Federal Court of Australia

Cannan v The Reject Shop Ltd (No 2) [2025] FCA 879

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to file an amended originating application and an amended statement of claim in substantially the forms of the draft documents annexed to the affidavit of Rory Markham dated 13 June 2025.

2.    The amended originating application and the amended statement of claim take effect on and from 16 June 2025.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an interlocutory application dated 16 June 2025, the applicant, Mr Cannan, seeks leave to file an amended originating application and amended statement of claim. The amendments themselves are uncontroversial and it is agreed that leave should issue at least substantially in the forms that Mr Cannan requests. At issue presently is whether the court should grant associated relief in the form of what are sometimes known as “relation back orders”. The application is supported by two affidavits affirmed by Mr Cannan’s solicitor, Mr Rory Markham, which exhibit the documents in their proposed amended forms and supply other context to the application.

2    The proceeding, which Mr Cannan brings in a representative capacity under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”), presently concerns the remuneration that the respondent (“TRS”) paid to those whom it employed as Store Managers and Assistant Store Managers in its retail shopping chain, and to whose employment applied one of two awards made by the Fair Work Commission—specifically, the General Retail Industry Award 2010 and its successor of 2020.

3    The proceeding was the subject of an earlier application for leave to amend (the “2024 Amendment Application”): see Cannan v The Reject Shop Ltd [2024] FCA 1429 (“Cannan No 1”; Snaden J). It is unnecessary to rehearse the nature of that application or the reasons for which it failed; instead, it suffices to note that an understanding has emerged from it about the coverage and application of the two awards by reference to which the existing proceeding is framed. In short, it is now accepted—or, in any event, it is the case—that neither award applies or applied to the employment of TRS’s Store Managers or Assistant Store Managers. As presently defined, the group on behalf of which Mr Cannan brings the proceeding is empty.

4    To address that reality, Mr Cannan proposes amendments to his originating application, by which he seeks to redefine the group on behalf of which the matter is to be prosecuted. Whereas, currently, it pertains to Store Managers and Assistant Store Managers to whose employment one of the two awards apply or applied, it is proposed that it should continue in respect of non-casual, salaried Store Managers and Assistant Store Managers who, in any week during a defined period, worked:

(1)    in the case of full-time employees, in excess of 40 hours; or

(2)    in the case of part-time employees, more than two hours beyond their ordinary hours of work.

5    Additionally, Mr Cannan proposes amendments to his pleading so as to prosecute claims different to what is presently contemplated. In its current form, the statement of claim contemplates a claim that TRS has, in respect of some of its Store Managers and Assistant Store Managers, contravened s 45 of the Fair Work Act 2009 (Cth) (the “FW Act”), in that it has underpaid them relative to what they ought to have received under the two awards referred to earlier. In substitution for that, Mr Cannan now proposes to allege that TRS:

(1)    has underpaid some of its Store Managers and Assistant Store Managers relative to what it was required to pay them under the terms of an enterprise agreement; and

(2)    has, in respect of a broader group of Store Managers and Assistant Store Managers, contravened ss 44 and 62 of the FW Act, in that it has required them to work unreasonable periods of overtime.

6    By the present application, Mr Cannan moves for an order to relate the claims that he now intends to prosecute back to the date that the proceeding was commenced. It is that relief that TRS opposes.

7    Something more should be said about the existing and proposed group descriptions. It appears that TRS’s Store Managers and Assistant Store Managers were historically (at least for a time) split each into two categories: those who were paid above nominated threshold amounts per week and those who were not. That bifurcation was spelt out in a no-longer-applicable enterprise agreement known as The Reject Shop Agreement 2014 (hereafter, the “2014 EA”). It made provision for those thresholds and, by its terms, applied only in respect of Store Managers and Assistant Store Managers who were paid below them (conveniently known as “Below-Threshold Managers”).

