Rizkalla v CDC Geelong Pty Ltd [2026] FCA 249

1. On 7 February 2025, orders were made by a Registrar requiring the applicant to file a concise statement and the respondent to file a concise response.
2. The applicant filed a five-page concise statement on 25 February 2025. The concise statement was divided into sections addressing the important facts giving rise to the claim, the relief sought, the primary legal grounds for that relief, and the alleged harm suffered by the applicant.
3. The applicant's claims as articulated in the concise statement arose from alleged retaliation by the respondents for the applicant's workplace advocacy, through which he had raised concerns about unsafe rostering and fatigue management. The applicant alleged that these matters had escalated in late-October 2024, when he was denied an opportunity to take a meal break after attending a union meeting, and was not reimbursed his travel expenses for the purposes of attending that meeting. The applicant alleged that he was subsequently stood down and eventually dismissed for "serious misconduct".
4. The applicant's dismissal followed an investigation by CDC Geelong into a complaint that had been made against him in relation to unsafe driving. The applicant stated that the respondents had inconsistently applied disciplinary proceedings, in that "[e]mployees who committed genuine serious safety breaches received only warnings, while [he] was terminated for safely manoeuvring his vehicle to avoid an obstruction in traffic", which demonstrated "that his dismissal was not based on misconduct but was instead an act of unlawful retaliation".
5. The applicant claimed compensation, declaratory relief, injunctions and pecuniary penalties under ss 545 and 546 of the FW Act. In setting out the legal grounds for the relief sought, the concise statement identified ss 340, 341, 346, 361 and 550 of the FW Act, together with certain clauses of the applicable Enterprise Agreement and provisions of the Heavy Vehicle National Law (Victoria) (which is applied by the Heavy Vehicle National Law Application Act 2013 (Vic)) and the Occupational Health and Safety Act 2004 (Vic) (OH&S Act), each of which was said to give rise to protected workplace rights under s 341 of the FW Act.
6. In their concise response filed on 4 April 2025, the respondents complained of a lack of precision in the applicant's concise statement, which was said to be "incapable of properly and fairly conveying the case put against the Respondents and otherwise providing a basis upon which the matter can proceed". The respondents claimed that, as a consequence, they were "unable to fairly and comprehensively respond to the Concise Statement". Nevertheless, in order to provide "context", the concise response stated that CDC Geelong had received a complaint on 25 October 2024 to the effect that the applicant had been driving in an unsafe manner, and that the applicant was stood down on full pay while an investigation was conducted into the incident. The concise response stated that CDC Geelong determined that the applicant had driven in an unsafe manner in breach of employment policies, amounting to serious misconduct, and that the applicant's employment was terminated on that basis and for that reason only.
7. In his reply filed on 14 April 2025, the applicant rejected any suggestion that the concise statement was deficient or incapable of conveying his case. The applicant denied the allegations of unsafe driving on 25 October 2024. The applicant stated that his "manoeuvre was a low-speed, controlled turn executed to avoid a developing hazard, undertaken cautiously and in full control", which had not caused any damage or injury. He further stated that he had been "operating under foreseeable and avoidable fatigue caused by the Respondents' unlawful denial of a lawful fatigue break", and that "other drivers who engaged in genuinely unsafe driving behaviours were not subjected to such severe disciplinary measures". The applicant alleged that any findings of misconduct were "procedurally flawed, unsupported by credible evidence, and grossly disproportionate".
8. The applicant maintained that his dismissal "was not based on any actual misconduct but was a retaliatory measure for exercising his workplace rights", by which he had raised "serious concerns about breaches of workplace laws, including unsafe rostering and fatigue management, and advising of his intention to escalate these matters to the Fair Work Commission". The applicant alleged that a general manager of CDC Geelong had previously threatened on 15 December 2022 to "get rid of" him if he continued raising concerns about fatigue issues, and that this evidenced "the Respondents' long-standing retaliatory intent towards the Applicant for raising workplace safety concerns and exercising workplace rights".

1. When the matter was listed before a Judicial Registrar on 9 May 2025, the respondents' solicitor sought orders for the exchange of pleadings. The Registrar observed that the applicant was a self-represented litigant, and queried whether he was likely to provide greater detail or whether the respondents would be in any better position after a statement of claim was filed. Nevertheless, the Registrar appeared to accept that the concise statement was "poorly formulated" and that respondents faced difficulties in responding to the applicant's case.
2. Accordingly, orders were made by the Registrar by which the parties were required to file pleadings. The notes to the Registrar's orders reproduced the requirements governing the content of pleadings under r 16.02 of the Rules, and strongly recommended that the applicant obtain legal advice, referring to potential avenues for pro bono legal assistance.
3. In the course of the directions hearing, the Registrar stated that the applicant was required to formulate his claim "in a way that is comprehensible under the general protections provisions of the [FW Act]". After the applicant endeavoured to articulate the essential facts giving rise to his claims, the Registrar said:

You may need to make the decision that you're just going to bring an adverse action claim. If that's it, it's pretty simple. What's your workplace rights? How has the respondent or respondents engaged in adverse action against you? It's all you need to do. You can set it down on a piece of paper, and just identify your workplace rights, and say how the adverse action was taken.

The reference to the applicant needing to decide "that you're just going to bring an adverse action claim" was made in a context in which his originating application had at that stage contained a claim that the applicant was "unlawfully dismissed", which appeared on its face to be an attempt invoke the unfair dismissal provisions under Part 3-2 of the FW Act. Such a claim would not have been within the jurisdiction of this Court.

1. On 26 May 2025, the applicant filed an amended originating application, in which he restructured and elaborated the details of his claims in relation to the alleged contraventions by the respondents of civil penalty provisions of the FW Act, including in particular ss 340, 343, and 346.

(a) The "[d]etails of claim" set out in the amended originating application were divided into numbered paragraphs, in which the applicant claimed that the respondents had contravened specified provisions of the FW Act. The applicant claimed that he had exercised workplace rights and engaged in protected industrial activity, as a result of which the respondents had taken adverse action against him.

(b) Key events leading to the applicant's dismissal were set out, including:

(i) his raising of concerns about rostering issues on 22 October 2024;

(ii) his attendance at a union meeting on 25 October 2024, and associated issues concerning his rostered shift;

(iii) his suspension on 28 October 2024;

(iv) his lodgement of a "grievance" on 28 October 2024;

(v) a meeting held on 30 October 2024 in relation to an investigation of allegations made against him;

(vi) a "show cause meeting" held on 14 November 2024; and

(vii) his summary dismissal on 15 November 2024.

(c) The application also referred to an alleged "repeated pattern of managerial threats and disregard for workplace rights", and in particular an allegation that, in December 2022, a manager had threatened retaliation against him for raising safety concerns.

