Squires v Avant Service Co Pty Ltd [2025] FedCFamC2G 1837

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. Before the Court are two Applications in a Proceeding filed for the applicant on each of:

(a) 17 December 2024, by which the applicant presses for discovery of the documents in the respondent's possession, over which the respondent has claimed legal professional privilege (privilege application); and

(b) 19 August 2025, by which the applicant seeks leave to amend his Statement of Claim, consequent upon matters he says arise from documents already discovered, and orders for potentially further discovery thereafter (amendment application);

(collectively, the interlocutory applications).

1. On 17 March 2023, the applicant's employment with the respondent was terminated. On 29 March 2023, he commenced the instant proceedings. After initial case management, the parties participated in a Court-annexed mediation on 15 February 2024, which did not resolve. Following mediation, the applicant made an application for discovery, which application was determined on 7 March 2024 by the making of a declaration for that discovery.
2. On 25 October 2024, the respondent produced what the applicant describes as the "largest tranche" of documents which were reviewed during November 2024, following which review the privilege application was made.
3. The privilege application was heard on 12 March 2025, and judgment was reserved. Due to periods of unexpected leave on my part, judgment having not yet been delivered in respect of the privilege application, the applicant says that he made the forensic decision to bring the amendment application in the interim, so as to avoid any question of delay or acquiescence on his part. The parties came before the Court for case management in respect of the interlocutory applications on 2 September 2025. On 28 October 2025, the amendment application was heard. These reasons determine each of the interlocutory applications.

1. The following background to the dispute in the privilege application has been primarily derived from the parties' (respective) written submissions, and the Affidavit material, filed in respect of that application.
2. As noted at [2] above these proceedings have previously been the subject of an interlocutory decision and orders made by this Court on 29 August 2024 (August Orders), requiring that the respondent produce to the applicant documents answering to categories of discovery listed in the applicant's Further Refined Categories of Documents for Discovery (Categories fo[1] Discovery).1 The applicant's written submissions, filed on 14 February 2025, acknowledge that the respondent complied with the August Orders.
3. The respondent claimed legal professional privilege in respect of 304 documents, of which 24 initially remain in dispute (Disputed Documents). The respondent has provided explanations intended to support those claims of privilege it now maintains, by correspondence dated 5 December 2024.[2]
4. The question the subject of the first part of these reasons for judgment, is therefore, whether legal professional privilege is validly claimed over the content of the Disputed Documents.

(a) the applicant relied on the Affidavit of John Theodore Steenhof made 16 December 2024 (Steenhof Affidavit), without objection;

(b) for the respondent the following Affidavits were read, also without objection:

(i) Affidavit of Clancy Helen Goslett-King made on 25 October 2024;

(ii) Affidavit of Nicholas David Turner made on 31 January 2025; and

(iii) Affidavit of Zana Jordan made on 31 January 2025 (Jordan Affidavit).

1. None of the witnesses was required for cross-examination.
2. To assist the Court in assessing the Disputed Documents, two bundles were provided. The first was a set of the Disputed Documents with redactions applied (redacted bundle). The redactions are those which the respondent proposes be the final form of production to the applicant of the Disputed Documents. The other was an un-redacted version of the redacted bundle which was seen only by the Court (and, obviously enough, the respondent's legal representatives).

1. Legal professional privilege is a rule of substantive law, and an important common law immunity: see Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, in which the High Court observed at [9] that the privilege:

...may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings...

1. The parties are in agreement that the Court is required to assess the respondent's claims of legal professional privilege by applying common law principles, rather than s 118 of the Evidence Act 1995 (Cth): see Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (Asahi) at [28] per Beach J.
2. As in Asahi, the claims for privilege in the instant proceedings do not arise in the context of an evidentiary dispute (i.e., in relation to whether or not privileged documents should be allowed into evidence). Rather, the question for this Court is whether the relevant communications or documents the subject of the claims, were created for the dominant purpose of the respondent obtaining or being provided with legal advice.
3. The onus of proving that a communication was made for the dominant purpose (being legal advice) lies with the party claiming the privilege, which in this case, is the respondent company: see AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 (AWB v Cole (No 5)) per Young J at [44]. The onus can be discharged by evidence, determined objectively, as to the circumstances and the context in which the communications occurred: see AWB v Cole (No 5) (supra) at [44]). In this respect, privilege is not established "merely by the use of verbal formula" (see Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ), nor the "mere assertion that privilege applies to particular communications".
4. The principles relevant to the determination of whether the dominant purpose of a communication is legal advice are generally well-established and were helpfully distilled by the parties' respective written submissions. Those principles, in summary, include that:

(a) the 'dominant purpose' is that which "predominates over other purposes" and is therefore the "prevailing or paramount purpose": see AWB v Cole (No 5) (supra) at [44(5)];

(b) the 'dominant purpose' can be established by asking what was the intended use/s of the document which led to it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [35] per Finn J;

(c) there can be only one dominant purpose in the sense that where two purposes are of equal weight, neither is 'dominant' in the requisite sense: see AWB Ltd v Cole (No 5);

(d) legal professional privilege is not limited to formal advice as to the law, but extends to advice as to what should prudently be done in the relevant legal context: see Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 at [35] to [36] per Sundberg J; and

(e) legal advice, however, does not extend to advice which is purely commercial in nature: see DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191 at [45] per Allsop J (as his Honour then was).

