terms of directions and hearing.

7. DISMISSAL OF PROCEEDINGS BROUGHT BY MR ATSAS 156 The seventh applicant in the Murdock action, Terry Atsas, is not represented in the proceedings and has not appeared in recent hearings before the Court or made any submissions, despite being notified of the hearings. Virgin seeks orders dismissing Mr Atsas' claim for want of prosecution. 157 On 30 January 2023, I made orders that Mr Atsas notify the Court by email on or before 31 March 2023 whether he intends to continue in the proceedings and what steps he intends to take in support of any continuation. These orders were sent to Mr Atsas by email, along with a note in the cover email that said "if you do not comply with the attached order or fail to appear on the next occasion then your involvement in the proceedings may be struck out". The Court has not received any communication from Mr Atsas within the specified time frame. 158 Mr Atsas is in default pursuant to FCR r 5.22 by failing to comply with an order of the Court, failing to attend hearings in the proceeding, and failing to prosecute the proceeding with due diligence. 159 On that basis, I will make an order under FCR r 1.32 dismissing the proceedings as against Mr Atsas. However, I will grant liberty to Mr Atsas to make an application, supported by an affidavit within 14 days, seeking leave set aside this order should he wish to be heard on the matter. I will direct that Virgin serve a copy of the order on Mr Atsas.

8. CONCLUSION AND DISPOSITION 160 I have concluded that numerous paragraphs of the FASC must be struck out, but that the applicants may have liberty to re-plead. The number of paragraphs that require attention is such that it is appropriate to direct that the entirety of the FASC be struck out, with liberty to the applicants to re-plead, with the exception of the causes of action pleaded in [18]-[20] and [31]-[33] which I have determined must be dismissed pursuant to s 31A of the FCA Act, with no liberty to re-plead. Any draft amended pleading must be served on the respondents within 14 days of orders being made. 161 Separately, I have concluded that the applicants should not be granted the extension sought under s 370 of the FW Act. The consequence is that the cause of action pleaded in [16] and [17] of the FASC may not be pursued. 162 I have also concluded that the case brought in the Murdock action should be separated into two actions, one brought against Virgin and the other against Jetstar and Qantas (should the applicants pursue their case against Qantas). I grant leave for the re-pleaded case to be filed as two separate actions. No additional filing fee should be required, and I will make an order to that effect. 163 Finally the claim brought by Mr Atsas must be dismissed. 164 I will direct the parties to confer and supply agreed draft short minutes of order giving effect to these reasons by 12 June 2023. I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

SCHEDULE OF PARTIES NSD 349 of 2022

Applicants Sixth Applicant: KARA LE Seventh Applicant: TERRY ATSAS Eighth Applicant: SKYE FELLOWS Ninth Applicant: BIANCE KRISTY TANNOUS Tenth Applicant: ASHLEA-MAREE WILSON Eleventh Applicant: EBONY MARCZENKO Twelfth Applicant: CATHERINE VIRDO