What follows are the reasons for decision of the Federal Court of Australia granting a reasonably rare urgent interim injunction restraining an employer from dismissing an employee in circumstances contended by the employee to be in breach of the general protections.
“1 The applicant (Ms Rebecca Greer) commenced permanent employment as the Chief Executive Officer (CEO) of the respondent (Bandjalang RNTBC) in October 2024. Bandjalang RNTBC is the prescribed body corporate that holds the determined native title rights and interests of the common law holders on trust for the Bandjalang people: Native Title Act 1993 (Cth), Pt 2, Div 6.
2 A little over three weeks ago, Ms Greer filed an urgent application pursuant to r 7.01 of the Federal Court Rules 2011 (Cth), seeking to restrain Bandjalang RNTBC from taking any action adverse to her, including but not limited to, termination of her employment, until determination of an originating application or further order. Ms Greer has not commenced a proceeding in relation to the subject matter of the application but, as required by r 7.01(3) of the Rules, has undertaken to do so within 14 days after the application for an interlocutory injunction has been determined. The originating application will seek relief pursuant to s 545 of the Fair Work Act 2009 (Cth) in relation to alleged contraventions by Bandjalang RNTBC of s 340 of the Fair Work Act.
3 For the reasons that follow, I am prepared to grant an interlocutory injunction in substantially the terms that are sought by Ms Greer.
REPRESENTATION OF BANDJALANG RNTBC
4 A threshold issue at the hearing of the application was whether Bandjalang RNTBC may proceed other than by a lawyer.
5 The matter has twice been adjourned on the undertaking by Bandjalang RNTBC not to terminate Ms Greer’s employment prior to the conclusion of the hearing of the application. The circumstances leading to those adjournments are helpfully detailed in the decision of Dowling J in Greer v Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC [2025] FCA 1217.
6 In broad terms, those circumstances relate to difficulties in Bandjalang RNTBC retaining legal representation. Those difficulties have arisen because of ongoing division between certain directors and members of the prescribed body corporate. The conflict relates to the subject matter of the application in that Ms Tara Mercy, on the one hand, and Ms Sylvia Khan and Ms Takira Khan, on the other, have opposing views about the employment of Ms Greer. An aspect of that conflict is a dispute as to the validity of decisions said to have been made by Bandjalang RNTBC about Ms Greer and her employment. This extends to the engagement and provision of instructions to lawyers.
7 Most recently, on 25 September 2025, Dowling J adjourned the application until 9 October 2025 to give Bandjalang RNTBC sufficient time to obtain lawyers and “provide adequate instructions to represent its best interests and put on any material it wished to rely upon”: Greer at [27]. Justice Dowling outlined that the “Court would … be assisted in the circumstances of this case, if the respondent was given the opportunity to obtain legal representation and able to cogently put any submissions and material in opposition to the interlocutory application”: at [4].
8 As events transpired, this did not prove possible.
9 On 8 October 2025, I convened a case management hearing with respect to the application in my capacity as duty judge. I took that step against the background of a series of emails to the Court detailing further persistent conflict regarding the internal governance of Bandjalang RNTBC. That conflict included whether and, if so, which lawyers were to be retained in the matter. Ms Tara Mercy, Ms Sylvia Khan and Ms Takira Khan all attended the case management hearing and were permitted to make submissions with respect to that topic. Following those submissions, and hearing from counsel for Ms Greer, I made orders that any person seeking leave to appear on behalf of Bandjalang RNTBC at the hearing of the application file affidavit material in support by 9.00 am the following day (being the adjourned date of the hearing).
10 Mr William Murphy (a director of Bandjalang RNTBC) and Ms Takira Khan (a member of Bandjalang RNTBC) both provided (but did not file) affidavits further to the order. During the course of the hearing, and having heard from counsel for Ms Greer, I made those affidavits exhibits. Ms Tara Mercy did not seek leave to appear on behalf of Bandjalang RNTBC. As emerged during the course of the hearing, Mr Murphy and Ms Khan have substantially the same position with respect to the internal governance dispute, including, materially, with respect to the continued employment of Ms Greer.
