FEDERAL COURT OF AUSTRALIA

Gall v Domino’s Pizza Enterprises Limited (No 6) [2026] FCA 1061

ORDERS

A.    During the period 24 June 2013 and 23 January 2018 (Relevant Period), Domino’s Pizza Enterprises Limited (ACN 010 489 326) (Domino’s) contravened s 18 of the Australian Consumer Law (ACL) by:

(a)    expressly and impliedly representing (including by its conduct) that, as a matter of fact:

(i)    the terms and conditions of all Domino’s Delivery Drivers and In-Store Workers employed to perform work by Franchise Operators in Franchise Stores (Relevant Employees) were governed by two enterprise bargaining agreements, the first of which provided the conditions for Delivery Drivers, and the second of which provided the conditions for In-Store Workers (the Agreements); and

(ii)    the Agreements (as affected by certain agreed base rate increases and deemed base rates) contained the rates of pay required to be paid to all Relevant Employees;

(b)    in circumstances where those representations were objectively false because:

(i)    the Fast Food Industry Award 2020 (the Award), rather than the Agreements, applied to a substantial cohort of the Relevant Employees (including Riley Gall) during the Relevant Period; and

(ii)    the Award contained the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to a substantial cohort of the Relevant Employees (including Mr Gall).

B.    Because of the contravention declared in A above, Mr Gall suffered loss and damage within the meaning of s 236 of the ACL, being the difference between the rates of pay and the value of the terms and conditions of employment he was in fact afforded, and the rates of pay and the value of the terms and conditions of employment he would have been afforded if the Franchise Operators who employed him knew that he was covered by the Award, taking into account the findings on the counterfactual as to what was likely to have occurred if the Franchise Operators who employed him knew that his employment was covered by the Award.

THE COURT ORDERS THAT:

Determination of Issues in Proceeding

1.    There be judgment for the Applicant in the amount of $11,869.33 pursuant to s 236 of the ACL, plus interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for the period from the date of loss up to and including the date of these orders.

2.    By 4pm on 7 August 2026, the Applicant is to serve on the Respondent a calculation of the interest payable under order 1.

3.    By 4pm on 21 August 2026, the Respondent is to serve on the Applicant any competing calculation of the interest payable under order 1.

4.    The common questions be answered as set out in Annexure A to these orders.

5.    Pursuant to s 33ZB of FCA Act, the answers in Annexure A are binding on:

(a)    the Applicant;

(b)    the Respondent; and

(c)    all persons who meet the description of ‘Group Members’ in paragraph 2 of the Second Further Amended Statement of Claim filed on 24 August 2021 other than those persons who opted out of the proceeding in accordance with the orders made on 17 December 2021 and 30 March 2022.

Security for Costs

6.    All amounts paid into Court by or on behalf of Therium Litigation Finance Atlas AFP IC by way of security for the Respondent’s costs, together with all interest accrued thereon, be released and repaid to Phi Finney McDonald on trust for Therium Litigation Finance Atlas AFP IC.

Costs

7.    The Respondent pay the Applicant’s costs of the proceeding including the initial trial and the costs associated with the making of these orders (Applicant’s Costs).

8.    The Applicant’s Costs are to be assessed on a lump-sum basis in accordance with Part 4 of the Costs Practice Note (GPN-COSTS).

9.    The parties are directed to endeavour to agree an appropriate timetable for:

(a)    the Applicant to file and serve a Costs Summary of not more than 10 pages in accordance with [4.10]-[4.12] of the Practice Note; and

(b)    the Respondent to file and serve a Costs Response of not more than 8 pages in accordance with [4.13]-[4.14] of the Practice Note.

Case Management Hearing

10.    The proceeding be listed for a case management hearing on a date before six weeks from date of orders for the purpose of making orders in relation to the:

(a)    amount of interest payable under order 1 above;

(b)    filing of the materials identified in order 9 above;

(c)    filing of written submissions (if any) in support of the Costs Summary or Costs Response;

(d)    scheduling of a costs hearing in accordance with the Practice Notice; and

(e)    such other orders as may be appropriate.

11.    By no later than two days prior to the case management hearing, the parties shall file any proposed orders, along with submissions in support of such orders (such submissions to be no more than five pages).

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

Annexure A

Answers to Common Questions

In this Annexure:

(a)    2FASOC means the Second Further Amended Statement of Claim filed 24 August 2021.

(b)    Agreements means the WR Act Agreements and FW Act Agreements listed in Annexure B to the 2FASOC.

(c)    Amended Defence means the Amended Defence filed 21 September 2021.

(d)    Award means the Fast Food Industry Award 2010.

(e)    F Am Reply means the Further Amended Reply served 12 November 2021.

(f)    Pre-Reform WR Act means the Workplace Relations Act 1996 (Cth) as in force in the period 2 November 2005 to 25 March 2006.

(g)    Post-Reform WR Act means the Workplace Relations Act 1996 (Cth) as in force in the period 26March 2006 to 30 June 2009.

(h)    Pre-Reform period means 2 November 2005 to 25 March 2006.

(i)    Post-Reform period means 26 March 2006 to 30 June 2009.

(j)    Relevant period means 24 June 2013 to 23 January 2018.

