Cannan v Dollarama - Full Court Class Action Group Definition Ruling

Original Word Document (156.6 KB) Federal Court of Australia

Cannan v Dollarama Australia Pty Limited [2026] FCAFC 41

| File number(s): | VID 1057 of 2025 |
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| Judgment of: | LEE, SHARIFF AND DOWLING JJ |
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| Date of judgment: | 10 April 2026 |
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| Catchwords: | REPRESENTATIVE PROCEEDINGS – application for leave to appeal and cross-appeal from interlocutory order that amended originating application and amended statement of claim would take effect from date on which interlocutory application seeking leave to amend had been filed – where primary judge found that legal premise upon which the purported group definition depended was unsustainable – where neither party raised before the primary judge whether the Court had before it a valid class action

REPRESENTATIVE PROCEEDINGS – where applicant accepted before primary judge that group membership was “empty” – consideration of whether proceeding commenced and remained as a representative proceeding in accordance with Pt IVA – whether proceeding became an inter partes proceeding – whether primary judge had power to permit filing of amended pleadings and to make “relation back” order

REPRESENTATIVE PROCEEDINGS – consideration of distinction between a failure to satisfy the threshold requirements specified in s 33C(1) and inadequacies in the pleadings that do not go to the constitution of the proceeding as a representative action |
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| Legislation: | Fair Work Act 2009 (Cth) ss 44, 50, 62, 323, 544, 545

Federal Court of Australia Act 1976 (Cth) ss 4, 23BH, 23FG, 32AB, 33C, 33H, 33K, 33L, 33N, 33P, 33T, 33ZF, 33ZG, 37M(1), 51, 53AB, Pt IVA

Federal Court Rules 2011 (Cth) rr 2.02, 8.21, 9.65, 11.09, 15.16, 39.04, Div 9.2

Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW) s 5 |
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| Cases cited: | Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd (No 2) [1999] FCA 1161; (1999) 95 FCR 302

BHP Group Ltd v Impiombato [2022] HCA 33; (2022) 276 CLR 611

Blake v Norris (1990) 20 NSWLR 300

Caason Investments Pty Ltd v Cao (2015) 236 FCR 322

Cannan v The Reject Shop Ltd (No 2) [2025] FCA 879

Cannan v The Reject Shop Ltd [2024] FCA 1429

Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583

El-Helou v Mercedes-Benz Australia/Pacific Pty Ltd [2025] VSC 211; (2025) 77 VR 51

Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394

Finance Sector Union of Australia v Commonwealth Bank of Australia [1999] FCA 59; (1999) 89 FCR 417

Gill v Ethicon Sàrl (No 3) [2019] FCA 587; (2019) 369 ALR 175

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395

House v The King [1936] HCA 40; (1936) 55 CLR 499

Impiombato v BHP Group Limited (No 2) [2020] FCA 1720

Impiombato v BHP Group Ltd [2025] FCAFC 9; (2025) 308 FCR 250

J Wisb e y & Associates Pty Ltd v UBS AG [2021] FCA 36

Jenkings v Northern Territory of Australia [2017] FCA 1263

King v GIO Australia Holdings Ltd [2000] FCA 1543

King v GIO Australia Holdings Ltd [2000] FCA 617; (2000) 100 FCR 209

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 278 CLR 628

Nationwide News Pty Ltd v Rush [2018] FCAFC 70

Nixon v Philip Morris (Australia) Ltd [1999] 95 FCR 453; (1999) 95 FCR 453

Perera v GetSwift Ltd [2018] FCA 732; (2018) 263 FCR 1

Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2010] FCA 494

Sreika v Cardinal Financial Securities Limited [2000] FCA 1647

Tropical Shine Holdings Pty Ltd trading as K.C. Country v Lake Gesture Pty Ltd [1993] FCA 753; (1993) 45 FCR 457

Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 |
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| | D Grave, K Adams and J Betts, Class Actions in Australia (3rd ed, Thomson Reuters, 2023) |
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| Division: | Fair Work Division |
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| Registry: | Victoria |
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| National Practice Area: | Employment and Industrial Relations |
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| Number of paragraphs: | 177 |
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| Date of hearing: | 17 March 2026 |
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| Counsel for the applicant: | Mr M Felman SC with Ms S Hogan and Ms S Platel |
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| Solicitor for the applicant: | Adero Law |
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| Counsel for the respondent: | Mr M Follett KC with Mr N Burmeister |
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| Solicitor for the respondent: | Clayton Utz |
ORDERS

| | | VID 1057 of 2025 |
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| BETWEEN: | BRADLEY CANNAN

Appellant | |
| AND: | DOLLARAMA AUSTRALIA PTY LIMITED ACN 006 122 676

Respondent | |

| order made by: | LEE, SHARIFF AND DOWLING JJ |
| DATE OF ORDER: | 10 APRIL 2026 |
THE COURT ORDERS THAT:

1. The applicant be given leave to appeal limited to the parts of those grounds specified in the draft notice of appeal which raise the issues referred to in these reasons at [82] and the Court dispenses with the need to file a revised version of a notice of appeal.

2. Leave to appeal be otherwise refused.

3. The appeal be dismissed.

4. Leave be granted to cross-appeal.

5. The draft notice of cross-appeal be treated as a notice of cross-appeal.

6. The cross-appeal be allowed in part.

7. Order 2 of the Orders made on 1 August 2025 be set aside and, in lieu thereof, there be an order that the amendments allowed by the leave granted by the primary judge to file the amended originating application and amended statement of claim take effect from the filing of those documents on 15 August 2025.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LEE J:

A     INTRODUCTION

1 Before the Court are two applications for leave to appeal an interlocutory order in a class action: first, by the applicant, Mr Cannan, for leave to appeal order 2 made on 1 August 2025 in Cannan v The Reject Shop Ltd (No 2) [2025] FCA 879 (PJ); and secondly, an application by The Reject Shop Limited (a corporation that has now changed its name to Dollarama Australia Pty Ltd (Dollarama)) for leave to cross-appeal from the same order.

2 The impugned order provided that an amended originating application and amended statement of claim, which the primary judge permitted to be filed, would take effect on and from 16 June 2025, being the date on which the interlocutory application seeking leave to amend had been filed.

3 Mr Cannan contends that the amendments should have taken effect from 18 April 2023, being the date upon which the proceeding was originally instituted, or alternatively, from 3 July 2024, being the date upon which an earlier unsuccessful amendment application had been filed. Dollarama contends, by cross-appeal, that no order of that kind could properly have been made in favour of any person other than the applicant himself.

4 The principles informing the grant of leave are well-known and do not require elaboration. It suffices to note that the exercise of the Court’s power to grant leave must conform to what best promotes the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The Court should be vigilant to keep a “tight rein” upon the interference with orders involving the exercise of discretion on points of practice and procedure: Nationwide News Pty Ltd v Rush [2018] FCAFC 70 (at [2], [4] per Lee J, with whom Allsop CJ and Rares J agreed).

5 The order under challenge, at least superficially, reflects a routine practice and procedure discretionary decision. The approach to be adopted in making such a decision in the context of class actions has been explained recently by two Full Courts. Usually, these applications would be far from compelling candidates for leave. However, on close analysis, these applications raise at least one question of some importance not hitherto the subject of authoritative consideration at intermediate appellate level.

6 The question concerns whether a proceeding that did not satisfy or pass through the “gateway” requirements in ss 33C and 33H of the Federal Court of Australia Act 1976 (Cth) (FCA Act) upon filing may nonetheless be subsequently converted, by amendment, into a representative proceeding. Because that question is one of wide practical significance and because it is not foreclosed by binding authority, leave should be granted to cross-appeal on the two proposed grounds identified. Leave to appeal should also be granted to the applicant in relation to the refined arguments persisted in during oral submissions on the leave application.

B    PROCEDURAL BACKGROUND

7 It will be recalled that the proceeding was commenced as long ago as April 2023. As I have already noted, it was framed from its commencement as a representative proceeding under Pt IVA of the FCA Act. The “group definition” adopted in the originating application was in the following form:

…all persons who were employed by [Dollarama] as Store Managers or Assistant Store Managers in circumstances where the General Retail Industry Award 2010 (later known as the General Retail Industry Award 2020) (Award) applied to those employments but who were, for any weekly pay period in the period 24 April 2017 to 18 April 2023 (Relevant Period), paid less than they were entitled to under the Award for the actual hours worked in that week.

8 The statement of claim proceeded on the same footing. It alleged that the applicant and each “group member” worked during the Relevant Period in circumstances where the Award applied to their employment, and that there were at least six group members in addition to the applicant. The pleaded case was premised upon the proposition that some salaried managers fell outside the operation of the enterprise agreement and that the Award therefore applied to them.

9 In its defence, Dollarama asserted that an enterprise agreement applied to the applicant and all alleged group members. Thereafter, a series of attempts was made by Mr Cannan to refine or recast the pleading. A September 2023 amendment application and an October 2023 replacement application produced variants of the original formulation but preserved the notion that Award application supplied a defining criterion of group membership.

10 In July 2024, Mr Cannan filed a further interlocutory application seeking leave to amend. The proposed amendments introduced, among other things, the notions of “above-threshold managers” and “below-threshold managers”, pleaded claims under the enterprise agreement and alleging contraventions of ss 45, 50, 62 and 323 of the Fair Work Act 2009 (Cth) (FW Act), and sought to reformulate the scope of the class. So far as award underpayment claims were concerned, however, the proposed amendments continued to depend upon the proposition that the Award applied to the employment of relevant managers.

11 That amendment application was dismissed by the docket judge on 13 December 2024 in Cannan v The Reject Shop Ltd [2024] FCA 1429. His Honour concluded, after full argument, that the Award-based amendments were futile. Although the originating application and statement of claim remained on foot, the legal premise upon which the purported group definition depended was unsustainable.

12 The proposed pleadings materially altered the controversy. The original Award underpayment claim was not pleaded in the same form. Instead, the revised documents redefined the “group” by reference to salaried managers who in any week had worked more than 40 hours (if full time) or more than two hours beyond their ordinary hours of work (if part time), and they advanced claims based upon the enterprise agreement and alleged contraventions of ss 45, 50 and 62 of the FW Act.

13 On 16 June 2025, Mr Cannan filed a further interlocutory application seeking leave to file what were described as a third proposed amended originating application and a third proposed amended statement of claim. The interlocutory application came on for hearing before the primary judge on 25 July 2025. His Honour was informed that the amendments themselves were, in substance, not opposed; the live issue was the date from which the amended pleadings should take effect.

14 It is of signal importance to appreciate the footing upon which the hearing below was conducted. Although his Honour had previously found that the legal premise upon which the purported group definition depended was unsustainable, neither party raised before the primary judge the potential legal consequences of this finding, including the issue as to whether the Court had before it a valid class action. Indeed, the existence of a valid class action was an implicit assumption informing the written and oral submissions of both parties.