11 Rule 4.01(2) of the Rules provides that “a corporation must not proceed in the Court other than by a lawyer”. A “corporation” means “any artificial person other than an organisation”: Rules, Sch 1. Bandjalang RNTBC is a corporation within the meaning of the Rules, being an Aboriginal and Torres Strait Islander corporation (registered native title body corporate) that is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act): CATSI Act, s 16-5, Ch 17, Pt 7, Div-300.
12 The Court may dispense with the requirement that a corporation proceed by a lawyer: Rules, r 1.34. The matters that should be taken into account in deciding whether to exercise the discretion to grant leave for a corporation to be represented by someone other than a lawyer include its financial position and the complexity of the proceeding: see Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 at [9] to [11] (Emmett J), regarding O 4, r 14(2) of the Federal Court Rules 1979 (Cth).
13 I was not persuaded that this was an appropriate case to exercise the discretion to dispense with the requirement that Bandjalang RNTBC proceed by a lawyer. The issues raised by the application are sufficiently complex that I was satisfied that the prescribed body corporate would benefit from legal representation. There was some evidence before me that Bandjalang RNTBC has substantial financial means but, I was told by Mr Murphy, there are constraints on the application of those funds. Ultimately, however, the difficulty with dispensing with compliance with r 4.01(2) was that it was not clear, on the evidence before me, who has the authority of Bandjalang RNTBC. That is to say, I was not able to reach a concluded view on the evidence that either Mr Murphy or Ms Khan had actual authority to speak on behalf of the corporation.
14 Balancing that consideration against the absence of representation for Bandjalang RNTBC and the desirability of hearing from those who are interested persons with respect to its affairs, I decided to allow each of Mr Murphy and Ms Khan to make submissions in response to the application. Counsel for Ms Greer did not oppose that course.
RELEVANT BACKGROUND
15 Ms Greer relies, in support of the application, on three affidavits from her solicitor (Ms Ellie Hansson) affirmed 15 September, 16 September and 17 September 2025 (the Hansson Affidavits). Set out below is an overview of the matters emerging from the Hansson Affidavits.
16 On 4 June 2025, Ms Greer sent a letter entitled “Resignation and Mutual Agreement to Terminate Employment” to Ms Tara Mercy in her capacity as chairperson of Bandjalang RNTBC. By that letter, Ms Greer sought to formally resign from her position as CEO of the prescribed body corporate.
17 Ms Greer alleged in the letter that she had been threatened with physical violence, harassed, bullied and intimidated by a “small number” of the members of Bandjalang RNTBC. She said that so serious was the threat to her personal safety that she was left with “no choice” but to obtain an apprehended personal violence order (first complaint). The letter put forward two options as to the terms upon which Ms Greer was prepared to agree to the mutual termination of her employment.
18 On 18 June 2025, at the request of the Board of Directors of Bandjalang RNTBC, Ms Greer sent a letter amending the terms to extend the date of her proposed resignation. This was to allow the Board further time to obtain legal advice. Ms Greer asserted in the letter that any unilateral attempt to terminate her would result in a claim for wrongful dismissal under the Fair Work Act and that she had “an actionable case against the corporation regarding breaches of duty of care owed to [her] as an employee” (second complaint).
19 I will collectively refer to the letters dated 4 June and 18 June 2025 as the “resignation letters”.
20 By letter dated 29 July 2025 from Ms Tara Mercy, the Board acknowledged receipt of the resignation letters. The letter advised Ms Greer that the resignation letters would be considered at a meeting of the Board on 1 August 2025. That meeting was held, but a decision with respect to the resignation letters was put off until 21 August 2025, to enable the Board to obtain legal advice. There is no evidence before me as to who, other than Ms Tara Mercy, read the resignation letters prior to 8 August 2025, or who constituted the Board for the purposes of the meeting on 1 August 2025.
21 In the intervening period, on 31 July 2025, Ms Greer again wrote to Ms Mercy with respect to her concerns about workplace bullying and serious misconduct involving six named directors of Bandjalang RNTBC. The letter advised that Ms Greer had lodged a workplace health and safety complaint with SafeWork NSW and an application to the Fair Work Commission for a Stop Bullying Order. The letter went on to state with respect to the governance of the corporation:
The conduct I have been subjected to is not merely interpersonal conflict – it is the result of dysfunctional governance led by the directors I have named above. They and their family networks continue to engage in efforts to remove me from my role as Chief Executive Officer and do reputational damage.