8    The 2014 EA replaced (or partly replaced) The Reject Shop Agreement 2011 (hereafter, the “2011 EA”). That agreement, when it applied, applied in respect of all Store Managers and Assistant Store Managers, regardless of how much they were paid.

9    In its original (and current) form, the present proceeding was brought only in respect of Store Managers and Assistant Store Managers who, over the period dating back six years prior to the commencement of the action, worked otherwise than as Below-Threshold Managers (to whom it is convenient to refer as “Above-Threshold Managers”). As has been noted, it was understood that the awards applied in respect of the employment of those employees, which is why the group was defined by reference to them. For the reasons that I identified in Cannan No 1, that understanding was not correct. Instead, the 2011 EA applied for the entirety of that period to the employment of all of TRS’s Above-Threshold Managers. Necessarily, then, the group as presently defined is empty.

10    That, Mr Cannan submits, was the product of a mistake made by his representatives, which he seeks to address by means of the amendments that he now proposes. Mr Markham’s affidavit of 13 June 2025 explains how the mistake came to be made.

11    It is not seriously to be doubted that human error served as the footing upon which the existing group description was fashioned. I accept the factual proposition that Mr Cannan—or, more accurately, his representatives—wrongly believed that the group definition articulated in the existing originating application (as well as the award breach claims that his pleading articulates in support of the relief to which it refers) was apt to capture Above-Threshold Managers.

12    The amended originating application that Mr Cannan proposes contains a revised group definition, the effect of which would be to bring all of TRS’s Store Managers and Assistant Store Managers—Below-Threshold Managers and Above-Threshold Managers alike—within the purview of his suit. Thus, the proposed amendment to the group definition is significant in at least two respects: first, in that it aims to correct a consequence that has arisen by mistake (namely, that the group is empty); and, second, in that it aims to enlarge the group even beyond that consequence (so as to incorporate Below-Threshold Managers, who were never intended to be covered by the application in its present form).

13    There are two dimensions to the “relation back” issue with which the court is now confronted. The first is whether the claims that are proposed to be agitated are so different in nature from those that are presently articulated that they might be understood as an entirely new case, which Mr Cannan should not be permitted to press as though they were commenced back in April 2023 (when the current proceeding was initiated). The second, assuming that there is sufficient commonality in that regard, is whether Mr Cannan should be permitted to press them in respect of people who are not presently within the existing group definition.

14    That second question is also multi-dimensional. As has been noted, the group as presently defined does not cover anybody, with the result that all of the people that are proposed as group members under the revised description are new additions to the class. That being so, should there be a relating back of the claims that are proposed to be pressed in respect of the revised group in its entirety, or should any relation back be limited to the pressing of claims relating to those who were always intended to be group members?

15    The court’s power to permit the amendments that are the subject of the current interlocutory application is not to be doubted. It is to be found at least in ss 33K and 33ZF of the FCA Act (the terms of which it is unnecessary to replicate). It is similarly well-established that the court has power to treat amendments as though effective from a date earlier than the point from which leave to agitate them is granted. Both powers were recently the subject of consideration by a full court of this court: Impiombato v BHP Group Ltd [2025] FCAFC 9 (“Impiombato”), [176]-[178] (Beach and O’Bryan JJ, with whom Lee J relevantly agreed).

16    Presently, then, it is not controversial that the court is empowered to grant the relief for which Mr Cannan moves. The power is discretionary. Its exercise is informed by circumstance and, like all such powers, it is to be exercised judicially. Ultimately, the question for the court is whether the relief that is sought aligns overall with the interests of justice.

