Gao v Macquarie Bank Limited

Gao v Macquarie Bank Limited [2026] FCA 289 was not a final trial about whether workplace discrimination or adverse action occurred. It was an interlocutory Federal Court decision about the limits of what can be pursued after an Australian Human Rights Commission complaint has been terminated.

The applicant sued Macquarie Bank and three individuals. She alleged unlawful discrimination and victimisation under Commonwealth anti-discrimination legislation, and also pleaded Fair Work Act adverse action claims. The respondents responded by asking the Court to cut back the case before trial. They said the Court lacked jurisdiction over the individual respondents because they had not been respondents to the AHRC complaint, that some pleaded incidents were outside the scope of the terminated complaint, and that some Fair Work allegations could not run because of overlap rules.

That made the case a practical one for employers. It shows how much turns on the transition from the AHRC process to court proceedings. The Court was not deciding whether the applicant had been mistreated. It was deciding whether the case, as pleaded, fit within the statutory pathway Parliament created.

Abraham J explained that the Court’s jurisdiction in this area comes from s 46PO of the Australian Human Rights Commission Act 1986 (Cth). The judgment described that regime as an exclusive statutory scheme for remedying contraventions of Commonwealth anti-discrimination laws, with real importance placed on conciliation before court proceedings begin.

That matters because a Federal Court application after termination of an AHRC complaint is not a chance to start a broader case from scratch. The application may allege unlawful discrimination by one or more of the respondents to the terminated complaint. The discrimination alleged in court must also be the same as, or the same in substance as, the discrimination that was the subject of the terminated complaint, or arise out of the same or substantially the same acts, omissions or practices.

The Court accepted that AHRC complaints are not to be read with the technical strictness of pleadings. There is some flexibility. Additional facts, details or incidents may be included later if they fit the same overall shape of the complaint by the time it was terminated. But that flexibility has limits. The statutory scheme still constrains who can be sued and what conduct can be litigated.

For businesses, this means the AHRC complaint is not just background paperwork. It can become the reference point for later jurisdiction arguments. The complaint form, any amendments, the response filed, and the way the matter was conducted before termination can all matter.

A central issue was whether the three individual respondents could remain in the Federal Court proceeding. The applicant argued, among other things, that they had been notified under the AHRC Act as persons who were the subject of adverse allegations. The Court rejected the idea that this was enough.

The judgment drew a clear distinction between a respondent to an AHRC complaint and a person who is merely the subject of an adverse allegation. The statutory definition of respondent focuses on the person or persons against whom the complaint is made. The Court held that the 2017 notification provision requiring notice to a person who is the subject of an adverse allegation serves a fairness purpose, including allowing that person to know allegations have been made and to protect their reputation. But it does not convert that person into a respondent for the purposes of bringing court proceedings under s 46PO.

The Court relied on earlier authority holding that proceedings cannot be instituted alleging unlawful discrimination against someone who was not a respondent to the terminated complaint. On the material before the Court, Macquarie Bank was the only respondent to the AHRC complaint. The complaint form named Macquarie Bank, the applicant had answered no to adding another respondent, and the AHRC termination letter also treated the complaint as one against Macquarie Bank alone.

As a result, the proceedings against the second, third and fourth respondents were summarily dismissed. The Court did not say their conduct was irrelevant. Their alleged actions could still matter factually to the extent they were attributed to Macquarie Bank. But they could not remain as respondents in their own right in this proceeding.

For employers, this is a significant procedural point. A manager may be criticised in the narrative of an AHRC complaint and may receive notice of adverse allegations, yet still not be a proper respondent in later Federal Court proceedings under this pathway unless they were actually respondents to the AHRC complaint.

The Court then examined specific paragraphs of the statement of claim to decide whether they fell within the scope allowed by s 46PO(3). This part of the judgment is especially useful for businesses because it shows how the Court distinguishes between a new claim and a further incident of the same complaint.

Paragraphs 18 to 21 were struck out. They concerned an alleged February 2023 incident in which Mr Ahmed was said to have made a gender-based comment. The Court accepted that the fact this incident was not expressly referred to in the original AHRC complaint was not automatically decisive. The real question was whether it was the same as, the same in substance as, or arose out of the same or substantially the same acts, omissions or practices as the terminated complaint.

