Bhalla v Woolworths Group Ltd (No 2)
[2025] FedCFamC2G 31
•16 January 2025
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
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
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 granting leave to the applicant, Ms Bhalla, to file and serve a further amended statement of claim (Fifth FASOC) and for the respondent, Woolworths, to file and serve a defence to the further amended statement of claim. I published reasons which explained why such orders were made: Bhalla v Woolworths Group Pty Ltd [2024] FedCFamC2G 652 (pleadings decision).
The effect of these orders was to permit Ms Bhalla, against the opposition of Woolworths, to include in her statement of claim, the allegation that Woolworths employee, Ms Samantha Johnson, had been involved in the termination of Ms Bhalla’s employment and accordingly her conduct and state of mind in relation to the conduct, could be attributed to Woolworths for the purpose of s 793 of the Fair Work Act 2009 (Cth) (FW Act).
Woolworths had foreshadowed that if it was unsuccessful in opposing the amendment, it would seek leave to file further evidence and make further submissions as to matters arising from Ms Bhalla’s amended case. On 20 August 2024, Woolworths filed an application in a proceeding seeking leave to re-open its case which was supported by an affidavit of Karina Blundo dated 20 August 2024.
The parties agreed a procedural timetable to deal with Woolworths’ application which resulted in the filing of the following documents:
·A proposed affidavit of Samantha Johnson dated 20 September 2024 (referred to as the Third Johnson affidavit);
·Written submissions of Woolworths filed 20 September 2024;
·Written submissions of Ms Bhalla filed 11 October 2024;
·Reply submissions of Woolworths filed 25 October 2024.
The parties agreed that Woolworths’ application should be determined on the papers.
THE CASE FOR RE-OPENING
Woolworths submitted that in deciding its application to re-open, the Court should be guided by the following summary of the principles which appeared at [5] of its written submissions and were taken from Condon (Trustee, in the matter of Rayhill (Bankrupt) v Truthful Endeavour Pty Ltd [2015] FCA 7 at [111] with the respondent’s emphasis:
The fundamental principle which determines whether leave should be granted is the interests of justice. Where the hearing is complete but judgment not yet delivered, the primary consideration is embarrassment or prejudice to the other side. In the case of new or additional evidence, it will be relevant to inquire why the evidence was not called at hearing. A deliberate decision on tactical grounds not to call the evidence ordinarily will tell decisively against the application. Conversely, an inadvertent failure to call a witness or a deliberate decision based on a mistaken apprehension of the relevance and admissibility of the evidence omitted, or as to the law or facts, may well point to the granting of the application. If the new evidence could not possibly affect the outcome of the trial or is peripheral to the main issues, then the Court may well be justified in declining leave. Conversely, if the evidence is crucial and would, if believed, lead to a different result, the interests of justice may justify the grant of leave, particularly in the case of mistake. Finally, where judgment has not yet been delivered, the standard is less stringent than that for admitting fresh evidence on appeal.
The grounds upon which Woolworths relied to seek leave were said to be those deposed to by lawyer for Woolworths Ms Blundo, at [9] to [12] of her affidavit filed in support of the application. These paragraphs read:
9.The Applicant’s amended case makes direct and indirect allegations against Ms Johnson including as to Ms Johnson’s alleged state of mind and alleged motivation, as an alleged decision-maker or influencer, by unlawful reasons in connection with various aspects of Ms Johnson’s alleged conduct towards the Applicant. These allegations were not pleaded at the time when Ms Johnson deposed to her two previous affidavits, which were relied upon as evidence in chief at a trial that was by way of affidavit.
10.As a matter of fairness and justice to Ms Johnson, and to the Respondent – whose conduct and state of mind is alleged, for the purpose of attributing liability to the Respondent, to be that of Ms Johnson – a further affidavit from Ms Johnson ought to be permitted to be received in the proceeding. That affidavit will squarely address the newly pleaded matters (summarised in paragraph 9 above). The affidavit will, accordingly, be directly relevant to issues raised by the newly pleaded case, and it will depose to matters at the heart of the Respondent’s defence to that new case.
11.In summary, the Respondent relies on the following grounds in support of its application to re-open its case for the limited purpose of adducing this further evidence and making relevant submissions:
a)the Applicant’s Fifth FASOC includes new complex pleadings and a material variation to the case that was originally pleaded, as explained in paragraph 9 above;
b)the amendment to the case originally pleaded came at “the eleventh hour of closing submissions on the third and final day of trial” (see paragraph [1] of her Honour’s Judgment);
c)the Respondent has been denied the opportunity to meet the new case and ought to be entitled to meet that new case with further evidence and submissions, which will be relevant to the new case raised by the Applicant;
d)the Application and need to re-open the case are a direct consequence of the Applicant having leave to amend her case at this late stage of the proceeding; and
e)the Respondent will suffer substantial prejudice if the Court does not grant leave to re-open its case including because of the operation of the reverse onus under section 361 of the Fair Work Act 2009 (Cth), which the respondent must, in fairness, have a full and fair opportunity to discharge, especially when the cause of action advanced could lead to the imposition of civil penalties.
