Federal Court of Australia

Wu v Grow Technology Services Ltd [2026] FCA 1430

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application to amend his originating application and statement of claim be dismissed.

2.    Judgment for the respondent against the applicant under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

3.    The applicant pay the respondent’s costs of its interlocutory application dated 11 June 2026 as taxed, assessed or otherwise agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    Mr Wu wishes to amend his originating application and statement of claim which he says he is entitled to do without the Court’s leave. If he does require leave, he seeks it. The respondent resists Mr Wu’s amendment application and, at the same time, seeks the summary dismissal of all of Mr Wu’s proceeding or, alternatively, that his statement of claim be struck out. Mr Wu has not filed an interlocutory application, but it was convenient to dispense with that requirement. The respondent moved on an interlocutory application dated 11 June 2026.

2    As for evidence, Mr Wu relied on his own statement dated 7 August 2026 and the respondent relied upon two affidavits. These were an affidavit of the solicitor having the carriage of the matter for the respondent, Ms Lee, and an affidavit of Ms Lim who is employed by the respondent. At the hearing, Mr Wu applied for leave to cross-examine Ms Lim but I refused this application. I gave the following reasons ex tempore for this ruling:

Mr Wu applies to cross-examine Ms Lim on her affidavit. The affidavit has been filed in support of the respondent’s application for summary judgment. In his application for leave to cross-examine, Mr Wu indicated that there were ambiguities in Ms Lim's affidavit and that there were inconsistencies which he wished to clarify. I am not satisfied in terms of the orderly conduct of the case that it would be in the interests of justice to permit the cross-examination to take place.

3    It is convenient to deal with Mr Wu’s proposed amendments first and then to turn to the respondent’s summary judgment application.

Mr Wu’s amendment application

4    Mr Wu says that he is entitled to amend his originating application and statement of claim as of right because the pleadings have not closed. By r 16.51(1) of the Federal Court Rules 2011 (Cth) (‘the Rules’), a party is entitled to amend a pleading once ‘before the pleadings close’ without the leave of the Court. The questions which arise are:

(a)    is an originating application a ‘pleading’ to which r 16.51(1) applies; and,

(b)    have the pleadings closed for the purposes of r 16.51(1)?

Amendment of originating application without leave?

5    Mr Wu’s originating application is not a ‘pleading’ for the purposes of r 16.51(1). That word is defined in the Dictionary to the Rules to include a number of documents but, by subclause (f) of that definition, explicitly to exclude an originating application. The amendment of originating applications is not dealt with by r 16.51 but instead by r 8.21. Under that rule, an originating application can only be amended with the leave of the Court. I reject Mr Wu’s submission that he does not require the Court’s leave to amend his originating application.

Amendment of statement of claim without leave?

6    I also reject Mr Wu’s submission that he does not require leave to amend his statement of claim. Whilst r 16.51(1) does permit Mr Wu to amend his statement of claim without leave prior to the close of pleadings, for the following reasons, the pleadings in this case have closed.

7    By r 16.12, pleadings close at the end of the latest time fixed by the Rules for the filing of a defence or a reply and that rule does not turn on when these documents might be filed as a matter of fact. Mr Wu lodged his current statement of claim on 18 April 2026 and an affidavit of service prepared by him shows that it was served on the respondent on 29 April 2026. By r 16.32, the respondent was required to file its defence to the statement of claim within 28 days after its service. The 28th day after 29 April 2026 was 27 May 2026. The respondent did not file a defence by that day (or at all).

8    The time for the filing of a reply is prescribed by r 16.33 to be 14 days after the filing of a defence. Since the respondent has not filed a defence, r 16.33 does not fix a day for the filing of a reply.

9    Since the time at which pleadings close under r 16.12 is the latest time fixed for the filing of a defence or a reply that latest time is, in this case, the time for the filing of a defence which was 27 May 2026. It was at the end of that day that pleadings closed. Rule 16.51(1) does not apply, and Mr Wu requires leave to amend.

10    Despite this, Mr Wu submitted that the pleadings remained open because at a case management hearing held on 18 June 2026, I had declined to enter default judgment against the respondent because it had not filed its defence by that time. I declined to do so because by then the respondent had already sought summary judgment by means of its interlocutory application dated 11 June 2026. In any event, Mr Wu’s contention is legally extraneous because when the pleadings close is affected only by when a defence or reply is required to be filed.