17    In Ethicon Sàrl v Gill (2018) 264 FCR 394 (“Ethicon Sàrl ”; Allsop CJ, Murphy and Lee JJ), the full court allowed an appeal from a primary judgment that permitted an amendment to a group definition and related certain claims back to the commencement of the proceeding. Their Honours observed (at 406-7, [51]-[52]):

51    It is consistent with the scheme introduced by Pt IVA and, in particular, the need for there to be certainty as to the persons who comprise the class at all times, that the Group Definition Amendment should have been ordered to take effect from the date of amendment, being the date of filing of the 5FASOC. To adopt that course is consistent with the expansion of the class effected by the earlier Amendment Orders which, unfortunately, were not drawn to the attention of the primary judge in the present context. Apart from anything else, this prevents the topsy turvy notion that someone retrospectively becomes a group member on commencement, when the Court has thus far proceeded on the basis that they are not group members. As a matter of principle, such an approach would avoid the vice of potentially resuscitating causes of action by persons who have never sought to agitate them. It would be odd that by becoming a group member through the augmentation of a class, substantive rights were conferred on a claimant that had been either extinguished or barred by operation of statute and could not otherwise be advanced by that claimant.

52    Before leaving this topic it is worth making a further point. Given the suspension of limitations caused by the operation of s 33ZE, the question of inclusion (or, as occurred here, unusually, exclusion) of group members has potentially important consequences on substantive rights. As does the date when any such order is to take effect. Whatever might be the nature of other amendments to a statement of claim, or to relief claimed in an application, attention must be given by parties to the legal consequences of class composition changes. Irrespective as to when other amendments might take effect, the consequences of amendments to group definition can affect the rights of third parties, being the absent group members or proposed group members. Although it would be inappropriate to lay down inflexible rules, the default position is that a s 33K order (or an equivalent order under s 33ZF) has effect from the time the definition is changed, consistent with the requirements of class certainty. It is a sound practice for applicants, in seeking such orders, to deal separately with amendments concerning class composition to assist in avoiding any confusion.

18    Mr Cannan submits that it would be consistent with the interests of justice for the court to exercise its discretion to grant leave to file his proposed amended originating application and pleading; and, more significantly, to relate the claims thereby agitated on behalf of the revised class back to the commencement of the proceeding. That, he submits, is so because:

(1)    the claims contained within the revised pleading pertain, much like the existing award breach claims, to the working hours and remuneration of TRS’s Store Managers and Assistant Store Managers (or, at the very least, those who were Above-Threshold Managers, which is the vast majority);

(2)    although it is apt also to cover some Store Managers and Assistant Store Managers who were not initially intended to be covered (specifically, those who have not worked as Above-Threshold Managers), those people are small in number and the vast majority of those who fall within the revised group definition were always intended to be covered by the existing definition;

(3)    the want of correspondence as between that intention and wording of the current group definition has arisen as a result of a mistake on the part of Mr Cannan’s representatives—specifically, by unawareness on their part that, at all relevant times, the 2011 EA (and not the awards) applied in respect of TRS’s engagement of Above-Threshold Managers; and

(4)    unless a relation back order is made, the members of the group (under the revised definition)—or, at the very least, the vast majority of them—will suffer significant prejudice, in that they will be denied, by statutory limitation, an ability to recover some 26 months’ worth of what TRS ought to have paid them.

19    Although it does not oppose the court’s granting leave to file the amended originating application and amended statement of claim, TRS does oppose the making of any relation back order (or, at least, any order that dates back prior to the filing of the present application). The foundations upon which that opposition is erected are as follows.

20    First, TRS submits that the error that has led to the situation in which Mr Cannan now finds himself was a basic one that the court ought not lightly and effectively to excuse by making a relation back order. The 2011 EA’s application to Above-Threshold Managers, it says, was not a matter attended by material complication. It was, instead, something that could and ought to have been discovered with basic diligence and an entry-level understanding of the provisions of pt 2-1 of the FW Act. TRS submits that the court should be slow to find that the interests of justice require that it should bear the consequences of such an elementary mistake.

21    Second, TRS points to the scale of the period in respect of which relation back orders are sought. This is not, it says, a case of minor delay; but, rather, one that proposes the resuscitation of a very significant period—in the order of 26 months—that would otherwise be out of reach by operation of a statutory limitation.

