Kathleen Foley

ADMITTED  2004    BAR  2009

PHONE  9225 6136

Kathleen Foley, BA (UWA), LLB (1st Class HONS)(UWA), LLM (HARVARD)


  • Administrative Law
  • Class Actions
  • Commercial Law
  • Common Law
  • Constitutional
  • Equity / Equitable Relief / Trusts
  • Human Rights
  • International / Conflicts of Law
  • Medical Negligence
  • Personal Injuries
  • Product Liability
  • Professional Negligence
  • Public Law
  • Torts (Other Than PI)
  • Trade Practices
  • Transport Accident Act

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Kathleen signed the Bar Roll in May 2009, reading with Philip Solomon QC. Since that time, she has built a substantial trial and appellate practice, principally taking on commercial law, public law and common law matters. She appears regularly in the High Court of Australia in constitutional matters. In November 2020 Kathleen was appointed to the Victorian Law Reform Commission as a part-time commissioner.

Since 2016 she has been recognised annually in Doyles Best Barristers' Guide.

Prior to coming to the Victorian Bar, Kathleen was employed as an Associate in the litigation group of the New York office of Orrick, Herrington & Sutcliffe LLP. She passed the New York Bar exam in 2006, having completed her Master of Laws at Harvard Law School. From 2004 to 2005, Kathleen was Associate to Justice Hayne of the High Court of Australia.

Cases in which Kathleen has been briefed include:

Commercial Law

  • Shimshon v MLC Nominees Pty Ltd: currently acting for the defendants in this class action concerning obligations of superannuation trustees (led by Matthew Darke SC).
  • Davaria Pty Limited v 7-Eleven Stores Pty Ltd: currently acting for 7-Eleven in this class action brought on behalf of franchisees against their franchisor (led by Neil Young QC and Robert Craig QC, with F Shand and A McRobert).
  • Slea v Connective litigation: currently acting for the plaintiff in this long-running litigation involving claims of oppression and breaches of director’s duties, including in Connective Services Pty Ltd v Slea Pty Ltd [2018] VSCA 229 and Slea Pty Ltd v Connective Services Pty Ltd [2018] VSCA 180 (led by Michael Hodge QC, with Geoff Kozminsky and Colette Mintz).
  • YPF v Oswal: acted for the plaintiff in proceedings against Pankaj and Radhika Oswal concerning the alleged misappropriation of company funds (led by Alan Archibald QC, Philip Solomon QC and Penny Neskovcin QC).
  • OZ Minerals class action: acted for three former directors of Zinifex in the class action and related proceedings in the Federal Court of Australia concerning the merger of Zinifex and Oxiana (led by Paul Anastassiou QC).

Public Law

  • Cotterill v Romanes: currently acting for the plaintiff in this challenge to COVID-19 restrictions and how those restrictions interact with the implied freedom of political communication (leading Joel Tito and Minh-Quan Nguyen).
  • Republic of Turkey v Mackie Pty Ltd [2021] VSCA 77: acted for the Attorney-General for the State of Victoria in this Court of Appeal matter concerning the meaning of s 75(ii) of the Constitution.
  • HIPL v Clarence City Council; APAL v Northern Midlands Council: currently acting for the Commonwealth in these proceedings before the High Court concerning, among other things, the nature of declaratory relief and the privity of contract doctrine (led by Stephen Donaghue QC, Solicitor-General for the Commonwealth and Craig Lenehan SC).
  • Clubb v Edwards (2019) 267 CLR 171: acted for the State of Victoria in this constitutional challenge to the State’s legislation creating safe access zones around abortion clinics (led by Kristen Walker QC, Solicitor-General for Victoria, with Simona Gory).
  • Federal Commissioner of Taxation v Thomas [2018] HCA 31: acted for the Commonwealth (intervening) in this tax case raising constitutional questions (led by Stephen Donaghue QC, Solicitor-General for the Commonwealth, with R Minson).
  • Wilkie v The Commonwealth (2017) 91 ALJR 1035: acted for the plaintiffs in challenging the marriage law postal survey (led by Ron Merkel QC, with Chris Tran).
  • Murphy v Electoral Commissioner (M247 of 2015): acted for the Commonwealth in defending a constitutional challenge to the validity of provisions of the Electoral Act (led by Justin Gleeson SC, Solicitor-General of the Commonwealth, and Nicholas Owens).
  • Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369: acted for Transfield Services in defending the plaintiff’s challenge to the Commonwealth’s regional processing arrangements in Nauru (led by Stephen Donaghue QC, with Chris Tran).
  • Kathleen regularly acts in the Administrative Appeals Tribunal.

Common Law/Personal Injury

  • Binsaris v Northern Territory (and related proceedings) (2020) 380 ALR 1: acted for each of the appellants in these landmark proceedings concerning (inter alia) the use of CS gas at the Don Dale Youth Detention Centre (unled in the Northern Territory Supreme Court at trial, led by Bret Walker SC in the Northern Territory Court of Appeal and again by Bret Walker SC, with James McComish, before the High Court).
  • Age Co Ltd v YZ (2019) 60 VR 189: acted for the appellant in this significant case concerning the scope and content of an employer’s duty of care where an employee’s work exposes them to traumatic events (led by J P Gorton QC).
  • Box Hill Institute of TAFE v Johnson [2015] VSCA 245: acted for the applicant in this appeal concerning the content of an employer’s duty of care towards an employee with a psychiatric condition (led by Michael Wheelahan QC).
  • Mason v TAC (2014) 68 MVR 474; [2014] VSCA 267: acted for the TAC in the Victorian Court of Appeal in successfully defending this appeal against a decision of the County Court dismissing the appellant’s application for leave to bring a proceeding for damages pursuant to s.93 of the Transport Accident Act 1986 (Vic). Led by Jeremy Ruskin QC.

From 04/06/2009,Liability limited by a scheme approved under Professional Standards Legislation.