This behaviour has created an unsafe workplace, and reflects a failure of governance, and accountability …
(third complaint)
22 There is no evidence before me as to which members or directors of Bandjalang RNTBC, other than Ms Tara Mercy, read the letter dated 31 July 2025 (which included the third complaint) prior to 8 August 2025.
23 It appears from the evidence upon which she relies that Ms Greer did not, in point of fact, make an application to the Fair Work Commission until 21 August 2025. On that date, she lodged an application under s 372 of the Fair Work Act to deal with a non-dismissal dispute with respect to Bandjalang RNTBC (FWC application). While the letter dated 31 July 2025 refers to Ms Greer lodging a workplace health and safety complaint with SafeWork NSW, the complaint itself is not in evidence. The Hansson Affidavits do not address whether the SafeWork NSW complaint was made.
24 On 6 August 2025, a member of Bandjalang RNTBC sent an email advertising a “member-led general meeting” of the corporation on 8 August 2025. A number of the directors of the prescribed body corporate were copied into the email. Of present relevance, the “guide” for the general meeting:
(a) Alleged serious governance failures by Ms Greer and “breaches of duty, conflicts of interest, procedural unfairness and retaliatory conduct”. The guide went on to refer to a statement by Ms Greer that the proposed general meeting was not authorised before stating as “rebuttal” that “the use of … WorkSafe threats against members is retaliation and may breach protections under the Fair Work Act … and Public Interest Disclosure Act 2013 (Cth)”. Ms Greer contends that, read in context, this should be taken to be a response to her statement about lodging the SafeWork NSW complaint; and
(b) Stated that one of the resolutions to be voted upon at the general meeting was to “terminate the CEO Rebecca [Greer] due to serious misconduct, breach of contract, fraud, and threats”.
25 On 10 August 2025, a member of Bandjalang RNTBC sent an email to Ms Greer copying in several directors. The email stated:
This correspondence serves as formal notice of your immediate termination from the Bandjalang Aboriginal Corporation RNTBC (‘the Corporation’) pursuant to the resolutions passed at the duly convened Member-Led General Meeting on 8 August 2025 …
26 The email made certain demands of Ms Greer, before stating that “failure to comply” will result in immediate notification to NSW Police and the Office of the Registrar of Indigenous Corporations (ORIC), civil proceedings and public disclosure of Ms Greer’s conduct to the wider Bandjalang and Bundjalung communities. The email went on to state that a full and independent audit had been formally requested and that Ms Greer was not “immune from investigation” and that “should any wrongdoing be substantiated, the corporation will pursue all lawful remedies, including criminal prosecution under the Criminal Code Act 1995 (Cth)”.
27 Attached to the email was a “formal letter of termination” signed by two directors of Bandjalang RNTBC (termination letter). The stated “grounds for termination” were “serious misconduct”, “unsatisfactory performance” on the part of Ms Greer, as well as “conduct creating a serious psychosocial hazard for the Bandjalang community”. The termination letter went on to state:
Further Action
- Members have resolved to seek a financial audit ([CATSI Act] s 336-1) and request the appointment of a Special Administrator under s 487-5.
- You are not immune from investigation or liability for misconduct during your tenure. If wrongdoing is confirmed, the Corporation will take all available legal steps, including referrals to ORIC, ASIC, NSW Police, and media disclosure.
(Emphasis in original)
28 The validity of the general meeting and the termination letter was the subject of communication with ORIC. On 21 August 2025, ORIC sent an email to certain members and directors of Bandjalang RNTBC. By reference to various provisions of the CATSI Act, ORIC raised issues in that email about the powers of members to convene general meetings and terminate employees. Ms Greer was not copied into but gives evidence, through her solicitor, Ms Hansson, that she is “in receipt of” the email from ORIC.