1. In relation to the principles pertaining specifically to communications which involve multiple participants, the applicant says that such communications should be considered as separate communications between the sender and each recipient, relying on TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364 per Hill J at [26] to [29]. The applicant says some uncertainty arises because of that the fact of the involvement of multiple participants in almost all of the communication.
2. To the extent there is a question as to in which capacity Ms Jordan, who is both the General Counsel of the respondent as well as its Company Secretary, was acting while giving advice in respect of certain matters, she has given evidence about specific documents. That unchallenged evidence can be accepted.
3. In respect of those which are not addressed by Ms Jordan expressly, Counsel for the applicant very properly acknowledged at the hearing of the privilege application that the applicant accepts that if the Court were to examine those documents, and the dominant purpose for which they were created was manifest, that would be determinative.

1. There are four categories of disputed documents outlined at [23] of the Steenhoff Affidavit (some of which overlap). Those include:

(a) Category 1: wholly internal communications (not including Ms Jordan), comprising documents 16 and 28 (two documents) (category 1 documents);

(b) Category 3 : wholly internal communications forwarding earlier communications from an external lawyer, comprising documents 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 29, 30, 31, and 32 (fourteen documents) (category 3 documents);

(c) Category 4: internal communications copied to an external lawyer, comprising documents 10, 12, and 15 (three documents) (category 4 documents); and

(d) Category 5: internal communications including Ms Jordan, comprising documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 17, 30, and 31 (twelve documents) (category 5 documents).

1. For ease of reference, the below table outlines the categories of documents for determination (see [20] above) and identifies specifically the content of the relevant documents over which the respondent claims privilege. The description of the documents in the second column is derived from the written submissions of the respondent. The third column contains the details of the respondent's claim, and indicates the nature of the privilege claim:

"Teams chat" said to contain intended request for legal advice.

Disclosure with redaction to third 9:06am message and third 9:27am message.

"Email chain" said to contain external legal advice and discussion in relation thereto.

Request to external lawyers for advice, subsequently forwarded to respondent's General Counsel.

Request for legal advice (9:05pm), a response from external lawyers (9:17pm) and an email forwarding those two emails to Ms Jordan, the General Counsel (9:24pm).

Privilege is claimed over the entirety of the document.

Contains substantive legal advice from external lawyers.

The top two emails (10:19pm and 10:41pm) can be disclosed and the rest redacted on the basis that the dominant purpose in creating them is the obtaining of legal advice.

can be redacted on the same basis as document 10 such that the three emails (2 x 10:41pm and 10:19pm) are disclosed

can be redacted on the same basis as documents 10 and 11 such that the three emails (10:41pm, 10:19pm and 5:33am) are disclosed.

can be redacted on the same basis as documents 10, 11 and 12 such that the three emails (10:19pm, 10:41pm and 8:29 am) are disclosed

contains substantive legal advice from external lawyers

The top three emails (8:37am, 8:29am and 10:41pm) can be disclosed and the rest redacted on the same basis as documents 10, 11, 12 and 13.

It is clear from the terms of the chain that it was created for the dominant purpose of obtaining legal advice.

The respondent accepts that the lead email (3:28pm) is not privileged on the basis of the reasoning in Kenquist but a claim is maintained over the remainder of the email chain.

The respondent no longer claims privilege over this document.

is privileged on the basis that a copy of the otherwise unprivileged material was made for the dominant purpose of obtaining legal advice, as is evidenced from the sending of it to external lawyers.

The top email at 6:34 pm is privileged on the basis that it communicates legal advice from external counsel. The second email (3:35pm) requests legal advice. Those emails can be redacted and the balance disclosed.

can be redacted consistently with it (and on the same basis) such that all emails are redacted except for the 9:05pm email

An email chain that contains substantive legal advice and then arrangements to meet and discuss it

The "intended use or uses of the document which accounted for it being brought into existence" is the provision of legal advice. The whole document is privileged on that basis.

The respondent no longer claims privilege over this document.

Only the portion requesting legal advice from Ms Jordan is privileged. It can be redacted and the remainder disclosed.

Only the portion requesting legal advice from Ms Jordan is privileged. It can be redacted and the remainder disclosed.

Only the portion requesting legal advice from Ms Jordan is privileged. It can be redacted and the remainder disclosed.

The portion requesting legal advice from Ms Jordan is privileged as is her advice at 8:54pm. Those parts can be redacted and the remainder disclosed.

The portion requesting legal advice from Ms Jordan is privileged as is her advice at 8:54pm. Those parts, and the response to the legal advice by Mr Perry, General Manager of Corporate Affairs, at 9:10pm, can be redacted and the remainder disclosed.

The portion requesting legal advice from Ms Jordan is privileged as is her advice at 8:54pm. Those parts, and the response to the legal advice by Mr Perry at 9:10 pm, can be redacted and the remainder disclosed.

