MAN25 v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 September 2026
• Neutral Citation: [2026] FCA 1349
• Date: 15 September 2026

Federal Court of Australia

MAN25 v Commonwealth of Australia [2026] FCA 1349

ORDERS

NSD 1930 of 2025
BETWEEN:	MAN25 First Applicant MAO25 Second Applicant MAP25 (and another named in the Schedule) Third Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	15 September 2026

THE COURT ORDERS THAT:

1. The respondent’s interlocutory application dated 3 March 2026 is dismissed.

2. The respondent is to pay the applicants’ costs to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J

1 This is a representative proceeding pursuant to Pt IVA of the Federal Court of Australia Act 1978 (Cth) (FCA Act) brought by four lead applicants, each former members of the Australian Defence Force (ADF) claiming to have suffered various forms of unlawful discrimination in their workplace contrary to the Sex Discrimination Act 1984 (Cth) (SD Act), against the Commonwealth of Australia (the Commonwealth).

2 These reasons address the Commonwealth’s interlocutory application filed 3 March 2026 which advances three categories of issues arising out of the applicants’ pleaded claims. The Commonwealth seeks the following orders:

(1) pursuant to s 33ZF(1) of the FCA Act that, by reason of s 33E(2), any current service member of the ADF (ADF Member) is not a group member in the proceeding unless the person gives their written consent in accordance with r 9.33 of the Federal Court Rules 2011 (Cth) (Rules);

(2) pursuant to r 16.21 of the Rules that, by reason of the failure to satisfy s 33C(1)(b) and/or (c) of the FCA Act, the amended statement of claim dated 10 February 2026 (ASOC) be struck out in whole, with leave to replead;

(3) in the alternative, pursuant to r 16.21 of the Rules that, by reason of s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), paragraphs [15], [41]-[49], [51], [60], [68]-[74], [81], [101], [104]-[105], [112]-[118], [125], [150]-[155], [177]-[182], [191]-[197], [211]-[214], and [231]-[235] of the ASOC be struck out, with leave to replead.

3 The parties summarised their positions as follows.

4 In relation to prayer 1, the Commonwealth submitted that by including current members of the ADF the applicants’ group member definition purports to include persons who would be “an officer of the Commonwealth … in his or her capacity as such an officer”. Under s 33E(2)(d) of the FCA Act, such persons cannot be made group members without their written consent. The applicants submitted prayer 1 mischaracterises the capacity in which current ADF Members are made group members. ADF Members, in particular enlisted members, are not officers of the Commonwealth within the meaning of s 33E(2)(d) of the FCA Act at all; and in any case, the rights asserted are private statutory rights wholly divorced from any capacity as such an officer.

5 In relation to prayer 2, the Commonwealth submitted the applicants’ pleaded claims fail to satisfy the “gateway” requirements for representative proceedings in s 33C(1)(b) and/or (c) of the FCA Act, which requires that the claims of all group members “are in respect of, or arise out of, the same, similar or related circumstances” ((1)(b)) and that all group members’ claims “give rise to a substantial common issue of law or fact” ((1)(c)). Properly analysed, the claims are so disconnected and individualistic that they fail to satisfy these requirements. The applicants submitted that prayer 2 fails to identify the common thread in this case. Every group member is a deemed employee of a single employer by statute, subject to a unified chain of command, a single disciplinary system, and ADF-wide policies; both s 33C(1)(b) and (c) of the FCA Act are satisfied. This is a systems case against a single deemed employer, not an aggregation of bilateral incidents.

6 In relation to prayer 3, the Commonwealth submitted that some allegations of ‘unlawful discrimination’ included in the pleading are not “the same as (or the same in substance as) the unlawful discrimination that was the subject” of the complaint terminated by the Australian Human Rights Commission (AHRC), such that it does not satisfy the jurisdictional requirement in s 46PO(3) of the AHRC Act. The applicants submitted that prayer 3 misreads the terminated representative complaint. The complaint was lodged, accepted and terminated under s 46PH(1B)(b) of the AHRC Act as a representative complaint on behalf of a described class aggrieved by systemic acts, omissions and practices alleged in Attachment A to the AHRC complaint filed on 20 December 2024, not merely by the named complainants' individual incidents in Attachment B. The complaint, read as a whole, describes a systemic pattern of sexual harassment and sex discrimination against women serving as ADF Members across the claim period from which the impugned paragraphs arise.