(d) The applicant claimed that he faced discriminatory treatment compared to other employees who had been more treated more leniently for safety breaches. He claimed that this demonstrated that the respondents' actions "were not genuinely about safety, but were instead a pretext for retaliation against his protected union activities".

(e) While the application claimed that the respondents had breached obligations under the Heavy Vehicle National Law and the OH&S Act, it was made clear that the applicant relied on those matters only "as context for adverse action and discrimination claims under the FW Act", and not as separate claims.

(f) The application identified the provisions of the FW Act on which he relied to establish his claims. Among other things, he sought declarations that the respondents had contravened ss 45, 50, 117, 340, 343, 346 and 351 of the FW Act. The additional references to ss 45, 50 and 117 of the FW Act appear to have been intended to raise claims in relation to alleged breaches of the terms and conditions of the applicant's employment as contained in the applicable award or enterprise agreement.

(g) The application set out the relief sought by the applicant under ss 545, 546, 547 and 570 of the FW Act, together with certain "ancillary relief".

(h) The application was accompanied by a number of documents. In addition to a copy of the certificate from the Fair Work Commission under s 368(3) of the FW Act, the application included a copy of an email dated 22 October 2024 in which the applicant raised concerns about the impact of proposed roster changes on driver safety, scheduling and wellbeing; emails regarding a union meeting scheduled on 25 October 2024; a letter dated 28 October 2024 from CDC Geelong giving notice to the applicant that he had been stood down pending an investigation of a complaint regarding unsafe driving; and a letter dated 15 November 2024 from CDC Geelong advising the applicant of the outcome of its investigation, including a finding of "serious misconduct" and a decision to terminate the applicant's employment summarily and with immediate effect.

1. Although the amended originating application was not intended to discharge the requirement to file and serve a statement of claim, it nevertheless appears to have been prepared in the light of the Registrar's observations at the directions hearing on 9 May 2025, along with the notes to the orders made on that date.
2. On 3 June 2025, the Registrar held a further directions hearing, at which the applicant was granted leave to file and rely on the amended originating application, and was given an extension of time to file and serve a statement of claim. In the course of this hearing, the applicant explained that his intention in preparing the amended originating application "was to ensure that there was no doubt or confusion for the respondents or the Court about the precise legal basis of my claim", and stated that "[h]istorically, my claim has always been about adverse action and retaliation under the general protection provision[s] of the [FW Act]". The applicant submitted that the amendments "also reflect the factual history of my claim".
3. The respondents' legal representative submitted that it was "a matter for the Court" whether to accept the amended originating application for filing, stating that "it's not really, in a true sense, an originating application", but rather "more of a combination of a recitation of facts and submissions and things of that nature". The respondents did not take a view on a suggestion made by the Registrar that the orders could "set out in a bit of detail how [the applicant's] statement of claim should be formulated". The respondents' legal representative submitted that "[t]he most important thing from our perspective is that it's a statement of claim that we can fairly respond to and it sets out all the material facts relied upon".
4. The orders made on 3 June 2025 relevantly instructed the applicant as to the contents of the statement of claim, as follows:

Such Statement of Claim shall address the following matters:

(a) for each and every alleged contravention of the Fair Work Act 2009 (Cth) (the Fair Work Act) or any other legislation or law, which section(s) the Applicant alleges the Respondent has contravened;

(b) for each and every alleged contravention of a law, how the alleged facts give rise to a breach or contravention of the law and section referred to in (a) above;

(c) for each and every alleged occurrence of 'adverse action' within the meaning of Part 3.1 of the Fair Work Act, the nature of the adverse action and particulars of how and when the adverse action occurred;

(d) for each and every 'workplace right' in respect of which any adverse action was alleged to be taken (within the meaning of Part 3.1 of the Fair Work Act), the nature of the 'workplace right';

(e) for each and every protected attribute in respect of which any adverse action was alleged to be taken (within the meaning of Division 5 of Part 3.1 of the Fair Work Act), the nature of the protected attribute;

(f) for each and every alleged contravention of a civil remedy provision, details of which individual respondent was 'involved in' the relevant contravention and how that individual was involved in the contravention (as described in section 550(2) of the Fair Work Act);

(g) the particulars of loss and damage claimed by the Applicant and how that loss or damage is calculated;

(h) if compensation is sought, the amount of compensation and how it is calculated; and

(i) if a penalty is sought, the amount of the penalty and how it is calculated.

1. On 16 June 2025, the applicant filed a statement of claim. The pleading was lengthy and detailed, comprising 46 pages (including schedules) which were divided into sections under the following headings:

A. The Parties;

B. Non-Party Personnel;

C. Jurisdiction;

D. Legal Framework Governing Employment;

E. Factual Allegations (including a sub-heading in relation to the "Driving Incident on 25 October 2024";

F. Basis of Liability of Respondents;

G.1. First Respondent - CDC Geelong Pty Ltd;

G.2. Second Respondent - Mr Amandeep Singh;

G.3 Third Respondent - Mr Paul Giusti;

G.4 Fourth Respondent - Mr Craig Muller;

H. Adverse Action and Retaliation - October 2024;

H.1. Protected Complaint and Escalation Warning;

H.2 Union Notification and Roster Conflict;

H.3 Reimbursement Grievance and Stand Down;

H.4 Investigation and Procedural Unfairness;

H.5 Show-Cause and Termination;

H.6 Prior Threats and Retaliation (2022-2023);

H.7 Disparate Disciplinary Treatment;

H.8 Adverse Action by Mr Amandeep Singh;

H.9. Coercion and Retaliation by Mr Paul Giusti;

H.10 Coercion and Adverse Action by Mr Craig Muller;

H.11 Comparator Employees and Disparate Treatment;

I. Contraventions of the Fair Work Act 2009 (Cth);

I.1 Contravention of Section 340 - Adverse Action for Exercising Workplace Rights;

I.2 Contravention of Section 346 - Industrial Activity;

I.3 Contraventions of Sections 340, 343, and 346 - Termination on Pretextual Grounds and Coercion;

I.3.1 Coercion by Mr Amandeep Singh;

I.3.2 Coercion by Mr Paul Giusti;

I.3.3 Coercion by Mr Craig Muller;

I.4 Contravention of Section 351 - Age Discrimination;

I.5. Contravention of Section 50 - Breach of Enterprise Agreement;

I.6. Contravention of Section 44 - National Employment Standards;

I.7. Contravention of Section 323 - Payment of Wages;

J. Loss and Damage;

J.2 Non-Economic Loss;

J.3 Summary of Economic Loss and Damage;

K. Relief Sought;

Schedule 1 - Relevant Clauses of the CDC Victoria Enterprise Agreement 2022-2025;

Schedule 2 - Particularised Events Supporting Contraventions;

Schedule 3 - Quantified Loss and Unpaid Entitlements;

Schedule 4 - Summary of Contraventions and Civil Penalties Sought;

Schedule 5 - Comparator Employees;

Schedule 6 - Comparator Employees.