15 Further, this joint position was adopted notwithstanding the transcript before the primary judge discloses an express acceptance on behalf of the applicant that, as matters then stood, the extant group definition did not capture any persons (and indeed the solicitor for the applicant’s argument for amendment and relation back of the amendments proceeded by reference to a mistake in drawing a group definition that was then “empty”).

16 On 1 August 2025, the primary judge delivered judgment. His Honour recorded that the amendments themselves were uncontroversial and that the real issue concerned relation-back orders. Consistently with the primary judge’s earlier finding and the joint position of the parties, his Honour stated (PJ at [3]):

[i]n short, it is now accepted—or, in any event, it is the case—that neither award applies or applied to the employment of [Dollarama]’s Store Managers or Assistant Store Managers. As presently defined, the group on behalf of which Mr Cannan brings the proceeding is empty.

17 His Honour then permitted the filing of the amended originating application and amended statement of claim, but ordered that they take effect on and from 16 June 2025. The applicant filed the amended pleadings on 15 August 2025. It is common ground that, from that point forward, the amended group definition described seven or more persons with claims against the same respondent. Both parties accept that if the current form of the pleading had been filed upon commencement, it would have passed through the ss 33C and 33H “gateway” provisions.

C    THE PRIMARY JUDGE’S REASONS

18 Understandably given the background explained above, the primary judge approached the matter as one involving the temporal operation of amendments permitted in a representative proceeding. His Honour referred to the leading Full Court cases being Impiombato v BHP Group Ltd [2025] FCAFC 9; (2025) 308 FCR 250 and Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394. The primary judge treated Mr Cannan’s position as involving a mistake in the original formulation of the proceeding, but did not accept that the mistake justified relation back to commencement of the proceeding or to the earlier failed amendment application.

19 His Honour characterised the mistake as significant and observed that its consequences could not simply be effaced by invoking the broad proposition that amendments ordinarily relate back. There was, in his Honour’s view, a material difference between permitting amendment and ordering that causes of action newly introduced or newly defined should be treated as having been advanced from the outset. His Honour also considered that prejudice to unidentified “group members” had not been demonstrated in a concrete way.

D    THE PROPOSED GROUNDS OF APPEAL AND CROSS-APPEAL

20 For reasons that will become clear, it is worth dealing initially with an issue raised in both applications for leave, being whether Mr Cannan validly commenced a class action in April 2023 by the filing of a Form 19 headed “Originating application starting a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976” accompanied by a statement of claim.

D.1    Was a Class Action Validly Commenced in 2023?

I    The statutory gateway: s 33C and its function

21 It ought not to be forgotten that there are, of course, two types of representative proceedings that can be commenced and conducted in the Court: Chancery-style representative proceedings (see Federal Court Rules 2011 (Cth) (FCR), Div 9.2); and those pursuant to Pt IVA of the FCA Act. It is not suggested that the equitable principles as to representative proceedings have any present relevance; for this matter to be properly characterised as such, it is common ground that it must be a Pt IVA class action.

22 Hence t he starting point is s 33C of the FCA Act, which provides:

Commencement of proceeding

(1)  Subject to this Part, where:

(a)     7 or more persons have claims against the same person; and

(b)    the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

23 As s 33A provides, a “group member” is “ a member of a group of persons on whose behalf a representative proceeding has been commenced ”.

24 Section 33H sits alongside s 33C. Section 33 H (1) requires that the originating process describe or otherwise identify the group members; specify the nature of the claims made on their behalf and the relief claimed; and specify the questions of law or fact common to those claims.

25 As I sought to explain in Gill v Ethicon Sàrl (No 3) [2019] FCA 587; (2019) 369 ALR 175 (at 177 [7]), s 33H allows the court to identify whether s 33C (and hence Pt IVA) has been properly engaged. In this way, the sections work together: s 33C prescribes the substantive gateway conditions and s 33H requires that the originating process or accompanying document demonstrate s that those conditions are met. Put another way, t he former section sets out the conditions for the existence of a representative proceeding; the latter requires that those conditions be made manifest in the originating process or a document filed in support of such an application.

26 Section 33C is not merely facilitative; it is constitutive. It identifies the circumstances in which a proceeding may properly be commenced as a representative proceeding. If those conditions are not satisfied, the proceeding is not one to which Pt IVA applies, whatever label is attached to it.

II    How threshold issues ought to be resolved

27 There is a fundamental distinction between a failure to satisfy the threshold requirements specified in s 33C(1) and inadequacies in the pleadings that do not go to the constitution of the proceeding as a representative action. It is necessary to distinguish between these two different types of controversy that may arise (although in practice, both types of controversies may exist concurrently).

28 Properly analysed, the first type of controversy was present in this case, but it was mistakenly argued in the context of the second type of controversy dealing with the adequacy, clarity or formulation of pleadings.

29 In the context of strike out or related applications of the second type, early in the development of Pt IVA, there was repeated judicial concern expressed about the frequency and utility of interlocutory attacks on pleadings in class actions. At least to my observation, these concerns have abated in recent years, and there is little modern evidence of any systematic “tactic” in respondents making pleading challenges. Some strike out or similar applications are still brought, but on a less frequent basis. N o doubt this is because the experience of the courts, and those regularly practising in class actions for respondents, is that such disputes are often of limited utility and may impede the efficient progression of proceedings.

30 Indeed, even where such applications are successful, the game is often not worth the candle. For example, i n Jenkings v Northern Territory of Australia [2017] FCA 1263, White J permitted the applicants to replead after the respondents had successfully struck out paragraphs of the statement of claim. All that happened was that the applicant improved his pleading. His Honour’s approach reflects a broader tendency to allow repleading rather than bring ing proceedings to an end on technical grou nds. It is only in the clearest of cases that a claim should be struck out entirely (see, for example, Impiombato v BHP Group Limited (No 2) [2020] FCA 1720 (at [141] per Moshinksky J)), and where deficiencies are capable of cure, leave to replead will ordinarily be granted.

31 This approach is reinforced by case management considerations. As Beach J observed in J Wisb e y & Associates Pty Ltd v UBS AG [2021] FCA 36 (at [158]), information asymmetry is a recognised feature of many Pt IVA proceedings and may properly be considered in assessing the adequacy of pleadings, including where multiple versions of a pleading have been developed over time. It is commonplace that a mended pleadings often are filed in complex class actions fo l l ow ing the provision of documents upon discovery (and the consequent removal or reduction in any information asymmetry).

32 The same theme emerges from the broader procedural framework. The Court’s Class Actions Practice Note (GPN-CA) emphasises the efficient and expeditious conduct of class actions and seeks to minimise unnecessary delay caused by interlocutory disputes. It contemplates early identification of issues, including pleading issues, but in a way that promotes the just and efficient resolution of the proceeding rather than encouraging tactical skirmishing.

33 In any event, t aken together, these considerations explain why courts have deprecated interlocutory attacks on pleadings in class actions, particularly where such attacks amount to little more than technical objections or attempts to fragment the proceeding.

34 It is worth stressing, however, the reluctance to entertain interlocutory attacks on pleadings does not extend to all issues that may arise. As noted above, a critical distinction must be drawn between disputes about the form, sufficiency or articulation of a pleaded case; and the distinct contention that the proceeding does not satisfy the statutory conditions for the existence of a representative proceeding.

35 The authorities recognise this distinction. White J in Jenkings (at [111]) contrasted general inadequacies in pleadings with a failure to satisfy the threshold requirements specified in s 33 C(1). The latter is not a pleading deficiency per se, b ut rather a failure to pass through the statutory gateway.

36 The distinction between a “gateway” dispute to the usual “collapsing class” problem (discussed below) is evident. In many cases, courts have, as a matter of both expedience and practical ity, proceeded on the joint position of the parties that a class does exist, leaving issues of membership and entitlement to be resolved at a later stage. But those cases proceed on the joint footing that there is some demonstrable basis for concluding a class i s present by reason of the nature of the group definition. They do not involve a contention that the class is empty and whether the statutory gateway has been passed at all.

37 The resolution of an issue going to the proper constitution of the proceeding as a class action is not some form of interlocutory distraction. The re are sound and interrelated reasons as to why any bona fide controversy as to the proper institution of a class action should be resolved with celerity.

38 First, the Court must know whether Pt IVA has been engaged. A representative proceeding is not merely a procedural device; it carries with it a distinct set of statutory consequences, including the Court’s supervisory and protective role in relation to group members, providing for opt out and the communication of relevant information to non-parties whose interests may be affected (by either a statutory estoppel imposed by a s 33ZB order or a resolution affecting a group member’s claim under a s 33V settlement approval).

39 Secondly, the efficient management of the proceeding depends upon that characterisation. Whether the proceeding is to be conducted as a representative proceeding or as an ordinary inter partes proceeding affects the course of the litigation at every stage.

40 Thirdly, early resolution of such issues is consistent with, rather than contrary to, the overarching concern to avoid unnecessary collateral disputation. Where the issue is of substance and goes to the foundation of the proceeding, its prompt determination promotes efficiency and clarity.

41 Accordingly, while the Court will ordinarily discourage interlocutory attacks on pleadings that are technical, fragmentary or tactical in character, it ought not to shrink from determining, at the earl iest possible stage, a genuine question as to whether the statutory conditions for a representative proceeding have been satisfied. To do so is not to encourage procedural disputation, but to recognise that the Court must be satisfied that the statutory machinery of Pt IVA has been properly invoked.

42 If a defence puts the constitution of the proceeding as a class action bona fide in issue, the resolution of this issue ought not to be deferred.

43 Two further points ought to be made.

44 First, as to the mode of resolution, there have been some examples o f interlocutory applications being filed seeking “ decla ra tory ” relief that a proceeding ha s not been properly commenced as a class action under Pt IVA. This is heterodox. It is trite that a so-called “ interlocutory declaration ” is a form of order not known to the law. If authority was needed for such a basic proposition, it is found in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 (per Gummow and Hayne JJ at 590 –591 [128]). If a challenge is to be made, it should be either by an application to strike out the representative components of the process filed, or preferably by separate and early final de termination of the issue.

45 Secondly, these considerations addressed above underscore an important practical point which should be made, given the recent experience of the Court that an increasing number of employment and non-commercial disputes are being pursued as representative proceedings. P ersons who seek to commence class actions must give careful consideration, at the outset, to whether the requirements of s 33C are satisfied. In particular, they must ensure that there are, in fact, seven or more persons with claims of the requisite character, and that the proceeding is otherwise properly constituted as a representative proceeding. Th is is not a matter which can be left to later forensic development. Similar attention should be directed to these issues by those advising respondents.

46 For reasons which will by now be clear, the applicant’s contention that the proceeding was validly commenced as a class action under Pt IVA in circumstances where it was found by the primary judge (and is now common ground), there were no group members, cannot be accepted.

