Cleary v Qube Ports Pty Ltd [2026] FCA 628

Cleary v Qube Ports Pty Ltd [2026] FCA 628 is a Federal Court pleading decision in a workplace dispute that combined sexual harassment allegations with a later adverse action claim. Ms Dana Cleary alleged that Qube Ports Pty Ltd was vicariously liable under the Fair Work Act for sexual harassment by its employee or agent, and that Qube Ports later took adverse action against her after she reported the conduct.

The Court was not deciding whether those allegations were true. Instead, it was deciding an interlocutory application by Qube Ports to strike out parts of Ms Cleary's statement of claim or require further particulars. That distinction matters. The judgment is about whether the case was pleaded clearly enough, not whether Qube Ports ultimately wins or loses on the facts.

The pleaded background was commercially familiar but legally messy. Ms Cleary had worked for Qube Ports from around January 2017. Until around April 2021 she had been employed under an agreement with Qube Ports. She then alleged that from around July 2022 she provided services as a contractor. The Court noted that the precise basis and details of those later engagements were in issue between the parties.

Ms Cleary alleged that after a dinner with colleagues on 13 May 2023 she was sexually harassed by a Qube Ports employee. She said that at that time she remained in a continuing working relationship with those colleagues through her engagement by Qube Ports. After the alleged incidents, she reported the conduct and told Qube Ports she would no longer provide services, but she also alleged that she remained prepared to consider further work depending on the outcome of the investigation.

The later communications became central. Ms Cleary alleged that Qube Ports disabled her email access on 22 May 2023. She also relied on an email sent on 25 August 2023 stating that there were no contractor or part-time roles available. In her pleading, that August email was said, in the alternative, to have terminated a contract for services, refused to engage her as an independent contractor, or refused to employ her.

Qube Ports brought its interlocutory application under the Federal Court Rules 2011 (Cth). It sought to strike out parts of the statement of claim under rr 6.01 and 16.21, or alternatively to require further particulars under r 16.45. In broad terms, it argued that some allegations were evasive, vague, ambiguous, embarrassing, unsupported by pleaded material facts, or sought relief beyond the Court's power.

By the hearing, some issues had already narrowed. Qube Ports no longer pressed its challenge to several paragraphs dealing with Ms Cleary's engagement by Qube Ports at various times, after accepting that her case was that she had been engaged as an independent contractor from 1 July 2022 under a contract for services pleaded elsewhere in the statement of claim. It also stopped pressing a challenge to some allegations that Qube Ports acted to prevent her from making a complaint or commencing proceedings, after receiving clarification about how those allegations were put.

The live issues were threefold. First, Qube Ports said paragraphs 1(b) and 1(c) were too evasive because they alleged that Ms Cleary was a worker at all material times without clearly identifying those times. That mattered because the sexual harassment claim under s 527D depended on worker status, and there was a potential dispute about whether she remained a worker after the alleged incidents in May 2023.

Secondly, Qube Ports challenged paragraphs 92 to 94, which pleaded three alternative ways the 25 August 2023 email amounted to adverse action under s 342(1). It argued that each paragraph embedded legal conclusions without enough underlying facts. In particular, it said paragraph 92 assumed there was a contract for services that could be terminated by the email, while paragraphs 93 and 94 assumed there was either a proposal to enter into a contract for services or a prospective employment relationship.

Thirdly, Qube Ports challenged part of the relief sought in paragraph H.4. That relief asked for orders under s 545(1) requiring Qube Ports to develop a stand-alone sexual harassment policy, provide training, commission and publish an independent assessment of gender equality in its workforce, publish complaint reporting data, and report back to Ms Cleary on compliance.

The Court said it was unnecessary to restate all pleading principles in detail because they are well understood. The key point was procedural fairness. Pleadings must give the other side fair notice of the case they have to meet. Under r 16.21(1), a pleading may be struck out if it is evasive or ambiguous, likely to cause prejudice, embarrassment or delay, fails to disclose a reasonable cause of action or defence, or is otherwise an abuse of process.

The substantive Fair Work Act provisions identified in the judgment were important context. Ms Cleary's sexual harassment case relied on s 527D(1), with alleged vicarious liability under s 527E. Her adverse action case relied on s 340, with the alleged forms of adverse action tied to items in the table in s 342(1). The relief issue turned on s 545, which gives the Court power to make orders it considers appropriate if satisfied that a person has contravened or proposes to contravene a civil penalty provision.

For the adverse action pleading, the legal character of the 25 August 2023 email mattered. Paragraph 95 of the statement of claim made clear that paragraphs 92, 93 and 94 were intended to map onto different items in s 342(1). So the Court had to ask whether the material facts had been pleaded to support each legal characterisation. It was not enough to assert a conclusion if the facts needed to support that conclusion were missing.

The relief issue was also framed carefully. The Court noted that it can strike out relief if a party could not hope to obtain it, but that this is not the same as summary judgment. Even if a particular form of relief is struck out at an interlocutory stage, the Court may still need to fashion appropriate relief later if the applicant succeeds on a cause of action at trial. The threshold for striking out relief is therefore high. The Court would need to be satisfied that the relief was plainly and obviously unavailable and would never be granted.