The proposed amendments to the statement of claim

11    It is convenient to begin with the proposed amendments to the statement of claim which would add §39 to §71. Mr Wu advanced several reasons why leave should be granted including, for example, matters such as how the Court’s resources might best be utilized. I have concluded that most of the proposed amendments have no reasonable prospects of success. If leave were granted, the amendments would be liable to be struck out, and it is orthodox that leave should not be granted in that circumstance. There are a small number of minor amendments I would permit but only subject to the outcome of the respondent’s summary judgment application. In those circumstances, it is not necessary to explore Mr Wu’s discretionary matters.

12    The amendments may be dealt with in six groups.

1.    Production of employment records: proposed §39-§44

13    The first set of amendments appears under the heading ‘Sub-matter 7-1: failed to send me a copy of employment within 14 days of being requested’. Mr Wu’s allegation is that the respondent failed to provide him with copies of his employment records within 14 days of receiving his request for their provision and, in fact, did not provide them for 16 days: §39-§44. At §39(b) Mr Wu explicitly invokes reg 3.42(3)(b) of the Fair Work Regulations 2009 (Cth) which provides:

(3)    If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must:

(a)    make the copy available at the premises within 3 business days after receiving the request; or

(b)    post a copy of the employee record to the employee or former employee within 14 days after receiving the request.

14    In response to Mr Wu’s allegation, Ms Lim gave evidence that the records were not kept at the premises at which Mr Wu worked because they were kept in a cloud-based system called ‘Employment Hero’ which is described in Ms Lim’s affidavit as ‘third party human resources software’. Mr Wu submits that a document kept on a cloud server can be said to be ‘kept at’ the premises at which he worked for the purposes of reg 3.42(3)(b) because the records could be accessed at those premises. There is a good argument that ‘kept at’ does not mean ‘accessible at’, and that the medium in which the data is stored must be kept at the premises for the data to be ‘kept’ there. If this approach is not taken, records in cloud servers will be ‘kept at’ any place from which they can be accessed which, given mobile devices, will be everywhere. This seems likely to cause practical difficulties. However, this Court has recently commented, without deciding the issue, that there is ‘considerable force’ in the opposite argument, that documents in a cloud environment that can be downloaded by the employer's staff are relevantly ‘kept at’ the premises: Ord Minnett Holdings Pty Ltd v Theodorou [2025] FCA 721; 342 IR 101 at [128] per Kennett J. I would accept that in light of this it is arguable that reg 3.42(3)(b) applies to records that are accessible from an employer’s premises but kept in a cloud environment. It is not entirely clear to me from the evidence that the respondent’s ‘Employment Hero’ data meets this description but I accept it is arguable that it does.

15    The requested data was provided by the respondent 16 days following Mr Wu’s request. If the 14 day time limit in reg 3.42(3)(b) does not apply to cloud-based records, then the requirement in reg 3.42(4) to provide the records ‘as soon as practicable’ applies. I am satisfied that the 16 days taken was ‘as soon as practicable’ in the context of the wide-ranging nature of the applicant’s request, which was for all his employment records over the time he was employed and was made after this matter had been commenced.

16    If the 14 day time limit does apply, there are no reasonable prospects of this Court imposing a civil penalty on the respondent or awarding Mr Wu compensation on the basis of a 2 day delay in the provision of records, where no disadvantage to Mr Wu has been demonstrated. I am satisfied that a proceeding based on this claim would be an abuse of process as it has no real prospect of resulting in a substantial remedy and would involve unjustifiable expense and judicial resources to hear: Geneva Laboratories Ltd v Nguyen [2014] FCA 1270; 110 IPR 295 at [57] per Gleeson J. I am also satisfied that this allegation is frivolous or vexatious in the sense described in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [37]-[38] per McKerracher J. Leave to amend to raise this issue should therefore be refused as the claim would be liable to be summarily dismissed under r 26.01(1)(b) or (d).

17    For completeness, Mr Wu’s submission that the respondent only acted on this issue after he contacted the Fair Work Ombudsman is legally irrelevant.

2.    Cashing out annual leave: §45-§52

18    An employer is required to keep a record of an agreement between an employer and an employee cashing out annual leave. This is the combined effect of s 535(1) of the Fair Work Act 2009 (Cth) (‘FW Act’) and reg 3.36(2). Mr Wu cashed out some of his annual leave in the second half of 2021. When Mr Wu sought and, after 16 days, received his employment records, he was not provided with any agreement reflecting his cashed-out leave.