1. On 14 July 2025, the respondents filed their interlocutory application to strike out the statement of claim pursuant to r 16.21 of the Rules. The application was supported by an affidavit of Mr Brad Popple, the respondents' solicitor, affirmed on 14 July 2025.
2. On 15 August 2025, the respondents filed and served an outline of submissions on the interlocutory application. In those submissions, the respondents contended that the statement of claim paid "scant regard to the rules of pleading" and suffered from "a number of significant defects". The respondents submitted that the statement of claim relied on a "prolix narrative of slights" alleged to have been suffered by the applicant, and continued:

That prolix narrative in the main comprises matters of evidence rather than material fact, bearing the hallmarks of the "broad inquiry" which this Court has counselled against. Key allegations of material fact (including the accessorial liability case against the individual Respondents) are either omitted, generalised to the point of embarrassment, or else aggregated in an undifferentiated way. It omits particulars necessary to establish alleged conditions of mind and unconscionable conduct.

(Footnote omitted.)

1. The respondents' outline of submissions proceeded to set out a "selection" of the defects in the statement of claim. These included that: the statement of claim was "replete with chronological matters of evidence as opposed to material facts"; alleged contraventions of civil penalty provisions had been pleaded "in a rolled up and aggregated way, rendering the allegations incapable of precise response"; it was unclear whether certain matters were included as material facts (to which the respondents were required to plead) or particulars; necessary particulars of certain allegations had not been included, including in relation to conditions of mind within r 16.43 of the Rules; there was a failure to plead material facts of each alleged contravention; and there was a failure to plead material facts and particulars in relation to the involvement of the second to fourth respondents in the alleged contraventions.
2. On 11 September 2025, the applicant filed the ASOC pursuant to r 16.51(1) of the Rules, presumably in an attempt to meet the respondents' criticisms in relation to the adequacy of the statement of claim. However, as discussed below, the applicant's attempt to rectify perceived defects in the statement of claim has arguably compounded the problems faced by the respondents in filing a defence.
3. The ASOC extends to 79 pages, and is organised under similar (but not identical) headings to the original statement of claim. There are sections dealing with parties, other personnel, material facts, jurisdiction, legal framework and instruments, alleged contraventions of the FW Act (ss 44, 50, 323, 340, 343, 345, 346, 351) by CDC Geelong, accessorial liability of the second to fourth respondents under s 550 of the FW Act, loss and damage, and relief. In addition to schedules setting out relevant clauses of the applicable Enterprise Agreement and details of unpaid wages and entitlements, Schedule C of the ASOC contains a detailed list of numbered "Particulars", which are cross-referenced and incorporated in numerous paragraphs within the body of the ASOC. The structure and content of the ASOC is discussed further below.
4. On 21 October 2025, the respondents filed an amended interlocutory application, seeking an order to strike out the ASOC.
5. For completeness, I note that the applicant complained about the form of certain documents filed by the respondents, including that the affidavit of Mr Popple filed in support of the interlocutory application contained an erroneous reference to having been filed on behalf of the "applicant" (albeit accompanied by a reference to the respondents' solicitors). Further, Mr Popple stated in the affidavit that it was made in support of the interlocutory application by CDC Geelong, as opposed to all respondents. The applicant also drew attention to the solicitor's certificate appended to the concise response, in which the respondents' solicitor had erroneously stated that he was certifying "the statement of claim filed on behalf of the Applicant". It is possible that the reference to "The Applicant" in the footer to the Popple affidavit can be explained on the basis that CDC Geelong was an applicant on the interlocutory application. The error in the wording of the certificate in the concise response appears to be no more than an oversight, which has been previously ventilated by the applicant in directions hearings before the Registrar. In any event, the concise response has since been overtaken by the orders requiring pleadings to be filed. The matters raised by the applicant are inconsequential and do not have any bearing on the disposition of the interlocutory application.
6. The applicant further noted that the respondents' interlocutory application had been filed on the last day on which their defence was due to be filed. This is also of no consequence. In particular, the respondents are not in default of order 3 of the orders made by the Registrar on 3 June 2025, which required a defence to be filed by 14 July 2025, nor is the filing of a defence governed by r 16.32 of the Rules. These matters were raised before the Registrar on 31 July 2025, who vacated the previous orders requiring the filing of a defence and a reply, and fixed a timetable for the hearing of the respondents' interlocutory application. In making those orders, the Registrar observed that "effectively, the filing of a defence is on hold until the statement of claim issues are ironed out". In such circumstances, it was necessarily implicit in the orders that the respondents would not be required to file a defence pending the determination of their interlocutory application to strike out the statement of claim.

(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:

(a) contains scandalous material; or

(b) contains frivolous or vexatious material; or

(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; or

(f) is otherwise an abuse of the process of the Court.

1. The respondents submitted that the applicant's statement of claim suffered from a number of "defects", including failures to comply with requirements governing the content of pleadings under rr 16.02, 16.41, 16.42 and 16.43 of the Rules. More generally, this was said to result in a pleading to which no sensible defence could be drawn. The respondents submitted that the ASOC failed to address these defects and exacerbated the difficulties faced by the respondents. While the respondents did not identify the precise ground within r 16.21 on which they sought to strike out the ASOC, their submissions appeared to be directed primarily at one or more of r 16.21(1)(c)-(f), namely, that the pleading was evasive or ambiguous, was likely to cause prejudice, embarrassment or delay in the proceeding, failed to disclose a reasonable cause of action, or was otherwise an abuse of process of the Court: see generally KTC v David [2022] FCAFC 60 at [113]-[125] (Wigney J).
2. As well as defining the issues in dispute between the parties, a function of pleadings is to give notice to opposing parties of the case they have to meet, so as to ensure procedural fairness: Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ); Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13] (Greenwood, McKerracher and Reeves JJ); Banque Commerciale S.A., en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J). Nevertheless, pleadings are a means to the attainment of justice between the parties, and not an end in themselves: Banque Commerciale S.A. at 293 (Dawson J); see also Gunawardena v Boeing Aerostructures Australia Pty Ltd [2024] FCA 1206 at [10] (Wheelahan J). The role of pleadings should therefore be viewed in the context of contemporary case management techniques, including the full range of processes by which the issues may be defined prior to trial and the parties may be apprised of the case that is advanced against them: see Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 at [4]-[7] (Martin CJ); Gall v Domino's Pizza Enterprises Ltd (No 2) [2021] FCA 345; 391 ALR 675 at [19]-[20] (Murphy J).
3. As Martin CJ stated in Barclay Mowlem Construction at [7]:

[P]rovided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.

As a consequence, disputes over pleadings should generally be confined to those cases "where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial": Barclay Mowlem Construction at [8] (Martin CJ).