1. The first category of documents is described by the applicant's submissions as being "wholly internal communications (not including Zana Jordan)".
2. The relevant documents are documents 16 and 28, and the respondent's position in respect of privilege is set out in the table above under 'category 1'.

1. This document is a message chain from the Microsoft Teams instant messaging system used by the staff of the respondent for internal communications. The messages are between Mr Esplin and Ms Williams on 17 March 2023. The respondent proposes that two messages in particular be redacted from the chat, over the balance of which no privilege is then claimed. The redacted messages were sent by Ms Williams at each of 9:06am and 9:27am on 17 March 2023. Having reviewed the messages, I am not satisfied that the claim for privilege over them is properly made.
2. In respect of the 9:06am message, Ms Williams generically makes reference to sending a document to the respondent's solicitors and says that she intends to instruct the firm the next day. I am not satisfied that these messages themselves attract privilege. The document referred to, and the subject of any instructions to the lawyers would, if existing elsewhere, properly be the subject of a privilege claim. In allowing the 9:06am message to be given to the applicant's solicitor, the applicant would not be entitled to seek those other documents. However, the message itself can be provided.
3. In respect of the 9:27am message, the same can be said. The statement itself is a statement of intention on the part of Ms Williams. There is no privileged content to it. In requiring that the message being required to be provided to the applicant in discovery does not entitle him to any record of what may have been discussed if Ms Williams did, in fact, interact with the solicitors the next day. However, again, the message itself can be disclosed.
4. Document 16 (AVT.003.007.3670) must be provided to the applicant in unredacted form.

1. Document 28 is an email chain including both external and internal correspondence. I agree with the characterisation attributed by the respondent that the email chain contains external legal advice and discussion in relation thereto. I am satisfied that the claim for privilege is properly made, and the document does not need to be disclosed.

1. The next category of documents is described by the applicant's submissions as wholly internal communications forwarding earlier communications from an external lawyer.
2. The relevant documents are document 8 to 14 (inclusive), 17 to 19 (inclusive) and 29 to 32 (inclusive). The respondent's position in respect of each document is set out in the table above under 'category 3'.

1. Documents 8 and 9 are a request to external lawyers for advice, subsequently forwarded to Ms Jordan in her capacity as the respondent's General Counsel, and external advice received and thereafter also sent to Ms Jordan (respectively). Having had regard to the Jordan Affidavit at [21] and the documents themselves, I am satisfied that the claim for privilege is properly made, and documents 8 and 9 do not need to be disclosed.

1. Document 10 is an email chain which commences with legal advice from external lawyers to Ms Williams and Ms Jordan in her capacity as General Counsel. Subsequent emails detail the scheduling of meetings consequent on the advice. Having had regard to the Jordan Affidavit at [20] and the documents itself, I am satisfied that the claim for privilege is properly made. The advice provided was legal advice only. To the extent that discussions between a select group of the respondent's employees took place in respect of scheduling a meeting to discuss the legal advice, I am satisfied that said emails were not for the dominant purpose of obtaining legal advice or legal services. However, I am equally satisfied that not asserting any claim for privilege in respect of those portions of the email chain, does not constitute a waiver of privilege in respect of the substantive, external legal advice. The distinctions highlighted in the applicant's written submissions were properly made. However, I am also satisfied that in winnowing emails which to which privilege applies, from lead emails which did not, the respondent has adhered to the principles identified in Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 (Kenquist) (supra) in its formulation claims for privilege.
2. Document 10 can be disclosed by the respondent, but only in the form indicatively proposed behind table 8 of the redacted bundle.
3. Document 11 is the same email chain as document 10, with one additional reply from Ms Williams. For the same reasons given in the preceding paragraph, document 11 can be disclosed but only in the form proposed by the respondent at tab 9 of the redacted bundle.
4. Document 12 is the same email chain as document 10, with an additional reply from Ms Fenech. For the same reasons given at [32] above, document 12 can be disclosed by the respondent in the form indicatively proposed at tab 10 of the redacted bundle.
5. Document 13 is the same email chain as document 10, with an additional reply from Mr Shipton. For the same reasons given at [32] above, document 13 can be disclosed by the respondent but only in the form indicatively proposed at tab 11 of the redacted bundle.
6. Document 14 is the same email chain as document 13, with an additional reply to Mr Shipton from Ms Williams. For the same reasons given at [32] above, document 13 can be disclosed. Counsel for the respondent candidly proffered at hearing of the privilege application that the redactions as indicatively proposed at tab 12 of the redacted bundle were excessive, in the sense that the parts of the document which remained unredacted in each of the versions behind tabs 10 and 11 of the redacted bundle, had been additionally redacted in respect of document 14. Document 14 can be provided with redactions only to the email which constitutes external legal advice consistent with the redacting to documents 10 and 11.

1. Document 17 is addressed by the Jordan Affidavit at [20]. Having had regard to that part of the Jordan Affidavit, and also having reviewed the document itself, I am satisfied that the entirety of the email chain in question constitutes either the giving of legal advice or salient questions (to and fro') for the dominant purpose/s of giving and receiving said legal advice and services. I am satisfied that the claim for privilege is properly made, and the document does not need to be disclosed.

