Federal Court of Australia

Fair Work Ombudsman v Super Retail Group Limited (Listing of trial) [2026] FCA 54

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings be listed for final hearing on the separate questions agreed between the parties on 7 to 18 December 2026.

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

REASONS FOR JUDGMENT

SHARIFF J:

1    These proceedings were commenced on 19 January 2023.

2    In the proceedings, the applicant, the Fair Work Ombudsman (FWO), contends, amongst other things, that the respondents, collectively referred to as the Super Retail Group (SRG), have underpaid certain employees who worked at various retail stores, including Macpac, Rebel, SRG Leisure and Super Cheap Auto. It is alleged that the underpayments have arisen by reason of breaches of various clauses of the General Retail Industry Award 2010 (GRIA) and the Super Retail Group Enterprise Agreement 2015, as well as by reason of contraventions of the Fair Work Act 2009 (Cth) (FW Act).

3    The period to which the underpayments relate is from 22 January 2017 to 30 March 2019, though there are some variations to the relevant period in relation to particular subsets of employees. Nevertheless, the events to which the proceedings relate occurred some time ago.

4    The proceedings were case managed in the docket of Justice Katzmann. By 21 November 2023, the FWO had filed a Second Further Amended Statement of Claim, SRG had filed a Defence, and the FWO had filed a Reply.

5    On 21 November 2023, Katzmann J made orders by consent that:

(a)    the FWO be granted leave to file a Third Further Amended Statement of Claim in the form that had been provided to SRG’s solicitors on 27 October 2023; and

(b)    the proceedings be stayed until judgment was published in two proceedings pending before the Court: Fair Work Ombudsman v Woolworths Group Limited (ACN 000 014 675) (NSD581/2021) and Fair Work Ombudsman v Coles Supermarkets Australia Pty Ltd (ACN 004 189 708) (NSD1252/2021) (Woolworths and Coles Proceedings).

6    The Woolworths and Coles Proceedings also involve claims as to breaches of the GRIA and contraventions of the FW Act, some of which overlap with the claims made in the present proceedings. The Woolworths and Coles Proceedings had been heard before Perram J. His Honour had reserved judgment on 21 July 2023. In those circumstances, the parties submitted that a stay was appropriate given both proceedings raised issues in relation to the same relevant industrial award. As mentioned, Katzmann J accepted the parties’ consent position, and a stay was ordered.

7    In the result, Perram J delivered judgment in the Woolworths and Coles Proceedings on 5 September 2025.

8    In the meantime, upon the retirement of Katzmann J, these proceedings were allocated to my docket.

9    Allowing the parties some time to digest the reasons of Perram J, I listed the matter for case management on 29 October 2025. At that time, the parties sought consent orders which provided for a period up until February 2026 to consider a mediation and to facilitate the FWO filing and serving revised pleadings in light of the judgment in the Woolworths and Coles Proceedings. By then, the FWO had already had a period of over seven weeks to consider that judgment. I declined to make the orders that were sought. I listed the matter for a further case management hearing on 12 December 2025 and expressly adverted to the fact that I intended to move the proceedings along towards a final hearing to be listed in the next year.

10    In advance of the case management hearing scheduled for 12 December 2025, the parties were requested by my chambers to come prepared with the mutual availability of their Counsel for a hearing in the following 12-month period.

11    At the case management hearing on 12 December 2025, Senior Counsel for the FWO informed the Court that amended pleadings had not yet been finalised but expressed a readiness to take hearing dates if they were available during the course of 2026. I identified a range of possible dates on which I could list the matter for final hearing during 2026, with estimates for the duration of the hearing ranging between four to ten days. Counsel for SRG indicated that it had limited availability for a hearing during 2026 primarily due to the availability of the Senior Counsel retained by SRG.

12    I made orders that, amongst other things, listed the proceedings for a further case management hearing on 4 February 2026 and directed the parties that for the purpose of that hearing they would need to provide their best estimates as to the duration of the hearing and expressed an intention to list the matter in one of the following date ranges:

(a)    11 to 22 May 2026;

(b)    6 to 17 July 2026;

(c)    30 November to 24 December 2026; or

(d)    1 to 5 February 2027 or after 19 March 2027.

13    The parties appeared before me today. The FWO adduced evidence to the effect that it would be prepared and ready to take a hearing on the dates nominated in July 2026 and proposed orders to that effect.

