Cannan v The Reject Shop Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Cannan v The Reject Shop Ltd (No 2) [2025] FCA 879  

File number: VID 246 of 2023
Judgment of: SNADEN J
Date of judgment: 1 August 2025
Catchwords: REPRESENTATIVE PROCEEDINGS – interlocutory application for leave to file an amended originating application and statement of claim – application to amend expands group member definition and includes new claims for relief – amended group member definition and new claims proposed to be related back to commencement of proceeding – amendment and relation back sought in circumstances of apparent mistake by applicant’s legal representatives in defining group members – fact of mistake accepted – consideration of discretionary factors including delay, character of mistake and prejudice to parties – leave granted for amendments to originating application and pleading – no relating of claims back to commencement of action – amendments to take effect from the date of application
Legislation:

Fair Work Act 2009 (Cth) ss 44, 45, 62, 535, 544, 570

Federal Court of Australia Act1976 (Cth) ss 33K, 33V, 33ZF

General Retail Industry Award 2010

General Retail Industry Award 2020

The Reject Shop Agreement 2011

The Reject Shop Agreement 2014    

Cases cited:

Bray v F Hoffman-La Roche Ltd [2003] FCA 1505

Cannan v The Reject Shop Ltd [2024] FCA 1429

Ethicon Sàrl v Gill (2018) 264 FCR 394

Impiombato v BHP Group Ltd [2025] FCAFC 9

Lewis v Philips Electronics Australia Ltd [2023] FCA 1486

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 50
Date of hearing: 25 July 2025
Solicitor for the Applicant: Mr R Markham of Adero Law
Counsel for the Respondent: Mr M Follett KC with Mr M Garozzo
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:

1 AUGUST 2025

THE COURT ORDERS THAT:

1.The applicant has leave to file an amended originating application and an amended statement of claim in substantially the forms of the draft documents annexed to the affidavit of Rory Markham dated 13 June 2025.

2.The amended originating application and the amended statement of claim take effect on and from 16 June 2025.

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


REASONS FOR JUDGMENT

SNADEN J:

  1. By an interlocutory application dated 16 June 2025, the applicant, Mr Cannan, seeks leave to file an amended originating application and amended statement of claim.  The amendments themselves are uncontroversial and it is agreed that leave should issue at least substantially in the forms that Mr Cannan requests.  At issue presently is whether the court should grant associated relief in the form of what are sometimes known as “relation back orders”.  The application is supported by two affidavits affirmed by Mr Cannan’s solicitor, Mr Rory Markham, which exhibit the documents in their proposed amended forms and supply other context to the application.

  2. The…

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Details
Case
[2025] FCA 879
Decision Date

CaseChat Overview and Summary

The case of Cannan v The Reject Shop Ltd (No 2) involved an interlocutory application for leave to file an amended originating application and statement of claim. The plaintiff, Cannan, sought to amend the group member definition in their representative proceedings and include new claims for relief. The application to amend was made in circumstances of an apparent mistake by Cannan's legal representatives in defining the group members. The Reject Shop Ltd opposed the application on the grounds of delay, character of the mistake, and potential prejudice to the parties.

The court considered various discretionary factors in deciding whether to grant leave for the amendments. These factors included the delay in making the application, the nature of the mistake made by Cannan’s legal representatives, and the potential prejudice to The Reject Shop Ltd if the amendments were allowed. Despite the apparent mistake, the court found that the amendments were necessary to correct the definition of the group members accurately. The court ultimately granted leave for the amendments to the originating application and pleading, though it decided that the claims would not be related back to the commencement of the action. Instead, the amendments would take effect from the date of the application.

In summary, the court allowed Cannan to file amended documents defining the group members correctly and adding new claims for relief. However, these amendments would not apply retroactively to the start of the proceedings. Instead, they would come into effect from the date of the application, ensuring that the changes were implemented without unfairly prejudicing The Reject Shop Ltd.

Orders

Orders of the court

1. The applicant has leave to file an amended originating application and an amended statement of claim in substantially the forms of the draft documents annexed to the affidavit of Rory Markham dated 13 June 2025.

2. The amended originating application and the amended statement of claim take effect on and from 16 June 2025.

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

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

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