(k)    SFA means Sub-Franchise Agreement.

(l)    2005 Agreement means the SDA – Domino’s Pizza Agreement 2005, which was certified on 2 November 2005.

Otherwise, terms used in this Annexure have the meaning given by the Second Further Amended Statement of Claim (2FASOC) and the Amended Defence (Am Def).

The answers to the common questions refer to the relevant paragraphs in the reasons for judgment in Gall v Domino’s Pizza Enterprises Limited (No 4) [2026] FCA 967 (22 July 2026) (Reasons).

Representations

Provision of Pleaded Information

1.    Did Domino’s provide to some or all Prospective Franchise Operators or Franchise Operators:

(a)    The Franchise Information 2FASOC [28];

(b)    The Franchise Agreement Documents 2FASOC [28B];

(c)    The Franchise Disclosure Documents 2FASOC [28C];

(d)    The Compliance Information 2FASOC [29], [29A], [29B], [29C] and [29D];

(e)    The Disclosure Documents Amended Defence [28A];

together, “the Pleaded Information”.

Answer: “Yes” (Reasons, [478]).

1A.    If the answer to any part of question 1 is “yes”, which parts of the Pleaded Information were provided to:

(f)    all Franchise Operators; or

(g)    any of the categories of Franchise Operators identified by the Applicant’s in response to Order 2 of the orders of Justice Murphy made 29 August 2022,

in the Relevant Period.

Answer: “Domino’s provided the Pleaded Information to franchise operators and prospective franchise operators, and each category of the Pleaded Information was read by franchise operators and prospective franchise operators” (Reasons, [482]-[483]).

2.    Did any of the Pleaded Information provided contain a disclaimer of the type alleged at Amended Defence [30.2.5], [48.3.1]? To the extent that a disclaimer was provided, what was its effect?

Answer: The Pleaded Information contained the disclaimers in certain documents provided to franchise operators and prospective franchise operators as set out at Reasons, [485].

Franchise Representations

3.    In all the circumstances, by providing any (or any combination) of the Pleaded Information to Franchise Operators and/or to Prospective Franchise Operators, did Domino’s make the Franchise Representations pleaded at:

(a)    2FASOC [30(aa)]

(b)    2FASOC [30(a)]

(c)    2FASOC [30(b)]

(d)    2FASOC [30(c)]

(e)    2FASOC [30(d)]

(f)    2FASOC [30(e)]

Answer: “Yes” (Reasons, [646] and [648]).

The particularised conduct that constituted those representations is set out in the Reasons.

Franchise Opinion Representations

4.    Further or alternatively, in all the circumstances, by providing any (or any combination) of the Pleaded Information to the categories of Franchise Operators set out in question 1A, did Domino’s:

(a)    represent that it held the opinion at:

(i)    2FASOC [30A(a)(i)]

(ii)    2FASOC [30A(a)(ii)]

(iii)    2FASOC [30A(a)(iii)]

(iv)    2FASOC [30A(a)(iv])

(v)    2FASOC [30A(a)(v)]

(vi)    2FASOC [30A(a)(vi)]

(b)    to the extent that the answer to (a) is “yes”, what particularised conduct constituted those representations?

(c)    to the extent that the answer to (a) is “yes”, did Domino’s convey that it held that opinion on reasonable grounds?

Answer: “With respect to sub-questions 4(a)(i)-(iv), yes. With respect to sub-question 4(b), the particularised conduct is the same particularised conduct as in relation to the Franchise Representations. With respect to sub-question (c), yes” (Reasons, [845(a)-(c)]).

5.    To the extent that question 4(a) and (c) is answered "yes", did Domino’s have reasonable grounds for the opinion?

Answer: “Yes, in the sense that the Applicant did not establish that Domino’s lacked reasonable grounds for the Franchise Opinion Representations” (Reasons, [845(d)]).

6.    [not in use]

Franchise Conduct and Franchise Opinion Conduct

Franchise Conduct

7.    In all the circumstances,

(a)    did the performance of or the engagement in by Domino’s of:

(i)    the Compliance and Audit Activities as admitted at Amended Defence [32A.1]); and/ or

(ii)    the Payroll Services as admitted at Amended Defence [33A]); and/ or

(iii)    the configuration of the Payroll Services and the computer systems as admitted at Amended Defence [33B] (the Franchise Conduct)

(b)    constitute an implied representation to those Franchise Operators who were the subject of the Compliance and Audit Activities or who used the Payroll Services that the minimum rates of pay and the minimum terms and conditions of employment of Delivery Drivers and In-store were those in the Agreements;

(c)    to the extent that the answer to (a) is “yes”, what particularised conduct constituted the implied representations to those who were the subject of the Compliance and Audit Activities or who used the Payroll Services?

Answer: “Yes” (Reasons, [901]).

The particularised conduct that constituted those implied representations is set out in the Reasons.

8.    If yes to 7, was the Franchise Conduct a representation of fact?

Answer: “Yes” (Reasons, [901]).

Franchise Opinion Conduct

9.    Further, or alternatively, did the performance of or the engagement in by Domino’s of the Franchise Conduct constitute an implied representation made by Domino’s to those Franchise Operators who were the subject of the Compliance and Audit Activities or who used the Payroll Services that Domino’s held the opinion that the minimum rates of pay, and minimum terms and conditions of employment, were those contained in the Agreements (the Conduct Opinion)?