22    Third and relatedly, TRS submits that the prejudice that will befall it if the court makes the relation back order that Mr Cannan proposes is (at least potentially) significant. There is, as might be expected, a contest as between the parties as to the scope or quantum of the claims that Mr Cannan advances; but assuming that the action attracts even a modest measure of success, the potential cost to TRS of an additional 26 months’ worth of claims could be well into the tens of millions of dollars, as one might presume is intended. TRS maintains that it is entitled to the benefit of the statutory limitation that Mr Cannan seeks to circumvent; and that the scope of what it faces should inform the court’s discretion to grant it.

23    Fourth—and in contrast to the prejudice that it faces—TRS submits that there is no evidence before the court that might suggest that group members (which is to say the members of the group as it is proposed to be redefined) will be prejudiced unless the relief for which Mr Cannan moves is granted. There is not, for example, any evidence that any person within the redefined group has acted or refrained from acting on the understanding that they were already within the coverage of the existing application. TRS submits that the prejudice to the group members, if there is any, inheres in their having decided not to pursue claims against it on the mistaken belief that the existing application was apt to protect their rights. That is not a subject upon which any evidence has been led.

24    Fifth, TRS points to the delay that has attended the filing of the present application, and Mr Cannan’s attempt to regularise the description of the group and the pleading of the claims that are advanced on its behalf. It seeks to impress upon the court the “massive…resuscitation period” that is inherent in the relation back order that Mr Cannan seeks; and to charge him with having dragged his proverbial feet in getting the matter to where it now is. To some degree, the delay is contextualised by the failed amendment application that was the subject of Cannan No 1; but even accepting that, it took some six months from then before the present application was filed. TRS submits that the interests of justice do not require that it bear the cost of Mr Cannan’s relaxed approach to the prosecution of his suit.

25    In considering whether to grant relation back orders, the court may take account of the fact that the amendments that are proposed to the composition of a class arise because of a mistake in the way that the class was initially described: Impiombato, [190] (Beach and O’Bryan JJ, with whom Lee J relevantly agreed).

26    Presently—and but for the change to the description of the class on whose behalf it is to continue—I would have little concern about relating back to the commencement of the action the causes of action that Mr Cannan proposes by his amended pleading to prosecute. At its core, Mr Cannan’s suit alleges that TRS’s Store Managers and Assistant Store Managers were paid otherwise than in a manner that the FW Act required. That is so as concerns the existing pleading and it remains the case insofar as concerns the proposed amended pleading. Were it not for the proposed change to the definition of the class, there would be little to stand in the way of the pleading dating back to April 2023. It might well be that that reality would endure without the need specifically for a relation back order.

27    The more significant concern relates to the change to the description of the class on behalf of which the action is to proceed. It is for Mr Cannan to establish that the court’s discretion should be exercised so as to grant the relief that he seeks; specifically, in a way that departs from the “default position” to which the full court referred in Ethicon Sàrl. That “default position” is, of course, consistent with the statutory norm: that litigants who wish to vindicate rights upon which they allege that a respondent has trespassed must do so within a period prescribed for that purpose; and that putative respondents are entitled to conduct their affairs on the understanding that their liability for prior conduct won’t extend beyond those limitations.

28    The court’s discretion to grant the relief that Mr Cannan seeks is properly to be informed by the considerations to which the parties adverted. Ultimately, as I have said, the question for the court is whether it is in the interests of justice to grant the relation back order for which Mr Cannan moves. On balance, I am not persuaded that it is.

29    Before explaining why that is so, something further might be said of the recent full court decision in Impiombato; and, in particular, about Lee’s J judgment therein. That matter concerned, amongst other things, an appeal from a decision of a primary judge to grant relief in the form of a relation back order. That relief was granted in connection with amendments that were made to the description of the group on behalf of which a shareholder class action proceeding was pressed. The amendment was said to have been occasioned by a mistake on the part of the applicant’s representatives; specifically, in the form of an existing definition that excluded from the class members whom the applicant had intended to include.