The Court's orders were short but important. Paragraph 92 of the statement of claim was struck out under r 16.21. Ms Cleary was given leave to file and serve an amended statement of claim by 26 June 2026. Qube Ports was to file and serve an amended defence by 31 July 2026. Otherwise, the relevant parts of Qube Ports' interlocutory application were dismissed.

On worker status, the Court rejected Qube Ports' complaint. Although paragraphs 1(b) and 1(c) referred to Ms Cleary being a worker at all material times, the Court held that the particulars and clarifications already provided were enough. In written submissions, Ms Cleary had clarified that the material times included the post-incident period and ran until 25 August 2023, when she said Qube Ports either terminated the contract for services or, if it had already ended, refused to engage or employ her. The Court held that Qube Ports was sufficiently on notice of that case and could simply deny worker status in its defence if it wished.

The Court reached a different conclusion on paragraph 92. That paragraph alleged that by the 25 August 2023 email Qube Ports terminated the contract for services between it and Ms Cleary as an independent contractor. The Court accepted Qube Ports' complaint that the statement of claim did not plead the material facts explaining how the email had that legal effect. It was unclear whether the case relied on the exercise of a contractual right of termination, some other basis for termination, or another legal theory. The alleged contract was said elsewhere to be partly written, partly oral and partly implied, and varied in similar ways, but no specific terms had been pleaded. That left unanswered questions such as whether either party had an obligation to provide or make available services, whether the contract could be terminated by notice, or whether some repudiatory conduct was being alleged.

The Court also noted that Ms Cleary did not plead a cause of action in contract. But that did not solve the problem, because the particular adverse action alleged in paragraph 92 was termination of a contract for services within item 3(a) of s 342(1). If that was the species of adverse action relied on, the pleading still had to state the material facts showing why termination had occurred. The Court therefore held that paragraph 92 in its current form was ambiguous, if not unsustainable, and did not give proper notice of the case.

By contrast, paragraphs 93 and 94 survived. Those paragraphs alleged, in the alternative, that the 25 August 2023 email refused to engage Ms Cleary as an independent contractor or refused to employ her. The Court accepted that these allegations could be understood by reading them with the facts pleaded in Parts D and F of the statement of claim, especially the discussions and correspondence from May 2023 onward about Ms Cleary's engagement and possible future work. On that basis, Qube Ports had enough notice of the case and could plead to it.

The judgment then turned to paragraph H.4 of the relief claim and set out Qube Ports' arguments in detail, including arguments about the scope of s 545 and whether the requested orders were too remote from the pleaded contraventions. The available text ends during the Court's discussion of that issue, after noting there is room for debate about the scope of s 545 in a particular proceeding. Because the text available here is incomplete at that point, the final treatment of paragraph H.4 should be checked against the complete judgment.

This case is useful because it shows how ordinary business arrangements can become legally decisive in a Fair Work dispute. The Court was not dealing with an abstract legal problem. It was dealing with a real workplace relationship that had apparently shifted from employment to contractor work, followed by a complaint, a cessation of services, a disabled email account, and a later message saying no contractor or part-time roles were available. Each of those facts can carry different legal consequences depending on the surrounding documents and communications.

The first practical point is to document engagement status carefully. If someone has been an employee at one time and a contractor at another, do not assume the legal position will be obvious later. The Court may need to know whether there was an extant contract for services, whether work was offered project by project, whether there was any obligation to provide work, and how the arrangement could end. If those matters are not clear in the documents, both sides may end up fighting over them in pleadings before the merits are even reached.

The second point is that post-complaint conduct can become central to an adverse action case. Here, the alleged sexual harassment complaint was followed by the disabling of email access and a later email about the absence of contractor or part-time roles. A business may regard those steps as operational, security-related, or simply reflective of staffing needs. But in litigation they may be characterised as adverse action, especially if they affect access, work opportunities, engagement or employment prospects after a complaint has been made.

The third point is about precision in communications. The Court struck out paragraph 92 because the pleading did not explain how the 25 August 2023 email terminated a contract for services. That does not mean the email had no legal effect. It means that if a party wants to say an email legally terminated a contract, the factual basis for that conclusion must be pleaded. For businesses, the mirror image is obvious: if you are ending a contract, declining future work, or saying no role is available, the wording should match the actual legal position. Ambiguous language can create room for multiple competing characterisations later.

The fourth point concerns broader remedial orders. The relief sought in this case went beyond compensation and penalties and included requests for policy development, training, reporting and workforce assessment. The Court's final reasoning on that issue is not fully available in the text used here, but the fact that the issue was argued at all is a reminder that workplace litigation can expose a business to requests for operational and governance changes, not just money claims.

The judgment was delivered by Horan J on 21 May 2026 in the Federal Court of Australia, Fair Work Division, Victorian Registry. The hearing of the interlocutory application took place on 8 May 2026. The Court ordered that paragraph 92 be struck out, gave Ms Cleary leave to amend by 26 June 2026, and required Qube Ports to file and serve an amended defence by 31 July 2026.

This means the case, as reflected in this decision, was still at an interlocutory stage. The Court had not finally determined liability, compensation, penalties or final relief. Readers should therefore treat the decision as guidance on pleading and procedure in a Fair Work dispute, not as a final ruling on whether Qube Ports contravened the law.