Answer: “Yes” (Reasons, [916]).

10.    If yes to 9, by engaging in the Franchise Conduct did Domino’s also represent to those Franchise Operators who were the subject of the Compliance and Audit Activities or who used the Payroll Services that it held the Conduct Opinion on reasonable grounds?

Answer: “Yes” (Reasons, [916]).

11.    If yes to 10, did Domino’s have reasonable grounds for the opinion?

Answer: “Yes, in the sense that the Applicant did not establish that Domino’s lacked reasonable grounds for the Conduct Opinion” (Reasons, [916]).

12.    [not in use]

Trade or Commerce

13.    To the extent that the Court has answered “yes” to questions 3, 4, 7, 9 was the relevant representation or conduct as found made or engaged in by Domino’s in trade or commerce or in respect of trade or commerce?

Answer: “Yes” (Reasons, [958]).

WR Act Agreements

Common Enterprise Defence

14A.    Was the 2005 Agreement certified on the basis that Domino’s and its Franchise Operators were the one employer because the AIRC was satisfied the Domino’s Business was a “single business” carried on as a “common enterprise” within the meaning of s 170LB(1) and (2)(a) of the WR Act?

Answer: “Yes” (Reasons, [1254]).

14B.    Were Domino’s and its Franchise Operators (from time to time) a “common enterprise” within the meaning of ss 170LB(1)(a) and 170LB(2)(a) of the WR Act?

Answer: “No” (Reasons, [1259]).

14.    

15.    If yes to 14B, did each Franchise Operator by reason only of the execution by each of them of a Sub Franchise Agreement, become a member of a common enterprise, and thereby become bound by the 2005 Agreement?

Answer: “Unnecessary to answer”.

16.    Did Domino’s and its Franchise Operators (from time to time) constitute:

(a)    one employer within the meaning of s 170LB(2) of the (pre-reform) WR Act; and (Amended Defence [37.2.1])

(b)    one employer within the meaning of s 322 of the WR Act (WorkChoices amended); and

(c)    single interest employers within the meaning of s 172 of the FW Act. (Amended Defence [37.2.2])

Answer: “With respect to 16(a), no. With respect to 16(b) and (c), unnecessary to answer” (Reasons, [1263]-[1264]).

17.    If yes to 16, were Domino’s and each of its Franchise Operators (from time to time) conducting:

(a)    a single business within the meaning of s 170LB of the WR Act; and

(b)    a single business within the meaning of s 322 of the WR Act; and

(c)    a single enterprise within the meaning of s 172 of the FW Act.

Answer: “Unnecessary to answer” (Reasons, [1265]).

18.    If yes to 16, did each Franchise Operator by reason only of the execution by each of them of a Sub Franchise Agreement, become a member of the single business carried on as a common enterprise, and thereby become bound by the 2005 Agreement?

Answer: “Unnecessary to answer” (Reasons, [1265]).

Extended Coverage Clause Defence

19.    Did the 2005 Agreement apply (from the date of its certification on 2 November 2005) to all Franchise Operators which executed a franchise agreement by reason only of the definition in cl 13.4.1 of the 2005 Agreement (namely that ‘Domino’s Pizza’ means Domino’s and “‘those franchisees that are listed in Appendix “A” and those franchisee who, through entering into a franchise agreement are a successor, assignee or transmittee of part of the business of Domino’s”)?

Answer: “No” (Reasons, [1267]).

The true position: Greenfields Stores

20.    Which employees (if any) of Franchise Operators which opened a Greenfields Store prior to 26 March 2006 were Award Workers?

Answer: “Where a new franchise operator (i.e., a franchise operator not already bound by a certified agreement through another store or otherwise) executed a sub-franchise agreement and opened a Greenfields Store in the Pre-Reform Period, the new franchise operator:

(a)    was not bound by the 2005 Agreement through the operation of the Extended Coverage Clause, only by reason of their having subsequently executed a sub-franchise agreement; and

(b)    was not the successor, transmittee or assignee of any part of the business of Domino’s and was therefore not as a result bound by any WR Agreement that bound Domino’s.

The employees of a franchise operator which opened a Greenfields Store in the Pre-Reform WR Act Period (unless the franchise operator was bound by an Agreement through another store or otherwise) were Award Workers (Reasons, [1269].

21.    Prior to 26 March 2006, was there a transmission of business from Domino’s to Franchise Operators which opened Greenfields Stores?

Answer: “No” (Reasons, [1271]).

22.    

(a)    Was there a transmission of business from Domino’s to Seagan Pty Ltd in respect of the Ulladulla Store, such that Seagan Pty Ltd became bound by a WR Act Agreement in respect of its employees in the Ulladulla Store?

(b)    If yes to 22(a), did Divenif Pty Ltd subsequently become bound by a WR Act Agreement in respect of its employees in the Ulladulla Store?

Answer: “With respect to both 22(a) and (b), no” (Reasons, [1273] and [1274]).