30    At first instance, the court accepted that the existing definition was the product of a mistake; and was persuaded that it was in the interests of justice to permit the amendment and relate the claims that were advanced back to the commencement of the proceeding. On appeal to the full court, the respondent charged the primary judge with having wrongly concluded that the existing group definition was, in fact, a product of mistake. That was said to be an error that should warrant the setting aside of the initial exercise of the court’s discretion. Additionally, it was said that the primary judge had wrongly failed to attribute weight to the prejudice that would befall the respondent if the relation back order were made.

31    Beach and O’Bryan JJ accepted the factual proposition that the group definition had not been the product of mistake. Lee J disagreed; but accepted the alternative submission that, on the material before him, it was not open to the primary judge to conclude (as his Honour did) that the prejudice that the relief would visit upon the respondent was “…unlikely to be material in the context of the case”. All three judges, then, accepted that the court’s discretion at first instance had miscarried and should be set aside. All three were disposed to re-exercise it; and, in the result, all three declined to make the relation back order that was the subject of the appeal.

32    Presently, Mr Cannan maintains that “…it is clear that it was always intended that the group should encompass store managers or assistant store managers in the circumstance where they were ‘above threshold managers’”. I accept that factual proposition (which, in any event, was not challenged). The reference in the present group definition to the awards has arisen because it was understood that those awards applied in respect of Store Managers and Assistant Store Managers who were not covered by the 2014 EA. For the reasons explored in Cannan No 1, that understanding was incorrect; but the intention that underpinned it is clear enough. I accept that Above-Threshold Managers were always intended to fall within the group definition. That they do not is a reality that is properly attributable to a mistake on the part of Mr Cannan’s representatives, which, as I have said, is a circumstance that is apt to inform the exercise of the court’s discretion.

33    Mr Cannan submits that the court should infer “…that nearly all persons who would be covered by the [revised group definition] were both above threshold managers and below threshold managers at differing times”. The submission continues:

31.    Accordingly, subject to one exception, it is not expected that the amendment of the group definition would expand the coverage of the group to any person who would not already be included within it as an above-threshold manager, nor would it contract the coverage. Although it was not intended that the original group definition cover the circumstances where a store manager or assistant store manager was paid below-threshold, it was still always intended that the same actual persons be part of the group. The sole exception to this is that there may be some individuals who were below threshold managers, but then resigned prior to their salaries increasing enough to become above-threshold managers.

34    From there, it is suggested that “…in truth the persons intended to be covered within the definition of the Group were simply Store Managers or Assistant Store Managers.” At the hearing of the interlocutory application, there was, I think it is fair to say, some walking back from that submission; but I have not understood it to be abandoned and, for that reason, will address it.

35    What is now put does not reconcile with what was advanced in Cannan No 1. Then, as now, Mr Cannan sought to expand the group definition so as to incorporate Below-Threshold Managers; but he accepted that, insofar as claims were advanced on their behalf, they should not relate back to the commencement of the proceeding.

36    That there has been something of a change of heart is not reason in itself not to grant the relation back order that is sought. Nonetheless, the position adopted then aligns more easily with authority than what is advanced now. Even assuming that many of those who once were Below-Threshold Managers are now or later became Above-Threshold Managers, the proceeding in its present form does not entertain—and was not intended to entertain—claims by those who were never Above-Threshold Managers. The proposition that Mr Cannan advances (above, [34]) is unsustainable and I reject it (to the extent that it was maintained).

37    It doesn’t much matter. The more significant issue, I think, is that Mr Cannan proposes that the group should be expanded in a way that would visit significant prejudice upon TRS. It is common ground that the claims that are to be advanced are subject to a limitation period of six years: FW Act, s 544. Addressing an equivalent reality in Impiombato, Lee J observed (at [375]-[378]) that:

375    …[the limitation provisions] can all be seen, at least generally, as reflecting and representing the Parliament’s intention and judgment that the welfare of society is best served by these statutory causes of action, allowing for an award of compensation being litigated within a limited time of six years, notwithstanding that the enforcement of these time periods may result in good causes of action being defeated: see, more generally, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553 per McHugh J).