1. Document 18 is an email chain, between Mr Shipton and Ms Hannan with the (substantive[3]) subject line:

1. Having regard to the subject line of the email which forms document 18, it is sensible to observe that a claim for privilege over the script document itself (which forms part of document 19) is no longer pressed. Again noting the principles in respect of lead emails referred to in Kenquist and the reasons at [32] above, and having reviewed the document itself, I am satisfied that the proposed redacted version at tab 14 of the redacted bundle appropriately reflects the claim for privilege, which is properly made. Accordingly, I am satisfied that the document can be disclosed in that form, namely as reflected in tab 14 of the redacted bundle.

1. As noted at [40] above, the respondent no longer claims privilege over this document.

1. This document is a lengthy email chain. The respondent claims privilege over the entirety of the chain. Having reviewed the document I am satisfied that it constitutes the sharing with external legal counsel of, what is otherwise, a non-privileged email for the purposes of obtaining legal advice. As such, I am satisfied that the whole document, including the head email forms a request for legal advice and that the claim of legal professional privilege is validly made and the document does not need to be produced.

1. Documents 30 and 31 are identical.
2. Document 30 is another email chain consisting of three emails. Privilege is claimed over the second and third emails, but not the initiating email. Having reviewed the email chain and having regard to [22] of the Jordan Affidavit, I am satisfied that the purpose for which the second email created was for obtaining the advice from external legal counsel, and that the third email was created to convey the effect of that legal advice obtained to a limited group of people. I am satisfied that the privilege claim is validly made and that the document can be disclosed in the redacted form proposed behind tab 16 of the redacted bundle. The same applies to document 31, and to the redacted form proposed at tab 17 of the redacted bundle.
3. Document 32 is identical to document 30 (and therefore document 31) with an additional reply which I am satisfied is also the subject of validly made claim for privilege. Document 32 should be provided in the redacted form proposed at tab 18 of the redacted bundle.

1. The next category of documents are internal communications copied to an external lawyer.
2. The relevant documents are documents 10, 12 and 15, of which documents 10 and 12 have already been addressed at [33] and [35] (respectively) above. The respondent's position in respect of privilege is set out in the table above under 'category 3'.

1. Privilege is next claimed over the entirety of document 15 on the basis that it is an email chain which includes an email which is entirely external legal advice and then emails both circulating that advice to relevant and limited staff, and arrangements being made for discussion of that advice between the General Counsel and external counsel. Having regard to the document itself, I am satisfied that the entirety of the email chain which forms document 15 was for the purpose of obtaining and considering that legal advice. The claim for privilege is validly made over the entire document, and it does not need to be produced.

1. The next category contains document which are said to be internal communications which included the General Counsel. The relevant documents are documents 1 to 9 (inclusive), 17, 30 and 31 (of which documents 8, 9, 17 and 30 to 21 (inclusive) have already been addressed above). The respondent's position in respect of privilege is set out in the table above under 'category 5'.

1. The respondent no longer claims privilege over this document.

1. Document 2 is an email chain consisting of two emails. Privilege is only asserted over a single sentence in the second of those emails in which legal advice is sought from Ms Jordan in her capacity as the respondent's General Counsel. Having regard to the document itself, and [16] and [17] of the Jordan Affidavit, I am satisfied that the claim is validly made and that the document can be disclosed in the redacted form proposed at tab 2 of the redacted bundle.
2. Document 3 is the same email chain as document 2 with the addition of a further email in reply, over which no claim of privilege is asserted. For the reasons given in the preceding paragraph, I am satisfied that the document can be disclosed in the form proposed at tab 3 of the redacted bundle.
3. Document 4 is the same email chain as document 3, with a second further reply. For the reasons given in paragraphs [51] to [52] above, I am satisfied that the document can be disclosed in the form proposed at tab 4 of the redacted bundle.
4. Document 5 is Ms Jordan's response to the request for advice over which privilege is claimed in each of documents 2 to 4 (inclusive). That same request for legal advice is (obviously) redacted, as is the advice itself. Having regard to the document itself, and [16] and [17] of the Jordan Affidavit, I am satisfied that the claim is validly made and that the document can be disclosed in the form proposed at tab 5 of the redacted bundle.
5. Document 6 is a reply to document 5 which paraphrases the advice given in that document, by way of confirmation. I am satisfied that additional reply is the subject of a validly asserted claim for privilege. Accordingly, and for the reasons given in the preceding paragraph, I am satisfied that the document can be disclosed in the form proposed at tab 6 of the redacted bundle.
6. Lastly, document 7 is the same document as document 6 with an additional reply over which no claim for privilege is claimed. That position is appropriate as there is no part of the additional reply to which such a claim could be validly made. Accordingly, and for the reasons given in the preceding paragraph, I am satisfied that the document can be disclosed in the form proposed at tab 7 of the redacted bundle.