The true position: Award Workers

23.    In light of the answers to questions 14 to 22 inclusive, which of the stores operated by the Franchise Operators employed Award Workers during the Relevant Period?

Answer: Not addressed at Initial Trial (Reasons, [1276]).

Misleading or Deceptive Conduct

24.    In relation to any Franchise Representations and/or Franchise Conduct that the Court has found were made or occurred, were the Franchise Representations and/or Franchise Conduct, misleading or deceptive or likely to be misleading or deceptive?

Answer: “Yes” (Reasons, [1312]).

25.    Alternatively, in relation to any Franchise Opinion Representations and/or Conduct Opinion that the Court has found were made or occurred, were the Franchise Opinion Representations and the Conduct Opinion misleading or deceptive or likely to be misleading or deceptive?

Answer: “No” (Reasons, [1314]).

26.    In relation to any Franchise Representation, Franchise Conduct, Franchise Opinion Representations and / or Conduct Opinion that the Court has found was misleading or deceptive or likely to be misleading or deceptive did Domino’s contravene s 18 of the Australian Consumer Law by making:

(a)    the Franchise Representations; and/or

(b)    the Franchise Conduct; and/or

(c)    the Franchise Opinion Representations; and/or

(d)    the Conduct Opinion?

Answer: With respect to 26(a) and (b), yes. With respect to 26(c) and (d), no (Reasons, [1316]).

27.    [not in use]

Causation

28.    If yes to question 26, have the Group Members suffered loss or damage because of conduct by Domino’s in contravention of s 18 of the Australian Consumer Law, where those Group Members were employed by:

(a)    all franchise operators (including Dominoids and MC Pizza); or

(b)    those Franchise Operators that used the Payroll System (including Dominoids) as admitted at Amended Defence [32A] and [33B]; and/or

(c)    those Franchise Operators that were the subject of Compliance and Audit Activities (including Dominoids) as admitted at Amended Defence [32A.1].

Answer: With respect to the Applicant, he suffered loss or damage “because of” Domino’s contravening conduct as set out in the Reasons. The position with respect to Group Members (save for those who have opted out of the proceeding) is yet to be determined (Reasons, [1516]-[1518]).

Loss or Damage

29.    If “yes” to question 28, was that loss or damage:

(a)    Underpayment losses, being the difference between the rates of pay and the value of the terms and conditions of employment prescribed by the Award and the rates of pay and the value of the terms and conditions of employment:

(i)    the group members were in fact paid and afforded by franchise operators; or

(ii)    the rates of pay and conditions of employment derived from the Agreements; or

(iii)    the group members would have been paid if the franchise operators knew they were covered by the Award;

(b)    Loss of opportunity: namely the loss of opportunity by group members to pay for goods or services and / or to pay for goods or services of superior quality because the group members were not paid the Award wages to which they were entitled during the period of their employment by franchise operators as and when those wages fell due to be paid and were required to be paid?

(c)    Interest on the amounts identified at (a) or (b)?

Answer: “With respect to the Applicant:

(a)    the Underpayment Loss (as defined at Reasons, [1520(a)]) was calculated by reference as set out in the Reasons [1637], and [1697] taking into account the amending judgment published 3 August 2026;

(b)    the Loss of Opportunity was not established (Reasons, [1698]); and

(c)    interest on the Underpayment Loss is to be calculated by applying simple interest applied from each date of loss up to the date of judgment in accordance with the pre-judgment interest rates set out in the Federal Court’s Interest on Judgments Practice Note (GPN-INT) (Reasons, [1699]).

The position with respect to Group Members (save for those who have opted out of the proceeding) is yet to be determined” (Reasons, [1696]).

30.    If “yes” to any part of question 29, is the loss and damage of group members to be ascertained calculating:

(a)    Underpayment losses: the difference in value between the rates of pay and the value of the terms and conditions of employment prescribed by the Award and:

(i)    the rates of pay and conditions of employment which the group members were in fact paid and afforded by the franchise operators; or

(ii)    the rates of pay and conditions of employment derived from the Agreement.

(b)    Loss of opportunity: the difference in value between the goods or services which the group members needed or wished to purchase and the lower value of the goods or services which the group members in fact purchased during their period of employment by a franchise operator

(c)    interest on the amounts identified at (a) or (b) being simple interest applied from the date of loss up to the date of judgment in accordance with the pre-judgment interest rates set out in Federal Court’s Interest on Judgments Practice Note?

Answer: “With respect to the Applicant, the answer is the same as given in response to Common Question 29 (Reasons [1701], read with [1697]-[1699] taking into account the amending judgment published 3 August 2026.

The position with respect to Group Members (save for those who have opted out of the proceeding) is yet to be determined” (Reasons [1701], read with [1696]).

31.    Is the loss and damage of the kind claimed at 2FASOC [63] and [65] compensable loss or damage within the meaning of s. 236 of the Australian Consumer Law?

Answer: “Unnecessary to answer” (Reasons, [1703]).

32.    To the extent that a group member’s alleged loss or damage consists of amounts that a court of competent jurisdiction could order be paid to the group member under s. 545 of the FW Act by reason that the group member’s employer contravened s. 45 of the FW Act, is that amount loss or damage within the meaning of s. 236 of the Australian Consumer Law?

