Kathleen Foley

ADMITTED  2004    BAR  May-09

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.

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

  • 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).
  • Acted for NAB in the Banking Royal Commission, on a team lead by Neil Young QC and Wendy Harris QC.
  • 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).
  • Asahi Holdings (Australia) Pty Ltd v PEP Pty Ltd: acted for two insurers in this Federal Court litigation involving allegations of misleading and deceptive conduct in the $NZ1.5 billion sale of an alcoholic beverage business (settled in late 2014) (led by Jim Delany QC, with Christopher Archibald).
  • East West Link litigation: acted for the State of Victoria in the Supreme Court of Victoria, the Court of Appeal and the High Court of Australia (on the injunction application) in Murphy v State of Victoria. This high-stakes proceeding concerned the East West Link project proposal (led by Stephen McLeish SC, then Solicitor-General of Victoria, as well as Mark Moshinsky QC and Michael Wheelahan QC in various stages of the litigation, with Perry Herzfeld).

Public Law

  • Clubb v Edwards [2019] HCA 11: 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).
  • NAAJA v Northern Territory (2015) 326 ALR 16: acted for the plaintiffs in challenging the validity of the Northern Territory's paperless arrest” laws (led by Mark Moshinsky QC, with Chris Tran).
  • CEPU v Queensland Rail (2015) 318 ALR 1: acted for the Commonwealth in this constitutional case concerning whether Queensland Rail is a corporation within s.51(xx) of the Commonwealth Constitution (led by Justin Gleeson SC, then Solicitor-General of the Commonwealth).
  • Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment (2012) 293 ALR 450: acted for the Attorney-General for the State of Victoria (led by Stephen McLeish SC, then Solicitor-General for Victoria) in this High Court challenge to the validity of s.146C of the Industrial Relations Act 1996 (NSW).
  • Williams v The Commonwealth (2012) 248 CLR 156: appeared on behalf of the Churches' Commission on Education Incorporated (intervening) in Williams (No 1), a significant constitutional case in the High Court of Australia concerning the Commonwealth's National School Chaplaincy Program (led by Peter Quinlan SC).
  • Kathleen regularly acts for government agencies, including the NDIA and TGA, in the Administrative Appeals Tribunal.

Common Law/Personal Injury

  • LO v Northern Territory (and related proceedings) [2016] NTSC 70: acted for each of the plaintiffs in these proceedings concerning (inter alia) the use of CS gas at the Don Dale Detention Centre.
  • 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.
  • Elias v TAC [2013] VSCA 123: acted for the TAC as respondent to this application for leave to appeal from the trial judge's refusal to grant leave to commence a proceeding under s.93(4) of the Transport Accident Act 1986 (Vic). Application dismissed. Led by Jeremy Ruskin QC.

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