376    It has long been thought that such limitation periods are justified by, inter alia, a recognition that as time goes by relevant evidence is likely to be lost; it is oppressive to a respondent to allow an action to be brought long after the circumstances that gave rise to it occurred; it is desirable for people to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them after a certain time; and, importantly, the public interest requires that disputes be settled as quickly as possible: Brisbane South Regional Health Authority (at 553 per McHugh J).

377    This is not a case where a plaintiff in actual or proposed inter partes litigation is seeking an extension in relation to relief arising from a justiciable controversy between the plaintiff and a defendant. By way of contrast, here we are partly dealing with non-parties; strangers to the class action, who have taken no steps to agitate any relevant claim they have or may have had. By operation of law, any controversy between the proposed new group member and BHP Ltd, which upon amendment is now said to give rise to an entitlement to statutory compensation, has either not arisen or has already been quelled by operation of law, given the effluxion of six years.

378    Irrespective of the fact that BHP Ltd is facing the substantial claims of existing group members, there is no extant issue between BHP Ltd and the third party strangers affected by the proposed amendment, and BHP Ltd, absent any amendment, is entitled to act and organise its affairs on the basis that no controversy exists between it and those third parties. Resuscitating a controversy in these circumstances does amount to material prejudice.

38    The relation back order for which Mr Cannan moves looms similarly in this matter. As TRS submitted (without challenge from Mr Cannan), for the court now to permit an additional 26 months’ worth of claims to be pressed on behalf of the new group members—even accepting that they are “new” only by reason of an error—would be to expose TRS to liabilities that potentially extends into the tens of millions of dollars; liabilities upon which, despite what is accepted to be the court’s power, the legislature has deliberately and unambiguously foreclosed. That, I think, is a significant circumstance that tells against an exercise of the discretion from which Mr Cannan hopes to benefit.

39    Similarly, I accept—at least to a point—what TRS has advanced about the nature of the mistake in respect of which the present application is pressed. That the mistake was a rudimentary one that could easily have been avoided may be accepted. Whether that should, of itself, sound as a circumstance that bears upon the exercise of the court’s discretion now is less clear; but it is, I think, a circumstance that contextualises the magnitude of the indulgence that is sought. It would be one thing for the court to conclude that the interests of justice should warrant the imposition upon a respondent of costs associated with a lengthy period of time taken to correct a mistake concerning a matter of complexity or nuance; another to accept that the same outcome (involving the same lengthy period) should arise in respect of an obvious error that ought never to have been made. Although not dispositive, I accept that the nature of the mistake that is here in focus is a circumstance that bears properly upon the exercise of the court’s discretion (which is to say against the outcome for which Mr Cannan agitates).

40    There is an additional dimension to that observation. In July 2023, TRS filed its defence, which made clear that there was reason to doubt the central proposition that the statement of claim advances (namely, that the awards applied in respect of Above-Threshold Managers). Mr Cannan and his advisers adhered to the narrative anyway, which featured as a component of the 2024 Amendment Application and led to the judgment in Cannan No 1. That chronology serves additionally to contextualise the nature of the mistake and the consequences of it that Mr Cannan hopes to avoid.

41    The absence of any evidence to substantiate prejudice on the part of group members (or additional group members) is also a matter of some significance. In Impiombato, Lee J observed (at [381]):

381    …One would ordinarily think a relevant prejudice arises because a proposed outcome prevents a person enjoying a benefit or right the person otherwise wished to enjoy or exercise. At present, the claims are time-barred by the effluxion of time, and no one has indicated any intention to seek any extension (even if it was available). It is difficult to see how a relevant and real prejudice to these third parties does exist on the evidence before the primary judge. Notably, the prejudice was not expressed by being a prejudice to another third party, being the litigation funder, whose commercial interests are no doubt affected by any failure to augment the value of the collective claims in the class action by augmentation of the class.