On that question, the Court said no. These paragraphs appeared in a section of the statement of claim dealing with sexual harassment and were the only paragraphs under the heading “Unwelcome Gender-Based Comments”. The material submitted to the AHRC did not make any claim of unwelcome gender-based comments. In those circumstances, the allegation did not fit within the statutory test and could not be relied on in court.

Paragraph 26 was treated differently. It concerned an alleged April 2023 incident where Mr Ahmed invited the applicant to use his personal new BMW while he was on leave and offered to deliver it to her house. Again, the incident had not been expressly mentioned in the AHRC material. But the Court held that it was the same in substance as allegations already raised before the AHRC about unwelcome personal invitations, such as invitations to travel or have dinner. It was therefore allowed to remain.

This contrast is important. The Court was not insisting on exact factual symmetry between the AHRC complaint and the court pleading. It accepted some latitude. But the later allegation still had to fit the same essential complaint. A new category of conduct may be too far removed. Another example of the same type of conduct may be allowed.

The Court also dealt with paragraphs 117 to 120, which concerned events said to have occurred after AHRC conciliation. The judgment referred to authority stating that s 46PO prevents a complainant from relying in Federal Court on acts of unlawful discrimination that occurred after the relevant complaint had been lodged with the Commission. Abraham J held that these pleaded allegations related to later events and were outside the Court’s jurisdiction in this pathway.

Paragraph 118, which referred to an insurance lawyer requesting the applicant’s full medical history, was also struck out. The Court noted that it was not an act by any of the respondents and appeared to have been included only as context for later allegations that were themselves outside jurisdiction. In any event, it was a new incident not included in the AHRC complaint.

The judgment also addresses overlap with Fair Work Act general protections claims. The respondents argued that paragraphs 96 to 97, 99(c), 130 and 132 should be struck out because s 734 of the Fair Work Act can prevent a person from making a general protections court application in relation to conduct where an anti-discrimination complaint or application has already been made and has not been withdrawn or failed for want of jurisdiction.

The available reasoning cuts off during the Court’s discussion of that issue, so the full detail should be checked carefully. What can be said with confidence is this: the orders struck out paragraphs 96 to 97, 99(c), and 130 to 132, and the applicant was granted leave to replead a general protections claim in relation to the conduct contained in paragraphs 117 to 120. That tells businesses two practical things. First, overlap between anti-discrimination and Fair Work pathways can materially affect pleading strategy. Second, the answer may not be all or nothing. Some allegations may be struck out while some conduct may still be capable of being repleaded in a different way.

Businesses should therefore be cautious about assuming that parallel discrimination and general protections claims can simply proceed side by side without close statutory analysis. If both are pleaded, the overlap issue should be reviewed early.

For employers, the main message is procedural discipline. The AHRC stage can shape the boundaries of later litigation. If your business receives a complaint, identify the correct legal respondent from the outset. If individuals are mentioned in the narrative, distinguish between factual allegations about them and their formal status as respondents. That distinction may later determine whether they can be sued in court under this pathway.

Next, preserve the complaint record carefully. The Court’s analysis depended on the complaint form, the applicant’s answer about adding another respondent, the AHRC termination letter, and the overall shape of the complaint by the time it ended. Businesses that cannot readily locate these documents may miss opportunities to challenge an overbroad court pleading.

Then compare the court pleading line by line against the AHRC material. Ask whether each allegation is the same in substance as the complaint, arises out of the same or substantially the same acts, omissions or practices, or instead introduces a new category of conduct. This case shows both sides of that exercise. A new allegation of unwelcome gender-based comments was too far removed and was struck out. An additional incident of unwelcome personal invitation was close enough and stayed in.

Finally, check for overlap with Fair Work Act claims. If the same conduct is being used to support both anti-discrimination and general protections allegations, the pleading may need to be narrowed or reworked. The judgment indicates that this can be a live threshold issue, even before the merits are reached.

Businesses should not overread the case as a defence to discrimination allegations generally. It is not. If the complaint and the court pleading align, substantive allegations can still proceed. The decision is best understood as a reminder that statutory pathways matter, and that careful early analysis can materially reduce the scope of a case.