Answer: “Yes” (Reasons, [1403]-[1404] and [1705]).

33.    Is the loss of opportunity of the kind claimed at 2FASOC [66] compensable loss or damage within the meaning of s. 236 of the Australian Consumer Law?

Answer: The answer in relation to the Applicant is “No”. The position with respect to Group Members (save for those who have opted out of the proceeding) is yet to be determined, but may depend on whether the loss of opportunity has a commercial character (Reasons, [1707]).

REASONS FOR JUDGMENT

MURPHY J:

1    These reasons concern the orders appropriate to be made to reflect the reasons for judgment in Gall v Domino’s Pizza Enterprises Limited (No 4) [2026] FCA 967 (J or trial reasons).

Request for an extension

2    I commence by dealing with Domino’s objection to the process which required the parties to propose orders to reflect the trial reasons. The trial reasons were handed down on 22 July 2026 at 1pm. I directed the parties to confer and provide draft agreed or competing orders to reflect the trial reasons by 29 July 2026, that being one week. The applicant met that timetable and provided draft orders by that date. Domino’s objected to that timeframe and sought a 14-day extension of time.

3    In a short hearing on 29 July 2026, I indicated that I was not prepared to grant the extension which Domino’s sought, but said that I could give Domino’s until the Sunday 2 August 2026. I would have provided Domino’s with a longer period, but my impending retirement meant that I become functus officio at midnight on 3 August 2026. On 2 August 2026 Domino’s put on written submissions comprising 12 pages, together with a five pages annexure going to costs issues. It nevertheless maintained its application for a 14-day extension of time.

4    In the finish, Domino’s was given 11 and a half days to provide draft orders and submissions to reflect the trial reasons. The trial reasons are long but in my view that was sufficient. As I indicated in the short hearing on 29 July 2026, the task of preparing draft orders to reflect the trial reasons should not involve substantial work, given that they are organised around the specified Common Questions, each of which is specifically answered.

5    It was regrettable that Domino’s did not get all the time it wanted after waiting a long time for the trial reasons, but I considered it was undesirable to push onto another judge the task of crafting orders to reflect the trial reasons in a large and complex case. The trial reasons are mine, I know what I intended, and that task for another judge would be difficult. My view in that regard was confirmed by the fact that Domino’s made it clear that it intends to appeal the trial judgment. Thus, if there is some error in the orders made, that will be rectified through the appeal.

6    I took the same view in relation the costs questions arising out of the trial reasons. The applicant was wholly successful in achieving the orders that he sought, but I expected that Domino’s would wish to make submission about costs apportionment or a reduction in the applicant’s costs based on subsidiary issues on which he was unsuccessful. I considered it was undesirable to push onto another judge the task of determining the appropriate costs orders in a large and complex case. I have an intimate knowledge of the case, the respective significance of the different issues, and the task would be difficult for another judge. Again, if I am wrong in relation to those orders that will be picked up in the appeal.

Security for Costs

7    Domino’s opposed an order releasing the Security for Costs provided by the litigation funder of the proceeding pending Domino’s filing its proposed appeal. It submitted that if the security is released before the determination of Domino’s anticipated appeal and Domino’s is successful in the appeal and ultimately entitled to its costs at first instance, Domino’s will be unsecured with no prospect of recovering its costs from the applicant or group members.

8    It contended that for the same reasons that the Court directed security to be paid into Court, the security should remain in place pending Domino’s appeal. It relied upon Penrith Whitewater Stadium Ltd and Anor v Lesvos Pty Ltd and Anor [2007] NSWCA 103 at [30] (McColl JA), in which his Honour said:

The critical question in my view is what would happen if the appeal was successful. In that event, subject to any matter which may be argued in the course of the appeal, one would ordinarily expect that the costs order below would be reversed. There is, therefore, a continuing possibility that there will be a call on the bank guarantee.

9    It argued that, ordinarily, the basis on which security was originally ordered for the costs of the trial at first instance will be sufficient to justify the retention of that security pending the outcome of an appeal, citing Challenger Group Holdings Ltd v Concept Equity Pty Ltd (No 2) [2008] NSWSC 1002 at [7] and [8] (Young CJ in Eq).

10    In my view, whether it is appropriate to release the security for costs is a fact-specific issue and Penrith Whitewater Stadium does not lay down a rule of general application. The question will always be what the interests of justice require.

11    Here, the applicant’s case was funded by a large international litigation funder, Therium, which funds multiple cases in the Australian jurisdiction. It is not to the point that Domino’s will be unsecured with no prospect of recovering its costs from the applicant or group members. Therium has an obligation to pay any adverse costs order made against the applicant and group members, and there is nothing to show that it will be unable to pay the applicant’s or group members’ costs should Domino’s be successful in the appeal. There is no reason to believe, and Domino’s has not proffered one, to indicate that if the costs order was reversed following a successful appeal, the costs could not or would not be met by Therium.

12    At this point, Domino’s has foreshadowed an appeal but has not identified any of the grounds for it, and the Court is unable to have regard to the merits of the appeal. Having said that, I accept that the case is complex and some of the Common Questions are issues upon which reasonable minds could differ.

13    It is relevant too that the funder has been held out of its funds for many years. I consider it appropriate to release the security for costs.