42    Later, when proceeding to re-exercise the discretion that he accepted had miscarried, his Honour observed (at [389]):

389    …although I accept a drafting mistake was made, in the absence of a third party or parties suggesting that they wish to agitate a claim against BHP Ltd or any evidence that they thought their limitation period had been tolled (and hence refrained from taking steps to protect their position), I do not place significant weight on the alleged prejudice to any proposed new group members caused by the drafting mistake. No doubt it is in the commercial interests of the promoters of the class action to increase the class and hence quantum, but that is not how the prejudice was put…

43    I am drawn to equivalent conclusions in the present matter. That want of identified prejudice on the part of those whom Mr Cannan proposes to add to the class stands in contrast with the obvious and intended prejudice that will befall TRS if a relation back order is made.

44    Something should be said about the magnitude of the delay. Mr Cannan sought to impress upon the court that TRS has been on notice since April 2024 of his intention to advance what he now seeks to advance. That appears to be so. Certainly, it was apparent from at least July 2024, when the interlocutory application that was the subject of Cannan No 1 was filed. I am not, however, persuaded that much may be made of that. The amendment then in contemplation continued to press the suggestion of award breach. Even assuming that what was then proposed should stand as a circumstance that informs the exercise of the court’s discretion, it is not lost on me that the application now before the court was filed more than six months after Cannan No 1 was decided.

45    In all of the circumstances, I am not persuaded that the interests of justice warrant any departure from the “default position” that the full court identified in Ethicon Sàrl. Leave to file an amended originating application and pleading should and will be granted; but I decline to make any order relating the claims thereby advanced back to April 2023, when the proceeding was commenced.

46    There is another issue that the court must tackle; one in respect of which neither party has had much to say. By his existing pleading, Mr Cannan alleges that TRS contravened the requirements of s 535(1) of the FW Act (which pertains to the making and keeping of employment records). He proposes now to abandon that claim, which is to say that it does not feature in the amendment that he proposes to make to his pleading. It is suggested that s 33V of the FCA Act might operate to require that he obtain the court’s approval to do so: Bray v F Hoffman-La Roche Ltd [2003] FCA 1505, [23] (Merkel J). Authority suggests that such approval might not be afforded unless or until notice is given to existing group members that the cause is proposed to be abandoned: Lewis v Philips Electronics Australia Ltd [2023] FCA 1486, [8]-[9] (Murphy J) and the authorities there referred to.

47    By his affidavit of 13 June 2025, Mr Markham opined that:

…although it is in the Group Members’ interests to be given prior warning of the discontinuance of the record-keeping claim, so that they might commence any new proceeding before the limitation period resumes, I do not consider it necessary or in the interests of justice to do so in this case. That is because giving notice would be costly, and the benefit to Group Members very slight, given the nature of the common claim raised, which is effectively only a claim for findings that records were not kept (as distinct from the claim for penalties, which is personal to the Applicant).

48    Although I would be disposed to accept much of that, there is a bigger issue. As has been noted a few times now, there are currently no group members to whom notice of the abandonment of the record keeping claims might be afforded. There is, then, no reason why the court might stand in the way the course that Mr Cannan wishes to chart. To the extent that he requires approval for it, he shall have it.

49    At the hearing of the interlocutory application, there was a suggestion that TRS might require more time to file its amended defence than is reserved by the Federal Court Rules 2011 (Cth). It was agreed that that was something that the parties should discuss at first instance, ideally with an eye to agreeing appropriate case management orders. In the event that no agreement is reached on that issue, I will address it.

50    Section 570 of the FW Act likely precludes the court from making any order for costs; but, if I am wrong about that, an application may be made in the usual way.

Associate:

Dated:    1 August 2025