Moore v Barwon Health

1. By interlocutory application filed on 11 August 2025, the applicant, Dr Eileen Moore, seeks the Court's leave to file and serve a Proposed Further Amended Originating Application and Proposed Further Amended Statement of Claim. The respondent opposes that leave.
2. The applicant was employed by the respondent, Barwon Health, between September 2008 and December 2021. The applicant commenced proceedings in this Court by Originating Application on 8 April 2022 and filed her Statement of Claim on 11 October 2022. By interlocutory application dated 31 October 2024, the applicant sought leave to file a Further Amended Originating Application and Further Amended Statement of Claim adding new causes of action under the Fair Work Act 2009 (Cth) and seven individual respondents. On 25 November 2025, I granted the applicant leave in part to file those amended documents but not to add the seven individual respondents.
3. Pursuant to r 8.21 and 16.53 of the Federal Court Rules 2011 (Cth), the applicant now seeks leave to file and serve a Further Amended Originating Application and Further Amended Statement of Claim. The amendments can be summarised as follows:

(1) To substitute all references to s 530 of the Act to s 785, being what the applicant describes as the "correct provision applicable to the Applicant's termination" (category one);

(2) To include a claim that the applicant's complaint about bullying conduct, as defined in s 789FD of the Act, constituted a workplace right. The applicant alleges that adverse action was taken in response to that complaint, in contravention of s 340 of the Act (category two); and

(3) To characterise correspondence addressed to senior management as formal complaints or disputes made under the applicable industrial instrument, including in relation to alleged consultation failures (category three).

1. The applicant's explanation for the delay in making the amendments now was the withdrawal of the applicant's pro bono counsel and alleged errors or omissions made by them, certain alleged conduct by the respondent, and the apparent discovery of new evidence by the applicant.
2. For the reasons set out below, Dr Moore is granted leave to file a Further Amended Statement of Claim and Further Amended Originating Application consistent with these reasons.

1. The procedural history to this matter as between 2022 and November 2024 was set out in Moore v Barwon Health [2024] FCA 1387 at [8]- [17]. It does not need to be repeated, save to say that the applicant commenced proceedings in this matter on 8 April 2022. By operation of r 16.12 of the Federal Court Rules, the pleadings closed on 29 November 2022. On 20 June 2024, I heard the applicant's first interlocutory application seeking leave to amend her Originating Application and Statement of Claim. I dismissed that application and referred the applicant for pro-bono assistance.
2. The applicant obtained pro-bono assistance in this matter on or around July 2024, and a Further Proposed Amended Originating Application and Statement of Claim was provided to the respondent on 6 September 2024. On 25 October 2024, Dr Moore notified the Court that her pro-bono counsel could no longer represent her, and on 1 November 2024 she filed a second interlocutory application seeking leave to file an Amended Originating Application and Statement of Claim. As explained, on 25 November 2024, I granted the applicant leave in part to file and serve the Amended Originating Application and Amended Statement of Claim. Those documents were filed on 16 December 2024.
3. On 24 March 2025, the respondent filed its Defence to the applicant's Amended Statement of Claim. The applicant filed a Reply to that Defence on 7 April 2025. The solicitor for the respondent, Mr Adam Gleeson, relevantly deposed in his affidavit dated 25 August 2025, but unwitnessed, that:

(a) prior to filing the Reply, the applicant did not raise with the respondent the possibility of further amending her Originating Application or Statement of Claim;

(b) at the case management hearing on 16 May 2025, the applicant once again did not raise the possibility of further amending her Originating Application or Statement of Claim;

(c) in June 2025, the parties liaised with one another in relation to a Statement of Agreed Facts. The applicant did not raise the possibility of further amending her claim during that time;

(d) from around July 2025, the applicant requested copies of a range of employment records and employment-related documents from the respondent to which the respondent advised, also in July 2025, that it did not agree to the requests. The applicant then filed an interlocutory application for discovery with the Court.

(e) on 27 July 2025, the applicant advised the respondent that she intended to seek further interlocutory orders to file and serve a Further Amended Originating Application and Further Amended Statement of Claim. The applicant advised the Court that she intended to make this interlocutory application on 31 July 2025. The respondent advised the Court that it opposed this application on the same date; and

(f) on 11 August 2025, the applicant filed and served on the respondent unsealed copies of her interlocutory application to amend, along with affidavits in support dated 30 July 2025 and 7 August 2025.

