Cannan v The Reject Shop Ltd - [2024] FCA 1429

FEDERAL COURT OF AUSTRALIA
Cannan v The Reject Shop Ltd [2024] FCA 1429

File number: VID 246 of 2023

Judgment of: SNADEN J

Date of judgment: 13 December 2024

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for leave to file an amended originating application and statement of claim – representative proceeding – Fair Work Act 2009 (Cth) – alteration of the class on whose behalf representative proceeding is brought – alleged underpayment of entitlements arising from modern award – whether allegation that modern award applied to certain group members is sustainable – whether proposed pleading is embarrassing – whether appropriate to make order relating claim back to commencement of proceeding – interlocutory application dismissed.

Legislation:
Federal Court of Australia Act 1976 (Cth) s 33ZF

Fair Work Act 2009 (Cth) ss 44, 45, 50, 52, 53, 54, 57, 58, 62, 557A, 570

General Retail Industry Award 2020

The Reject Shop Agreement 2011

The Reject Shop Agreement 2014

The Reject Shop Agreement 2018

Cases cited:
Caason Investments Pty Ltd v Cao (2015) 236 FCR 322

Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206

Impiombato v BHP Group Ltd (No 5) [2024] FCA 591

Monash Health v Singh (2023) 327 IR 196

Ron Medich Properties Pty Ltd v Bentley‑Smythe Pty Ltd [2010] FCA 494

Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580

Wheelahan v City of Casey (No 12) [2013] VSC 316

Division: Fair Work Division

Registry: Victoria

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 51

Date of hearing: 22 October 2024

Counsel for the Applicant: Mr J Fetter

Solicitor for the Applicant: Adero Law

Counsel for the Respondent: Mr M Follett SC with Mr N Burmeister

Solicitor for the Respondent: Clayton Utz

ORDERS

VID 246 of 2023

BETWEEN:
BRADLEY CANNAN

Applicant

AND:
THE REJECT SHOP LIMITED ACN 006 122 676

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

13 DECEMBER 2024

THE COURT ORDERS THAT:
1.The interlocutory application dated 3 July 2024 be dismissed.

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

REASONS FOR JUDGMENT
SNADEN J:

By an originating application dated 18 April 2023, the applicant, Mr Cannan, moves the court for relief as the representative of he and others who, over a defined period, worked as store managers or assistant store managers at the respondent’s “The Reject Shop” chain of retail outlets. Amongst other things, the claim alleges that, whilst he and the other group members were employed over the relevant period, they performed work that entitled them to receive various sums pursuant to the provisions of an instrument made under the Fair Work Act 2009 (Cth) (the “FW Act”). Notwithstanding that entitlement, he claims that the payments were not, in fact, made. He moves for relief in the form of compensation, interest and penalties.
By an interlocutory application dated 3 July 2024, the applicant seeks leave to file an amended originating application and an amended statement of claim,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FCA 1429
Decision Date: 13 December 2024

CaseChat Overview and Summary

In the case of Cannan v The Reject Shop Ltd, the applicant sought leave to amend an originating application and statement of claim in a representative proceeding under the Fair Work Act 2009. The dispute arose from alleged underpayment of entitlements as determined by a modern award. The primary issue before the court was whether the applicant could amend the class on whose behalf the representative proceeding was brought. Specifically, the court had to determine if the allegation that the modern award applied to a certain group of members was sustainable and whether the proposed amendment was embarrassing. Additionally, the court needed to decide if an order should be made to relate the claim back to the commencement of the proceeding.

The court examined the legal principles governing amendments to pleadings and the circumstances under which leave to amend should be granted. The court found that the proposed amendment to the class of members was not sustainable because the allegations regarding the application of the modern award were not valid. Furthermore, the court determined that the proposed pleading would be embarrassing as it would require the respondents to defend a claim that was not properly framed. The court also held that it was not appropriate to make an order relating the claim back to the commencement of the proceeding as the amendment would fundamentally alter the nature of the claim.

The interlocutory application was dismissed, and the court made an order that the application dated 3 July 2024 be dismissed. The court's decision was based on the unsustainability of the proposed amendment, the embarrassment it would cause, and the inappropriateness of relating the claim back to the commencement of the proceeding. The matter was concluded by adhering to the provisions of Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The interlocutory application dated 3 July 2024 be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 246 of 2023
Judgment of:	SNADEN J
Date of judgment:	13 December 2024
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application for leave to file an amended originating application and statement of claim – representative proceeding – Fair Work Act 2009 (Cth) – alteration of the class on whose behalf representative proceeding is brought – alleged underpayment of entitlements arising from modern award – whether allegation that modern award applied to certain group members is sustainable – whether proposed pleading is embarrassing – whether appropriate to make order relating claim back to commencement of proceeding – interlocutory application dismissed.
Legislation:	Federal Court of Australia Act 1976 (Cth) s 33ZF Fair Work Act 2009 (Cth) ss 44, 45, 50, 52, 53, 54, 57, 58, 62, 557A, 570 General Retail Industry Award 2020 The Reject Shop Agreement 2011 The Reject Shop Agreement 2014 The Reject Shop Agreement 2018
Cases cited:	Caason Investments Pty Ltd v Cao (2015) 236 FCR 322 Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206 Impiombato v BHP Group Ltd (No 5) [2024] FCA 591 Monash Health v Singh (2023) 327 IR 196 Ron Medich Properties Pty Ltd v Bentley‑Smythe Pty Ltd [2010] FCA 494 Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 Wheelahan v City of Casey (No 12) [2013] VSC 316
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	51
Date of hearing:	22 October 2024
Counsel for the Applicant:	Mr J Fetter
Solicitor for the Applicant:	Adero Law
Counsel for the Respondent:	Mr M Follett SC with Mr N Burmeister
Solicitor for the Respondent:	Clayton Utz

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	13 DECEMBER 2024