Submissions regarding answers to Common Questions

14    Domino’s made a series of submissions regarding the appropriate answers to the Common Questions. Some of them are uncontroversial and need not be dealt with, but I deal with other submissions below.

15    First, in response to a suggestion by the applicant that Common Question 29 be amended, Domino’s submitted that it would be inappropriate to do so. I accept that submission. I have not amended Common Question 29 but with the agreement of the parties I published a short amending judgment on 3 August 2026 addressing a slip in the trial reasons which arose through some infelicity the question and a changed approach by the applicant in the running of the case.

16    Second, Domino’s submitted in relation to Common Question 3 that the reader would benefit from setting out in the orders the particularised conduct which gave rise to the express representations found. To my mind, the trial reasons are the appropriate place to set out the particularised conduct, noting that Domino’s does not accept the applicant’s proposed summary of that conduct, and it did not propose its own summary of that conduct. I am not persuaded that if the particularised conduct is not identified in the orders there may be some confusion in the appeal.

17    Third, Domino’s made the same submission in relation to Common Question 7(c), that it would be beneficial to set out in the orders the particularised conduct which gave rise to the implied representations found. For the same reasons, I do not accept that.

18    Fourth, in the trial reasons I explained at [1264] that it was unclear to me how Common Questions 16(b) and (c) arise for determination, as there is no allegation of an agreement certified by the Commission on the basis that Domino’s and its franchise operators (from time to time, including future franchise operators) were:

(a)    one employer within the meaning of s 322 of the Post-Reform WR Act (as defined at J[51]); or

(b)    single interest employers within the meaning of s 172 of the Fair Work Act 2009 (Cth),

nor did the parties’ submissions address those two questions.

19    Domino’s submitted, and I accept, that Common Questions 16(b) and (c) were considered in the case management hearing which determined the Common Questions for trial, that those two questions arose from Domino’s Amended Defence, and that the applicant requested that those questions remain in place. It submitted that the Court should answer those questions.

20    While I accept that those Common Questions arose in the manner submitted by Domino’s, I continue to be of the view that they do not arise for determination on the evidence and submissions before the Court.

Costs

21    In the course of the short hearing on 29 July 2026, I informed the parties of my preliminary view that the applicant was entitled to his costs of the proceeding, and invited the parties to put on submissions in that regard. Domino’s objected to providing its submissions in the timeframe allowed but to my mind it had enough time, as shown by the submissions which it ultimately filed.

22    Domino’s accepted that having regard to the result in the case the applicant should have an award of costs in his favour, but it argued that the interests of justice in the present case require that costs do not simply follow the event. It relied upon a number of authorities in relation to the exercise of the discretion under s 43 of the Federal Court of Australia Act 1976 (Cth), which are uncontroversial and need not be recited. It submitted that in the circumstances of the present case, some of its costs should be awarded against the applicant. There it relied upon the remarks of Katzmann J in Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 3) [2012] FCA 504; 290 ALR 263 at [123], referring to EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9] to the effect that “a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them…”.

23    First, Domino’s submitted that it succeeded on (what it described as) the important issue of whether it had reasonable grounds for the representations of opinion that the Court found were made. It said that issue was a separately identifiable aspect of the applicant’s case and was the subject of substantial factual and legal contest. It argued that the issue was neither peripheral nor incidental to the issues before the Court, and that it generated significant evidence, expert analysis, documentary material and legal submissions. It said that considerable resources were devoted by both parties to its determination and argued that Domino’s should not pay the applicant’s costs in relation to that issue.

24    Second, Domino’s noted that the applicant sought to adduce expert evidence from Dawna Wright, and that Domino’s successfully objected to portions of Ms Wright’s report on the basis that the matters attested to were not properly the subject of expert evidence or were not relevant to the issues in the trial. It contended that it should not pay the majority of the applicant’s costs of preparing this evidence, and the applicant should pay Domino’s costs of responding to those parts of the evidence ruled inadmissible.

25    Third, it submitted that the Court found that the evidence of Ms Wright was flawed “because she was implicitly instructed to assume that, in the counterfactual, the applicant would have been given work on the same hours, on the same shifts, on the same days, as a casual, but afforded the pay rates and conditions that applied under the Award”: J[1559]. As a result, the evidence of Domino’s expert, Mr Potter, was essential to the applicant’s ability to prove his loss (J[1560]) which evidence proceeded on the basis of the counterfactual ultimately found by the Court, that the franchise operators were likely to have modified their employment practices to minimise the impact of the changes introduced by the Award on profitability: see, e.g., J[1538]-[1540]. It argued that as a result a further proportion of the applicant’s costs of preparing Ms Wright’s evidence should not be awarded against Domino’s.

26    Fourth, Domino’s noted that the applicant was wholly unsuccessful in his Loss of Opportunity Claim: J[1658]. It said that this was a distinct, readily separable issue to which the parties and the Court dedicated material time and resources and Domino’s should not be required to pay the applicant’s costs in relation to it.

27    Fifth, instead of the Court now making an order for costs, Domino’s proposed that orders should be made for the filing and service of fulsome submissions as to the appropriate costs orders to be made by the Court. In the alternative, Domino’s submitted that the applicant’s costs awarded against it be reduced by 30% to reflect Domino’s success on the issues and the matters concerning the parties’ expert evidence identified above.

