Wu v United Overseas Bank Ltd, Sydney Branch (No 6)
[2025] FedCFamC2G 1201
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v United Overseas Bank Ltd, Sydney Branch (No 6) [2025] FedCFamC2G 1201
File number(s): SYG 1844 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 23 July 2025 Catchwords: INDUSTRIAL LAW- practice and procedure – application for leave to amend statement of claim – whether application made too late given the pendency of the final hearing – whether adequate explanation for delay – whether proposed amendment discloses reasonably arguable cause of action – whether if leave to amend is granted the respondents would suffer prejudice – application refused. Division: Fair Work Number of paragraphs: 14 Date of hearing: 23 July 2025 Place: Sydney Counsel for the Applicant: Mr A Britt Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondent: Mr D Ward Solicitor for the Respondent: Allens ORDERS
SYG 1844 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAOXIAN WU
Applicant
AND: UNITED OVERSEAS BANK LTD, SYDNEY BRANCH
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The applicant’s application for leave to amend the statement of claim is dismissed.
2.The costs of the application 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)
Before me is an application to amend the statement of claim by adding a number of paragraphs which are set out in a document I will mark MFI-3. In broad terms, the proposed amendment seeks to allege further terms of a contract of employment by reference to a group employee discipline policy. The application is opposed by the respondent. The application to amend is made in circumstances where the matter has been set down for a 10-day hearing commencing on 4 August 2025. The matter was set down for hearing pursuant to orders I made on 16 October 2024.
I first turn to the principles that govern the exercise of my discretion whether I should permit the amendment to proceed; it being, of course, a matter of discretion, because I have undoubted power to permit the amendment. The parties have referred me in a little detail to relevant factors that courts take into account when considering whether to grant leave to amend a pleading; but I think I will adopt a more general approach.
The discretion whether to grant leave to amend a statement of claim is exercised according to well-established principles, which require a court to take into account a number of factors. The first factor is why the proposed amendment has been brought at the time at which it has been brought. In other words, whether there is an explanation for the delay and the extent of the delay. Secondly, one then must consider the prejudice that will flow to the applicant who seeks the amendment if the amendment is not granted. The principal matter that informs that question is whether the proposed amendment raises an arguable claim, and whether that claim, if allowed to proceed, would be of some additional significance to the applicant. To the extent the proposed amendment raises an arguable claim which is of relative significance to the applicant, that would be a factor in favour of the exercise of the discretion.
Then there is the prejudice to the respondent if the application for leave to amendment is granted. The factor that is usually of great importance and sometimes is determinative is whether the matter has been set down for hearing, and whether permitting the amendment would lead or put at a higher risk of leading to the hearing dates being vacated. The prejudice the respondent will suffer in those circumstances would depend on whether the applicant has means with which to pay costs thrown away if the amendment is granted and the hearing is vacated; and even if the applicant does have the means to make such payment, whether the payment of costs thrown away would sufficiently negative the prejudice that would arise from having the hearing vacated, it being the case that delay in litigation is a vice in its own right, or, I should say, a prejudice in its own right.
So that leads me to apply those factors to the application before me. There is no question, and it is not disputed, that there has been a significant delay in the applicant applying to amend the statement of claim. That per se is not necessarily a significant factor, but its significance increases the nearer the application to amend is made to the time at which the matter is due to be heard. Given that in this case the hearing is due to commence in some 10 days, the applicant’s delay in applying for the amendment is extreme.
Counsel for the applicant explained why the amendment has been made at the time it has been made. The word counsel used is “oversight” of the potential existence of the claim that is sought to be formulated in the proposed amendment. But perhaps a more accurate word would be new or fresh insight. It is a commonplace in litigation that the more a lawyer is engaged in a matter, the more insights into the matter he or she obtains. That is a normal risk of litigation, which the system of litigation in this country can carry; but can carry only up to a point, because there must be some finality. And the point in time where the system cannot bear the risk of new insights is at or near the hearing itself.
The respondents submit that the explanation counsel for the applicant offered ought to be provided in an affidavit. That, in most circumstances, is true; but if there is no real contest, as there could not be in this case, as to the veracity and frankness of the reasons counsel for the applicant gave for not making the amendment earlier, requiring an affidavit to repeat what counsel said to my face would be of no utility. The importance, however, of the reason counsel has given for the applicant’s not having applied to amend earlier is that it excludes the possibility that the applicant was aware of the availability of the amendment earlier, and she and her lawyers did not move to apply for the amendment earlier or, worse, made a tactical decision not to do so. There is no suggestion that any of that occurred. The inadequacy of the explanation for delay given only bears weight if the proposed amendment, if allowed, will imperil the hearing which is due to take place, as I said, within some 10 days.