1. In this context, it remains necessary for the parties to act in a way that is consistent with the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1976 (Cth), ss 37M, 37N; see Gunawardena at [5], [11] (Wheelahan J). The Court must exercise its powers in the way that best promotes the overarching purpose (s 37M(3)), and may give directions about the practice and procedure to be followed in relation to the proceeding (s 37P(2), (3)).
2. Rule 16.02(1)(d) of the Rules requires a pleading to state the material facts on which a party relies, but not the evidence by which those facts are to be proved. The material facts that must be pleaded are those necessary to give the opposing party fair notice of the case to be made against that party at the trial, including where failure to plead the fact may take another party by surprise: rr 16.02(1)(d), 16.03(1)(b). The material facts usually comprise or include the facts that are necessary to establish the elements of the cause of action or defence: see Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348 at [21] (Logan and Katzmann JJ).
3. The "necessary particulars" of each matter pleaded must be provided, whether stated in the pleading or in an accompanying document: r 16.41(1). This includes particulars of any facts on which the party relies to allege fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence (r 16.42), and particulars of any facts on which the party relies to allege a "condition of mind" such as knowledge or particulars of the facts and circumstances from which another party ought to have acquired knowledge of something (r 16.43).
4. The distinctions between material facts, particulars and evidence are not always easily drawn: see, e.g., Bruce v Odhams Press Limited [1936] 1 KB 697 at 711-713 (Scott J), in relation to the potential overlap between material facts and particulars. However, while particulars are used "to fill in the picture" of a party's cause of action or defence (ibid.), they cannot cure gaps in the material facts alleged to establish that cause of action or defence. On the other hand, the usual remedy for any failure to provide adequate particulars is not to strike out the pleading, but rather an application under r 16.45 for an order that further and better particulars be provided.
5. It is often said that the discretionary power to strike out a pleading should be exercised sparingly and only in clear cases: see e.g. Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80; (1979) 28 ALR 191 at 193 (Bowen CJ); Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226 at 236 (Beaumont J); Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750 at [10] (O'Loughlin J); Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [41]-[43] (Perram, Dodds-Streeton and Griffiths JJ); Leach v Burston [2022] FCA 87 at [36]-[38] (Halley J). In so far as such statements are directed to circumstances in which the pleading fails to disclose a reasonable cause of action and cannot be cured by any reasonable amendment, such an approach is informed by considerations similar to those applicable to summary judgment. More generally, the power to strike out all or part of a pleading can be exercised "to ensure compliance with the rules of pleading", including "where the pleading is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VicRp 7; [1968] VR 62 at 70 (Winneke CJ, Adam and Gowans JJ). Nevertheless, unless it is clear that the party has no reasonable cause of action or defence, they will generally be given an opportunity to file an amended pleading.
6. Where the relief sought by an applicant includes the imposition of pecuniary penalties in respect of alleged contraventions of civil penalty provisions, "it is especially important that those accused of a contravention know with some precision the case to be made against them": Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [63] (Logan, Bromberg and Katzmann JJ); Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 at [50] (Tracey, Reeves and Bromwich JJ); Sabapathy at [39] (Logan and Katzmann JJ). This includes cases in which the applicant is in a position to take advantage of the presumption in s 361 of the FW Act in relation to the reason for which or the intent with which alleged actions were taken: Hall at [11]-[19]; Weber v Thomas Foods International (Stawell) Pty Ltd [2025] FCA 1583 at [4] (Wheelahan J).
7. The respondent's outline of submissions in support of its interlocutory application was directed to claimed defects in the applicant's original statement of claim, which has since been superseded by the ASOC. Nevertheless, the respondent submitted in its written reply that the ASOC had failed to address those claimed defects, which continued to apply "mutatis mutandis to corresponding paragraphs of the ASOC" (to the extent that the respondents were able to identify such paragraphs).
8. As mentioned above (at [27]), the respondents argued that the statement of claim omitted key allegations of material fact, including in relation to accessorial liability, or that such allegations were impermissibly made in a "generalised" or "aggregated" manner. Further, they submitted there was a failure to include necessary particulars in relation to alleged conditions of mind and unconscionable conduct. It was submitted that pleading to the statement of claim would give rise to substantial inefficiency and cost in a manner at odds with the overarching purpose in s 37M of the FCA Act.
9. The respondents' written submissions canvassed a range of specific pleading defects.

(a) The respondents pointed to a number of examples of paragraphs in the statement of claim in which contraventions of civil penalty provisions were alleged against CDC Geelong in a "rolled-up and aggregated way", rendering those allegations incapable of precise response.

(b) The respondents submitted that the pleading of alleged accessorial liability against the second to fourth respondents was similarly defective, and failed to allege or particularise the material facts in support of their alleged involvement in contraventions of the FW Act by CDC Geelong, particularly in relation to their knowledge that the applicant had exercised workplace rights or engaged in protected industrial activity and the conduct they were alleged to have engaged in, authorised or failed to prevent.

(c) The specific examples included the pleading of alleged breaches of "one or more" of a combination of instruments which were alleged to form "the legal and industrial framework regulating the Applicant's employment"; allegations that the applicant was treated less favourably due to his age without pleading the characteristics of a "similarly situated comparator"; unparticularised allegations that the applicant had raised safety and fatigue-related concerns with management; unparticularised allegations of failure to comply with provisions of the applicable enterprise agreement; allegations of coercion in contravention of s 343 of the FW Act without pleading the elements necessary to establish that cause of action; allegations of multiple "distinct contraventions" of civil remedy provisions, without a proper identification of which conduct is alleged to constitute or give rise to which contravention (or element thereof); unparticularised allegations in relation to the state of mind of CDC Geelong; failure to plead material facts sufficient to understand each instance of alleged adverse action, including which alleged exercises of a workplace right are alleged to have provided the reason for which alleged adverse action; pleading "an array of conduct" in support of alleged breaches of procedural fairness, adverse action, and coercion; failure to identify the workplace rights that were alleged to have been exercised by the applicant prior to his dismissal; allegations of disparate treatment compared to other employees in order to support an inference that his dismissal was influenced by his exercise of workplace rights, without identifying which particular exercises of workplace rights occasioned that influence; and unparticularised allegations of bad faith against "one or more" of the respondents.