29 The Hansson Affidavits detail communications from members of Bandjalang RNTBC with respect to Ms Greer’s position as CEO, following the events described above. Of present relevance, that communication includes:
(a) a response to the FWC application in which allegations are made of serious misconduct on the part of Ms Greer. That letter was sent by the member of Bandjalang RNTBC who sent the email attaching the termination letter. The response appears to attach the resignation letters. There is no evidence before me as to how or when those resignation letters were provided to or obtained by the member. Ms Greer, through her lawyer, puts in issue that the response to the FWC application was the official response authorised by the Chairperson of Bandjalang RNTBC; and
(b) an email dated 11 September 2025, from the same member who sent the email attaching the termination letter asserting that Ms Greer does not hold a position of authority within the prescribed body corporate stating that, “[s]hould you continue to misrepresent your role, misuse ORIC, or inappropriately contact Board members, the Board will treat this as a serious matter and escalate it to the appropriate regulatory and legal avenues to protect the integrity of the organisation”.
30 At the hearing of the application, neither Ms Takira Khan nor Mr William Murphy put in issue the events summarised above.
FAIR WORK ACT
31 Ms Greer contends that those events found claims that Bandjalang RNTBC contravened s 340 of the Fair Work Act because it purported to dismiss her and injured, or alternatively prejudicially altered her position because she made the first complaint, the second complaint and the third complaint (collectively, the complaints), the FWC application and the SafeWork NSW complaint.
32 Section 340(1) of the Fair Work Act provides as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4 – 1).
33 Section 340 is a civil remedy provision, the contravention of which enlivens the power of the Court to make any orders it considers appropriate, including injunctive relief and an award of compensation for loss a person has suffered because of the contravention: Fair Work Act, s 545 and Part 4-1.
34 For a contravention of s 340 to be established, it is sufficient that the prohibited reason be a substantive and operative reason for the adverse action: Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686 at [15] (Charlesworth J), citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [104] (Gummow and Hayne JJ).
35 In Atkins, Charlesworth J went on to observe that (at [606]):
Within a corporation, the authority to bind a company to an action or decision may reside in one or more persons, often referred to as a “decision-maker”. That person’s state of mind will always be relevant. In addition, a proper assessment of an employer’s reasons for taking adverse action may require consideration not only to the actuating purposes of the decision-maker within a corporation, but also the states of mind of any person whose conduct has influenced the decision-maker in a relevant way.
36 Section 361 of the Fair Work Act provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
37 The purpose of s 361 of the Fair Work Act is to “throw on to the employer the onus of proving facts that are particularly within its knowledge”: Atkins at [598]. Relevantly, counsel for Ms Greer indicated that the application before me was prosecuted on the basis that s 361(2) of the Fair Work Act applied even if there is a question as to whether the injunction sought is properly characterised as interlocutory, as opposed to interim. That is to say, the application proceeded on the basis that the onus was not upon Bandjalang RNTBC to prove facts particularly within its knowledge.
Workplace right
38 Section 341(1) and (2) of the Fair Work Act provides:
341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee–in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2 – 2 (which deals with requests for flexible working arrangements);
(ia) giving a notification, or receiving an offer or notice, under Division 4A of Part 2 – 2 (which deals with casual employment);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
(Emphasis in original)
39 A “workplace law” is relevantly defined to mean the Fair Work Act or any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with workplace health and safety matters): Fair Work Act, s 12.
40 In Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401, Halley J observed (at [87]):
A complaint is “in relation to … employment” if the subject matter about which a complaint is made concerns an aspect of employment: Serpanos at [89]. There must be a relationship between the subject matter of the complaint and the complainant’s employment: Alam at [74]; Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 at [33]-[34] (Collier J). A complaint can be directly or indirectly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [64] (Katzmann J); Shea at [631]. A connection between a complaint and employment will likely exist in circumstances “where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”: Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468; [2014] FCA 456 at [42] (Bromberg J).
Adverse action
41 The meaning of “adverse action” is informed by s 342(1) of the Fair Work Act. That section contains a table setting out circumstances in which a person takes adverse action against another person, and relevantly provides:
Item
Column 1
Adverse action is taken by …
Column 2
if …
1
an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
(Emphasis in original)
42 Section 342(2)(a) of the Fair Work Act further provides that the expression “adverse action” includes “threatening to take action covered by the table” in s 342(1) and “organising such action”.
43 There is relatively little direct consideration in the authorities of the phrase “injures the employee in his or her employment” as used in Item 1(b) of the table in s 342(1). In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR, the majority (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) said of the equivalent provision in the predecessor to the Fair Work Act that it “covers injury of any compensable kind”: at [4] in relation to s 298K(1)(b) of the Workplace Relations Act 1996 (Cth).