14    SRG adduced evidence to the effect that its Senior Counsel was not available on any of the nominated dates in 2026 but was available for the five days in February 2027 and otherwise after 19 March 2027. SRG’s evidence also stated that another one of its three junior counsel was unavailable in the dates identified in July 2026. SRG’s evidence indicated that its Senior Counsel had been retained since March 2021 (during the course of the FWO’s investigations and 22 months before the FWO commenced the proceedings) and had been involved in the matter since that time.

15    Counsel for SRG submitted that, whilst not determinative, Courts have traditionally taken into account the availability of counsel and especially Senior Counsel when listing matters for trial: citing Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 844 (Brennan, Deane and McHugh JJ) but being a reference to what Marks J in the Supreme Court of Victoria had stated, in the context of an application for an adjournment, that “it was a long-standing practice of the court that, while it would do its best to meet the convenience of counsel, it would not delay access to the courts by other litigants by putting off hearings in the way the court was asked to do in this case”.

16    Although there was no specific evidence as to prejudice, it was submitted that SRG would suffer prejudice in circumstances where its Senior Counsel had a close involvement in the matter since 2022 and there would be further prejudice in retaining new Senior Counsel including the costs incurred in that Counsel reading into the matter.

17    It was further submitted on behalf of SRG that if the matter was listed in the first week of February 2027 as opposed to in December 2026, there would be no substantive difference in terms of delay or there would only be a slight delay. The FWO however pointed out that the Court was only available for five days in February 2027 and, as both parties estimated the duration of the trial to be somewhere in the range of up to 10 days, there would be a greater delay as the FWO would oppose the hearing being split between the February and March dates. The FWO submitted that the delay would in fact be as between December 2026 and late March 2027.

18    The true delay would in fact be as between the July 2026 and the March 2027 dates. That is so because the parties would be ready for trial in the dates nominated in July 2026. The FWO in fact formally asked for the trial to be listed for the dates available in July 2026. I would have done so, but I have not in order to allow SRG more time to brief alternative counsel. The result is that SRG will have ample time to retain other counsel.

19    I am sympathetic to the position of SRG and the Senior Counsel that it has retained. SRG decided some time ago to retain a Senior Counsel who has continued to advise it and appear on its behalf for some years. SRG has a legitimate interest in seeking to ensure that it is represented by the counsel of its choosing. It is no fault of SRG that the Senior Counsel it has retained is unavailable when the Court is available. Nor is there any fault on the part of Senior Counsel. Those are matters to be given weight. However, SRG’s interests are only one consideration; they are not determinative. Ultimately the determinative question is what is required in the interests of justice.

20    On the one hand, a regulator (who has taken some time to get its house in order following judgment in the Woolworths and Coles Proceedings) is seeking a listing for a final trial in July 2026. On the other hand, I have a party seeking (in effect) a listing for final trial in March 2027. What is more critical is that the Court is available to hear the matter. It is also critical that the subject matter of the proceedings relates to alleged underpayments arising from the period between 22 January 2017 and 30 March 2019. By the time these proceedings come to be decided, some of the underpayments will have arisen from over a decade ago. The idea that the final hearing of these proceedings should be further delayed should not be tolerated. I do not intend to do so.

21    As President Mason of the Court of Appeal of New South Wales stated in State Rail Authority of New South Wales v Phillips [2001] NSWCA 172 at [10] it is “a sad fact that the convenience of counsel cannot invariably be taken into account”. Albeit in the context of listing a matter for the hearing of an appeal, his Honour’s further statements at [12] continue to hold true:

…although the client's choice of counsel is not a matter to be disregarded by any stretch of the imagination. If however the Court has available hearing dates at a time when there will be adequate opportunity for the matter to be brought to a state of readiness, then the profession must understand that the Court may well fix the matter for hearing. Experience has shown that quite often dates which are not within the range given by counsel at the call-over turn out to be acceptable to counsel. Experience also shows that hearings are set down on the basis of counsel X's availability and then counsel Y comes in for all sorts of good and proper reasons. It is part of the reality of life.

22    I would ordinarily do everything I could to accommodate the convenience of Counsel and to ensure that parties have the right to representation of their choosing, but there are limits. This is a matter where those limits apply. There are more compelling interests which transcend the interests of one party.

Associate:

Dated:    4 February 2026

SCHEDULE OF PARTIES