D.2    The Proposed Cross-Appeal

47 Having established that no class action was commenced in April 2023, the further question arises as to whether such a proceeding can later be “converted” into a class action.

48 Proposed Ground 1 asserts that the Court lacked power to make the impugned order because such conversion cannot occur; proposed Ground 2 contends that the proceeding, insofar as it does now concern the claims of group members, did not commence until the amended originating application and amended statement of claim were filed on 15 August 2025.

49 Before coming to the substance of the cross-appeal, it is worth noting that the present controversy springs from an enduring but subtly distinct conceptual problem in representative proceedings. That is, where, such as here, group membership is purported to be defined not by the names of group members or by objective, factual criteria alone, but by the existence of a conclusion that is itself in contest. A formulation of the kind “all persons to whose employment the Award applied” may appear workable at the point of filing. But if, upon proper analysis, the criterion is not satisfied by anyone, the apparent class collapses in upon itself. An issue related to this problem has been much discussed but unsatisfactorily resolved.

50 There is no novelty in recognising that group members must be identifiable throughout the life of a representative proceeding. That proposition lies at the heart of the structure and purpose of Pt IVA. As I have explained, a document filed upon commencing a representative proceeding must describe or otherwise identify the group members and the identity of group members matters for opt-out, the binding effect of judgment, and settlement approval. A proceeding cannot operate as a representative proceeding unless the persons represented are ascertainable as persons.

51 The issue of describing such persons as, in effect, the contingent beneficiaries of a legal conclusion that may turn out never to have existed, has arisen in several authorities. Early observations may be found in Nixon v Philip Morris (Australia) Ltd [1999] 95 FCR 453; (1999) 95 FCR 453 (at 486 [126]–[127] per Wilcox J). His Honour noted that where a group definition includes a criterion or criteria that depend upon the proof of causation, it may not be known whether a particular person satisfies the definition until the determination of issues in the proceeding. Moore J in King v GIO Australia Holdings Ltd [2000] FCA 617; (2000) 100 FCR 209 (at 226 [44]–[45]) observed that defining group membership by reference to loss or damage suffered as a result of the alleged pleaded conduct was not necessarily objectionable. However, the reasoning in that case did not squarely confront the conceptual difficulty that may arise if membership of the class ultimately depends upon the determination of individual issues.

52 The matter was addressed more directly in Perera v GetSwift Ltd [2018] FCA 732; (2018) 263 FCR 1. In that case I referred to the earlier authorities and observed that they did not fully grapple with the logical difficulty that arises where group membership is defined by reference to a causally connected loss or damage criterion. At [81] I said:

In my view, it is necessary to be able to identify the persons whose claims are the subject of the class action at all times during the currency of the class action. The membership of the group is no more than a collection of persons who are identified by name or, if not by name, by the characteristics which allow them to be ascertainable at the time of the commencement of the class action (as required by s 33H) and at all times thereafter.

53 Some commentary has recognised the same conceptual problem. In discussing the authorities, Grave, Adams and Betts observe that defining a class by reference to a causally connected loss or damage criterion may result in uncertainty because a claimant who ultimately fails to establish loss or damage would retrospectively fall outside the class definition and therefore never have been a group member at all (D Grave, K Adams and J Betts, Class Actions in Australia (3rd ed, Thomson Reuters, 2023) at [7.150]–[7.160]).

54 After my observations in Perera v GetSwift Ltd (at 27–28 [76]–[81]), where I referred to the need to conceptualise group members as persons with claims that exist separately from, and anterior to, the proceeding, some reservations have been expressed about the rigidity of that analysis. Nichols J in El-Helou v Mercedes [2025] VSC 211; (2025) 77 VR 51 (at [35]–[39]) rejected the proposition it is impermissible to define a group by reference to a criterion which turns upon the resolution of a central issue in dispute. Relying upon the Full Court’s decision in King v GIO Australia Holdings Ltd [2000] FCA 1543 (Wilcox, Lehane and Merkel JJ), her Honour emphasised that a group is not defined by “potential outcomes”. Her Honour’s approach was that where a group definition incorporates a matter in contest, although expressed as if it were an established fact or conclusion, it is to be understood as referring to what is alleged in the pleading. This was the course adopted by John Dixon J in Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395 (at [32]) when his Honour observed that whether a pleading complies with ss 33C and 33H(2) is to be determined on the presumption that the allegations in the pleading can be established at trial.

55 On this approach, certainty of group membership does not depend upon the criterion being immune from future determination, but upon it being clear, by reference to the pleading, that the proceeding is brought on behalf of a defined group of persons whose claims are so alleged.

56 But, with respect to their Honours, I do not consider that the difficulty is resolved by treating a criterion expressed as a matter of fact as if it were merely an allegation. A definition which states, in terms, that group members are persons who satisfy a particular factual or legal condition is not the same thing as a definition which identifies persons who are alleged to satisfy that condition. The former purports to define a class by reference to a state of affairs said to exist; the latter makes explicit that membership depends upon an assertion.

57 If, as El-Helou and Green suggest, the true position is that such criteria are to be understood as no more than allegations, then it seems to me that is how they should be expressed. Representative applicants should mean what they say. It is neither necessary nor desirable to draft a group definition as though it proceeds upon established facts, only then to read it down by reference to an implicit qualification that those facts are merely alleged.

58 The conceptual difficulty identified in Perera is not dispelled by that interpretive move. But it is avoided altogether if the group is defined in a way which makes explicit that membership turns upon the making of a claim, that is, for example, by reference to persons whom the applicant alleges have suffered loss or damage by reason of the impugned conduct. Such a formulation preserves coherence, avoids artificiality, and makes plain, from the outset, the basis upon which group membership is asserted.

59 Importantly, however, nothing in this analysis detracts from the central point made earlier. Even if a group definition may, as a matter of principle, incorporate contested elements, the proceeding must still satisfy the requirements of s 33C at the time of commencement. The question whether there are, in truth, group members, and hence whether the statutory gateway has been passed.

60 This is not a case where uncertainty as to composition can be ignored. The purported group definition here did not simply identify persons employed in certain positions during a defined period and allege that Dollarama contravened legal obligations owed to them. It selected for representation only those managers whose employment satisfied a particular conclusion as to award application. Once the primary judge rejected the viability of that legal premise, the difficulty was exposed.

61 Dollarama’s cross-appeal starts from two correct propositions: first, that an empty group means a non-existent representative proceeding; and secondly, because Pt IVA was not engaged, there was a want of power to make any order under s 33K (which empowers the Court to permit the amendment of the description of group members in a representative proceeding) or s 33ZF (which confers a broad facilitative power to make any order it considers appropriate or necessary to ensure that justice is done in a representative proceeding).

62 The difficulty arises at the next step, which is the legal consequence which Dollarama contends flows on from this lack of power to make an order under Pt IVA: that is, that there was no power to make any amendments which purport to plead representative claims. For reasons that follow, that submission reflects an unduly narrow conception of the sources of power available to the Court.

63 Pt IVA is not an exhaustive code governing the conduct of class actions, still less representative proceedings generally. This can be seen by s 33ZG, which provides:

Except as otherwise provided by this Part, nothing in this Part affects:

(a)    the commencement or continuance of any action of a representative character commenced otherwise than under this Part; or

(b)     the Court’s powers under provisions other than this Part, for example, its powers in relation to a proceeding in which no reasonable cause of action is disclosed or that it is oppressive, vexatious, frivolous or an abuse of process of the Court; or

(c)    the operation of any law relating to:

(i)    vexatious litigants (however described); or

(ii)    proceedings of a representative character;

(iii)    joinder of parties; or

(iv)     consolidation of proceedings; or

(v)    security for costs.

64 The evident purpose of this provision is to ensure that the powers conferred by Pt IVA operate in addition to, and not to the exclusion of, the Court’s ordinary procedural powers.

65 The FCR, of course, confer broad powers of amendment. Leaving aside the “General Powers of the Court” contained in Div 1.3, r 8.21 provides:

An applicant may apply to the Court for leave to amend an originating application for any reason…

66 The breadth of that provision reflects the long-standing principle that the Court possesses a wide procedural discretion to permit amendments to originating process and pleadings where it is appropriate to do so in the interests of justice.

67 Even if, such as here, the proceeding was not properly constituted as a class action, that circumstance would not deprive the Court of power to permit amendments to the originating application and statement of claim under its general procedural powers of a representative nature.

68 In this regard, it is significant that nothing in the interlocutory orders sought by Mr Cannan and then made by the primary judge purports to identify any particular statutory source of power or confine the orders to those available under Pt IVA. The orders were expressed in procedural terms, granting leave to file an amended originating application and amended statement of claim and providing that those amendments, when filed, would take effect from an earlier date. The interlocutory application itself simply sought leave to amend (and associated relief).

69 Once it is recognised that Pt IVA does not operate as a code, and that the Court has other power under both the FCA Act outside Pt IVA (for example ss 22, 23, 37P(2), or under the FCR to permit amendments) the suggested logical difficulty disappears. The primary judge possessed power to grant leave to amend the originating application and statement of claim, and the fact that the proceeding may not at the time of the order permitting amendment have satisfied the requirements of s 33C, does not affect that conclusion.

70 The relevant questions then become whether, by the order permitting amendment authorised otherwise than under Pt IVA, and the filing of documents pursuant to leave, could the proceeding be converted or transmogrified into a representative proceeding under Pt IVA and whether, if so, the Court could direct the date from which the amended pleadings should operate?

71 There is no appellate authority squarely deciding the first question. At first instance, however, the weight of authority supports the proposition that such a conversion is possible. In Green, John Dixon J surveyed the authorities and concluded that the concept of “commenced” in the class action legislation is not to be read as a restrictive command that a proceeding must originate as a representative proceeding or can never later become one. His Honour reasoned, correctly in my respectful view, that what is commenced under Pt 4A (or Pt IVA) is not any proceeding whatsoever, but a group proceeding, and that an existing proceeding may become a group proceeding by amendment once the statutory requirements are met.

72 Commentary reflects the same understanding of the authorities. Grave, Adams and Betts observe that the cases suggest that the Court possesses sufficient procedural flexibility to permit the conversion of proceedings into representative proceedings, although the doctrinal basis of that power has not always been articulated with precision (D Grave, K Adams and J Betts, Class Actions in Australia (3rd ed, Thomson Reuters, 2023) at [4.450]–[4.460]).

73 Dollarama’s proposition that a proceeding must necessarily originate as a Pt IVA proceeding cannot be accepted.

74 The statutory language does not impose such a requirement, and the authorities demonstrate that courts have approached the question with a degree of procedural flexibility.
In the end, Pt IVA is procedural in character and operates against the background of the Court’s ordinary amendment powers. The contrary construction would require reading into ss 33C and 33H limitations that the text does not express and that would sit awkwardly with the practical administration of representative litigation.