44 The majority went on to state with respect to the phrase “alters the position of the employee to the employee’s prejudice” – which is also reflected in s 342(1) of the Fair Work Act – that it covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question: Patrick Stevedores at [4] in relation to s 298K(1)(c) of the Workplace Relations Act.
Apparent authority
45 Section 793 of the Fair Work Act provides that any conduct engaged in on behalf of a body corporate by an officer or agent of the body within the scope of his or her actual or apparent authority is taken, for the purposes of the statute, to have been engaged in also by the body: s 793(1)(b) and (3)(a).
Section 793 of the Fair Work Act
46 Section 793, in substance, statutorily attributes to the corporation the conduct of the individuals referred to in the section: Director, Fair Work Building Industry Inspectorate v Bolton (No 1) [2016] FCA 816 at [33] (Collier J), citing Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [58] (Ryan, Moore and Goldberg JJ); Australian Workers’ Union v Leighton Contractors Pty Limited [2013] FCAFC 4 at [86]; (2013) 209 FCR 191 (Katzmann J, with whom Dowsett J agreed); Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23 at [121] (Buchanan and Jagot JJ). The provision is of broad application: Leighton Contractors at [87].
47 In Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338; [2016] FCA 525, Charlesworth J said of the section (at [48]):
Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.
48 In the particular circumstances of this case, Ms Greer places reliance with respect to the operation of s 793 of the Fair Work Act on Ch 3, Pt 3-6, Div 104 of the CATSI Act. Division 104 deals with assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make.
CATSI Act
49 Section 104-1 of the CATSI Act relevantly provides:
Entitlement to make assumptions
(1) A person is entitled to make the assumptions in section 104 – 5 in relation to dealings with an Aboriginal and Torres Strait Islander corporation. The corporation is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.
…
(3) The assumptions may be made even if an officer or agent of the corporation acts fraudulently, or forges a document, in connection with the dealings.
(4) A person is not entitled to make an assumption in section 104 – 5 if at the time of the dealings the person knew or suspected that the assumption was incorrect.
50 The assumptions that can be made under s 104-1 are prescribed by s 104-5, which relevantly provides as follows:
Assumptions that can be made under section 104 – 1
Constitution and replaceable rules complied with
(1) A person may assume that the corporation’s constitution and any provisions of this Act that apply to the corporation as replaceable rules, have been complied with.
Director or corporation secretary
(2) A person may assume that anyone who appears, from information provided by the corporation that is available to the public from the Registrar, to be a director or a corporation secretary of the corporation:
(a) has been duly appointed; and
(b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director or corporation secretary of a similar Aboriginal and Torres Strait Islander corporation.
…
Officer or agent
(4) A person may assume that anyone who is held out by the corporation to be an officer or agent of the corporation:
(a) has been duly appointed; and
(b) has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar Aboriginal and Torres Strait Islander corporation.
Proper performance of duties
(5) A person may assume that the officers and agents of the corporation properly perform their duties to the corporation.
Document duly executed without seal
(6) A person may assume that a document has been duly executed by the corporation if the document appears to have been signed in accordance with subsection 99 – 5(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to his or her signature that he or she is the only director of the corporation is the only director of the corporation.
…
(9) Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.
51 Section 99-5 of the CATSI Act, relevantly provides as follows:
Execution of documents (including deeds) by the corporation itself
(1) An Aboriginal and Torres Strait Islander corporation may execute a document without using a common seal if the document is signed by:
(a) 2 directors of the corporation; or
(b) a director and a corporation secretary (if any) of the corporation; or
(c) if the corporation has only 1 director–that director.
Note: If an Aboriginal and Torres Strait Islander corporation executes a document in this way, people will be able to rely on the assumptions in subsection 104 – 5(6) for dealings in relation to the corporation.
…
(4) This section does not limit the ways in which an Aboriginal and Torres Strait Islander corporation may execute a document (including a deed).
GRANT OF AN INTERLOCUTORY INJUNCTION
52 The principles to be applied in determining whether to grant an interlocutory injunction are well-established. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, they were summarised by Gummow and Hayne JJ as follows (at [65]; see also, Gleeson CJ and Crennan J at [19]):
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
(Footnotes omitted)
53 A prima facie case will be established where, if the evidence before the Court remains as it is, there is a sufficient probability that, at the trial of the action, the applicant will be entitled to the relief that it seeks: Smart EV Solutions Pty Ltd v Guy [2023] FCA 1580 at [30] (Derrington J), citing Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622.