Next, there is the prejudice to the applicant if the application to amend is not granted. As I said before, that turns on the apparent merits of the proposed amendment. Counsel for respondent in particular made submissions about the potential complexities, most of which appear to be legal, but I think he submitted are factual as well, that would arise if the amendment is allowed. Although I have not and do not pretend to have studied the proposed amendment in any detail, because I do not consider it necessary, and in any event, I have only recently seen the proposed amendment, it is safe to assume that if allowed, there would be some merit in it, if for no other reason than the respondent accepts that it gives rise to some degree of complexity.
But when I say that the proposed amendment has merit, I really mean merit in that the proposed amendment arguably discloses a breach of contract. A breach of contract, and this is something I raised with counsel for the applicant, if established, gives rise to nominal damages. It constitutes a complete cause of action merely to allege and prove a breach of contract; but the applicant’s purpose of introducing a claim based on breach of contract is not to vindicate some contractual right with an award of $10, or whatever the nominal amount might be, for breach of contract. The applicant’s desire to bring this amendment could only rationally be explained by the fact that, if allowed, and if the cause of action is established, it will result in the prospect of a remedy by way of additional damages or something else that on the current statement of claim the applicant believes she would not get or would be less likely to get. The point of my saying this is that there is nothing in the proposed amendment which specifically identifies a head of damage which is said will result from the breach of contract alleged, or any causal connection between the breach and the head of loss.
Counsel for the applicant referred to the possibility of the breach of contract alleged in the proposed amendment being relevant to the applicant's economic loss if for no other reason than that, had the respondent complied with the alleged contractual terms, the applicant would have remained in employment for a little longer than she did. Counsel also referred to the possibility of the alleged breach of contract going to psychological damage, although counsel suggested that that might be more theoretical than real. “Theoretical” is my word, but I understood counsel to use a word which conveyed the same idea. Counsel also referred to the possibility of cross-examining the respondents’ witnesses in relation to at least the first head of damage that the applicant would rely on.
Not specifying these matters (that is, loss and a causal connection between breach and loss) in the proposed amendment prevents me from being persuaded that the proposed amendment would have any reasonable prospects of securing something to which the applicant, on her current statement of claim, will not be able to achieve. But more importantly, to allow the amendment without it identifying a head of loss and a causal connection between the alleged breach of contract and such loss, would give rise to very high risk that this would work a prejudice on the respondents. They will not know, with any degree of precision, what the applicant’s case would be in relation to those matters, that is to say, the head of loss flowing from the alleged breach of contract and the causal connection between the alleged breach of contract and that head of loss.
Counsel for the applicant submits that loss and damages for breach of contract is broadly alleged in the statement of claim; and it is the case that that is so. That part of the statement of claim, however, must be viewed in light of the fact that the parties have already made forensic decisions based on the statement of claim as it stands; and I assume that the respondent, having had the benefit of the evidence that the applicant has filed, would have a fair idea of precisely what the specific heads of loss the applicant claims she suffered are, and the connection between the heads of loss and the unlawful conduct alleged in the statement of claim, such as to give content to the general allegations of loss and damage made in paragraphs 106 and 107 of the statement of claim. That would not be the case with heads of loss said to arise from the alleged breaches of contract that the applicant seeks to raise by the proposed amendment.
In those circumstances, I am not satisfied that, as the proposed amendment currently stands, it would be appropriate to permit the applicant to amend the statement of claim in terms of the proposed amendment. But even if I were to do that, I am satisfied that, if I were to permit the applicant to amend the statement of claim, there is a high likelihood that the respondent will need to put on additional evidence, or at the very least make further inquiries and review the evidence that it has filed to determine whether it needs to put on additional evidence; and the time in which it will have to do that is just too near the hearing of the matter for the respondent to be expected to do that without being substantially prejudiced.
For these reasons, I propose to dismiss the applicant’s application for leave to file an amended statement of claim which includes the paragraphs set out in the document I have marked as MFI-3.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 30 July 2025
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