75 Once it is appreciated that an inter partes proceeding remained on foot, the Court had power to permit amendment of that proceeding, including amendment that had the consequence that, once filed, the amended originating application and amended statement of claim satisfied the gateway requirements in Pt IVA and thereafter the proceeding took effect as a class action.

76 The second and remaining question is whether order 2, fixing 16 June 2025 as the date from which the amended pleadings would take effect, can stand. As noted above, that date was the date upon which the application for leave to amend was filed and upon which the proposed and licit group formulation was first formally propounded.

77 For reasons which I have already explained, the proceeding was not a class action until 15 August 2025, being the date upon which the amended pleadings were filed pursuant to leave.

78 It might be said against the conclusion that filing should be the operative date that an amendment order of this kind should be approached in an expedient and practical way. The order was made in the context of an extant proceeding, after formal application had been made to amend, and in circumstances where the respondent had full notice, from 16 June 2025, of the reconstituted claims and the group that the applicant sought to represent. Mr Cannan submits that to direct that the amended pleadings take effect from the date of the application was an intelligible and orthodox way of regulating the consequences of amendment.

79 But the inescapable reality is that the proceeding only became a representative proceeding when it passed through the gateway. This was not only when this class was created, but any class was created. The date when the limitation period was suspended for group member claims and the court’s supervisory and protective role towards non-party group members arose was when the necessary documents were filed, being documents, which identified a valid class and otherwise complied with s 33H. It is unnecessary to decide whether there was power to make any relation back order having a representative effect in the unusual circumstances where there was no extant class, but even if one could conclude there was some power, the only proper date was to provide for the class action to commence on the date it did, in fact, commence. Although it was not the fault of the primary judge, who received no relevant assistance from either party, order 2 was erroneous insofar as it provided for the amendments taking effect on and from 16 June 2025.

80 Of course, it was entirely open for the amendments which related only to the individual claim of Mr Cannan against Dollarama to take effect from an earlier date, but this is not a matter of contention between the parties. Accordingly, there is no need to make a different order dealing with the individual aspects of the claim.

81 Ground 2 of the cross-appeal is made out.

D.3    The Proposed Appeal

82 Mr Cannan initially relied upon four proposed grounds of appeal as set out in the Draft Notice of Appeal. But during oral argument, the contentions of Mr Cannan were refined. In the end, the following issues were identified as requiring resolution if leave to appeal was granted:

(1) Given the acceptance that the group membership was “empty”, did the proceeding commence as, and remain, a representative proceeding in accordance with Part IVA?

(2) If the proceeding was no longer a representative one under Part IVA (and hence became an inter partes proceeding), did the primary judge have the power to:

(a) permit the filing of the amended originating application and amended statement of claim “purporting to be a representative proceeding in an extant inter partes proceeding”; and

(b) make the relation back order such the amendments in the AOA and ASOC related back to 16 June 2025?

(3) In relation to the primary judge’s relation back order, did his Honour err in the exercise of his power by:

(a) assessing the allegations made by the applicant that the Retail Award applied to “Above Threshold Managers” a “rudimentary mistake”?

(b) failing to consider, or properly consider, the prejudice suffered by group members if the amendments did not relate back to 18 April 2023 (or alternatively 3 July 2024)?

(c) failing to consider the applicant’s alternative position that the amendments in the AOA and ASOC relate back to 3 July 2024?

83 For reasons I have explained, the answer to (1) is no, and it did not “commence” until 15 August 2025; the answer to (2)(a) is yes, and to 2(b) is no; and the issue raised by (3) does not arise as the only appropriate date for the representative amendments to take effect was when the class action was constituted for the first time.

E    THE REASONING OF THE PRIMARY JUDGE AS TO RELATION BACK

84 Finally, by way of completeness, let us assume for a moment a group proceeding was on foot from the date of commencement, being the basis upon which the application was argued before the primary judge.

85 The reasoning of the primary judge was entirely orthodox. The question whether amendments should relate back, and if so to what date, is quintessentially discretionary. It requires evaluative judgment as to the nature of the changes sought to be made, the position of the opposing party, the significance of delay, the extent to which the existing pleading gave fair notice of the claims later sought to be pursued, and whether any demonstrated injustice will result from refusing broader relation back.

86 The principles governing an appeal where the decision challenged is discretionary are well known. The familiar principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 require no repetition, and it is not enough that an appellate court might have exercised the discretion differently.

87 As I have already noted, the primary judge’s decision was a routine practice and procedure disposition made by a docket judge who identified the relevant principles, appreciated the distinction between permitting amendment and antedating its operation, and (on the assumption a class action was on foot) reached a conclusion that was well within the range of legally available outcomes. Indeed, for what it is worth, in my respectful view, on the assumption the Court was dealing with a validly commenced class action, it was the correct outcome.

88 The conclusion of the primary judge was no doubt fortified by the fact that substantial injustice was not shown in any concrete sense. No potential group member gave evidence. The suggested prejudice was, in substance, inferential and solicitor-driven: it was said that unidentified persons including those who were said to be existing group members who may have claims would, absent broader relation back, “lose part of the recoverable period” by reason of the six-year limitation applicable to the ss 544 and 545 claims under the FW Act.

89 It is unclear to me why the prejudice to existing group members as articulated by Mr Cannan existed (again assuming a class action had already been validly commenced). It is unnecessary to explain why in any detail, other than to note the submissions of the parties below betrayed a misconception as to the operation of Pt IVA and failed to recognise that upon commencement, the running of any limitation period that applies to the claim of a group member is suspended upon the class action commencing and does not begin to run again unless either the group member opts out or the class action is determined without finally disposing of the group member’s claim (s 33ZE). The suspension is not just to any part of the claim of group member that the representative applicant chooses to plead. The claim of the group member exists separately from, and exists prior to, the institution of the proceeding. The running of any limitation period applies to the whole of the claim of a group member “to which the proceeding relates” (that is, the claims which are now related to the class action because the persons having the claims are represented in the class action and the claims may be affected by an order made in the class action, for example, under ss 33ZB or 33V).

90 As to potential new group members, it should be apparent that mere assertion of the existence of such claims does not prove that there are persons who actively wished to agitate a cause of action related to their claims. This is not to say that the potential existence of such causes of action is not nothing. Indeed, it is a matter to be considered as the “resurrection” of causes of action against a respondent, thought to be quelled by effluxion of time, is clearly a relevant consideration. Applicant solicitors should now be well aware that if it is to be suggested that a proposed amendment commencement order would occasion real unfairness towards a potential group member or a number of potential group members (for example, in circumstances where they thought their claim was related to the class action and a cause of action would now be statute-barred if the amendment order was not backdated), that important fact ought to be proven by admissible evidence.

91 In the end, cognisant that there may be some prejudice, all that happened here was that the primary judge applied the principled approach as set out by the Full Court in Ethicon Sàrl (at 406 [50]–[51]):

By the amendment of a group definition, a new group member affected is not becoming a party, still less is the group member an existing party seeking to bring a new cause of action arising out of similar circumstances. The legal consequence is that the claim of a new group member, which claim gives rise to at least one substantial issue of law or fact with others, has become subject to the operation of the Part, subject to opt out or declassing. When one recognises that the regime expressly contemplates and provides for the individuality of claims within a group proceeding, what is brought into focus is that an order for amendment, which has the consequence of expanding the group definition, is sui generis and that analogies drawn from other contexts are apt to mislead.

It is consistent with the scheme introduced by Part IVA and, in particular, the need for there to be certainty as to the persons who comprise the class at all times, that the Group Definition Amendment should have been ordered to take effect from the date of amendment... To adopt that course is consistent with the expansion of the class effected by the earlier Amendment Orders which, unfortunately, were not drawn to the attention of the primary judge in the present context. Apart from anything else, this prevents the topsy turvy notion that someone retrospectively becomes a group member on commencement, when the Court has thus far proceeded on the basis that they are not group members. As a matter of principle, such an approach would avoid the vice of potentially resuscitating causes of action by persons who have never sought to agitate them. It would be odd that by becoming a group member through the augmentation of a class, substantive rights were conferred on a claimant that had been either extinguished or barred by operation of statute and could not otherwise be advanced by that claimant.

92 Leave should be granted to appeal to the extent the proposed grounds of appeal raise the issues summarised at [82] above, but the appeal ought to be dismissed.

f    CONCLUSION AND ORDERS

93 In summary, the applicant’s appeal fails because at the time of leave being granted to amend, no class action was on foot and (at the very least), it was proper and desirable the amendment take effect from the date a class action was constituted and the Court had before it, for the first time, a proceeding related to the claims of the represented persons. The cross-appeal partly succeeds because the order that the amended pleadings take effect on and from 16 June 2025, through no fault of the primary judge, involved error.

94 It is desirable to add one final observation. Difficulties of the present kind are avoidable. A group definition that conditions membership upon the truth of a contested legal or factual criterion invites exactly the problem encountered here. The group definition is all about identifying persons. The better course, ordinarily, is to define group members by reference to objective factual criteria and, where necessary, by reference to the applicant’s allegation that represented persons had a legal or factual characteristic that is contestable or depends upon determination of an aspect of their claim. That approach does not solve every difficulty, but it avoids the curious instability that follows when the existence of the class depends upon the truth of a legal or factual proposition the proceeding exists to resolve.

| I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 10 April 2026

REASONS FOR JUDGMENT

SHARIFF J:

1. INTRODUCTION

95 I have had the considerable advantage of reading in advance Lee J’s reasons. I agree with the orders that his Honour proposes. I wish to express my own reasons as to why I agree with those orders. For that purpose, I gratefully adopt all the history and background of the proceedings set out in Lee J’s judgment and do not repeat them other than where it has been necessary to do so. I also adopt his Honour’s identification and analysis of the relevant applications for leave to appeal and cross-appeal, and the respective grounds of appeal and cross-appeal, without repeating them.

96 As a result of Lee J having set out the relevant matters, I am in the fortunate position where I can address my reasons directly to the critical issues that arise from the respective applications before the Court, being:

(a) whether the proceeding below was commenced as a “representative proceeding”;

(b) if not, whether an inter partes proceeding may be “converted” so as to be “commenced” as a “representative proceeding” and, if so, from what time;

(c) whether the primary judge erred in the manner alleged by the applicant (Mr Cannan); and

(d) the appropriate disposition of the respective applications.

1. A REPRESENTATIVE PROCEEDING

97 Despite there being competing applications for leave to appeal and cross-appeal, the root question raised in the respective applications before the Court is whether the proceeding commenced by Mr Cannan was, at the time of its commencement, a “representative proceeding” within the meaning of Pt IVA of the FCA Act. That question has arisen by reason of the application for leave to cross-appeal, but it has been latent in Mr Cannan’s application for leave to appeal.