54 As Derrington J explained in Smart EV (at [30] and [31]):
… The strength of that probability will depend on the nature of the case. To make out a prima facie case, the applicant need not establish that it is more probable than not that it will succeed at trial; merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O’Neill at 81 – 82 [65]. See also Armstrong World Industries (Australia) Pty Ltd v Parma (2014) 101 ACSR 150, 157 [24] (Armstrong World Industries).
… Accordingly, where the respondent goes into evidence on an interlocutory application, it is inappropriate to conduct what is, essentially, a preliminary trial to ascertain where the merits lie — in effect giving or withholding the interlocutory relief on a forecast as to the ultimate result of the case: Beecham at 622 – 623. Rather, once a prima facie case is established, the court should move to consider the balance of convenience.
55 That said, whether an applicant has made out a prima facie case and whether the balance of convenience favours the grant of interlocutory relief are related questions: Warner-Lambert Company LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632 at [70] (Allsop CJ, Jagot and Nicholas JJ). It will often be necessary to give close attention to the strength of a party’s case when assessing the risk of doing an injustice to either party by granting or withholding interlocutory relief, especially if the outcome is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages or an award of compensation pursuant to the usual undertakings, are likely to be inadequate: Warner-Lambert at [70].
56 The Court will not, on an interlocutory injunction application, conduct a preliminary trial of the action in order to resolve conflicts in the parties’ evidence: Ord Minnett Holdings Pty Ltd v Longmuir [2023] FCA 1262 at [89] (Jackson J). The evidence of the respondent may be such as to explain away the case put by the applicant, or it may show in reality that there is no such case. But it will not be enough to merely raise a conflict on the evidence: Ord Minnett, citing Warner-Lambert at [72], quoting with approval from Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 734.
57 The balance of convenience requires a comparison between the inconvenience or injury that the applicant would be likely to suffer if an injunction were refused, and the injury that the respondent would suffer if an injunction were granted: Smart EV at [32]. The question of whether damages will be an adequate remedy for the alleged infringement of the applicant’s rights will always need to be considered on an application for interlocutory relief: Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238 at [62] (Dowsett, Foster and Yates JJ). It may or may not be determinative in any given case. The question involves an assessment as to whether the applicant would, in all material respects, be in as good a position if confined to its damages remedy as the applicant would be if an injunction were granted: Samsung at [62].
PRIMA FACIE CASE
58 Ms Greer contends that the evidence upon which she relies founds a prima facie case that Bandjalang RNTBC contravened s 340 of the Fair Work Act. There are two aspects to this:
(a) First, by threatening to dismiss Ms Greer because she made the complaints, the FWC application, and the SafeWork NSW complaint (alleged dismissal adverse action): Fair Work Act, ss 340(1)1(a)(ii), 340(1)(b), 340(1)(c)(i) and 342(1), Item 1, Column 2(a); and
(b) Second, by altering the position of Ms Greer to her prejudice or, alternatively, injuring Ms Greer in her employment because she made the complaints and made the FWC application and the SafeWork NSW complaint (alleged prejudicial adverse action): Fair Work Act, ss 340(1)(a)(ii), 340(1)(b), 340(1)(c)(i) and 342(1), Item 1, Column (2)(b) and (2)(c).
Alleged dismissal adverse action
59 I am satisfied that Ms Greer has established a prima facie case with respect to the alleged dismissal adverse action in relation to the SafeWork NSW complaint. That is to say, on the evidence presently before the Court there is a sufficient probability that Ms Greer will be able to establish at the trial that the SafeWork NSW complaint was a “workplace right” within the meaning of s 341(b) of the Fair Work Act and a substantial and operative reason for the termination letter was because Ms Greer asserted that she had made, or would make, the SafeWork NSW complaint: cf, Board of Bendigo at [56] to [59] (French CJ and Crennan J), [104], [127] and [129] (Gummow and Hayne JJ).
