Knight v Visionstream Australia Pty Ltd

The appeal was brought by Ms Knight, an employee who had been dismissed and subsequently made a general protections application to the Fair Work Commission (FWC) against Visionstream Australia Pty Ltd. She sought damages and penalties for her dismissal. Following a conference with the FWC, a certificate was issued naming Visionstream Australia Pty Ltd as the respondent. Ms Knight later realised she had been employed by Visionstream Pty Ltd, not Visionstream Australia Pty Ltd, and sought to amend the proceedings to substitute Visionstream Pty Ltd as the respondent. The Federal Circuit Court of Australia (FCCA) refused the substitution and dismissed the proceeding, holding that section 368 of the Fair Work Act 2009 (FW Act) required the substitution to be disallowed because the proposed new respondent's name did not match the name on the certificate issued by the FWC.

The legal issue before the court was whether section 368 of the FW Act precluded the substitution of one respondent for another in the proceedings, even when the mistake was genuine and not misleading. The court considered that modern rules of court, including rule 7.01(1) of the Federal Circuit Court Rules 2001 (FCCA Rules), permit amendments to the name of a party to substitute one party for another if the mistake was genuine and not misleading. The court found that the mistake in this case was genuine, induced by the letter of termination signed on behalf of Visionstream Australia Pty Ltd, and could not have been misleading as Visionstream Pty Ltd had participated in the FWC hearing without raising any jurisdictional objection.

The court held that section 368 of the FW Act did not alter the position where the mistake was genuine and not misleading. The court found that the primary judge erred in refusing the amendment sought and in dismissing the proceeding. The appeal was allowed, the orders of the FCCA were set aside, and the matter was remitted to the FCCA. The parties were directed to file and serve written submissions on the appropriate order, if any, to be made in respect of costs.