1. Having reviewed the Jordan Affidavit and the documents themselves, there is no disputed document in respect of which privilege is claimed where I have reached a different view beyond the manner in which the proposed document has been redacted, or otherwise withheld entirely, with the exception of document 16. With that exception, I am satisfied that the privilege claims of the respondent were each validly made. Document 16 should now be provided in unredacted form and document 14 should be provided in the revised redacted form already contemplated by the respondent.
2. While the aforementioned conclusions, and the orders consequent upon them are expressed in terms that documents should now be provided in redacted form, it is the understanding of the Court that the redacted bundle has already been provided and, accordingly, no further/active steps need be taken to otherwise effect discovery in that regard. However, the orders will be made in those terms as a matter of formality, in case that understanding is incorrect.

1. The amendment application has two components, being:

(a) an application to amend the Statement of Claim in the form annexed to the Affidavit referred to at [60(a)] below and marked "JTS-1" (proposed ASOC); and

(b) further discovery consequent upon the first proposed category of amendment which seeks to add "additional key employees" (see [62(a)] below), noting that discovery has already been sought and given in respect of employees who were initially identified by the Statement of Claims as being material to the applicant's cause of action.

1. In support of the amendment application, at hearing the applicant:

(a) read the Affidavit of John Theodore Steenhof made 19 August 2025, without objection;

(b) provided an aide memoire; and

(c) provided a chronology of the procedural history of the proceedings.

1. The documents referred to at [60(b)] and [60(c)] above were provided to the Court and the respondent's Counsel simultaneously at hearing. As such, Counsel for the respondent had not had an opportunity to review them in advance and/or confirm the accuracy of them. The Court received them to the extent that the documents were not provided and not as being evidence of the matters contained within them.
2. In support of the amendment application, the respondent read the Affidavit of Nicholas David Turner made 9 September 2025, also without objection.

1. The applicant groups the amendments in the proposed ASOC into the following categories:

(a) pleading that 5 "additional key employees" either made or had a material influence on the decision of the respondent to terminate the applicant's employment (first category of amendment);

(b) the addition of an allegation that two posts made by the applicant on Twitter (as it was then known) (the Twitter posts) formed part of actuating reason/s for the decision of the respondent to terminate the applicant's employment (second category of amendment);

(c) particularising specific oral discussions between the additional key employees in the four days preceding the termination of the applicant's employment by the respondent (third category of amendment); and

(d) minor amendments said to include typographic errors, the narrowing of matters to reduce the issues and a reduction in the amount sought for economic loss consequent upon the applicant having subsequently obtained new employment (fourth category of amendment).

1. It is well established that that this Court is not traditionally one of pleadings, or at least not of strict pleadings: see Leske v Trinity Lutheran College Mildura [2015] FCCA 572 per Judge Whelan at [13], Christie v Woolworths Ltd [2015] FCCA 2211 per Judge Jones at [16] and [37], Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552 per Judge Driver at [3] and James Legal Pty Ltd v Milanos [2016] FCCA 3202 per Judge Nicholls in which his Honour said the following at [30] to [31]:

I agree with the first respondent that, regard must be had to the purpose of pleadings in proceedings before this Court. It is not a case of simply saying that this is not a Court of "strict pleadings". Plainly, pleadings can be amended consistent with Court orders, and with leave of the Court.

The issue, however, in terms of the efficient conduct of matters before this Court, in light of the workload of the Court, and in terms of procedural fairness to the party, or parties, against which a case is raised, is that pleadings are meant to inform and define the issues. In the current case, the respondents are entitled to know the case, if any, put against them, and to know it in a timely and appropriate fashion so that they may also respond in a timely fashion.

1. In Yang v Dahua Group Melbourne Number 1 Pty Ltd [2023] FedCFamC2G 1231 Judge Forbes said the following at [10] (citing Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348 per Logan and Katzmann JJ at [36] to [42]):

Whilst this Court is not a court of strict pleadings, it is conventional in adverse action cases for the Court to require pleadings which are sufficient to enable a respondent to be on notice of the case it is to meet and the way in which that case is to be put by the applicant. The statutory presumption in s 360 of the FW Act, the onus on the respondent to disprove the alleged prohibited reason for its conduct and the risk of civil penalties are good enough reasons for the claim to be properly pleaded and particularised.

1. In Phillips v Strasser (No 2) [2023] FedCFamC2G 151 at [23] Judge Forbes also said:

While pleadings are commonly ordered in general federal law proceedings in this Court, the Court is not a court of strict pleadings. In exercising its discretion the Court must always be mindful that the overarching purpose of civil practice and procedure is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. This includes a requirement that the parties assist the Court by avoiding undue delay, expense and technicality.

1. As to the purpose of pleadings, in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 per Greenwood, McKerracher and Reeves JJ at [13], their Honours held:

It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds: see, eg Dare v Pulham (1982) 148 CLR 658 (at 664-665). However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation: see Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 (at 293) per Dawson J who cites Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 (at 517). For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded.

1. The initial question before the Court is whether or not the applicant should be granted leave to rely upon the proposed ASOC.
2. I have had regard to the principles in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon) at [30] per French CJ and [97] to [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. In Zetta Jet Proprietary Ltd v Ship "Dragon Pearl" [2018] FCA 878 at [37] to [38] Burley J said the following, citing AON:

As the High Court made clear in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON), the types of matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; (c) the detriment to the court and other litigants, and; (d) the choices made by the parties as to the claims to be made and how they are to be framed. That, of course, is not an exhaustive list.