60 The termination letter was issued as a result of the resolution said to have been passed at the general meeting held on 8 August 2025. The “guide” to that meeting stated that the proposed termination of Ms Greer was relevantly founded on “threats”. The guide went on to make specific reference to “the use of WorkSafe” threats against members. Ms Greer submits, and I accept, that for the purposes of a prima facie case there is a sufficient probability that she will be able to establish at trial that:
(a) making a complaint to SafeWork was a “workplace right” because it would initiate a process under workplace law. I note in this regard that the functions and powers of SafeWork are governed by the Workplace Health and Safety Act 2011 (NSW): cf, Fair Work Act, s 12; and
(b) read in context, a substantial and operative reason for the proposed resolution to terminate Ms Greer’s employment and the termination letter sent, as a result of the resolution passed at that meeting, was because she had made or had threatened to make a complaint to SafeWork.
61 There remains an issue as to whether the termination letter was an action taken by Bandjalang RNTBC, as opposed to a step purportedly taken by certain disaffected members and directors, without its actual or apparent authority.
62 I accept, in that regard, that Ms Greer has established a prima facie case that the termination letter was sent by two directors of Bandjalang RNTBC within the scope of their apparent authority: cf, Fair Work Act, s 793(1)(a). That is because the termination letter was signed by two directors of Bandjalang RNTBC and ss 99-5(1)(a), 104-1 and 104-5 of the CATSI Act provide that in that circumstance a person may assume that officers of a corporation properly exercised their duties to the corporation.
63 I am not satisfied that Ms Greer has established a prima facie case with respect to the complaints or the FWC application:
(a) In the case of the complaints, each of those was made to Ms Tara Mercy, a director of Bandjalang RNTBC. Save in one respect, there is no reference to the subject matter of those complaints in the guide and there is no other evidence before me that they were brought to the attention of the members attending the general meeting or the directors issuing the termination letter. The single exception is the reference in the guide to “the use of police”. That might be said to reflect the reference in the first complaint to obtaining an apprehended personal violence order, but Ms Greer did not make any submission to the effect that such a process was a workplace right within the meaning of s 340(1)(b) of the Fair Work Act.
(b) In the case of the FWC application there is no reference to that process in the guide. The only evidence before me with respect to that process being within the knowledge of the persons attending the general meeting or being involved in issuing the termination letter is a response to the FWC application that was lodged with the Fair Work Commission. That response is from the member involved in circulating the “guide” and attaches the resignation letters in which the first two complaints are made. But given that the FWC application was made after the termination letter was issued, there is no basis on the evidence presently before the Court to establish that this informed the reasons for the termination letter: cf, Atkins at [606].
64 Given those matters, and the basis upon which Ms Greer prosecuted the application, I am not satisfied that she has established that the substantial and operative reason for the termination letter on a prima facie basis was the complaints or the FWC application.
Alleged prejudicial adverse action
65 Ms Greer contends with respect to the alleged prejudicial adverse action that the references in the termination letter and various emails to Ms Greer being referred to police and other authorities falls within either s 342(1), Item 1(b) or (c) of the Fair Work Act, because those statements constitute actions that compromised her physical and psychosocial safety as an employee.
66 Insofar as those statements are made in the emails from a member of Bandjalang RNTBC, even copying in directors, I am not satisfied that Ms Greer has established that they engage s 793 of the Fair Work Act, such that they can be taken to be conduct engaged in by the prescribed body corporate. The emails are in a relevantly different category from the termination letter because they were sent by a member. Engagement of the presumption in s 793(1) of the Fair Work Act (and relatedly, s 104-1(4) of the CATSI Act) is relevantly conditioned on an agent acting within the scope of their apparent authority. I am not persuaded on the evidence presently before me, and given Ms Greer’s role as CEO, that the mere fact that the member asserted she was acting on behalf of Bandjalang RNTBC and copied in directors of the prescribed body corporate is sufficient even on a prima facie basis to engage that requirement.
67 Insofar as it concerns the termination letter, I am satisfied that Ms Greer has established a prima facie case that the letter constitutes adverse action within the meaning of s 342(1), Item 1(c) of the Fair Work Act. The letter states that Ms Greer is “not immune from investigation or liability for misconduct during [her] tenure” and that “if wrongdoing is confirmed, the Corporation will take all available legal steps”. For the reasons I have already outlined with respect to the alleged termination adverse action, I am satisfied that a substantial and operative reason for the termination letter was the SafeWork NSW complaint. I further accept that there is a sufficient probability that Ms Greer will be able to establish at trial that the statements in the termination letter to which I have referred constitute a threat of prejudicial alteration of her position by the threatened commencement of an investigation of “misconduct”: cf, Fair Work Act, s 342(1), Item 1(c) and Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382; (2009) 190 IR 218 at [23]-[27] (Collier J).
