FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhalla v Woolworths Group Ltd (No 2) [2025] FedCFamC2G 31
File number: MLG 3982 of 2020 Judgment of: JUDGE SYMONS Date of judgment: 16 January 2025 Catchwords: PRACTICE AND PROCEDURE – adverse action – where the hearing is complete but judgment yet to be delivered – where respondent sought leave to file application in a proceeding to re-open a case – where respondent seeks to admit further affidavit evidence in response to the applicant’s amended statement of claim – whether leave should be granted in the interests of justice – whether re-opening the case will cause embarrassment or prejudice – where interlocutory application determined on the papers – application to re-open case allowed – costs reserved Legislation: Fair Work Act 2009 (Cth), s 793 Cases cited: Bhalla v Woolworths Group Pty Ltd [2024] FedCFamC2G 652
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
Condon (Trustee, in the matter of Rayhill (Bankrupt) v Truthful Endeavour Pty Ltd (2015) 323 ALR 83; [2015] FCA 7
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of last submissions: 25 October 2024 Date of hearing: Matter determined on the papers Place: Melbourne Counsel for the Applicant: Mr T Rawlinson Solicitor for the Applicant: Betts Law Company Counsel for the Respondent: Mr J Tracey Solicitor for the Respondent: Minter Ellison ORDERS
MLG 3982 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURESH BHALLA
Applicant
AND: WOOLWORTHS GROUP LTD (ACN 000 104 675)
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
16 JANAURY 2025
THE COURT ORDERS THAT:
1.The Respondent’s application in a proceeding filed on 20 August 2024 seeking leave to re-open its case is allowed.
2.The Respondent has leave to rely on the affidavit of Ms Samantha Johnson filed on 20 September 2024.
3.Within 7 days the Applicant make any application for leave to cross examine Ms Johnson. If no such application is made by the Applicant, the Court will reserve its judgment in the proceedings.
4.If the Applicant makes an application to cross examine, the Court, in consultation with the parties, will list the matter for hearing, on an estimate of no more than half a day, for the purposes of Ms Johnson being cross examined and re-examined and limited oral submissions.
5.Costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
BACKGROUND
On 23 July 2024, I made orders…
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- AGLC
- Bhalla v Woolworths Group Ltd (No 2) [2025] FedCFamC2G 31
- Case
- [2025] FedCFamC2G 31
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether it was in the interests of justice to grant leave to re-open the case for the limited purpose of admitting the new affidavit. The court noted that it had inherent power to re-open a matter for hearing until judgment was entered and that the primary consideration was whether re-opening the case would cause embarrassment or prejudice to the other party. The court considered that while there were parallels between the existing evidence and the new affidavit, the differences were subtle and important and directly responsive to the plaintiff's amendments to her pleaded case. Given the nature of the claims and the importance of direct testimony from the decision maker regarding their state of mind, intent, or purpose, the court found it appropriate to give Woolworths an opportunity to respond directly to the allegations in the new affidavit.
After considering the submissions and the context of the proceeding, the court granted leave to Woolworths to re-open its case for the limited purpose of admitting the Third Johnson affidavit. The court noted that the new evidence was directly responsive to the plaintiff's amendments and that there was no deliberate failure to adduce evidence. The court reserved costs, indicating that further consideration would be given to the issue of costs at a later stage. The decision allowed Woolworths to address the new allegations directly, ensuring a fair and just resolution of the dispute.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Woolworths in its brief reply submissions did not cavil with Ms Bhalla’s description of the topics covered in Ms Johnson’s evidence already before the Court and those the subject of the Third Johnson affidavit. It submitted however that the fact that some evidence was already before the Court on topics related to aspects of the new claims did not preclude the admission of further evidence that had been given directly in response to those new claims. This was especially the case where those new claims concerned the conduct and state of mind of Ms Johnson and where Ms Bhalla had not identified any embarrassment or prejudice to her associated with the re-opening of Woolworths’ case.CONSIDERATION The Court has an inherent power to re-open a matter for hearing up until the time of entry of judgment. The overriding principle to be applied by the Court in determining whether or not to grant leave to re-open a case for the admittance of further evidence, is that it must be in the interest of justice in the proceeding: see Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (Kenny J). In circumstances where a failure to adduce evidence is not deliberate the primary consideration, ordinarily, will be whether re-opening the case will cause embarrassment or prejudice to the other party. I am satisfied that it would be in the interests of justice in this proceeding to grant leave to Woolworths to re-open its case for the limited purpose of admitting the Third Johnson affidavit. While I accept that there are parallels between the evidence of Ms Johnson that is already before the Court and the evidence that appears in this proposed third affidavit, the differences are subtle and important and directly responsive to Ms Bhalla’s amendments to her pleaded case that were accommodated at a very late stage of the proceeding. In that respect, I do not consider that there was anything deliberate in the failure of Woolworths to completely address the matters now pleaded in the Fifth FASOC. It was simply a consequence of Woolworths having an incomplete understanding of the allegations that were directed at Ms Johnson and how Ms Bhalla articulated her precise involvement. In the context of an application by Ms Bhalla that seeks pecuniary penalties and where it is an accepted feature of adverse action proceedings that the reverse onus will not readily be discharged absent direct testimony from a decision maker (or putative decision maker) as to their state of mind, intent or purpose in taking or contributing to adverse action,[1] I am satisfied that Woolworths (and Ms Johnson) should be given a limited and delineated opportunity to respond directly to the allegations that were introduced by the Fifth FASOC. While the Second Johnson affidavit contained denials that were directed at the various species of adverse action and workplace rights identified in the earlier iteration of the statement of claim (the Fourth FASOC) these denials were self-evidently not capable of engaging directly with the specific matters now pleaded at paragraphs 99BA, 99BB and 99C of the Fifth FASOC and which concern the conduct and state of mind of Ms Johnson and seek to attribute it to Woolworths for the purpose of establishing liability. I note (a point made also by Woolworths) that Ms Bhalla made submissions at trial that characterised Ms Johnson’s earlier denials as “blanket” in character and incapable of discharging the s 361(1) onus.[1] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [44].