19    Ms Lim subsequently made inquiries of the payroll staff about any agreement to cash out Mr Wu’s annual leave. This inquiry dislodged an internal email from the head of people and culture to the payroll administrator dated 16 August 2021 which stated ‘Can you please pay out 10 days of AL leave for Jianhua Wu in this Wednesday’s payrun?’. This was also reflected in a pay slip dated 18 August 2021 which recorded that in the pay period 16 August 2021 to 22 August 2021 Mr Wu was paid for 76 hours of annual leave in the amount of $6,730.77.

20    I reject Mr Wu’s submission that this pay slip was not his pay slip because the employer nominated on it was the respondent and at the time Mr Wu was employed by a subsidiary of the respondent. Mr Wu was initially employed by the subsidiary but from 1 July 2021 he was informed that the respondent would be his employer. Mr Wu made the submission that on all pay slips provided by the respondent, the respondent (Grow Technology Services) was recorded as the employer, when in fact, prior to 1 July 2021 Mr Wu was employed by the subsidiary (Grow Ops Super Pty Ltd). Mr Wu submitted that this showed that the pay slips were ‘compiled recently’ and therefore not a record. This is a distraction because at the time the relevant pay slip was issued on 18 August 2021, the respondent was his employer and this was recorded on the pay slip. Regardless, these facts are incapable of affecting whether the pay slip was Mr Wu’s.

21    Since these are both records of the cashing out of Mr Wu’s annual leave, his allegation that no such record was kept has no prospects of success. Leave to amend to raise this issue should be refused.

3.    Records in readily accessible form: §53-§55

22    An employer must keep ‘employee records’ of the kind prescribed by the regulations for each of its employees for 7 years: FW Act s 535(1). Mr Wu alleges at §54 that the respondent did not keep records concerning deductions from gross amounts paid to him. He does not allege that the respondent did not set out in each of his pay slips the amount of any deduction or what that deduction was for. Rather, his complaint is that he has to go through his pay slips himself to add up the deductions and this breaches the obligation in reg 3.31(1)(b) that any record be ‘in a form readily accessible to an inspector’.

23    The respondent’s pay slips comply with its obligations under reg 3.46 (to which Mr Wu does not refer). That an inspector will need to look at each pay slip to work out the deductions for that pay period does not constitute a breach of reg 3.31(1). I reject for the reasons already given Mr Wu’s renewed submission under this heading that the pay slips issued to him prior to the change in the identity of his employer on 1 July 2021 were not his pay slips.

24    That being so, these amendments have no prospects of success and leave should be declined.

4.    Correction of incorrect records: §56-§69

25    It will be recalled from above that Mr Wu complained that there was no record of a cashing out of his annual leave and that, in fact, the evidence shows that 76 hours of annual leave were cashed out. In the present paragraphs, Mr Wu now seeks to draw a distinction between a leave request and a request to cash out annual leave. He submits that there is a record keeping obligation for both and that the respondent has incorrectly kept a record of his request for annual leave when it should have kept a record of the agreement to cash out his annual leave, and then failed to correct this record. I reject this submission. The email of 16 August 2021 constitutes a record of the request to cash out annual leave, and the 18 August 2021 pay slip records the cashing out.

26    Mr Wu also submitted that the respondent had deliberately withheld the records after he requested his employment records. Even assuming that was so, it would not affect their legal characterisation.

5.    Contravention of award term: §70-§71

27    In these paragraphs, Mr Wu repeats his argument about the failure of the respondent to keep a record of the cashing out of his annual leave, but this time relies on a provision of the Professional Employees Award 2020 (‘the Award’). This case has no prospects of success for the reasons already given.

6.    Miscellaneous matters: ‘collective’ submission, changes to §5, deletion of §21-§23 and changes to §32 of the statement of claim; deletion of §11 and changes to §15 of the originating application

28    Mr Wu advances each of his proposed amendments relating to record-keeping ‘collectively’. They are not, however, more than the sum of their parts and so advanced they should still be refused.

29    Mr Wu seeks to add a particular to §5. However, the proposed particular is in the nature of evidence and is not a proper particular. Leave to amend to add it should be refused.

