Cavanagh v Lexastar Pty Ltd

In *Cavanagh v Lexastar Pty Ltd*, heard in the Federal Circuit Court of Australia, the applicant, James Cavanagh, sought leave to further amend his claim under the Fair Work Act 2009 (Cth). The respondents, Lexastar Pty Ltd and its directors, sought to strike out certain paragraphs of the applicant's proposed amended claim and sought costs on an indemnity basis. The dispute arose from the applicant's employment with Lexastar, his subsequent diagnosis of depression and anxiety, his use of personal and annual leave, and the alleged detrimental changes to his employment status and pay, culminating in the termination of his employment.

The court was required to determine two primary legal issues. Firstly, whether to exercise its discretion to grant the applicant leave to further amend his claim pursuant to rule 7.01 of the Federal Circuit Court Rules 2001. Secondly, the court had to consider the principles relating to striking out pleadings in determining the respondents' application to strike out specific paragraphs of the applicant's amended claim.

Judge Tonkin granted the applicant leave to further amend his claim and also granted the respondents leave to amend their response and the applicant leave to amend his reply, setting strict timelines for these filings. The court also made orders regarding the filing of further evidence and outlines of argument by both parties. Crucially, the respondents' application to strike out proposed amended pleadings was dismissed, and their application for costs was also dismissed. The matter was to remain listed for trial on 20 September 2021. The court's decision on costs was informed by the principles established in cases such as *Rahman v Commonwealth of Australia* and *Construction, Forestry, Mining and Energy Union v Clarke*, which outline the criteria for awarding costs in matters arising under the Fair Work Act, requiring an unreasonable act or omission by a party that causes the other party to incur costs.