98 Sections 33C and 33H of the FCA Act are critical to answering the root question. They have been described as “gateway” provisions: Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394 at 7. That is hardly surprising given that the expression “representative proceeding” is defined in Pt IVA of the FCA Act as meaning a “proceeding commenced under section 33C”. Relevantly, s 33C(1) provides that:

(1)    Subject to this Part, where:

(a)     7 or more persons have claims against the same person; and

(b)     the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)     the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

99 Section 33H provides as follows:

33H Originating process

(1)     An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:

(a) describe or otherwise identify the group members to whom the proceeding relates; and

(b)     specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c)     specify the questions of law or fact common to the claims of the group members.

(2)     In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.

(Original emphasis retained in bold and emphasis added in underline.)

100 As indicated by the imperative (“must”), s 33H specifies the irreducible minimum requirements for the commencement of representative proceedings. When one has regard to the balance of Pt IVA, it can be seen why these provisions are fundamental. First, s 33H permits the Court to assess whether the pre-conditions in s 33C have been met: Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 at 8; Impiombato v BHP Group Limited [2025] FCAFC 9; (2025) 308 FCR 250 at 52. Second, the identification and articulation of the group members is critical to operative parts of Part IVA. As the Full Court stated in Ethicon S à rl at [38]:

Certainty of composition allows the Court to deal with the class when necessary for the purposes of the Part. For example, s 33J (affording the right to opt out); s 33L (identifying where there are less than seven group members); s 33Q (making orders as to the determination of issues where not all issues are common); s 33R (making orders as to individual issues); s 33S (making directions relating to the commencement of further proceedings by group members); s 33T (considering applications by group members as to adequacy of representation); s 33X (giving notice to group members of certain matters); and s 33ZB (making orders binding group members).

101 It may be readily accepted that the provisions of Pt IVA are to be broadly construed, consistent with their evident beneficial purpose in facilitating the efficient resolution of representative proceedings: see Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 at 165. However, a beneficial legislative purpose cannot operate as an override to fundamental requirements borne by the text of the statute. As Murphy and Colvin JJ stated in Gibson at [166]:

It is important to understand that the criteria under s 33C(1) are “gateway” matters which must be satisfied at the commencement of a class action. The provision is concerned with the commencement not the subsequent conduct of the litigation, and the “claims” to which it refers must have an existence prior to and separately from the commencement of the class action: Wong at [26]; Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 (Bright) at 10, 124…

(Original emphasis retained in bold and italics, and emphasis added in underline.)

102 The idea that certain fundamental matters “must be satisfied” at the time of commencement reinforces the importance of the gateway provisions. True it is that the gateways are wide in the sense that the word “claim” is one of broad import and there may be myriad ways of conceiving of the appropriate “group”, it is altogether another thing if the articulation of the relevant group has no operative effect. That is a different thing to whether, ultimately, at the end of the proceeding, upon a determination made by the Court, the relevant claim has not been made out such that the one or other aspect of the group definition collapses. This may occur either because a factual or legal determinant, or combination of both, are not ultimately established, but it is not necessary to determine in the present applications whether a group may be articulated by reference to legal and/or factual predicates. That is because the issue raised here is whether no “representative proceeding” had been commenced at all because the articulation of the “group” was accepted to have been “empty” from the outset.

103 As the facts in Gibson show, the articulation and re-articulation of the group member definition in a proceeding may have considerable significance as to which persons are, or were, part of the relevant group and, if so, from what time.

104 The question of whether a proceeding has been commenced as a “representative proceeding” under Pt IVA in compliance with the requirements of that Part is not one that renders the relevant proceeding as being validly or invalidly commenced. It is not a matter that goes to jurisdiction or validity: cf Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 278 CLR 628 (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ). Rather, it is a question that seeks to address whether the proceeding as commenced meets the description or character of a “representative proceeding” for the purposes of Pt IVA. A proceeding may have been validly commenced but, at the same time, not have the character of a “representative proceeding” within the meaning of Pt IVA and to which that Part applies. That was the position in this case.

105 Here, at the time of commencement of the proceeding, the Originating Application set out the “group members” definition as follows:

…all persons who were employed by the Respondent as Store Managers or Assistant Store Managers in circumstances where the General Retail Industry Award 2010 (later known as the General Retail Industry Award 2020) (Award) applied to those employments but who were, for any weekly pay period in the period 24 April 2017 to 18 April 2023 (Relevant Period), paid less than they were entitled to under the Award for the actual hours worked in that week.

(Original emphasis.)

106 The Statement of Claim defined the "group members" as follows:

The Applicant and each of the group members defined in the originating application (Group Members) were employed by the Respondent as Store Managers or Assistant Store Managers and performed work at some time in the period 24 April 2017 to 18 April 2023 (Relevant Period) in circumstances where the General Retail Industry Award 2010 (later known as the General Retail Industry Award 2020) (Award) applied to their employments.

(Original emphasis.)

107 It is self-evident that both the Originating Application and the Statement of Claim identified the relevant class by reference to an essential characteristic, being the application of the General Retail Industry Award 2010 (the Award). Thus, the class was fundamentally tied to a question of mixed fact and law.

108 The respondent, The Reject Shop, now known as Dollarama Pty Ltd (Dollarama) had defended the proceeding on the basis that the Award did not cover or apply to the relevant employees during the relevant period and that the employees were instead covered by The Reject Shop Agreement 2011 (the 2011 Agreement).

109 Then, on 3 July 2024, Mr Cannan filed an application to amend the Originating Application and Statement of Claim. At that time, the Proposed Amended Originating Application (PAOA) sought to identify the “group members” as follows:

…all persons who were employed by the Respondent as Store Managers and/or Assistant Store Managers on a salaried basis, other than casuals, in the period 24 April 2017 to 18 April 2023 inclusive, and who in any week worked more than 40 hours (if full-time) or more than two hours beyond their ordinary hours of work (if part-time).

110 The Proposed Amended Statement of Claim (PA SOC) identified “group members” as follows:

…all persons who were employed by the Respondent as Store Managers (SMs) or Assistant Store Managers (ASMs) (Managers) on a salaried basis (Salaried Managers), other than casuals, in the period 24 April 2017 to 18 April 2023 inclusive (Relevant Period), and who in any week worked more than 40 hours (if full-time) or more than two hours beyond their ordinary hours of work (if part-time) (2+ Overtime).

(Original emphasis.)

111 It will be apparent from the above that the proposed “group member” definition was no longer tethered to the application of the Award.

112 At the time, Mr Cannan was seeking to propound three claims on his own behalf and on behalf of the relevant class: first, a claim for underpayments under The Reject Shop Agreement 2014 (the 2014 Agreement) (an instrument that was said to have succeeded the 2011 Agreement), second, a claim for underpayments under the Award, and third, a claim for contraventions of s 62 of the FW Act: Cannan v The Reject Shop Ltd [2024] FCA 1429 (Cannan No 1) at [7].

113 Dollarama opposed the amendments, including on the basis that the assertion that the Award applied to the employment of managers identified as “Above Threshold Managers” was misconceived: Cannan No 1 at [9].

114 In the result, the primary judge rejected the application to amend. It is unnecessary to rehearse the complexity of the competing arguments that were advanced by the parties or the primary judge’s reasons for rejecting the application, save to note that his Honour was not satisfied that the 2011 Agreement had been terminated, and was further satisfied that the 2014 Agreement did not “cover” the relevant employees. In concluding that leave should be refused, the primary judge applied orthodox principles to the grant of such leave, including that leave should be refused where the proposed amendment would be obviously futile: Cannan No 1 at [28]-[30] citing, amongst other cases, Caason Investments Pty Ltd v Cao (2015) 236 FCR 322 at [19]-21 and Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2010] FCA 494 at 8. The primary judge stated at [31]-[32]:

Here, that admittedly low hurdle cannot be cleared. Both of the PAOA and the PASOC proceed upon the untenable premise that, over the period of relevance to this matter, the 2011 EA did not apply in respect of the employment of Above Threshold Managers (such that s 57 of the FW Act should not be understood to preclude the application to their employment of the Award, the provisions of which the respondent is accused of contravening). If the court were to grant leave to permit the applicant to file a new originating application and pleading in the forms that are proposed, each would immediately be liable to strike out. Plainly—and as authority makes clear—there is no point permitting leave to amend in those circumstances.

That alone is reason enough to dismiss the interlocutory application…

(Emphasis added.)

115 There was no application for leave to appeal from Cannan No 1.

116 Then, on 16 June 2025, Mr Cannan filed an interlocutory application (Second Interlocutory Application) seeking to file another proposed amended originating application (2PAOA) and proposed amended statement of claim (2P A SOC). The 2PAOA articulated the group definition as follows:

…all persons who were employed by the Respondent as Store Managers and/or Assistant Store Managers on a salaried basis, other than casuals, in the period 24 April 2017 to 18 April 2023 inclusive, or in the period 19 April 2023 to [the date of filing of the amendments] inclusive, and who in any week worked more than 40 hours (if full-time) or more than two hours beyond their ordinary hours of work (if part-time).

117 The 2PASOC defined the group members as follows:

The Group Members are all persons who were employed by the Respondent as Store Managers (SMs) and/or Assistant Store Managers (ASMs) (Managers) on a salaried basis (Salaried Managers), other than casuals, in the period 24 April 2017 to 18 April 2023 inclusive (Relevant Period) or in the period 19 April 2023 to [the date of filing of the amendments] inclusive (post-filing period), and who in any week worked more than 40 hours (if full-time) or more than two hours beyond their ordinary hours of work (if part-time) (2+ additional hours).

(Original emphasis.)

118 The Second Interlocutory Application came on for hearing before the primary judge on 25 July 2025. The applicant’s solicitor expressly accepted that the original group definition had created a problem in the drafting. The following exchange occurred:

HIS HONOUR: This is the proposed pleading.

MR MARKHAM: This is the proposed pleading that we seek leave today on. Yes.

HIS HONOUR: That’s what I’ve understood.

MR MARKHAM: Thank you, your Honour. As I said, I want to deal with the question of under-threshold managers as a last point. As the applicant understands, taking you back to the submissions, there is properly a question of who was or was not a group member given the legal conclusion nature of the group definition. We say that that is a mistake in the drafting and that it was not intended to exclude people from bringing claims. The mistake is – that who were otherwise intended to be in the group. The requirement, as your Honour - - -

HIS HONOUR: But that calls into question who was intended to be in the group.

MR MARKHAM: That is so.

HIS HONOUR: So at the moment the group is empty, but you say it was always intended that it would include above-threshold managers?

MR MARKHAM: Yes, but if I could take you to paragraph 32 of my submissions, it might be a complete answer for you.

HIS HONOUR: Yes. Okay.

MR MARKHAM: At paragraph 32, the issue of who was or was not covered because of the legal conclusion is somewhat answered in the respondent’s current defence, and you will see at the top of page 183 that it was accepted, at least for the defence, individuals employed as store managers or assistant store managers in relevant period to whom the award applied. I think it’s common ground that it was always the assistant managers and it was always the store managers who were to be covered by this class action. And if I could take you just - - -

(Emphasis added.)