1. In response, the applicant submitted that the subsequently filed ASOC answered the respondents' criticisms of the statement of claim. Among other things, the applicant submitted that length did not itself render the pleading defective. He submitted that the ASOC was structured by topic, set out material facts chronologically, identified the statutory provisions relied on, and referred to particulars "mapping" the alleged conduct to the elements of the alleged contraventions. The applicant argued that "[r]eferences to dates, persons, meetings, communications, and documents are not evidence but material facts with particulars".
2. The criticisms levelled by the respondents at the applicant's attempts to plead his claims raise a suite of complaints both in relation to what is included, and what is not included, in the ASOC. On the one hand, the respondents submit that the ASOC inappropriately encompasses matters of evidence, or fails to distinguish material facts from particulars of such facts. On the other hand, the respondents submit that the ASOC fails to plead material facts necessary to establish alleged contraventions, or fails to include sufficient particulars of alleged facts. The respondents also argue that allegations of multiple contraventions are pleaded in a "rolled-up" or "aggregated" manner, rendering it difficult or even impossible for them to plead their case in response.
3. As a general observation, the central elements of the applicant's case were tolerably clear from his concise statement together with the amended originating application. The applicant alleges that he was investigated, disciplined and dismissed for a prohibited reason, principally related to the exercise by him of workplace rights by raising concerns about workplace safety issues, or because he had participated in union activities, or because of his age. The respondents dispute this, and say that the reason for the applicant's dismissal was an unsafe driving incident on 25 October 2024 and associated breaches of company policies, as a result of which the applicant was dismissed due to findings of serious misconduct. The applicant replies that the misconduct investigation was a pretence that obscured the real reason for his dismissal, namely, because he had or had exercised workplace rights. The field of factual controversy in this regard is likely to focus on events in a relatively confined period between late-October and mid-November 2024, albeit potentially against the background history of the applicant's employment by the CDC Geelong (including specific past incidents involving alleged threats of dismissal or other retaliatory conduct).
4. Although the applicant's concise statement included some peripheral matters, such as a claim of unfair dismissal which is no longer pressed in these proceedings, it nevertheless identified the alleged contraventions of the FW Act and set out a narrative of the important facts giving rise to the claim. The amended originating application further articulated the alleged contraventions, including by addressing the alleged adverse action, workplace rights and harm to which the applicant's claims are directed.
5. However, as had been anticipated by the Registrar, the statement of claim subsequently filed by the applicant was not quite as clear and succinct. Pleadings having been ordered, the respondents complained that the statement of claim did not comply with the Rules. As they had foreshadowed at the directions hearing before the Registrar, it was perhaps inevitable that the respondents would bring an application to strike out the applicant's statement of claim. The applicant, who remained without legal representation, attempted to meet the respondents' concerns by filing the ASOC. Unfortunately, this seems to have exacerbated some of the problems from a pleading viewpoint, increasing the length of the pleading and rendering it cumbersome to navigate and difficult to identify and respond to the allegations on which the claims are based.
6. In so far as this situation has resulted from the respondents' insistence on being provided with a formal pleading in circumstances where the applicant was not legally represented, one might be forgiven for viewing this as a case of "be careful what you wish for". Nevertheless, the respondents are entitled to proper notice of the case that they will have to meet, and the matter has progressed beyond the juncture at which it might have been considered amenable to the concise statement method, at least with greater cooperation from the respondents.
7. Although made in a different context, I agree with the observations recently made by Lee J in Australian Securities and Investments Commission v Bekier (Liability Judgment) [2026] FCA 196 at [76], [79], [82]:

It is sometimes difficult in a complex case to avoid assertions of insufficient specificity while avoiding the vice of eliding the distinction between material facts and particulars and unnecessarily confining the case being advanced by making allegations that are too granular. Sometimes frustration is faced by pleaders when the same respondents who demand further particularisation then say an applicant has confined their case when the substance or core of the case sought to be advanced is tolerably clear to everyone.

...

As I observed in Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 (at [84]), an abundance of authority confirms the need for precision in pleadings, particularly in cases involving allegations of contravention of a civil penalty provision. Indeed, a fair trial of allegations of contravention of law requires "the party making those allegations ... to identify the case which it seeks to make and to do that clearly and distinctly": Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 (at 502 [25] per French CJ, Gummow, Hayne and Kiefel JJ); see also Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (at 368-9 [49]-[50] per Tracey, Reeves and Bromwich JJ).

...

Ultimately, pleadings are a means to an end and not an end in themselves. Litigation, including regulatory litigation, is not a game of "gotcha". What has informed my approach is recognising the need to define the issues in dispute with sufficient clarity to enable the respondents to understand the case while bearing in mind the basal function of pleadings is to ensure the requirement of procedural fairness that a party should have the opportunity of meeting the case against them: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 (at 286 per Mason CJ and Gaudron J); Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 (at 664 per Murphy, Brennan, Wilson, Deane and Dawson JJ).

1. In relation to form, the ASOC contains 189 paragraphs and runs to 79 pages, over half of which comprises a schedule setting out 49 separate enumerated "particulars", each of which has multiple sub-paragraphs. In most of the substantive paragraphs of the ASOC, one or more of these particulars is cross-referenced, either as part of or in support of the relevant allegation. While some of the particulars comprise details of facts alleged in the ASOC (such as dates or times, places, amounts, and names), they also contain allegations of additional facts that might be regarded as material to the causes of action that the applicant seeks to establish. The manner in which the particulars are cross-referenced in the ASOC is apt to confuse, rather than clarify the nature and details of the allegations on which the applicant relies.
2. Some parts of the ASOC are less problematic than others. Part A deals with parties in a relatively conventional fashion, and Part B identifies key individuals who are not joined as parties. Nevertheless, some potential problems arising from the structure of the ASOC are apparent even at this point in the pleading. Paragraph 7, which deals with the individual respondents who are alleged to have been involved in the contraventions by CDC Geelong, has embedded cross-references to particulars set out in Schedule C:

[7] Each of the Second Respondent, Third Respondent and Fourth Respondent, from the commencement of their respective employment, engaged in, assisted with, or approved conduct that forms part of the alleged contraventions by the First Respondent (see Particulars 34-35, cross-referenced throughout Particulars 1-49 in Schedule C). The Applicant will rely on section 550 of the Fair Work Act 2009 (Cth) in support of accessorial liability.

(Emphasis in original.)

Particulars 34 and 35, which are respectively headed "Assessorial liability mapping (section 550)" and "Employer attribution (section 793)", identify a range of conduct by reference to other specified particulars contained elsewhere in Schedule C. To the extent that the particulars encompass facts on which the applicant relies to establish his claims to relief, they should be properly pleaded as material facts and not buried in a schedule of particulars.