1. In support of her interlocutory application, the applicant relied upon her affidavits of 30 July 2025, 7 August 2025 and 2 October 2025. The respondent relied upon the unwitnessed affidavit of Mr Gleeson dated 25 August 2025 (Gleeson affidavit), and an affidavit of Ms Karina Blundo dated 2 December 2025 (Blundo affidavit). The Blundo affidavit clarifies that the wrong version of the Gleeson affidavit was inadvertently filed with the Court which did not contain the witness's electronic signature, and annexed a fully executed version of that affidavit.
2. At the hearing of the interlocutory application, the applicant objected to the tender of the Blundo affidavit and any reliance on the Gleeson affidavit. The applicant accepted that she had read and responded to the Gleeson affidavit in her affidavit dated 2 October 2025. The applicant complained that she was not able to cross-examine Mr Gleeson on an "unsworn" affidavit. I am not satisfied that such cross-examination would have been necessary or appropriate in any event. The applicant complained that she was only served with the Blundo affidavit on 3 December 2025, two days before this hearing. The respondent submitted, and I accept, that the Blundo affidavit annexed nothing other than a witnessed and unwitnessed version of the Gleeson affidavit in the form previously provided to the applicant.
3. In all the circumstances I consider it appropriate to accept as tendered each of the affidavits sought to be relied upon by the parties. I have had regard to the contents of those affidavits in my consideration below.

1. The applicant seeks leave of the Court to amend pleadings pursuant to r 8.21 and 16.53 of the Federal Court Rules. Rule 8.21(1) relevantly provides that 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 (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief that arises 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 out of facts or matters that have occurred or arisen since the start of the proceeding.
2. Rule 16.53(1) provides that a party must apply for leave of the Court to amend a pleading unless r 16.51 applies. In the present case, pleadings have closed and therefore r 16.51 does not apply.
3. The principles relevant to considering whether to grant an application for amendment are well-established. The power of the Court to grant or refuse leave must be exercised in the way that best promotes the court's overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M(3) of the Federal Court of Australia Act 1976 (Cth); see also Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322 at [19] (Gilmour and Foster JJ).
4. The Court's power to grant leave to amend is broad. The Court's power has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [14] (French CJ); Caason Investments at [20] (Gilmour and Foster JJ). Relevant matters that the Court is to consider were set out by Gleeson J in Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (a Firm), in the matter of Tamaya Resources Ltd (in Liq) [2015] FCA 1098 at [127] to include:

(a) the nature and importance of the amendment to the party applying for it: Aon at [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ);

(b) the extent of the delay and the costs associated with the amendment: Aon at [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ);

(c) the explanation for any delay in applying for that leave: Aon at [108] (Gummow, Hayne, Crennan, Kiefel and Bell JJ);

(d) the prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5] (French CJ), [100] and [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ);

(e) the parties' choices to date in the litigation and the consequences of those choices: Aon at [112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44] (Collier, Griffiths and Mortimer JJ);

(f) the detriment to other litigants in the court: Aon at [93], [95] and [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) and Luck at [44] (Collier, Griffiths and Mortimer JJ); and

(g) potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30] (French CJ).

1. Leave to amend should be granted unless the proposed amendment is futile such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs: Caason Investments at [21] (Gilmour and Foster JJ) and the cases there cited.
2. The onus is on the party seeking leave to amend to persuade the court that such leave should be granted: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17] (Marshall, Rares and Flick JJ).

1. In the applicant's interlocutory application, written submissions and supporting affidavits, she provided three explanations for the delay.
2. First, the applicant submits that her pro bono counsel suddenly ceased acting for her before filing the Amended Statement of Claim and Amended Originating Application. She submits that pro bono counsel did not include in the pleadings what the applicant describes now as:

(a) a proper characterisation of the applicant's correspondence to senior management as formal complaints made pursuant to the applicable industrial instrument, including complaints regarding failures in consultation;

(b) a claim under s 789FD of the Act in respect of bullying and adverse action based on that bullying complaint; and

(c) the correct statutory reference to s 785 instead of s 530 of the Act.

1. Second, the applicant submits that she has obtained "new evidence" relevant to the proceeding including "documents and communication" which suggest a culture of bullying at the respondent. The applicant submits that the "new evidence" emerged from witness statements made in August-September 2025.
2. Third, the applicant alleges that the respondent's failure to comply with its own obligations under s 535 of the Act and regs 3.42-3.44 of the Fair Work Regulations 2009 (Cth) significantly impaired the applicant's ability to clarify certain factual disputes earlier.
3. At the hearing, however, the applicant accepted that there was no conduct of the respondent that was directly responsible for the delay in bringing the amendments, and that the new evidence did not give rise to the particular amendments necessary for categories one to three. Accordingly, the applicant relied on what she describes as errors and omissions of pro bono counsel. In regard to category one of the proposed amendments, as I will explain below, it is uncertain as to whether this properly constitutes an error. As to categories two and three of the proposed amendments, the applicant explained that she had understood these claims were originally included and it was only in the process of conferring over a Statement of Agreed Facts in June and July of 2025 that the applicant discovered that pro bono counsel had not included these claims.
4. The respondent did not and was not in a position to substantively respond to the submission that the delay was the result of the withdrawal or errors or omissions of pro bono counsel. It did not contend that I should not accept that submission. However the respondent strenuously opposed any submission that it was responsible for the delay.
5. I accept that the circumstances described by the applicant and her pro bono counsel provide some basis for the delay in making the amendments sought by the applicant.