119 As will be evident from the above exchange, the solicitor appearing for Mr Cannan accepted that the group member definition was empty. There was a forensic reason for doing so, given that Mr Cannan was seeking to persuade the primary judge to grant leave for the proposed amendments to be filed.

120 The concession, or admission, was important. It meant that it was accepted by or on behalf of Mr Cannan that the group was “empty”.

121 Mr Markham’s reference to “paragraph 32” of his submissions was to the following:

Once this is appreciated, it can be seen that in truth the persons intended to be covered within the definition of the Group were simply Store Managers or Assistant Store Managers. The reference in the original group definition to the applicability of the Award was tied to the specific claims which were then being advanced concerning underpayments under the award, and the inference that for practical purposes by the time of filing all s[t]ore managers and assistant store managers had become above-threshold managers. Accordingly, the amendments to the group definition now being sought are better viewed as being tied to the inclusion of new or different claims for the same persons, not an amendment for the inclusion of new or persons within the group, (save for the exception mentioned above). Indeed paragraph 1(c) of the Respondent’s current defence states that it:

proceeds on the basis that insofar as paragraph 1 alleges that Group Members are individuals employed as Store Managers or Assistant Store Managers in the Relevant Period to whom the Award applied, the Applicant is referring to persons employed by TRS in the positions pleaded in paragraph 5(a) to (c) of the Statement of Claim (alleged Group Members)

(Original emphasis.)

122 The argument appears to have been that the identity of the relevant persons in the group had not changed, and what was being changed was that their identity was no longer to be determined as being referable to the coverage and application of Award. The important context though was an acceptance that the Award did not apply. Lest it be said that there is any doubt about this – including acceptance of the proposition that the group definition was “empty” – it is unequivocally quelled by the evidence Mr Markham gave in the proceedings below. Tellingly, in an affidavit dated 13 June 2025 (filed in support of the Second Interlocutory Application), Mr Markham deposed as follows:

41.    … I understand that Justice Snaden found that although the award covered above threshold managers and may have been intended to apply to them, by operation of the Fair Work Act the award did not in fact apply and instead the 2011 agreement applied.

42.    Having regard to the judgement of Snaden J of 13 December 2024, I have sought to prepare a Third Proposed Amended Statement of Claim (TPASOC) and Third Proposed Amended Originating Application (TPAOA) to enable the proceedings to sensibly proceed.

43.    In my view, some form of amendment will be necessary. The group as currently defined under the existing originating application refers to underpayments under the Award, which in light of the decision of Snaden J is now not possible to advance.

(Original emphasis retained in bold and italics, and emphasis added in underline.)

123 The final sentence of paragraph 43 is unequivocal. It is entirely consistent with Mr Markham’s concession in the exchange with the primary judge extracted above. It is consistent with the fact that what was meant by the group being “empty” was an acceptance that the Award did not apply and an abandonment of that claim. This is reinforced by a later paragraph (at 55), where Mr Markham deposed that:

The amendment to the group definition, originally limited to claims under the Award, proposes that store managers should be permitted to make claims under the 2014 EA for underpayments and unreasonable additional hours claims, in respect of the whole Relevant Period and the post-filing period, and that the claims for underpayments under the Award be abandoned; this is to be achieved by the Court making the amendments retrospective to the date the proceeding was issued. At the same time further claims can be made for the post-filing period from 19 April 2023 to the date of the amendments.

(Emphasis added.)

124 It is evident that what was being proposed was occurring in the context of an acceptance that the Award claims were no longer being pressed at all. The case that was being proposed by way of the amendments was described as a “new case” (an expression used by Mr Markham in his affidavit).

125 In his reasons in Cannan v The Reject Shop Ltd (No 2) [2025] FCA 879 (Cannan No 2), the primary judge stated as follows at [3]:

In short, it is now accepted—or, in any event, it is the case—that neither award applies or applied to the employment of TRS’s Store Managers or Assistant Store Managers. As presently defined, the group on behalf of which Mr Cannan brings the proceeding is empty.

126 Further, at [9], the primary judge stated that:

In its original (and current) form, the present proceeding was brought only in respect of Store Managers and Assistant Store Managers who, over the period dating back six years prior to the commencement of the action, worked otherwise than as Below-Threshold Managers (to whom it is convenient to refer as “Above-Threshold Managers”). As has been noted, it was understood that the awards applied in respect of the employment of those employees, which is why the group was defined by reference to them. For the reasons that I identified in Cannan No 1, that understanding was not correct. Instead, the 2011 EA applied for the entirety of that period to the employment of all of TRS’ s Above-Threshold Managers. Necessarily, then, the group as presently defined is empty.

(Original emphasis retained in italics and emphasis added in bold.)

127 Mr Cannan has not challenged the finding that the 2011 Agreement applied for the entirety of the relevant period.

128 Later at [12], the primary judge again observed that one of the purposes of the proposed amendments to the group definition was to correct the mistake that the “group is empty”.

129 In his application for leave to appeal, Mr Cannan contends that in the primary judgment, the primary judge was doing little more than making an “observation” that the group definition was “empty” and that this was not tantamount to a finding that “there were no employees who fit within the group definition of the AO and SOC as it existed at that time”. Mr Cannan further submits that there has been no finding made by the primary judge that the Award did not apply to him and to group members, and that it has not been the subject of an application for a strike-out or summary dismissal by Dollarama. Nor had it been the subject of a preliminary question or decided after an argument on the merits. It was next contended that the notion that a group is “empty” is not dealt with in Part IVA and that its potential significance is not addressed in that Part. Finally, during oral argument, it was submitted that the proceeding had been properly commenced as a “representative proceeding” under Part IVA and it remains so. It was submitted that the claim as commenced was not colourable and so long as it identified a claim and group members, it had been properly commenced, even if the claim is subsequently found not to have been made out or the group found to be empty. Dollarama disputed these submissions, and in addition raised arguments based upon estoppel, including an Anshun estoppel.

130 Mr Cannan’s submissions are acontextual; they defy the reality of the course of events that have transpired in the litigation and the forensic choices that have been made. They are inconsistent with the evidence and submissions that were advanced before the primary judge. The entire premise of the Second Interlocutory Application was to amend the pleadings on the basis that there had been a “mistake” and to formulate a “new case”. Leaving to one side whether that mistake was a rudimentary one, the solicitor acting for Mr Cannan positively put a case to the primary judge that there was a mistake, the result of which was that the group member definition did not convey what was intended and was empty.

131 On the evidence before the primary judge, and before the Full Court, I am satisfied that there was a deliberate and forensic decision made to abandon claims made under the Award and an acceptance that the group member definition was “empty”. I am not satisfied that the position that Mr Markham put to the primary judge that the group member definition was “empty” was an unconsidered one. To the contrary, it was consistent with the evidence that had been adduced.

132 It is axiomatic that the purpose of an appeal is to correct error. The correction of error does not occur in a vacuum divorced from the reality of the cases that were put below. I am not satisfied that there was any error in the primary judge’s statements to the effect that the group member definition was empty.

133 What follows from this is that when the proceeding was commenced, it had no group members. That is the position that was put to the Court. Once this is accepted, it means that the proceeding had not satisfied the “gateway” criteria in ss 33C and 33H of the FCA Act from the outset. The proceeding was never one that met the description or had the character of a “representative proceeding” within the meaning of Pt IVA.

134 I do not consider s 33ZG of the FCA Act (upon which Mr Cannan relied) provides an answer. That provision provides as follows:

33ZG Saving of rights, powers etc.

Except as otherwise provided by this Part, nothing in this Part affects:

(a)     the commencement or continuance of any action of a representative character commenced otherwise than under this Part; or

(b)     the Court’s powers under provisions other than this Part, for example, its powers in relation to a proceeding in which no reasonable cause of action is disclosed or that is oppressive, vexatious, frivolous or an abuse of the process of the Court; or

(c)     the operation of any law relating to:

(i)     vexatious litigants (however described); or

(ii)     proceedings of a representative character; or

(iii)     joinder of parties; or

(iv)     consolidation of proceedings; or

(v)     security for costs.

(Original emphasis.)

135 The difficulty with Mr Cannan’s reliance on this section is that there are no other provisions of the FCA Act that applies to the current circumstances, and none were drawn to the Court’s attention. Section 33ZG(a) appears to contemplate the continued operation of other means of commencing representative proceedings such as those addressed in Division 9.2 of the FCR.

136 Mr Cannan also relied on s 51 of the FCA Act, which provides as follows:

51 Formal defects not to invalidate

(1)     No proceedings in the Court are invalidated by a formal defect or an irregularity, unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.

(2)     The Court or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid by reason of a defect that it or he or she considers to be formal, or by reason of an irregularity.

(Original emphasis.)

137 The Court was taken to no authority on this point, especially one which would apply to the novel circumstances that prevail here. The only authority referred to by Mr Cannan was the decision of Wilcox J in Tropical Shine Holdings Pty Ltd trading as K.C. Country v Lake Gesture Pty Ltd [1993] FCA 753; (1993) 45 FCR 457 at 462. There, his Honour was dealing with an application brought by the respondents seeking to strike out the relevant proceedings or, alternatively, an order that they not proceed as a representative proceeding on the basis that it was claimed that the application did not name or specify the number of group members such that, inconsistently with s 33C(1)(a), it was said that there were not “7 or more persons” who had claims. Wilcox J considered the provisions of Pt IVA which bore upon when the Court could make an order that a proceeding not continue as a representative proceeding, including s 33L. In obiter, his Honour observed:

But for one consideration, a possible approach to s 33c(1)(a) would be to say that it was intended to ensure termination of a representative proceeding where there were found to be less than seven persons with claims. This would be a drastic course, often productive of injustice and inconvenience; and it would conflict with the policy expressed by s 51 of the Federal Court of Australia Act that proceedings are not invalidated by a formal defect or irregularity unless the Court thinks substantial and irremediable injustice has occurred. Nevertheless, it would provide a role for par (a). On this approach, although the number of group members need not be specified in the application (s 33H(2)), s 33C(1)(a) would protect respondents from having to deal with group proceedings involving few group members. However, this possible explanation cannot survive consideration of s 33L. That provision not only enables the Court to order that a proceeding with less than seven group members not continue under Pt IVA; it enables the Court to allow it to continue - a provision inconsistent with the notion that s 33C(1)(a) requires automatic termination of a proceeding with less than seven claimants.

(Original emphasis.)

138 His Honour’s reasons shed little light on the application of s 51 of the FCA Act to the present circumstances.

139 At least one insurmountable difficulty with the application of s 51 of the FCA Act is that Mr Cannan did not identify the precise “formal defect” or “irregularity” that arose here, and whether and how that could be cured. In substance though, what appears to have happened here was that the proceeding was commenced on one basis, and the Court was later told that this was a mistake so that the proceeding could continue on a different basis. That position does not point to a “defect” or “irregularity”. Nor (as I have already mentioned above) is there an invalid proceeding that has been commenced here. A proceeding has been validly commenced; it is just not one that meets the description of a “representative proceeding” for the purpose of Pt IVA.