1. In relation to the "other personnel" identified in Part B, apart from persons whose conduct is alleged to have formed "part of the impugned decision-making and adverse action relied on as accessorial liability ... and/or attribution to [CDC Geelong]", the individuals are said to be "referred to only for factual context and background".
2. Part C pleads key factual allegations in a chronological narrative fashion. This part of the pleading is relatively orthodox, albeit that many paragraphs incorporate cross-references to particulars in Schedule C which identify dates, places, facts and alleged contraventions in relation to the relevant conduct or event.
3. Part D addresses "jurisdiction", and Part E identifies the "legal and industrial instruments [which] governed the Applicant's employment". The latter includes a section headed "Onus and Presumption", which relies on the presumption in s 361 of the FW Act in general terms, namely that "[w]here adverse action is alleged under sections 340, 343, 346 and 351, the action is presumed to have been taken for the prohibited reason alleged unless the Respondents prove otherwise". Paragraph 98 of the ASOC alleges that the presumption in s 361 "is relied upon in respect of the adverse actions particularised in Schedule C (Particulars 1-49), including (without limitation) ...", before listing specified instances of conduct by reference to numbered particulars in Schedule C. Despite seeking to incorporate the entirety of the "particulars" set out in Schedule C, the allegation is expressly pleaded in a non-exhaustive manner.
4. Part F of the ASOC deals with alleged contraventions of the FW Act. Part F.1 alleges a contravention of s 340 by taking adverse action against the applicant because of his exercise of workplace rights. The ASOC addresses the alleged workplace rights that the applicant had or exercised, the alleged adverse action taken by CDC Geelong (itself and through the individual respondents), the alleged reason for the adverse action, and the harm caused to the applicant. Similar observations may be made in relation to the alleged contraventions of s 346 (adverse action because of industrial activity) and s 351 (discrimination on the ground of age), which are respectively addressed in Parts F.2 and F.3 of the ASOC. In my view, putting to one side issues about the status of the cross-referenced particulars, these matters are generally pleaded in a manner that sufficiently puts the respondents on notice of the case that is advanced against them.
5. Other parts of the ASOC may present greater difficulties. In particular, the allegations against the individual respondents of accessorial liability in contravention of s 550 of the FW Act should identify each alleged contravention with precision and the basis on which each respondent had actual knowledge of the facts of such contraventions. In some instances, this might flow naturally from the fact that the alleged contraventions by CDC Geelong were carried out by or through the individual officers or employees. However, the applicant must allege the facts by which it is said that the second to fourth respondents were involved in the contraventions within the meaning of s 550, including their knowledge of the essential facts constituting those contraventions. For such purposes, the applicant is not assisted by the presumption in s 361 of the FW Act: Red Cross v Qld Nurses Union [2019] FCAFC 215; (2019) 273 FCR 332 at [97] (Greenwood, Besanko and Rangiah JJ), referring to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [59] (Greenwood, Flick and Rangiah JJ) and Port Kembla Coal Terminal v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18 at [448] (Rangiah J).
6. Similarly, the allegations contained in Part F.2 of the ASOC in relation to coercion in contravention of s 343 of the FW Act may entail greater complexity, including in relation to the required mental state accompanying any such contravention. This cause of action is currently dealt with relatively briefly in the space of five paragraphs of the ASOC, which may not adequately address all of the elements of conduct proscribed by s 343.
7. The alleged underpayments and other contraventions of the National Employment Standards and the Enterprise Agreement (Parts F.4, F.5 and F.6 of the ASOC) are identified by reference to specific breaches on particular occasions. The respondents have not objected to any specific aspect of these allegations, although issues might arise in relation to the alleged involvement by the second to fourth respondents in the contraventions. While there may be questions as to the marginal benefit of these additional causes of action, the applicant presumably seeks the imposition of penalties separately from any relief that may be granted on his general protections claims.
8. As discussed above, the respondents' submissions did not descend into granular detail by challenging specific paragraphs of the ASOC. Nor did the respondents seek to dissect the pleading of particular causes of action by reference to their component elements. Rather, the submissions largely adopted a global approach to the deficiencies in the ASOC and its failure to inform the respondents clearly and precisely of the case that they have to meet. The respondents' submissions in relation to the original statement of claim sought to address a "selection" of the defects in that pleading. After the original statement of claim had been superseded by the ASOC, the respondents maintained that their concerns had not been adequately addressed, and that the difficulties had been "exacerbated, not cured" by the ASOC.
9. In oral submissions, counsel for the respondents identified the key vice of the ASOC in terms of its "prolixity and the intermingling of allegations leading to ambiguity and embarrassment". Thus, counsel relevantly submitted:

The document pleads matters of evidence or intermediate fact rather than being confined only to material facts. But perhaps greater concern and by contrast it omits key material facts, in particular as it concerns the pleadings as against the individual respondents or else where it does plead what appear to be material facts, it does so in a generalised and aggregated way and includes what might be described as a layered web of particulars and particulars to particulars, the purpose of which is difficult to ascertain.

...

[T]he facts such as they are, it may well be, amongst this 80 page document, sufficient material facts at various places to constitute complete causes of action. But they are so deeply intermingled and mis-described variously as material facts, matters of context, particulars, particulars to particulars, that one cannot sensibly understand with precision, as one is required here, how a case is put and which matters to plead to, noting that one doesn't plead to particulars.

1. By way of example, the respondents referred to paragraphs 100 to 108 of the ASOC, which contain allegations that CDC Geelong contravened s 340 of the FW Act by taking adverse action against the applicant because he had exercised workplace rights. Paragraph 100 pleads the applicant's workplace rights by reference to his complaints and inquiries about fatigue, safety, rostering and entitlements, and the exercise of his powers and functions as an elected health and safety representative and union delegate. Paragraph 101 addresses a range of alleged adverse action commencing in December 2022 and concluding with his dismissal in November 2024. Paragraphs 102-105 and 108 address the alleged reasons for the adverse action, including reliance on the presumption under s 361 of the FW Act. Paragraph 106 alleges that each of the second to fourth respondents were "knowingly concerned in, or party to" the contraventions within the meaning of s 550 of the FW Act. Paragraph 107 alleges that the applicant "made complaints and inquiries" which are protected by s 341(1)(c) of the FW Act, referring to eight "particulars" contained in Schedule C.
2. It might be said that the essential elements of the applicant's case are clear enough, and that the ASOC discloses a reasonable cause of action in relation to the alleged contravention of s 340 by CDC Geelong. Nevertheless, the respondents complain that the material facts on which the applicant relies "are left to particulars", to which the respondents are not required to plead. This creates uncertainty as to which conduct is alleged to have been taken because of which exercises of workplace rights. In some respects, a degree of cross-referencing within a pleading is unobjectionable. However, the allegations in the ASOC are cross-referenced to a separate schedule of particulars, rather than to other paragraphs of the ASOC itself. Even if the particulars can be treated as having been incorporated into the relevant paragraphs of the ASOC, it is left unclear which of those particulars constitute material facts and how they are relied on to establish the alleged contraventions.
3. The respondents also took issue with Part F.2 of the ASOC, in which it is alleged that the respondents contravened s 343 of the FW Act by engaging in conduct with intent to coerce the applicant to exercise or not to exercise workplace rights. The respondents submitted that the ASOC does not distinctly plead the existence of an intention to negate choice and the use of unlawful, illegitimate or unconscionable conduct to do so: see Hall at [25]-[26], [40]-[41], [46] (Tracey, Reeves and Bromwich JJ).
4. The respondents submitted that defects of a similar nature arise in the section of the ASOC which alleges contraventions of s 346 of the FW Act involving adverse action taken against the applicant because he had engaged in industrial activity. Paragraphs 115 and 116 of the ASOC respectively identify the industrial activity in which the applicant is alleged to have engaged, and the adverse action that was allegedly taken by CDC Geelong because he engaged in such activity. Once again, each of those matters is elaborated by cross-referenced particulars contained in Schedule C. Among other things, paragraph 121 sets out several "comparators" involving other employees and their treatment by CDC Geelong. Counsel for the respondents submitted that it was "not clear what or how these comparators are said to relate to the causes of action that have preceded it". Ostensibly, paragraph 121 suggests that the instances are relied on by way of comparison or contrast in order to support an inference as to the operative reasons for the applicant's treatment by CDC Geelong. Nevertheless, it may be doubted that these "comparators" are properly treated as material facts to which the respondents should be required to plead, as opposed to matters of evidence (subject to relevance and admissibility).
5. The respondents argued that the allegations that the second to fourth respondents were involved in the alleged contraventions by CDC Geelong do not identify the material facts that are relied upon to establish their actual knowledge of the essential facts of those contraventions.
6. More broadly, counsel for the respondents articulated the difficulties presented by the ASOC, referring to:

[T]hat same principle [sic] vice of leaving the heavy lifting to be done by these particulars in the schedule, in a way that leaves the respondents in the dark, as to precisely that to which they're required to plead. [sic] and which they're not. And all of that ... says nothing of just the practical logistical difficulty, approaching nightmare of jumping through these cross-references and cross-references to cross-references, in order to understand the allegations.

1. The respondents placed particular reliance on the Full Court's decision in Sabapathy. In that case, the appellant sought relief against Jetstar Airways and 11 named individual pilots in respect of alleged contraventions of the general protections provisions of the FW Act. The primary judge struck out the appellant's amended statement of claim with leave to replead against some but not all respondents, on the basis that it was embarrassing for a number of reasons (some of which bear similarities with the complaints raised by the respondents against the ASOC in the present case): see Sabapathy at [7]-[9] (Logan and Katzmann JJ). It may be noted that the case proceeded on the basis that pleadings were necessary, and consent orders had been made to that effect: Sabapathy at [38]. Referring to BHP Coal at [63]-[65], Logan and Katzmann JJ observed that "in this kind of case where civil penalties are sought and an order has been made for the case to proceed by pleadings, the rules of pleading should be applied", declining to accept the appellant's argument for a "more lenient approach to pleading": Sabapathy at [37], [39], [42].
2. While Logan and Katzmann JJ deprecated the primary judge's use of "sweeping statements" such as that the pleading "does not plead material facts but pleads evidence" (at [20]), their Honours nonetheless considered that "[t]he inclusion of a substantial number of purely evidentiary or contextual matters was a distraction" and that "[i]ncluding some of those matters made the pleading unnecessarily complicated, difficult to understand, and hard to plead to": Sabapathy at [22]. A particular problem with the pleading was "[t]he rolled-up way in which the cases against the natural respondents were pleaded", including in relation to the element of actual knowledge of the matters giving rise to the alleged contraventions: Sabapathy at [23].
3. The appellant in Sabapathy successfully challenged an order made by the primary judge for the removal of several pilots as parties on the basis that there was no proper basis for their joinder. It was accepted that this order had been made without giving the appellant an opportunity to be heard, and the question for the Full Court was whether such a denial of procedural fairness was material, which turned on whether the appellant had a reasonable cause of action that was capable of being pleaded against the removed respondents: Sabapathy at [45]. The respondents contended that it would be futile to quash the removal order because the pleading did not disclose any reasonable cause of action against them.
4. In this context, Logan and Katzmann JJ remarked (at [52]):

It was difficult to deal with the respondents' submission because the [second amendment statement of claim (SASOC)] is replete with cross-references as a result of which reading it, let alone understanding it, is a herculean task. Navigating it is like trudging through a dense forest in a snowstorm. It is reminiscent of the pleading Perram J so eloquently deprecated in Stewart v Deputy Commissioner of Taxation [2010] FCA 402; (2010) 76 ATR 66 at [33] as "more akin to a Chinese puzzle box than a succinct statement of the applicants' cases". At the invitation of the Court, the applicant provided an account in narrative form of the case he claimed to have pleaded in the SASOC.

1. Their Honours set aside the removal order, permitting the appellant re-plead his case against the removed respondents, but stressed (at [87]):

Care should be taken to ensure that any further amended pleading avoids the vices of the previous versions and complies with the pleading rules. Each of the respondents is entitled to a pleading in which the case he has to meet is clearly and precisely outlined by reference to material facts only, is not obscured by extraneous evidentiary matters, and does not require an atlas to expose it. If any subsequent pleading does not adhere to these basic principles, Mr Sabapathy risks facing another strike-out application. While we were not persuaded that it would be futile to quash the primary judge's removal order, before a further amended statement of claim is filed we encourage Mr Sabapathy and his lawyers to carefully consider the strength of the evidence he is likely to be able to marshal against each of the natural person respondents in order to establish his case and exercise judgment about whether all potential actions should be pleaded. Not every reasonable cause of action is worth pursuing.

1. The respondents also relied on the decision of Snaden J in Weddall v Rasier Pacific Pty Ltd [2023] FCA 59, in which his Honour struck out a statement of claim in a proceeding for alleged contraventions of various civil remedy provisions in the FW Act. The primary issue raised in the proceeding concerned whether the applicants were engaged as employees or as independent contractors: Weddall at [18]. Among other things, Snaden J regarded as unacceptable the applicants' failure to allege with proper precision which of the respondents was said to have employed each of the applicants, and considered that such allegations should be put properly and "not in the rolled-up, ambiguous and internally inconsistent way that finds repeated expression in the [amended statement of claim]": Weddall at [39]. Further, an alleged contravention of s 345 of the FW Act was "deficient inasmuch as it fails to articulate beyond bald assertion how the representation in question is said to have been made with knowledge of or reckless disregard as to its falsity": Weddall at [52]. There were also problems identified with the pleading of other alleged contraventions.
2. While Snaden J was not persuaded in Weddell that summary judgment was warranted, he concluded that the problems attending the pleading were "so numerous and pervasive that it [was] beyond salvage" and should be struck out in its entirety: at [96]. After referring to the respondents' submissions that the amended statement of claim had failed to plead the material facts (and only the material facts) necessary to establish the causes of action, that it pleaded conclusions the truth of which rested on other facts not asserted, that it comprised lengthy passages more in the nature of submissions, and that it failed to comply with the requirements of r 16.02 of the Rules, Snaden J stated (at [74]):

All of those criticisms are fair. The [amended statement of claim] is 35 pages long. It is written in narrative, and occasionally loaded and emotional prose, as if for consumption not by legal practitioners or the court but by industry or media. It presents as a sprawling, discursive account of all manner of concerns that the applicants wish to ventilate. With very few exceptions, its constituent paragraphs intermix submission, evidence, scandal and irrelevance; virtually always in a long-winded way that defies sensible response. It is a self-evidently, uncommonly and irretrievably deficient pleading.