In the current context it is also apposite to note that in the exercise of its discretion it is appropriate for the Court also to consider the position of other litigants and confidence in the judicial system generally: AON at [5] (French CJ) and [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is for the plaintiffs to persuade the Court, on sufficient material, that an adjournment is appropriate. As the plurality in AON said at [103], [106], [107], if an application that would result in an adjournment is sought and no, or no sufficient explanation is given then the application should be refused. French CJ said (at [4]) that where an application is made "late in the day", without adequate explanation and necessitating the vacation of a trial date, the applicant bears a heavy burden to show that the exercise of the Court's discretion should be in its favour.

1. In Roberts-Smith v Fairfax Media Publications Pty Ltd (No 5) [2020] FCA 1067 at [16] to [23], Besanko J set out the principles attending whether to grant leave to amend (at a relatively late stage). His Honour Judge Brown of this Court summarised those principles in Dixon v Watpac Ltd [2022] FedCFamC2G 778 (Dixon) at [113] as follows (enumeration added):

(a) the nature and importance of the amendment sought to be made;

(b) the extent of any delay which the amendment will occasion and any costs associated with it;

(c) any delay in applying for the amendment and the reason for such delay;

(d) any prejudice occasioned to the opposing party by the amendment;

(e) how the parties have previously chosen to conduct the litigation;

(f) possible detriment to other court users; and

(g) potential loss of confidence in the administration of justice by the court too readily acceding to an application to amend without adequate explanation or justification.

1. The aforementioned matters arise to varying degrees as relevant in the present case.

1. While categorised in several ways, I am not satisfied that any of the proposed amendments are sufficiently significant nor substantive so as to weigh in favour of leave being granted for them to be made. In reality, the proposed amendments are a further particularisation of the currently pleaded case the applicant brings, to now include evidence which he has gathered consequence upon discovery to date.
2. The first proposed category of amendment is said to identify additional employees of the respondent who may have participated in, or influenced, decision making in respect of the termination of the applicant's employment.
3. Regard should therefore be had to the reverse onus in s 361 of the Fair Work Act 2009 (Cth) (FW Act). It will ordinarily be the case that in order to discharge said onus, the employer will be required to identify the relevant decision-maker and to lead probative evidence from them: see Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [185] per White J.
4. In Cai v Tiy Loy & Co Ltd [2015] FCCA 715 (Cai), Judge Manousaridis said the following at [110] to [111]:

In most cases the employer, or, in the case of a corporation, the person or persons whose minds constitute the mind of the corporation for the purposes of the conduct that constitutes the adverse action, will give evidence of his or her recollection of the reason or reasons for which the employer claims the employer took the adverse action. That by itself, however, will rarely be sufficient to prove the employer took the adverse action for the reason or reasons the employer recalls the employer took such action. Such evidence will need to be weighed according to a number of matters. These may include any one or more of the following:

a) the inherent plausibility, coherence, and consistency of the employer's evidence that the employer acted for the reason or reasons the employer says the employer acted;

b) the completeness of the evidence that is adduced in support of the employer's claim that the employer took the adverse action for the reason or reasons the employer claims the employer took the adverse action;

c) where the reason the employer claims the employer took the adverse action included the employer's believing a state of affairs existed or did not exist, whether there is evidence of the existence or non-existence of that state of affairs, or evidence of the reasonableness of the employer's belief;

d) whether there are contemporaneous documents that support the employer's evidence that the employer took the adverse action for the reasons the employer claims the employer took that action;

e) if there are no such documents, whether it is reasonable to expect that such documents would have been created if the employer took the adverse action for the reason the employer claims the employer took the adverse action; and

f) whether there are other persons who were involved in the conduct that constituted the taking of adverse action, and, if so, whether they have given evidence which supports the evidence the employer gave of the reasons for which the employer took the adverse action.

A third aspect of an employer's proving "otherwise" is that, because the employer bears the onus of proving the employer did not take the adverse action for a proscribed reason, the employer bears the evidentiary burden of proving so. That is, the employer must adduce evidence that is capable of grounding a reasonable inference that the employer took the adverse action for the reason or reasons the employer claims the employer took that action. If the employer does not adduce such evidence, the employer will not be able to prove "otherwise".

1. In Wong v National Australia Bank Ltd [2021] FCA 671, Snaden J observed the following at [182]:

There is no evidence before the court that tends directly to prove that any of the three relevant instances of adverse action was so actuated. Ms Wong does not rely upon direct proof of the fact that she alleges. She relies, instead, upon the statutory presumption for which s 361 of the FW Act provides and upon inferences that she would have the court draw. There is nothing unusual about that: direct proof of purpose or intent in a case such as this is rarely to be found and Ms Wong's prosecution of the matter was, in that sense, entirely orthodox.

1. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Greenwood, Flick and Rangiah JJ said the following at [69]:

Where an applicant alleges that a respondent has contravened s 340(1)(a)(i) through the operation of s 362(1) of the FWA by reason that the respondent took action with intent to coerce another person to engage in adverse action, s 361(1) imposes an onus on the respondent to prove that it did not have that intent. In this case, BMA has the onus of proving that it did not intend to coerce BHP Coal into engaging in adverse action against its employees. Rule 16.03(2) of the Rules provides that a party need not plead a fact if the burden of proving the fact does not lie on that party. Thus, while the applicant's pleading must raise an allegation that BMA took the action with intent to coerce, it is not required to plead the identities of the persons whose intent is to be attributed to BMA. Assuming that r 16.43(1) applies, it requires that a party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies. However, there can be no requirement to provide particulars of facts which r 16.03(2) does not require to be pleaded.

1. The applicant is not required to particularise with the degree of specificity which he now seeks. By its extant Defence, the respondent has addressed the allegation made namely that the employment of the applicant was terminated for a proscribed reason. The applicant acknowledges that, by additional correspondence,[4] the respondent has proffered the inclusion of Mr Esplin as being a relevant decision-maker. If the identity of the relevant decision-maker/s is in dispute by the time of hearing, which it seems will be the case in the present proceedings, it will be a matter for the Court to identify them, based on the evidence as it unfolds.
2. In order for the applicant's case to be understood, it is unnecessary for the pleading to be amended to pre-emptively seek to identify that evidence beyond the form which is currently constituted by the Statement of Claim. There does not seem to be any doubt that the respondent readily understands the case it needs to meet, nor the reverse onus it needs to discharge. I am not satisfied that the first category of amendments is sufficiently important nor necessary to determining the issues between the parties.
3. The second category of amendment proposes to add to the extant allegation that it was two Facebook posts made by the applicant which motivated the respondent to terminate his employment for a proscribed reason. The applicant now seeks to say that in addition to the Facebook Posts, the Twitter posts were also an actuating reason for the termination. I am also not satisfied that this amendment is sufficiently important to warrant its addition. At the hearing of the amendment application, Counsel for the applicant identified the basis for the necessity of this amendment as being that despite the fact that the applicant, being the author of the Twitter posts, was clearly aware of their existence from the time he authored them, that he did not include them in the initial pleading because he relied upon the content of the show cause and termination letters and their reliance, in turn, specifically on his Facebook posts. The respondent says that this simply highlights the issue of the applicant's delay in seeking the amendment.
4. I am not persuaded that this allegation needed to wait until the applicant had sufficient proof in order to make it. As was discussed at the hearing of the interlocutory applications, the very rationale for the reverse onus in s 361 of the FW Act is because it will be a rare case indeed in which an applicant will have access to the evidence necessary to prove that adverse action was actually taken for a proscribed reason.
5. The respondent has, by its Defence, set out the basis upon which it says the applicant's employment was terminated. If, during the course of the final hearing, the evidence supports a conclusion that the termination was for reasons other than those advanced by the respondent (including by reference to the Twitter posts) such that the Court is satisfied that the respondent's defence fails, the respondent will not have discharged its onus. In that regard it is not irrelevant to observe that the respondent has already adverted to matters pertaining to the Twitter posts in its Defence, a matter relied upon by it in resisting the proposed second category of amendment on the basis of delay. It is a point well made. The Twitter posts need not be the subject of further pleading in order for them to be potentially relevant, nor capable of evidential exploration, by the applicant during the course of the hearing in this case.
6. The third category of amendment is, in a sense, a hybrid of the two categories already addressed above. By it, the applicant seeks to particularise, at length, oral discussions said to have taken place in the days immediately preceding the termination of his employment by the respondent. As such, they are the detailed pleading of evidence in respect of the additional employees the applicant seeks to allege were potentially decision-makers and/or material influences on the decision-maker/s. I am also not satisfied that these proposed amendments are required to enable the applicant's case such that the issues between the parties can be understood. This was highlighted significantly during the course of argument at the hearing of the interlocutory applications by Counsel for the applicant emphasising that the proposed third category of amendments were:

...simply putting the respondent on notice that these are the things that we want to advance as allegations and these are the things that we want to put to the witnesses as relevant to the case.

1. This is not the purpose of pleading. The evidence which the applicant has garnered from the discovery process will speak for itself, and it is unnecessary for each item to be expressly particularised in order for it to be put to witnesses called for the respondent at hearing.
2. The final category of proposed amendment contains miscellanea, said to refine the issues between the parties. I accept the respondent's submissions[5] that the amendments which involve typographical errors, amendments of allegations to align with facts pleaded in the Defence, and reduction of the applicant's maximum economic loss, are unnecessary given the purpose of pleadings. As part of preparation of the proceedings for hearing the Court will require that the parties identify all issues remaining in dispute. The respondent is now, in any event, on notice of the proposed changes, which could have been the subject of inter-partes correspondence and clarification with the Court by reference, either to a list of issues in dispute or pre-hearing written submissions.
3. Overall, I am not persuaded that, having regard to the nature and purpose of pleadings, which are themselves not strictly necessary in this Court, and that there does not appear to be any aspect of the applicant's case of which the respondent is not on notice, that the nature and importance of the proposed categories of amendment are not to weigh in favour of leave being granted.