12.In these circumstances, the Respondent seeks that the Court makes the orders the Respondent seeks in the Application. Those Orders are in the interests of justice and provide for leave to re-open for only the limited purpose of adducing the foreshadowed evidence of Ms Johnson and making relevant (page limited) submissions. The Orders also ensure that the Applicant is not prejudiced, as she is afforded a right to file responsive submissions and the ability to give notice that she wishes to cross-examine Ms Johnson, if desired (the nature and content of any cross-examination will be a matter for the Court, having heard submissions on those matters from the parties).
Woolworths submitted, by reference to this evidence and the statements of principles referred to above at [6] that the interests of justice favoured leave to re-open because this was a case where the hearing was complete but judgment had not yet been delivered and which directed attention to the question of whether, by reason of leave to re-open, there would be embarrassment or prejudice to Ms Bhalla. Woolworths submitted that this question could safely be answered in the negative or that any embarrassment or prejudice was of Ms Bhalla’s own making. Instead, if leave were not granted, the prejudice and embarrassment would be suffered by Woolworths, having regard to Ms Bhalla’s late amendment and her newly pleaded case, which had occurred in the context of a civil penalty proceeding in which Woolworths bears an onus under s 361 of the FW Act to disprove the mental elements of Ms Bhalla’s new case.
Woolworths submitted that it could not fairly be criticised for failing to adduce the evidence contained in the Third Johnson affidavit at trial because the necessity for doing so only came about because of Ms Bhalla’s late amendment which occurred well after the close of affidavit material and after Ms Johnson had given oral evidence in the proceeding.
Woolworths submitted that on the assumption that Ms Bhalla had fairly and properly pleaded a reasonable cause of action in the new parts of the Fifth FASOC, the evidence contained in the Third Johnson affidavit was crucial because it was clear and cogent evidence which, if believed, would directly refute Ms Bhalla’s new claims by discharging the s 361 onus and serve to establish a complete defence to the new claims.
THE CASE AGAINST RE-OPENING
Ms Bhalla submitted that Woolworths’ application to re-open should be dismissed on the principal basis that the Third Johnson affidavit addressed topics on which Ms Johnson had already given evidence either in writing or viva voce at trial. Ms Bhalla submitted that in those circumstances, Woolworths would suffer no meaningful prejudice if the matter was to be determined based on the evidence already admitted.
To illustrate that there was symmetry between the Third Johnson affidavit and topics already dealt with in Ms Johnson’s evidence, Ms Bhalla submitted that the Third Johnson affidavit should be understood as covering the following topics:
(a)who proposed that the Return to Work Condition be imposed, and who made the decision (at [5]);
(b)Ms Johnson’s views in relation to the decision to impose the Return to Work Condition (at [6]);
(c)Ms Johnson’s views as to the expectation for Ms Bhalla to agree to perform the requirements of a Level 1 Store Team Member as she (Ms Johnson) understood them (at [7]-[8]);
(d)discussions with Ms Toner regarding the imposition of the Return to Work Condition (at [11]);
(e)Ms Johnson’s involvement in the preparation of the letter containing the Return to Work Condition (at [12]); and
(f)whether Ms Johnson took any action against Ms Bhalla for a prohibited reason (at [12]).
Ms Bhalla submitted that Ms Johnson had already given evidence on each of these topics:
(a)whether she suggested the Return to Work Condition be imposed, and who made the decision in relation to Ms Bhalla’s employment (T124, line 36 and affidavit of Ms Johnson dated 25 March 2024 (Second Johnson affidavit);
(b)whether she agreed that the Return to Work Condition was necessary (T124, lines 30-35);
(c)the expectation that Ms Bhalla would agree to perform the requirements of a Level 1 Store Team Member as she (Ms Johnson) understood them (T123, line 35 – T124 line 34);
(d)discussions with Ms Toner regarding the imposition of the Return to Work Condition (T125, line 1);
(e)Ms Johnson’s involvement in the preparation of the letter containing the Return to Work Condition (Second Johnson affidavit at [11]-[12]; T124, lines 39-41); and
(f)whether Ms Johson took any action against Ms Bhalla for a prohibited reason (Second Johnson affidavit at [23]-[26]).
Ms Bhalla submitted that in circumstances where Woolworths had already addressed the topics now proposed to be revisited in the Third Johnson affidavit it could not be understood to have been caught by surprise in relation to them and should not be given a further opportunity to buttress its existing evidence.
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].
Ms Bhalla has not identified any prejudice that would not be cured by an opportunity, as the parties have agreed should occur in the event of re-opening, to cross-examine Ms Johnson on her third affidavit.
I propose therefore to grant leave to Woolworths to re-open its case and to make orders in substantially the terms that were agreed by the parties (and recorded in a note to the orders made by consent on 2 September 2024) save that in circumstances where the Third Johnson affidavit has already been filed, I will order instead (as should be implicit) that Woolworths has leave to rely on it.
The question of costs will be reserved.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 16 January 2025
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