1. The respondents sought to recruit to the facts of the present case the observations made by Logan and Katzmann JJ in Sabapathy at [52] and by Snaden J in Weddall at [74], arguing that the form and structure of the applicant's ASOC meant that it was a "herculean task" to read and understand it, and that it presented a "sprawling, discursive account" of the applicant's concerns in a manner that "[defied] sensible response". The respondents argued that there was no alternative but to strike out the entire pleading and start again: compare, e.g., Trade Practices Commission v Australian Iron and Steel Pty Ltd (1990) 22 FCR 305 at 323, where Lockhart J concluded that "the defective parts [of the pleading] are so inextricably intertwined with offending material that an oppressive burden is cast upon the respondents to spell out the alleged cause or causes of action".
2. Of course, some allowance must be given to the fact that the applicant is self-represented, and not legally qualified. In Wride v Schulze [2004] FCAFC 216 at [24], Spender, Tamberlin and Bennett JJ noted that the applicant appeared on his own behalf and had drafted his claims without the benefit of legal assistance, referring to the following observations made by Kirby P (as his Honour then was) in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 537, in the context of summary dismissal:

[T]he appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out.

1. But the mere fact that the applicant is not legally represented does not displace the requirement to afford procedural fairness to all parties, including proper notice of the case that is put against them: compare Gunawardena at [5] (Wheelahan J); Weber at [7] (Wheelahan J); Howard v Chevron Australia Pty Ltd [2025] FCA 650 at [20] (Snaden J). This is particularly important in cases involving alleged contraventions of civil remedy provisions for which pecuniary penalties are sought.
2. It is unnecessary for present purposes to consider whether and to what extent proceedings under Part 3-1 of the FW Act might be amenable to the concise statement method, notwithstanding that they allege contraventions of civil remedy provisions. In the present case, orders have been made to require pleadings, and none of the parties has sought to revisit that determination.
3. In the present case, I have concluded that the ASOC in its current form is unduly lengthy, repetitive and confusing, such that is not conducive to the proper identification of the issues of fact and law in dispute between the parties. The structure of the pleading is difficult to navigate, including the use of overlapping cross-references to lengthy particulars which intermingle material facts and evidence, so as to complicate the task of identifying the material facts to which the respondents are required to plead. The allegations that the second to fourth respondents were involved in contraventions by CDC Geelong do not identify or provide clear particulars of the facts relied on to establish actual knowledge of the essential matters giving rise to those contraventions.
4. In terms of r 16.02(1) of the Rules, the ASOC is not drafted in a manner that is "as brief as the nature of the case permits", does not clearly identify the issues to be resolved by the Court, and does not state the material facts in a manner that gives the respondents fair notice of the case to be made against them at trial. In terms of rr 16.02(2) and 16.21(1), the ASOC is evasive or ambiguous, and is likely to cause prejudice, embarrassment or delay in the proceeding.
5. In reaching this conclusion, I have considered the ASOC in its entirety, in the light of the parties' submissions. The strike out application was largely presented on an "all or nothing" basis, by reference to overall deficiencies as illustrated by selected examples rather than a detailed examination of individual allegations in respect of each cause of action. In such circumstances, it is not useful to perform a fine analysis of the pleading in relation to each of the causes of action. Importantly, the respondents do not argue that the applicant does not have a reasonable cause or causes of action, nor even that the ASOC does not potentially contain sufficient material facts capable of establishing a cause or causes of action. Their complaints are principally directed to the form, structure and content of the ASOC, including the intermingling of allegations of material fact with particulars and the evidence by which those facts are to be proved.
6. In the circumstances, I consider that there is no alternative but to strike out the ASOC in its entirety, and to give leave to the applicant to file a further amended statement of claim.
7. In this regard, I repeat the caveat given by Logan and Katzmann JJ in Sabapathy (at [87]) that "[c]are should be taken to ensure that any further amended pleading avoids the vices of the previous versions and complies with the pleading rules". However, such a task should not be overcomplicated. To a large extent, the central aspects of the applicant's case were encapsulated in his amended originating application, which set out the details of the claimed contraventions of the FW Act together with a narrative of the facts that are alleged to give rise to those contraventions, divided into consecutively numbered paragraphs. While it might be possible to order that the amended originating application should stand as the applicant's statement of claim, and to require the respondents to plead to that document, it is appropriate to give the applicant an opportunity to revisit its contents when preparing his further amended statement of claim.
8. Accordingly, it is likely that any amended pleading will be far shorter than the ASOC or even the original statement of claim. It should contain only the material facts that are necessary to give the respondents fair notice of the case to be made against them at trial. These should be divided into consecutively numbered paragraphs, each of which as far as practicable deals with a separate matter. It should include necessary particulars of the material facts, but not matters of evidence by which the applicant intends to prove those facts. Any particulars of material facts should be subjoined to the relevant paragraph in which the facts are alleged, with cross-referencing where appropriate to avoid undue repetition. To the extent that the particulars are insufficient to give fair notice of the case to be made, the respondents will be entitled to request further particulars, and ultimately to apply for an order that such particulars be provided.
9. The material facts will generally correspond to the elements of the alleged contraventions of the FW Act. The relevant events giving rise to those contraventions may be pleaded in a narrative fashion, in a similar manner to the chronology of events set out in the amended originating application or in Part C of the ASOC. As was reflected in the Registrar's orders dated 3 June 2025, the pleading should identify the applicable provisions of the FW Act or other legislation and set out the facts that are alleged to give rise to the contravention of those provisions, including: the alleged conduct that comprises adverse action within Part 3.1 of the FW Act; the workplace rights or other protected attributes in respect of which any adverse action is alleged to have been taken; the causal relationship between the alleged action and the workplace right or other protected attribute; the involvement of any individual respondent in the alleged contravention, including the basis of their knowledge of the essential matters giving rise to the contravention; the loss or damage or other harm suffered by the applicant; and the relief or remedies sought in respect of the contravention.
10. I will also direct the parties to attend a case management conference before a Registrar to assist in clarifying the issues of fact and law that are in dispute between the parties, so as to inform the preparation of the further amended statement of claim and to facilitate subsequent pleadings.

1. For the reasons set out above, I will order pursuant to r 16.21 of the Rules that the ASOC be struck out, and that the applicant has leave to file and serve a further amended statement of claim.
2. The respondents have indicated that they wish to be heard in relation to the costs of the interlocutory application, having regard to s 570 of the FW Act. Accordingly, I will direct that that the parties file any submissions in relation to costs within seven days, and that any submissions in response be filed within 14 days.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.