Gallagher v BHP Billiton Nickel West Pty Ltd

In *Gallagher v BHP Billiton Nickel West Pty Ltd*, the applicant, Alana Faye Gallagher, sought leave to amend her application alleging contravention of the general protections provisions of the *Fair Work Act 2009* (Cth) and an order for discovery against the respondents, BHP Billiton Nickel West Pty Ltd and Aaron Gleeson. The substantive application concerned alleged adverse action taken against Ms Gallagher.

The court was required to determine whether to grant leave for Ms Gallagher to amend her application to include claims relating to redundancy entitlements, and whether to order discovery of specific categories of documents. The respondents opposed both applications. The court considered the principles governing amendments to pleadings, including the need for amendments to be made in good faith, the stage of proceedings, and the potential for prejudice. It also considered the principles for granting discovery under section 45 of the *Federal Circuit Court of Australia Act 1999* (Cth), which requires a declaration that discovery is appropriate in the interests of the administration of justice, having regard to fair and expeditious conduct of proceedings.

The court refused leave to amend the application, finding that the proposed amendments were raised very late in the proceedings, less than three months before the scheduled hearing which had been listed for over seven months. This lateness was compounded by the fact that the application had already been amended once. The court noted that Ms Gallagher, or her solicitors, had been aware of the potential redundancy claims and had reserved their rights to pursue them, indicating a deliberate election not to plead these claims earlier. The court found that the proposed amendments introduced a different legal and factual matrix, requiring the respondents to amend their response and potentially leading to an adjournment of the hearing, which would cause significant delay, waste public resources, and prejudice other litigants. Regarding the discovery application, the court noted that it was made late and that the relevance of some of the requested documents was questionable, particularly in light of the refusal to grant leave to amend.

Ultimately, the court dismissed Ms Gallagher's application for leave to amend and her application for discovery. The court concluded that no proper case had been made out for the amendments, and that the delay, the applicant's prior elections, and the detriment to other litigants outweighed the importance of the proposed amendments. The court also found that the discovery application was not appropriate in the circumstances.