28    I do not accept Domino’s contentions.

29    As the applicant submitted, there are “good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like”: Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 327 ALR 192 at [6]. In Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] Beazley, Ipp and Basten JJA summarised the relevant principles as follows:

•    Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

•    In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

•    If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

•    Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

•    A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

•    Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.

30    In Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14] (Allsop P (as his Honour then was), Beazley JA and Hoeben J) said that “the fact that one issue on which a party failed on the appeal is separable or discrete is not, without more, sufficient to warrant departure from the ordinary rule”.

31    In relation to Domino’s first argument, I accept that, if Domino’s representations were properly understood to be representations of opinions, the applicant was not successful in establishing that Domino’s lacked reasonable grounds for those representations. However, having regard to the principles above, I am not persuaded that it is appropriate to order that the applicant’s costs be reduced, or that Domino’s be paid its costs in relation to that issue.

32    First, the applicant obtained the relief sought in his originating application, being a declaration that Domino’s contravened s 18 of the Australian Consumer Law (ACL), and he also obtained damages for the loss he suffered because of the contravention. Those findings of contravention and loss are likely to apply to a substantial cohort of group members, although the number of affected group members is not yet established. The applicant was in that sense wholly successful in the proceeding.

33    Second, the main thrust of the applicant’s case was that Domino’s representations were representations of fact, not of opinion. It advanced the proposition that the representations were representations of opinion very much as “a secondary alternative” (J[5(b)] and [789]). The applicant amended its pleading centrally to address Domino’s case that if the representations were made, they could only be representations of opinion. I found that they were not representations of opinion, instead they were representations of fact. The representations of opinion issue was a second order issue, raised in the alternative.

34    Third, within the applicant’s alternative case regarding representations of opinion, it won each point except for establishing that Domino’s lacked reasonable grounds for its representations. Domino’s denied that it made the representations opinion, which argument it lost. It also denied that the representations carried a implied representation of reasonable grounds, which it lost. Domino’s contention did not seem to address that.

35    Fourth, contrary to Domino’s submissions, the argument about the existence of reasonable grounds was not a major part or dominant part of the case. Nor is it as separable as Domino’s contended. For example, Domino’s made essentially the same arguments regarding the reasonableness of its grounds for its representations of opinion when it opposing a finding of contravention of the ACL in what I called the Not Misleading at the Time Contention. The same material was traversed, albeit at a higher level. In my view, whether or not the applicant had brought an alternative argument that the representations were representations of opinion that lacked reasonable grounds, the same or similar evidence and submissions would have been traversed.

36    As noted in Bostik, where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. This was not clearly a dominant or separable issue and in my view it is appropriate to award the costs of the proceedings to the applicant without differentiation in relation to this issue.

37    In relation to Domino’s second argument, Domino’s is correct in noting that it successfully objected to portions of Ms Wright’s report, but I am not persuaded that it is appropriate to order that the applicant’s costs be reduced, or that Domino’s be paid its costs in relation to those parts of Ms Wright’s report which were not accepted into evidence. Domino’s submissions effectively invited an assessment of costs on an issue-by-issue basis in circumstances where the applicant’s success in the proceeding was almost complete. Domino’s was unsuccessful on every major issue (except for one in the alternative), and on some of those issues it could only offer the Court weak arguments.

38    In relation to Domino’s third argument, I found that Ms Wright was required to prepare her report on the basis of an assumption that I did not accept. Ms Wright’s evidence proceeded on the basis that the applicant would have worked the same hours, same shifts and with the same classification had the Award applied. But her evidence was not “flawed” in the way that Domino’s put it. Hers was a reasonable approach to take to the calculation of loss in relation to underpayment of wages, but I preferred the evidence of Mr Potter which showed that in certain ways, in the counterfactual that the Award applied, franchise operators were likely to wish to alter the hours, shifts and classifications of their employees. In any event Ms Wright’s evidence continued to have utility because the mathematics of her calculations were agreed by Mr Potter and relied upon by the Court in assessing the applicant’s Underpayment Loss (J[1591], [1600], [1615], [1617], [1625] and [1638]).

39    Generally, having regard to Bostik and Hawkesbury I am not persuaded that it is appropriate to apportion costs in relation to Ms Wright’s evidence. Again, this was not clearly a dominant or separable issue and in my view it is appropriate to award the costs of the proceedings to the applicant without differentiation in relation to the issue.

40    In relation to Domino’s fourth argument, the applicant was wholly unsuccessful in his Loss of Opportunity Claim, but I do not consider that issue justifies an order to apportion costs. First, the applicant was successful in establishing that he suffered loss and this was just one category of the claimed loss. It is precisely the type of matter which was neither dominant nor separable and does not justify apportionment. Second, and relatedly, the issue was insignificant in the case. The evidence and the submissions about it were limited and took little time. Third, the submissions dealing with the issue are also relevant to the claims of group members. The applicant failed in his personal claim for Loss of Opportunity damages, but that does not mean that group members will fail. To my mind the success of group members is likely to depend upon whether the losses suffered have a commercial character.