30    Mr Wu seeks to remove §21-§23 of the statement of claim and §11 of the originating application which raise a claim based on the safety net provisions. Leave should be granted to do so. Ordinarily, the grant of leave to amend by the deletion of a claim would be accompanied by an order that the amending party pay the costs of the other party expended on the deleted claim. It is convenient to postpone that issue until after I have dealt with the respondent’s application for summary judgment.

31    Mr Wu seeks to add the words ‘to be’ to §32 of the statement of claim and §15 of the originating application. These amendments enhance the sense of the two paragraphs and should be permitted.

32    Mr Wu’s amendment application therefore substantively fails. For each group of amendments 1 to 5 above where I have refused leave to amend Mr Wu’s statement of claim, I would also refuse leave to amend the originating application to add those matters (‘sub matters’ 7-1 to 7-5 at §18-§22 of the proposed amended originating application). In the alternative to his proposed amendments, Mr Wu also seeks orders that the respondent’s summary judgment application be dismissed and that it thereafter be restrained from filing a defence. There is no basis upon which such orders could be made.

The respondent’s summary judgment application

33    Mr Wu has previously sued the respondent in relation to his employment. This resulted in a judgment of the Federal Circuit and Family Court of Australia (Division 2) (‘the Circuit Court’) given on 21 November 2023: Wu v DSMJ Pty Ltd (No 2) [2023] FedCFamC2G 1056. There was then an appeal to this Court: Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404.

34    That case arose out of the termination of Mr Wu’s employment following his refusal to participate in an on-call roster. Mr Wu was notified verbally of his termination on 23 December 2021 and in writing on 24 December 2021. The termination took effect at the end of 10 January 2022.

35    In the Circuit Court, Mr Wu alleged that the respondent had taken adverse action against him because he had exercised certain workplace rights. Part of his case was that the respondent had terminated his employment (which was adverse action) because he lawfully objected to the on-call roster (the alleged exercise of several workplace rights).

Paragraphs 3 to 10: unpaid annual leave

36    In the proceeding in this Court, Mr Wu now seeks to argue that he is owed four additional days of annual leave because he was placed on gardening leave once he was given notice of the termination of his employment. The four days were 4, 5, 6 and 7 January 2022. These allegations appear at §3-§10 of the pleading.

37    This allegation was centrally relevant to Mr Wu’s allegation before the Circuit Court that he was dismissed from the respondent’s employment and his claim for compensation for what he alleged was his unlawful termination. Had that claim succeeded, it is evident that these four days ought to have formed part of his case on quantum.

38    Mr Wu’s answer to this is that he only learned for the first time that he had been placed on gardening leave during the cross-examination of Ms Farrell in the Circuit Court (Ms Farrell was the chief people officer of the respondent). Assuming that to be so, this only emphasises why the matter should at that point have been raised in that Court. That being so, this issue cannot now be pursued in a second case. To do so is an abuse of process of the kind described in Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 per Sir James Wigram and Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 at 602-3 per Gibbs CJ, Mason and Aickin JJ.

39    Because of the procedural nature of that conclusion, the question of whence the legal obligation to pay annual leave derives does not matter. Consequently, it is not necessary to address Mr Wu’s argument that it derives from s 90(2) of the FW Act. Similarly, his contention based on s 327A that the non-payment of annual leave is a criminal offence is disconnected from any issue calling for resolution.

Paragraphs 11 to 16: adverse action – discrimination

40    In these paragraphs Mr Wu now alleges that because he refused to co-operate in the on-call roster the respondent refused to act on the exercise of options held in an employee share plan, in breach of FW Act s 340. This case should have been included with his case that his employment was terminated for the same reason and is an abuse of process. This claim should be summarily dismissed.

Paragraphs 17-20: options in employee share plan

41    At these paragraphs Mr Wu alleges that the commencement of his case in the Circuit Court and his appeal to this Court constituted the exercise of a workplace right and that the respondent took adverse action against him because he had exercised that right. The adverse action consisted of not permitting him to exercise his options in the employee share plan. By the time Mr Wu’s case in the Circuit Court commenced, he had ceased to be an employee. Adverse action is defined in s 342 in such a way as to protect employees from certain kinds of adverse action. It is premised on the adverse action occurring during or before the employment relationship. Consequently, Mr Wu’s allegation cannot succeed.

42    This temporal obstacle is not overcome merely because Mr Wu alleges that the respondent led him to believe during the employment relationship that he would be permitted to exercise his options at a later time. The case alleged is a general protections claim. Assuming that Mr Lim’s emails in December 2021 led Mr Wu to have the belief he alleges, that conduct by the respondent cannot be adverse action because it does not answer the description of any of the items set out in the table in s 342(1) of the FW Act. This claim should also be summarily dismissed.