1. The respondent has also resisted the granting of leave to the proposed ASOC on the basis of delay and the impact on other Court users.
2. The issue of delay is, in truth, twofold. As has already been addressed above, it is important to acknowledge that there has been some delay on the part of the Court in determining the additional discovery categories. To the extent that the applicant sought to bring the amendment application when he did, he cannot be the subject of particular criticism and his aim of mitigating further delay so as to avoid any allegation of unwarranted laches was a sensible forensic course.
3. However, the respondent is correct that the matters the subject of the proposed amendment are ones which highlight that they are only brought consequent upon what has been discerned from discovery. To the extent that they were matters within the applicant's knowledge at the time he commenced the proceedings, for example the Twitter posts (see [79] above), that is also correct. The bringing of these proposed amendments now is late in a relevant sense and, for the reasons already discussed at [80] to [82] above, unnecessary.
4. The respondent additionally relies upon prejudice to it in seeking to meet the particulars which arising from the third proposed category of amendment, that the task of seeking to have employees recall for the purpose of an Amended Defence each and every one of the alleged conversations in order to plead to them, is oppressive after such an effluxion of time. I accept the submissions in that regard.
5. The pleadings in these proceedings have been closed for some considerable period of time. Rule 13.13 of the Rules now provides:

13.13 Close of pleadings

(1) As between an applicant and a respondent, the pleadings close at the end of the latest of the times fixed by these Rules for filing a response or reply, or other pleading between those parties.

(2) The pleadings close under subrule (1) even if a request or order for particulars has not been complied with.

1. While that rule commenced on 1 September 2025, by reference to the combined effect of r 1.06 and Items 10 to 16 of Schedule 1 to the antecedent Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) was that "Part 16 - Pleadings" of the Federal Court Rules 2011 (Cth) (FCA Rules) applied in this Court. The relevant effect of which was that:

(a) pleadings were taken to close between an applicant and respondents at the end of the latest time fixed by the FCA Rules for the filing of a defence, reply or other pleading between those parties: see r 16.12 of the FCA Rules; and

(b) the relevant date for the purposes of r 16.12 of the FCA Rules is 28 days after service of the Statement of Claim: see r 16.32 of the FCA Rules.

1. The aforementioned reckoning of time is of course subject to any discretionary variation or dispensation by the Court. The effect of the current and former Rules was the same, namely the pleadings can be taken as having closed on 9 August 2023, being the date on which the applicant filed his Reply. Further, the parties had the benefit of mediation (see [2] above) in February 2024, it being my custom to not order mediation until pleadings have closed.
2. Granting leave to the applicant to amend at this stage, and in the manner proposed, is an exercise which will not greatly clarify matters between the parties, but rather is likely to expand them in ways which is unhelpful to all parties, the Court and its other users. As a matter of logic, it can also be accepted that this would inevitably increase costs to all the parties, to no great substantive effect to the issues which are to be resolved by reference to the cause of action which is not itself sought to be varied.
3. These proceedings should now proceed to be prepared for final hearing. The time has well and truly come for that to occur. Having regard to principles of case management and the overarching purpose of this Court's civil practice and procedure (see ss 190 and 191 of the Federal Circuit and Family Court of Australia Act (2021) (Cth)) and the principles discussed in Dixon (supra) at [104] to [126], I am of the view that the proposed amendments will unnecessarily widen, not narrow the issues between the parties which has consequences to all involved, as well as a flow-on affect for the other uses of this Court.
4. Each of the factors referred to at [70] above arises in this case and, in essence, tends against leave being granted. Accordingly, leave is refused.

1. It did not appear to be in dispute between the parties at the hearing of the interlocutory applications that in the event that the Court were to refuse to allow the proposed amendments, but in particular the proposed first category of amendment augmenting the list of allegedly key employees, that the case for further discovery of documents pertaining to them would be otiose.[6] I agree.
2. Had that been different, the question of whether a fresh declaration would have been required likely arose. However, it is unnecessary to determine it.
3. Accordingly, all relief sought by the amendment application is refused and that application must be dismissed.

1. As presaged with the parties at the conclusion of the hearing of the interlocutory applications, these reasons having been delivered to the parties electronically, there is a need for the making of further orders for case management. The sensible course would now seem to be for the parties to file their respective evidence. A regime for that should be imposed, having regard to the age of the proceedings and the overarching purpose discussed above. I will list the proceedings for further case management before me and grant liberty to apply on 2 days' notice with the anticipation that the parties will agree a regime for the filing of that evidence and propose orders which can hopefully be made in Chambers without the need for further appearance and that the timetable might start sooner. In the event that there is no agreement, the date will remain extant. However, the parties are strongly encouraged to take a practical timely, efficient and cost effective approach to these next steps.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Pages 1-8 of Annexure "JTS-1" of the Steenhof Affidavit

[2] Pages 13 to 17 of the Steenhof Affidavit

[3] Omitting matter/file/document number/s

[4] Annexure "CK-10" to the Affidavit of Clancy Helen Goslett King affirmed 9 May 2024 at p 323 and applicant's written submissions filed 26 September 2025 in relation to the amendment application at [18] and [32]

[5] Respondent's written submissions filed 3 October 2025 in relation to the amendment application at [1.4(a)] and [1.4(b)]

[6] Transcript 28 October 2025 T14.34 to T14.35 and T15.46 to T16.02