140 For the above reasons, I would grant leave to cross-appeal and uphold ground 1 of the cross-appeal.

141 As a result of the conclusion I have reached, and because of the unique nature of the concessions made in the proceeding below (both in submissions and in evidence), it is unnecessary to decide in the present case the question of whether there is an apparent or substantive distinction in the views expressed in authorities such as Perera v GetSwift Ltd [2018] FCA 732; (2018) 263 FCR 1 (Lee J), Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395 (John Dixon J), El-Helou v Mercedes-Benz Australia/Pacific Pty Ltd [2025] VSC 211; (2025) 77 VR 51 (Nichols J); King v GIO Australia Holdings Ltd [2000] FCA 617; (2000) 100 FCR 209 (Moore J) and King v GIO Australia Holdings Ltd [2000] FCA 1543 (Lehane, Merkel and Wilcox JJ).

1. “CONVERTING” AN INTER PARTES PROCEEDING TO A REPRESENTATIVE PROCEEDING

142 The next issue that arises is whether the primary judge erred by concluding that the proceeding was commenced or was on foot on 16 June 2025 (or on any date before the filing of the Amended Originating Application and Amended Statement of Claim on 15 August 2025) and, as a result, erred by purporting to “relate back” the purported group members’ claims to a date before those claims were commenced.

143 Mr Cannan contends that the primary judge did not err because an inter partes proceeding may be “converted” into a “representative proceeding” by the grant of leave to amend. Dollarama contends that there is no express power to “convert” a proceeding in this way and that it is not possible to “commence” a proceeding twice. Dollarama submits that the proceeding which was commenced as an inter partes one remains so.

144 Although the primary judge granted leave to file the 2PAOA and 2PASOC, the primary judge was not asked to consider the issue that the parties have now joined issue about in the respective applications before the Full Court. The matter was not argued in the proceedings below and it was raised for the first time in the applications before the Full Court.

145 In support of this contention, Mr Cannan relied upon the decision of John Dixon J in Graincorp. There, his Honour was dealing with an application to amend pleadings, which was opposed. One question that arose was whether, if proceedings were not commenced as representative proceedings, they could be permitted to commence as such by reason of an amendment. His Honour surveyed the relevant authorities and concluded that this course was open as a matter of power. It is useful to set out the relevant passages of his Honour’s reasons at [12]-[22] as follows:

That the court has power to grant the relief sought by the plaintiff appears to have attracted some controversy in the expression of the source of the power in the cases. Those cases deal with the identical provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth). Originally, an argument that a proceeding that had already been ‘commenced’ by being issued could not be ‘commenced’ again under Part IVA, had some appeal. Why this argument must be rejected seems to lie at the heart of this apparent controversy.

Two cases may briefly be referred to, noting that all relevant cases are referenced within these decisions. In Watson v AWB Limited, Foster J rejected this argument, permitting a proceeding to commence under Part IVA by an amendment, reasoning that a proceeding under that Part does not exist until the amendment is permitted and accordingly will then exist and so be ‘commenced’ once the amendment is made.

In Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq) (No 3), Rares J observed:

Section 33C(1) enables proceedings to be commenced under Part IVA. The section does not require that any proceedings brought under the Part must always originate as proceedings under it. There is a reasonable basis to consider that the section is intended to be expansive, rather than constrictive, of the court’s powers. It is quite inappropriate to read provisions conferring jurisdictional concerning powers on a court by making implications or imposing limitations which are not found in the express words. In addition, the court has powers to permit the amendment of proceedings. Those powers of amendment are not displaced by anything especially said in Part IVA.

With respect, the obiter observations of Rares J capture correctly why a group proceeding may be commenced by amendment of an existing proceeding.

As the plaintiff submitted, Part 4A does not confer any new jurisdiction on the court but merely creates new procedures and endows the court with new powers to manage group proceedings. Part 4A is procedural, not substantive.

In BHP Group Limited v Impiombato, the High Court relevantly observed:

The procedures which Pt IVA creates, and powers which it gives to the Federal Court, do not stand alone. Part IVA is framed on the assumption that it will operate concurrently with the procedures and powers of the Federal Court which relate generally to the exercise of the jurisdiction conferred on it.

Significantly, the context in which the term ‘commenced’ must be understood, where used in Part 4A, is not limited to that Part of the Act but must necessarily be considered in the context of the Act as a whole and the Supreme Court (General Civil Procedure) Rules 2015 (Vic), since the commencement of a proceeding in the court is regulated by the Act and the Rules made under it.

A proceeding to which Chapter 1 of the Rules applies, is ordinarily commenced by filing a writ or originating motion in accordance with Order 5 of the Rules. There are additional requirements that define a group proceeding under Part 4A. The originating process must be a writ (s 33H) and, for a group proceeding to be validly commenced, the requirements of ss 33C and 33D must be met. In order to demonstrate that those matters have been met, the requirements of s 33H must also be met. Whether those requirements are met by the initial process or by amendment, leaves unaffected the sense in which ‘commenced’ is used in Part 4A, for what is being commenced is not a proceeding per se but a group proceeding.

It follows that nothing in the language of Part 4A constrains the notion of amendment of an originating process to commence a group proceeding, whether that be amendment of the parties to the proceeding or of the claims made in the proceeding, pursuant to Chapter 1 of the Rules. If such powers are exercised in a manner that results in an existing (issued and served) proceeding being amended to comply with Part 4A of the Act, then a group proceeding has then been commenced.

It is correct not to confine the meaning of the word ‘commenced’ to the action of initially filing a writ or other originating process at the court registry. In the context, the contention is misconceived that a proceeding can only be commenced once, and once commenced it can make no sense that the same proceeding can be commenced again. The essential nature of the issued proceeding can be changed in myriad ways. One way is to satisfy the requirements of Part 4A to commence a group proceeding. Another way is to satisfy the requirements of Order 9 of the Rules and join additional parties. The concept with which Part 4A is concerned is the commencement of a group proceeding not the commencement of any proceeding.

In my view, this conclusion follows from the proper construction of the statute and it is unnecessary to determine whether the power to commence a group proceeding by amendment of an existing proceeding is found either pursuant to ss 47 and 48 of the Civil Procedure Act 2010 (Vic), as the plaintiff submitted, or s 33ZF of the Supreme Court Act, as Graincorp submitted. That said, either of those provisions would seem to facilitate the same conclusion.

(Footnotes omitted. Original emphasis.)

146 Mr Cannan also relied upon the decision in Finance Sector Union of Australia v Commonwealth Bank of Australia [1999] FCA 59; (1999) 89 FCR 417 at 8, and the parties generally referred to Sreika v Cardinal Financial Securities Limited [2000] FCA 1647 at 11.

147 In Commonwealth Bank, O’Connor J determined that the Court had power to order that a proceeding (which had not been commenced as a representative proceeding) be allowed to be commenced as a representative proceeding. In coming to that conclusion, her Honour took a purposive approach to Pt IVA, reasoning at [8] that:

… Pt IVA was intended to create a particular regime for the conduct of representative proceedings which would assist the parties to such proceedings and those affected by them. It was not, in my view, however designed to make it difficult to commence proceedings or put procedural barriers in the way of so doing. It merely provides that, if one wishes to pursue representative proceedings then this must be done pursuant to the provisions of Pt IVA.

148 In Srieka, Tamberlin J was dealing with an application made by the respondents to strike out certain proceedings, including on the basis that they purported to be a “representative proceeding”, but were contrary to the requirements of s 33H: at [2]. His Honour relied upon the decision of O’Connor J in Commonwealth Bank and stated at [11]:

In my view the reasoning and conclusions of O’Connor J in Finance Sector Union are apposite to the case before me. Section 33H imposes requirements for an application and, provided that the specific matters referred to in that section are covered by a fresh application, I am satisfied that the section can be complied with in this case. I do not think that the Court is deprived of jurisdiction by the existence of Part IVA and the requirements of ss 33C or 33H from granting leave to make such an amendment. To dismiss the present proceeding entirely and to require a fresh action to be commenced, rather than to permit an amendment, involves unnecessary delay and expense and is an unduly rigid approach. The section is not concerned with whether there is an existing proceeding on foot or how the requirements are satisfied, either as a consequence of amendment or otherwise. Furthermore, to preclude the Court from granting leave to file an amended application in compliance with Part IVA may in some circumstances prove highly inconvenient and inappropriate. By way of example, one could envisage a situation where a proceeding is instituted by several applicants, either jointly or individually, and upon the existence of that action being more widely known other persons may wish to join the proceedings and convert it to a representative action by substituting a new application. It may not be appropriate, in my view, in such circumstances to dismiss the individual proceeding and require a new proceeding to be instituted as opposed to permitting an amendment. I can identify no useful purpose which would be served by such a limitation especially in circumstances where the requirements of s 33H can be satisfied by the filing of a fresh application. There is no reason why a Judge should not have a discretionary power to grant leave in appropriate circumstances. Considerations of procedural efficiency and economy support a contrary conclusion to that advanced by the respondents and this is consistent with the underlying principle leading to the enactment of Part IVA.

(Original emphasis.)

149 Although Tamberlin J struck out the Originating Application and Statement of Claim, his Honour granted leave to the applicant to file an Amended Application and an Amended Statement of Claim.

150 Dollarama contended that there was no express power in the FCA Act to “convert” an inter partes proceeding into a representative proceeding. It was submitted that the infinitive verb “to commence” (i.e. that used in s 33C in its past tense/participial) has a natural and ordinary meaning of “to begin” or “to start”. It was pointed out that the latter synonymous verb is repeatedly used in the FCR (and elsewhere in the FCA Act) to describe the initiation of something per se or ab initio. Dollarama submitted that “[a] proceeding cannot be ‘commenced’ twice” and there was no express power or language used to describe “the act of converting, reconstituting or transferring an extant proceeding into a modified state or form”. It was submitted that, where that type of process is described, the FCA Act and FCR use verbs that have a natural and ordinary meaning consistent with augmentation (eg “amend” (see, eg r 8.21; s 23BH), “replace” (see, eg r 9.65; s 23BH); “transfer” (see, eg r 2.02; s 32AB), “change” (see, eg r 11.09; s 23FG), “substitute” (see, eg r 15.16; s 33T) and “vary” (see, eg r 39.04; s 53AB)).

151 Dollarama pointed out that the FCA Act does make provision for the reverse in ss 33N and 33P, whereby the Court is given express power to “de-class” a proceeding such that it no longer continues as a “representative proceeding”. It was submitted that, in those circumstances, the FCA Act contemplates the continuation of the proceeding as an inter partes proceeding (see s 33P(a)) and, applying the expressio unius maxim of construction, this warranted an inference that the cognate reverse conversion was intentionally excluded.

