Webster v Grumpy Sailor Creative Pty Ltd

[2025] FedCFamC2G 1231

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Webster v Grumpy Sailor Creative Pty Ltd [2025] FedCFamC2G 1231  

File number(s):	SYG 793 of 2024
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	31 July 2025
Catchwords:	INDUSTRIAL LAW - practice and procedure – application for leave to file amended statement of claim – whether application to amend is made too near the final hearing such as to put at risk the hearing if the amendment is allowed – amendment can be made without putting at risk hearing – leave granted.
Legislation:	Fair Work Act 2009 (Cth)
Division:	Fair Work
Number of paragraphs:	11
Date of hearing:	31 July 2025
Counsel for the Applicant:	Mr J Pen
Solicitor for the Applicant:	Worklawyers
Counsel for the Respondents:	Ms T Wong
Solicitor for the Respondents:	Workplace Law

ORDERS

SYG 793 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ROBYN WEBSTER

Applicant

AND:

GRUMPY SAILOR CREATIVE PTY LTD

First Respondent

JAMES BOYCE

Second Respondent

CHARLIE HERBERT

Third Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	31 JULY 2025

THE COURT ORDERS THAT:

1.The applicant be granted leave to file and serve an amended statement of claim in the form of the draft, being annexure KB-10 to the affidavit of Kristian Bolwell made on 15 July 2025.

2.The applicant file and serve the amended statement of claim by 12 pm on 1 August 2025.

3.Costs of the application for leave to amend, including costs thrown away by reason of the amendment, are reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)

1. Before the Court is an application by the applicant for an order that she be given leave to file an amended statement of claim in the form of the draft which is annexed to the affidavit of Mr Christian Baldwell. The application is made in a proceeding in which the applicant seeks relief under the Fair Work Act 2009 (Cth). In broad terms, the applicant alleges that the first respondent took various forms of adverse action against her, the ultimate adverse action of which was its dismissal of the applicant from her employment, because the applicant alleges she had exercised workplace rights.

2. The proposed amendment is contained in paragraphs 40(a)-(d) of the draft proposed amended statement of claim, in a section headed “Eighth Exercise of a Workplace Right”. If the amendment is permitted, it would allege one of nine alleged exercises of a workplace right.  The allegation of that workplace right is relevant to a number of the adverse actions it is alleged the respondent took against the respondent. Given the time at which the eighth workplace right is alleged occurred, the relevant adverse actions to which this allegation, if allowed, would be relevant are the fourth and fifth adverse actions.

3. Relevant to whether leave should be granted is the fact that, on 4 June 2025, Judge Doust, who is the judge to whom this matter has been allocated, made orders setting the matter down for hearing for three days on 15, 16 and 17 September 2025, and made a number of orders relating to the preparation of the matter for hearing. 

4. There is no question the Court has power to grant the applicant leave to file an amended statement claim, but the exercise of that power is within the discretion of the court, and the discretion is exercised according to well established principles. Those principles essentially require the weighing of a number of factors, the most relevant being whether the application to amend is sought in circumstances where a hearing date has been set down, the nearness of the application to amend to the hearing, the reasons why the application to amend has been brought at the time in which it has, the merits of the proposed amendment, if allowed, and the prejudice to the respondent, if the proposed amendment is allowed. 

5. I first come to the reason why the application to amend is made at this particular point in time.  The explanation given, and I do not doubt it, is that, in the course of reviewing evidence filed by the respondent, there was revealed an internal email sent 25 November 2023, by internal, meaning internal to the first respondent.  That email, I have identified as MFI1, and it is annexure JB-43 of the affidavit of Mr James Boyce, which has been filed on behalf of the first respondent.  It is accepted that that document came into the possession of the applicant on 11 April 2024, but the applicant first gave notice to the respondents of her intention to apply to amend the statement of claim by letter dated 4 July 2025. 

6. Counsel for the applicant says the reason for the delay between 11 April 2025 and 4 July 2025, which is some three months, is that it took the applicant (by her lawyers) time to digest the material; and counsel also referred to his having recently been briefed in the matter.  On its face, that is not an adequate explanation, because three months does seem a long time. But then again, it is the case that lawyers do not continuously work on each of their matters, and the time when they work on their matters is determined by other factors, such as their other workload and also where the matter the proceeding is up to in terms of scheduled directions hearings and the like.

7. The second question I should consider is whether there is any point to the amendment.  I have stated that loosely; but what I am referring to there is, first whether, the proposed amendment is sufficiently arguable to warrant leave being granted. But secondly, assuming that is so, whether that would be of any forensic benefit to the applicant. Counsel for the applicant responded to my questions in relation to those matters by noting that the proposed amendment, alleges the exercise of a workplace right that is temporally relevant to the most critical of the adverse actions alleged in the statement of claim, namely, the respondent’s termination of the applicant’s employment. Having heard what counsel said about that, I am satisfied that the proposed amendment is material and potentially at least might be of some significance to warrant the amendment being allowed. 

8. Next, I consider prejudice to the respondent, and that overlaps with prejudice to the administration of justice; and that is what will happen if an amendment is allowed, and in particular, whether, if allowed, there is a risk that the current hearing date will be vacated. The greater the risk of that occurring, the greater would be the considerations against allowing the amendment. It has been strongly submitted by the respondent that, if the amendment is allowed, the current timetable would have to be adjusted, yet no clear proposal has been provided by the applicant to indicate how the amendment could be accommodated into that timetable. And for that reason, there is a risk that the hearing date will be lost. 

9. That submission has some force, but there are two things that I think are relevant to it.  One is that the applicant notified the respondents of her proposal to amend the statement of claim on 4 July 2025.  Of course, the respondents were not obliged to respond to that proposal on 4 July 2025;  they were entitled to be given sufficient time to consider their position.  But the fact is, they have taken some time to respond, and the principal basis of the opposition, as I understand it, is that, given the lateness of the amendment, the hearing dates may be in peril.  As I suggested to counsel for the respondent, however, this delay is a mutual problem, not just the problem of the applicant's making. 

10. The second, and more important, consideration is whether the proposed amendment can be accommodated while keeping the hearing date. The hearing date is six weeks away, and in my view, that is more than sufficient time for the parties to have the matter ready for hearing. It will, no doubt, require adjustment of the current timetable.  One guiding principle is that, to the extent things must be done within a shorter time than what is provided by the current timetable, then, within the bounds of reasonableness, the applicant should bear the greater burden of doing things quicker than the respondent.

11. The end result is I am going to grant the applicant leave to file the amended statement of claim, and I will, in a moment, discuss with counsel the mechanics of that. Rather than negotiate in open court a new timetable, I propose that, before the hearing today is concluded, I will go off the bench and give counsel an opportunity to agree, and if they cannot agree, for me to determine what orders should be made.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       4 August 2025