68 Given that I am satisfied that there exists a prima facie case under s 342(1), Item 1(c) of the Fair Work Act, it is not necessary on the application to consider the alternative case under s 342(1), Item 1(b).
Conclusion on prima facie case
69 Beyond my assessment that Ms Greer has established a prima facie case in the respects outlined above, it is not possible to reach any firm view as to the strength or weakness of that case on the evidence that is presently before the Court.
BALANCE OF CONVENIENCE
70 Turning then to the balance of convenience, Ms Greer says that the inconvenience or injury she will suffer if an interlocutory injunction is not granted is the likely ongoing efforts to terminate her employment. Ms Greer contends that she will suffer reputational damage if a termination of her employment is put into effect. She emphasises, in that respect, the allegation of serious misconduct contained in the termination letter and the impact to her future employment prospects, should Bandjalang RNTBC seek to unilaterally terminate her employment (including on the basis of those allegations). Ms Greer submits that the damage she would suffer in that eventuality is unlikely to be fully addressed by an award of damages, should she succeed in her substantive claim: cf, Burnett v Eastern Health [2015] FCA 1247 at [54] (Bromberg J).
71 Ms Greer will provide the usual undertaking as to damages, should the interlocutory injunction be granted.
72 Mr Murphy and Ms Takira Khan assert that should the interlocutory injunction be granted, it will adversely affect the reputation of Bandjalang RNTBC and the confidence of its stakeholders because, in effect, Ms Greer will not be able to be terminated. They further contend that the grant of an interlocutory injunction will give rise to governance issues because, it is said, Ms Greer has interfered with the steps that they and others within the organisation that share their views want to take with respect to the prescribed body corporate. Mr Murphy further raised concerns about the safety of Ms Greer, should she remain as CEO.
73 I am cognisant that the powers under s 545 of the Fair Work Act include reinstatement of employment. But I accept that there is the risk of reputational damage to Ms Greer between any termination of her employment and trial, which risk reinstatement of her employment may not address. In my assessment, it is necessary and preferable in that circumstance to make orders that will maintain the status quo until the Court’s final judgment: cf, Maritime Union of Australia v Sydney International Container Terminals Pty Ltd [2015] FCA 855 at [10] (Rangiah J).
74 I am also conscious of the conflict amongst the members and directors of Bandjalang RNTBC and that the grant of the injunction will maintain a relationship of employer and employee between Ms Greer and the prescribed body corporate, which some members may wish to sever. I further note the concerns raised by Mr Murphy with respect to the safety of Ms Greer and by Ms Takira Khan with respect to the reputation of the prescribed body corporate.
75 But in my assessment, those matters are outweighed by the likely inconvenience or injury Ms Greer would suffer if the interlocutory injunction was not granted and her employment with Bandjalang RNTBC is terminated. It follows that I consider that the balance of convenience favours the grant of an interlocutory injunction in substantially the same terms as that sought by Ms Greer.
TERMS OF THE ORDERS
76 As noted at the outset, the application was commenced pursuant to r 7.01 of the Rules. An applicant seeking an order under that rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined.
77 Although three weeks have elapsed since the application was made, Ms Greer has not yet filed an originating application. Her counsel explained that this was on the basis of an understanding that this need not occur until the application was determined. I do not put in issue and am not critical of that explanation. I further note that the draft orders provide for the filing of an originating application within the 14-day period.
78 Nonetheless, I hold some concerns about granting an interlocutory, as opposed to an interim, injunction in circumstances where no such originating application has been filed. Given that, I will order that:
(a) The interlocutory injunction will lapse if an originating application is not filed within 14 days from the date of this order.
(b) Should an interlocutory application be filed within that period, the interlocutory injunction remains in place until further order or determination of the originating application.”
Greer v Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC (No 2) [2025] FCA 1284 per LONGBOTTOM J