Paragraphs 24 to 28: incorrect pay slips

43    The first aspect of these paragraphs is an allegation that the pay slip of 15 December 2021 was false or misleading. This was because a payment item on the pay slip named ‘payment in lieu of notice ex super’ suggested that his employment had ended on 15 December 2021 when he was not notified of the termination until 23 December 2021. This was a live issue in the earlier proceeding and was considered on appeal by this Court: see Wu v DSMJ (No 2) [2024] FCA 1404 at [71] and [122]-[124]. It is an abuse of process to seek to raise it again.

44    The second aspect concerns Mr Wu’s allegation concerning annual leave for the four days 4 to 7 January 2022. This is an abuse for the reasons already given.

Paragraphs 29 to 33: conditions of employment

45    The Circuit Court found that the respondent had not provided Mr Wu with a copy of the relevant award governing his employment and it declared that the respondent had contravened the FW Act and the Award by failing to do so. He now seeks to allege in this proceeding that the respondent also failed to inform him of the terms of his employment contrary to cl 8.2 of the Award. Mr Wu says that he only realized that he had not signed an agreement with the respondent when he read the respondent’s defence in the Circuit Court. This provides no basis for thinking that this claim should not have been raised in the Circuit Court. The claim should have been pursued before the Circuit Court and these allegations are an abuse of process. Mr Wu denies this because he says the Circuit Court did not notify him of its order that permitted him to amend his case. Prior to the trial, the Circuit Court granted Mr Wu leave to amend his claims at a case management hearing held on 9 December 2022. Mr Wu says that the Circuit Court did not send him the order. But Mr Wu was present at the hearing and was provided with the orders by the respondent, so this point is empty. In any event, even if that were not so, nothing would have prevented Mr Wu from applying for leave to amend at a later time.

Paragraphs 34 to 38: payment in lieu

46    In these paragraphs Mr Wu alleges that he did not receive his payout on termination within 7 days of his termination (as required by the terms of the Award). This allegation should have been made in the first proceeding. Mr Wu repeated his argument made above that he was not notified of the order permitting him to amend his case, and accordingly did not have an opportunity to raise the matter in the Circuit Court. This should be rejected for the reasons given above.

Outcome

47    Mr Wu’s proceeding in this Court is an abuse of process and should be dismissed. Further, I am satisfied the entire proceeding was instituted vexatiously. All of his existing claims, and all of his proposed amended claims but one, either have no reasonable prospects of establishing liability or should have been raised in prior proceedings. The one claim that has any prospect of establishing liability (regarding provision of records under reg 3.42(3)) concerns a trivial non-compliance and Mr Wu has no reasonable prospects of recovering any compensation or penalty. Although there were minor aspects of his amendment application which I would have granted, they are immaterial in light of those conclusions. No purpose would now be served in granting Mr Wu leave to make these minor amendments since the whole proceeding is to be dismissed in any event. I therefore refuse his application to amend his originating application and statement of claim. The question adverted to above of whether Mr Wu should pay the respondent’s costs thrown away by reason of the amendments does not arise.

48    The appropriate substantive orders are that Mr Wu’s amendment application be dismissed and that there be judgment against the applicant in favour of the respondent.

49    The respondent seeks its costs of the summary judgment application. A party can be ordered to pay another party’s costs in a proceeding under the FW Act if the Court is satisfied that the second party instituted the proceedings vexatiously or without reasonable cause: s 570(2)(a). Mr Wu’s proceeding is an abuse of process and I am satisfied that it was instituted vexatiously (and, if it matters, with an intention to vex). The power in s 570(1) is enlivened and should clearly be exercised. The respondent is entitled to have its costs of its interlocutory application (which is what it sought). For the purposes of the assessment or taxation of any bill of costs, I will record that the respondent’s costs of meeting Mr Wu’s amendment application should form part of its costs of its summary judgment application. This is because they were intertwined and interrelated.

50    The appropriate orders are:

(1)    The applicant’s application to amend his originating application and statement of claim be dismissed.

(2)    Judgment for the respondent against the applicant under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

The applicant pay the respondent’s costs of its interlocutory application dated 11 June 2026 as taxed, assessed or otherwise agreed.

Associate:

Dated:    29 September 2026