Ms Kathleen E Foley

Contact Details




Kathleen was Associate to Justice Hayne of the High Court of Australia from 2004 to 2005.
Before coming to the Victorian Bar, Kathleen was employed from 2006-2009 as an Associate in the litigation group of the New York office of Orrick, Herrington & Sutcliffe LLP.
Kathleen practises primarily in commercial litigation and public law.  She also accepts briefs in some common law matters.  Since coming to the Bar, she has gained considerable trial experience, both as a junior and unled.

Kathleen graduated first in her class from the University of Western Australia Law School in 2003.  At Harvard Law School, she was elected a member of the Law School Council and was awarded the Saltonstall Memorial Scholarship.  Kathleen has published in national and international law journals. 

Kathleen read with Philip Solomon QC.  Cases in which she has been briefed include:

Commercial Law

YPF v Oswal: currently acting 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).

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

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, 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).

Common Law/Personal Injury

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.


Liability limited by a scheme approved under Professional Standards legislation.

Formal Details 0

  • Admitted to Practice
    05 February 2004
  • First Signing Bar Roll
    21 May 2009
  • Qualifications
    LLM (Harvard); LLB (Hons)(UWA); BA (UWA)

Areas of Speciality

  • Arbitration & ADR
  • Insurance & Professional Negligence
  • Public Law