1. The respondent submits that a granting of leave will further prejudice it by further delay in what has been a long and protracted proceeding. The respondent submits that it already suffers prejudice as the result of the applicant's approach to litigation involving historical events dating back to 2013. It submits that it will be required to call evidence from individuals to address historical conduct by them as well as their alleged states of knowledge in that historical period. It says it should be presumed that, with time, relevant and exculpatory evidence may have been lost, relying on Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 (McHugh J). I accept that prejudice and its potential is a proper consideration in the application before me. The respondent says that the further delay which will ensue if leave is granted will exacerbate this prejudice.
2. The respondent submits further that at the case management hearing on 16 May 2025, it was contemplated that this proceeding would return to Court after 17 November 2025 once all the evidence was filed for a further case management hearing at which time the matter would be listed for trial in the new year. However, the present interlocutory application has resulted in the vacation of the requirement for the applicant to file her own affidavit. It says any grant to amend in the form of the Proposed Further Amended Statement of Claim and Proposed Further Amended Originating Application would involve preparation of a defence which would require the respondent to incur further costs and obtain further instructions. It would also delay the preparation of evidence and submissions, and likely lead to a later trial date than would otherwise have been listed.
3. I accept the respondent's submission that this has been a long and protracted proceeding. As previously stated, I am concerned to ensure that the proceeding be determined as quickly and efficiently as possible.
4. However, I find that the prejudice identified by the respondent is not such as to outweigh the objective of ensuring that any defect is cured, that the real questions are properly agitated and in order to avoid a multiplicity of proceedings.

1. As explained, the applicant's interlocutory application and submissions identify three categories of the proposed amendments.

1. The first category is a substitution of all references of s 530 of the Act to s 785. Section 530 provides for an obligation for the "employer to notify Centrelink of certain proposed dismissals", while s 785 provides for an obligation for the "employer to notify Centrelink of certain proposed terminations". The applicant submits this change is necessary as a result of a legal error by the applicant's former pro bono counsel. She submits further that the Employment Separation Certificate given to the applicant is consistent with a termination under s 785 rather than a summary dismissal under s 530. These amendments appear at [65]-[67] and [83] of the Proposed Further Amended Statement of Claim, and at [4] of the Proposed Further Amended Originating Application.
2. Section 530 and s 785 are in near identical terms save for the use of the word "dismiss" and "terminate". The amendment proposed does not alter the relief sought by the applicant, nor does it materially amend the existing claim save that the applicant now characterises the "dismissal" as a "termination". The respondent accepted at the hearing of the interlocutory application that the amendment prosed no particular prejudice to the respondent, save that outlined generally as a consequence of the delay in the proceeding. The respondent had complaints about the necessity of this category of amendments, but it did not allege that the amendment was futile or unlikely to succeed or likely to be struck out.
3. While there is certainly some doubt about the necessity for the amendment and which provision applies to the applicant, or whether both might apply, I consider this amendment should be allowed having regard to the principles and in all of the circumstances discussed above.

1. The second category introduces an allegation that the applicant's complaint about bullying conduct, as defined in s 789FD of the Act, constitutes a workplace right. The applicant alleges that adverse action was taken in response to that complaint in contravention of s 340 of the Act. The applicant states that this amendment is necessary to ensure the applicant's complaint is "properly characterised within the legal framework of s 789FD of the Act, forming the basis for a new claim under s 340". This amendment appears at [76(d)] and [78(c)] of the Proposed Further Amended Statement of Claim, which relevantly states:

76. Around the time of the inquiries and requests outlined in Paragraph 69 of this Statement of Claim, the Applicant was also becoming more vocal in her inquiries and complaints about the 2019 Pay Dispute with the Respondent:

....

c. By issuing, on 13 December 2021, a letter to the CEO complaining about underpaid wages and bullying; and

d. The letter in Paragraph 76(c) being consistent with exercise of a workplace right to complain about bullying per s 789FD of the FWA.

...