41    Domino’s fifth argument was that the costs to be awarded against it should be reduced by 30% to reflect its success on the issues and the matters concerning the applicant’s expert evidence. That submission had two significant flaws. First, there was no evidentiary foundation to support a reduction of that magnitude. Second, the submission was unmoored from reality in that (if Domino’s had been successful in its argument), the appropriate reduction would not have come to anywhere near 30%. That would be a very substantial reduction in a case in which I would be unsurprised if party / party costs were not in the order of around $10 million. The issues on which Domino’s relied were not issues which involved substantial costs.

42    For those reasons, I made orders that costs should follow the event.

Lump-sum costs assessment

43    Domino’s submitted that the proposed orders 8 and 9 in relation to a lump-sum costs assessment should not be made. Subject to its overarching objection in relation to time for its submissions, Domino’s submitted that any costs entitlement should be determined through the ordinary taxation process under Part 40 of the Federal Court Rules 2011 (Cth) (Rules) for the reasons set out below:

(a)    a lump-sum cannot be calculated fairly between the parties, citing Carey v Freehills [2014] FCA 132 at [19]-[23] (Kenny J);

(b)    the lump-sum procedure will itself require time and expense and the applicant will still need to establish a proper basis for the amount claimed, citing Saizeriya Co Ltd v Peregrine Management Group Pty Ltd [2005] FCA 1174 at [31] (Kenny J); and

(c)    the issue of costs is complex, due to the procedural history and the variety and complexity of the costs orders made, citing JAB Nominees (Aust) Pty Ltd v Auswild [2020] VSC 731 at [298]-[301] (Riordan J); Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited (Costs) [2024] FCA 505 at [10] (Downes J).

44    Domino’s argued, first, that as previously submitted, both parties enjoyed a measure of success in the proceeding on discrete issues, and in relation to evidence.

45    Second, Domino’s submitted that the costs issues in this proceeding are not confined to the arithmetical quantification of an otherwise straightforward entitlement. It said that the proceeding has a lengthy and complex costs history, including numerous interlocutory applications in which various costs orders were made. It provided an annexure to its submissions which identified various costs categories requiring separate treatment, including specific adverse costs orders against Domino’s, costs in the cause, costs reserved, mediation costs and security for costs orders.

46    It argued that both of those matters go to the questions of what costs are properly recoverable by the applicant, including the costs consequences of issues on which the applicant failed, the effect of costs orders made during the proceeding, the treatment of reserved costs and costs in the cause, the recoverability of costs arising from interlocutory applications, and the proper allocation of costs between distinct phases of the proceeding.

47    On Domino’s argument, those are matters for detailed scrutiny and not suitable for determination by the broad-brush approach contemplated by a lump-sum costs assessment. It contended that the ordinary assessment process under Part 40 of the Rules is therefore the more appropriate mechanism which will allow the necessary scrutiny of disputed categories of costs and reduces the risk that a broad-brush estimate will produce an outcome that is unfair, inaccurate or inconsistent with existing costs orders.

48    I do not accept Domino’s contentions.

49    First, Domino’s contentions are based in the proposition that there is a question as to what costs are properly recoverable by the applicant, including the costs consequences of issues on which the applicant failed. I have determined the applicant is entitled to his party / party costs of the proceeding. There is no such question.

50    Second, in the circumstances of the present case, there is no reason to think that a lump-sum costs assessment cannot be calculated fairly between the parties. Apart from the point raised above, which in the circumstances has little substance, Domino’s did not explain why a fair lump-sum costs assessment could not be made.

51    Third, the proceeding was a large and complex class action and the Costs Practice Note (GPN-COSTS) states (at [3.3]) that lump-sum costs assessments are aimed at avoiding “potentially expensive and lengthy taxation of costs hearings”. In my view, this is a paradigm case for the use of the lump-sum costs assessment regime. If the costs assessment is to be undertaken through a traditional taxation it is likely to be onerous, time-consuming and expensive: see Southernwood v Brambles Limited (No 4) [2026] FCA 691 at [108].

52    Fourth, Domino’s argument that the lump-sum costs assessment mechanism is inappropriate seems to be based in the proposition that a broad-brush assessment will necessarily be unfair to it and will fail to capture the asserted nuance in the parties’ costs positions. I do not accept that:

(a)    First, the costs position is nowhere near as nuanced as Domino’s submitted.

(b)    Second, there is no reason why the treatment of reserved costs and costs in the cause, the recoverability of costs arising from interlocutory applications, and the proper allocation of costs between distinct phases of the proceeding cannot be appropriately taken into account in a lump-sum assessment process. Such a process is supervised by a registrar and I expect the registrar will take proper account of such matters.

(c)    Third, one of the points of a lump-sum costs assessment process is to avoid the onerous, time-consuming and expensive costs assessments in large litigation that were a feature of the old taxation regime.

(d)    Fourth, should there be some specific issue which Domino’s considers requires to be raised with the registrar, it can do so. The lump-sum costs assessment process is not set in stone, and with cause it can be amended by the registrar to fit the particular circumstances of the necessary assessment, while avoiding the burden and cost of the old costs assessment regime.

Associate:

Dated:    3 August 2026