7 I will address the issues in the order they appear in the interlocutory application, and in which the submissions were advanced.

8 Suffice to say at this stage, for the reasons below I have concluded that:

(1) current ADF Members are “officers of the Commonwealth” for the purposes of s 33E(2)(d) of the FCA Act, but those who fall within the definition of group member in this proceeding are not a member in their capacity as such officers;

(2) the applicants, by their pleadings, have satisfied the gateway in s 33C(1) of the FCA Act; and

(3) the impugned paragraphs in the ASOC fall within s 46PO(3) of the AHRC Act.

9 Accordingly, the interlocutory application is dismissed.

Section 33E(2) of the FCA Act

10 The general position under the FCA Act is that a group member’s consent is not required for representative proceedings to be commenced on their behalf. A person becomes a group member by falling within the description or identification of group members in the representative party’s pleading. If a person does not wish to be joined as a group member, they can choose to “opt out” under s 33J of the FCA Act. In contrast, s 33E(2) prescribes four specific exceptions which require for persons or bodies to provide written consent to be a group member (i.e. they must opt in).

11 Section 33E is in the following terms:

33E Is consent required to be a group member?

(1) The consent of a person to be a group member in a representative proceeding is not required unless subsection (2) applies to the person.

(2) None of the following persons is a group member in a representative proceeding unless the person gives written consent to being so:

(a) the Commonwealth, a State or a Territory;

(b) a Minister or a Minister of a State or Territory;

(c) a body corporate established for a public purpose by a law of the Commonwealth, of a State or of a Territory, other than an incorporated company or association; or

(d) an officer of the Commonwealth, of a State or of a Territory, in his or her capacity as such an officer.

(emphasis added)

12 In this proceeding, group members are defined in the ASOC at [15] as follows:

The persons on behalf of whom the Applicants bring this proceeding are women who:

15.1 were ADF Members within the meaning of section 4 of Defence Act [sic], whether in the Permanent Forces or the Reserves, during the period 13 November 2003 and 25 May 2025 (Claim Period);

15.2 were, or allege to have been, at or in connection with their work or in ostensible performance of their duties at ADF Workplaces (as defined at 28 below):

15.2.1 sexually harassed within the meaning of sections 28A and/or 28B of the SD Act;

15.%2.2 from 11 September 2021, harassed on the ground of their sex within the meaning of section 28AA of the SD Act;

15.%2.3 discriminated against in employment on the ground of their sex within the meaning of sections 5 and 14 of the SD Act; and/or

15.%2.4 the subject of acts of victimisation within the meaning of section 47A of the SD Act;

where such conduct

15.%2.5 consisting of discrimination was permitted by the Commonwealth within the meaning of section 105 of the SD Act;

15.%2.6 consisting of sexual harassment or harassment on the ground of sex occurred after 11 September 2021 and was permitted by the Commonwealth within the meaning of section 105 of the SD Act; and/or

15.%2.7 was conduct for which the Commonwealth is vicariously liable within the meaning of section 106(1) of the SD Act; and

15.3 suffered, or allege to have suffered, loss or damage by reason of the conduct alleged in subparagraph 15.2 above (Group Members).

13 The Commonwealth submitted that the group member definition at ASOC [15] is broad enough to encompass all ADF Members within the meaning of s 4 of the Defence Act 1903 (Cth) (Defence Act), whether in the Permanent Forces or the Reserves, between 13 November 2003 and 25 May 2025, provided that they are women who come within the scope of the description at ASOC [15.2] and [15.3]. The Commonwealth submitted the applicants cannot designate women who are current ADF Members as group members as they are officers of the Commonwealth and are members of the proceeding in that capacity, relying on s 33E(2)(d) of the FCA Act.

14 The applicants submitted ADF Members, in particular enlisted members, are not officers of the Commonwealth and, even if they are, they are not acting in that capacity in this proceeding.

15 Therefore, two issues arise: first, whether current ADF Members are “officers of the Commonwealth” within the meaning of s 33E(2)(d); and second, whether such persons are group members in this proceeding in their “capacity as such an officer”. Both parties accepted former ADF Members would not fall within the s 33E(2)(d) exception on the basis of having been a member of the ADF.

16 There is scant judicial consideration of the operation of the exceptions in s 33E(2), and the issue currently raised has not been considered.

17 As a starting point, the issue is one of construction. Recently, the High Court in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 424 ALR...