152 Dollarama further submitted that the decisions in Commonwealth Bank and Srieka were decided on the basis of “policy considerations and practical expediency” and that the decision in Graincorp lacked any analysis as to the absence of any express source of power. Dollarama submitted that the decision of Lindgren J in Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd (No 2) [1999] FCA 1161; (1999) 95 FCR 302 at [220]-[227] reflected a “more conventional (albeit short) statutory analysis”.

153 The facts in Giraffe World were that the Australian Competition and Consumer Commission (ACCC) had commenced proceedings against the respondent and certain officers on its own behalf and as a representative proceeding pursuant to s 33C of the FCA Act. However, on 24 July 1998, Lindgren J made an order under s 33N of the FCA Act that the proceeding no longer continue under Pt IVA: at [217]. Thereafter, less than six months later, on 7 October 1998, the ACCC filed a notice of motion seeking, inter alia, orders permitting it to file a further amended application and a further amended statement of claim for the purpose of “reconstituting” the proceeding as a representative proceeding: at [217]. In relation to this application, Lindgren J concluded as follows at [220]-[222]:

In my opinion, I do not have power to make the order sought. There is no provision in the FCA Act expressly permitting me to do so. Part IVA contemplates only the commencement of proceedings as representative proceedings: cf ss 33A (definitions of “group member”, “representative party” and “representative proceeding”), 33C, 33D, 33G, 33H and 33K. In particular, s 33A defines “representative proceeding” as “a proceeding commenced under section 33C”. Of course, proceeding NG421 of 1998 satisfies the literal terms of that definition. But in my view, the order under s 33N made on 24 July 1998, unless and until set aside, has the effect that the proceeding can no longer be regarded as being within the definition. An order achieving the result now sought by the ACCC would be inconsistent with my order of 24 July 1998.

Section 33P of the FCA Act provides as follows:

“Consequences of order that proceeding not continue under this Part

Where the Court makes an order under section 33L, 33M or 33N that a proceeding no longer continue under this Part:

(a)    the proceeding may be continued as a proceeding by the representative party on his or her own behalf against the respondent; and

(b)    on the application of a person who was a group member for the purposes of the proceeding, the Court may order that the person be joined as an applicant in the proceeding.”

This section contemplates as the only relevant “consequences of [an] order that [a] proceeding not continue under [Part IVA]”, that if the proceeding is to continue at all, it is to continue otherwise than under Pt IVA.

In any event, even if I had power to make an order having the effect of “reconstituting” the proceeding as one under Pt IVA, I would not, as a matter of discretion, make such an order.

(Original emphasis retained in italics and emphasis added in bold.)

154 Lindgren J then addressed the discretionary reasons as to why the order sought by the ACCC should not be made.

155 It will be apparent that Lindgren J’s reasons were dealing with a related but different point as to whether the Court had power to permit a “group proceeding” to be reconstituted after an order had already been made under s 33N.

156 Whilst I accept that there is no express power within Pt IVA to “convert” an inter partes proceeding into a representative proceeding, the question has to be resolved as a matter of statutory construction. The label of “conversion” is useful but ultimately unhelpful as it is a distraction from an enquiry into the substantive question as to the question of power.

157 The starting position is that Pt IVA is “procedural, not substantive”: BHP Group Ltd v Impiombato [2022] HCA 33; (2022) 276 CLR 611 at 54. Part IVA is “framed on the assumption that it will operate concurrently with the procedures and powers of the Federal Court which relate generally to the exercise of jurisdiction conferred on it”: BHP Group at 7. These matters are reinforced by s 33ZF of the FCA Act, which provides that:

33ZF General power of Court to make orders

(1)     In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

(2)     Subsection (1) does not limit the operation of section 22.

(Original emphasis.)

158 The evident purpose of this provision is to reinforce that, consistent with the overarching dictates of the Court’s powers, the Court’s procedural powers are exercised in a manner that best facilitates the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: s 37M(1) of the FCA Act.

159 Rule 8.21(1) of the FCR provides broad powers of amendment:

(1)    An applicant may apply to the Court for leave to amend an originating application for any reason, including:

(a)    to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or

(b)    to avoid the multiplicity of proceedings; or

(c)    to correct a mistake in the name of a party to the proceeding; or

(d)    to correct the identity of a party to the proceeding; or

(e)    to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding started, or has acquired since that time; or

(f)    to substitute a person for a party to the proceeding; or

(g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

(ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

Note:    For paragraph (1)(b) and the avoidance of multiplicity of proceedings, see section 22 of the Act.

(Emphasis added.)

160 As is evident from the text, the Court has power to grant leave to amend for “any reason”. That is a broad power limited only by reference to subject matter, purpose and scope, and to be read with the general powers of the Court as contained in the FCA Act.

161 There is no appellate level authority as to whether an amendment to an inter partes proceeding may constitute the commencement of a representative proceeding for the purposes of Pt IVA and whether a proceeding that has already been commenced can be commenced again. However, the reasons of John Dixon J in Graincorp (as extracted above) are compelling and apply with equal force to the FCA Act. I agree with his Honour’s reasons that, given the context of Part IVA and its interaction with other provisions of the FCA Act and the FCR, it would not be correct to confine the meaning of the word “commenced” in s 33C to “the action of initially filing” the proceeding. It is only if that is accepted that there is force in Dollarama’s contention that a proceeding can only be commenced once.

162 Further, Dollarama’s contentions assume premises as to what is meant by the word “proceeding” that are unsound. Dollarama’s contentions assumed the premise that once a proceeding is commenced, it is a singular thing such that it cannot be commenced again. However, that is a narrow reading of the word “proceeding”. The meaning of the word “proceeding” is protean. In Blake v Norris (1990) 20 NSWLR 300 at 306, Smart J referred to a number of dictionaries in considering the meaning of the word “proceeding” in s 5 of the Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW). His Honour said at 306:

… It is apparent from the meaning given in the Oxford Dictionary that “proceedings” can mean either the action itself or a step taken in such action.

In Stroud’s Judicial Dictionary, 5th ed, vol 4 at 2029–2035, some fifty-five instances are given of the use of the words “proceeding” or “proceedings” in legislation, rules of court or documents having legal significance. The meaning depends on the context in which the word is used. In some cases it is equivalent to “an action” whereas in others it may mean a step in an action. Sometimes it may include a counter claim. The Oxford Companion To Law (1980) by Professor Walker states (at 1002–1003) that “proceedings” is sometimes used as including, or meanings, an action or prosecution and sometimes as meaning a step in an action. The word “proceeding” is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear.

Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question.

(Original emphasis.)

163 As Smart J pointed out, the statutory context is central to the determination of the meaning to be given to the word “proceeding”.

164 Section 4 of the FCA Act defines the word “proceeding” to mean:

…a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

165 The definition here points to a breadth of operation and tells against any narrow reading being taken. For example, the legislature expressly contemplated that a proceeding could include one that is incidental to the course of or in connection with another proceeding.

166 In view of the breadth of the word “proceeding” and the broad powers of amendment, as well as the broad powers of the Court to make orders that are appropriate or necessary to ensure that justice is done in the proceeding, I am satisfied that the Court has power in an inter partes proceeding to grant leave to file an amended originating application and statement of claim that has the effect of commencing a representative proceeding under Pt IVA.

167 The above matters deal with the question of power. They do not address any considerations relevant to the exercise of discretion as to whether such an order should be made.

168 Returning then to the applications presently before the Court, Dollarama seeks leave to appeal and appeal on the basis that the primary judge erred by making an order that a “representative proceeding” was on foot on 16 June 2025 (or on any date before the filing of the Amended Originating Application and Amended Statement of Claim on 15 August 2025) and, as a result, erred by purporting to relate back the purported group members’ claims to a date before those claims were commenced. I agree with Lee J that leave should be granted to cross-appeal and the cross-appeal upheld in this respect. It would follow that Order 2 of the orders made by the primary judge should be set aside.

169 However, that leaves open the question as to when the proceeding should be taken to have been commenced as a “representative proceeding”. The primary judge considered the issue of commencement on the basis of arguments about “relation back” in the context of an already commenced “representative proceeding”. His Honour was not asked to determine the question of power or to exercise discretion as to the appropriate order to be made on the basis that what he was dealing with was a “conversion” of an inter partes proceeding to a “representative proceeding”.

170 In my view, the correct position is that as reasoned by Lee J. The proceeding should be taken to have been commenced as a “representative proceeding” on 15 August 2025 when the Amended Originating Application and Amended Statement of Claim were filed.

1. MR CANNAN’S APPLICATION FOR LEAVE TO APPEAL AND APPEAL

171 As for Mr Cannan’s application for leave to appeal and appeal, I have nothing that I can usefully add to Lee J’s cogent reasons with which I agree.

1. DISPOSITION

172 As already mentioned, I agree with the orders proposed by Lee J.

| I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. |
Associate:

Dated: 10 April 2026

REASONS FOR JUDGMENT

DOWLING J:

173 I respectfully agree with the orders proposed by Lee J.

174 Regarding the initial issue, whether a representative proceeding was validly commenced by the applicant, I agree with the reasons of Lee J and the further reasons of Shariff J that it was not. As to the further issue, whether the proceeding commenced by the applicant can be converted into a representative proceeding, I agree with the reasons of Lee J and the further reasons of Shariff J that it can.

175 On the questions identified by the parties as requiring resolution if leave to appeal was granted, namely:

(1) Given the acceptance that the group membership was “empty”, did the proceeding commence as, and remain, a representative proceeding in accordance with Part IVA?

(2) If the proceeding was no longer a representative one under Part IVA (and hence became an inter partes proceeding), did the primary judge have the power to:

(a) permit the filing of the amended originating application and amended statement of claim “purporting to be a representative proceeding in an extant inter partes proceeding”; and

(b) make the relation back order such the amendments in the AOA and ASOC related back to 16 June 2025?

(3) In relation to the primary judge’s relation back order, did his Honour err in the exercise of his power by:

(a) assessing the allegations made by the Applicant that the Retail Award applied to “Above Threshold Managers” a “rudimentary mistake”?

(b) failing to consider, or properly consider, the prejudice suffered by group members if the amendments did not relate back to 18 April 2023 (or alternatively 3 July 2024)?

(c) failing to consider the applicant’s alternative position that the amendments in the AOA and ASOC relate back to 3 July 2024?

176 I respectfully agree with the answers given by Lee J for the reasons explained by his Honour and the further reasons of Shariff J. The answer to question (1) is no, such a proceeding did not commence until 15 August 2025. The answer to (2)(a) is yes. The answer to 2(b) is no. The questions raised by (3) do not arise given the conclusion and commencement date of question (1).

177 Lastly, in light of those conclusions, and in circumstances where the parties did not present argument on the matter, I do not consider it necessary to reach a view on the issue of defining group membership by reference to a legal or factual characteristic that is in contest.

| I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling. |
Associate:

Dated: 10 April 2026

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