78. The Respondent took the following Adverse Action against the Applicant, within the meaning of s 342(1) of the FWA:

...

c. Depriving the Applicant of her rights under Clause 16.3 of the 2017 Agreement and section 789FF of the FWA whilst investigating her alleged Serious Misconduct in October 2021 to December 2021, by:

i. Not advising the Applicant that she could be represented at certain times, contrary to Clause 16.3(c)(iv);

ii. Not taking reasonable steps to investigate the Applicant's claims, contrary to clause 16.3(c)(vi);

iii. Standing the Applicant down from her employment when it was reasonable for work to continue as it did before the dispute arose, contrary to clauses 13.2(b) and 16.4(b)(ii);

iv. Not meeting with the Applicant when it terminated her employment, contrary to clause 16.4(b)(ii);

v. Terminating Applicant's employment without giving her first, second warning or final warning, contrary to clause 16.5(a);

1. An amendment inserting a reference to s 789FD also appears at [1] of the Proposed Further Amended Originating Application:

The following General Protections have been contravened; by way of Termination of Employment; reduction of working hours and failures to accord associated procedural rights under Enterprise Agreements because of Workplace Rights (to raise work-related inquiries and complaints, which included bullying complaint consistent with section 789FD, and compliance with dispute-resolution processes under Enterprise Agreements ) as defined by Section 341 of the Fair Work Act 2009 (Cth) ( FWA ) and Disability under Section 351 of the FWA and/ or temporary absence from work ( as defined by Regulation 3.01 of the Fair Work Regulations 2009 (Cth) ( FWR ) ] under Section 352 of the FWA;

1. The respondent submits that the pleadings at [76(d)] and [78(c)] appear to add a new claim. It says further that [76(d)] is vague and embarrassing given that s 789FD of the Act is a definitional provision concerning "When is a worker bullied at work" in the context of the Fair Work Commission's powers to make orders to stop bullying pursuant to s 789FF of the Act. It also complains that the paragraph lacks particulars, that the existing [76] has already been objected to in the respondent's Defence to the Amended Statement of Claim on the basis that it is vague and embarrassing, and the addition makes the pleading more embarrassing and unfair.
2. In respect of the proposed amendment to [76(d)], in all of the circumstances described above, and consistent with the principles above, I would allow the amendment. The applicant made clear that "per 789FD of the FWA" in [76(d)] is the exercise of a workplace right because it is a complaint in relation to her employment, and is a complaint about bullying as defined by s 789FD. The amendment is an attempt at clarification. I do not consider that the amendment adds a new claim or that it is futile or likely to be struck out.
3. As to the proposed amendment in [78(c)], I do not allow that amendment. I consider it is likely to be struck out. I understand the subparagraphs i. to v. under [78(c)] are examples of how the respondent allegedly took adverse action against the applicant. The proposed amendment does not make sense in the context of [78(c)] and subparagraphs i. to v. that follow. It adds confusion rather than clarification. Those subparagraphs introduce only those clauses of the 2017 agreement which the applicant says she was unable to exercise. These subparagraphs have no connection to s 789FF of the Act and the deprivation of any right under that section. The amendment to [78(c)] is apt to confuse.

1. The third category characterises correspondence to senior management as formal complaints or disputes made under "the applicable industrial instruments", including complaints concerning consultation failures in breach of the Enterprise Agreement. The applicant submits that these amendments "seek only to clarify that these were not informal queries, but workplace complaints that engaged rights under industrial instruments, consistent with s 341 of the [Act]" and that "this clarification is important to the General Protections claim and does not cause procedural unfairness to the Respondent".
2. These amendments appear at [60(a)(iv)], [69(g) and (h)] and [85(b)(iii)] of the Proposed Further Amended Statement of Claim. Amendments relevant to category three do not appear in the Proposed Further Amended Originating Application. The amendments appear to raise additional complaints in relation to the applicant's employment for the purposes of s 341(c)(ii).
3. In weighing the explanation for the delay, the question of prejudice and the effect of these amendments, I allow the amendments in category three, save the reference to the "E-Mail from Ms Lisa Pepers to Ms Lee Jeffery on 12 October 2021" in the particulars to [85(b)(iii)]. The applicant accepted that the email did not directly pertain to her employment with the respondent and concerned the employment of another person. I would consider that part of the proposed amendment is likely to be struck out and I do not allow that amendment.

1. Leave for the Proposed Further Amended Originating Application is given in the form proposed by the applicant.
2. As for the Proposed Further Amended Statement of Claim, leave is granted in the following respects:

(1) the amendments that fall within category one are allowed;

(2) the amendments that fall within category two are allowed in part. Leave is granted for the amendment at [76(d)]. Leave is not granted for the amendment in [78(c)] of the Proposed Further Amended Statement of Claim; and

(3) the amendments that fall within category three are allowed in part. I do not grant leave to include the reference to the "E-Mail from Ms Lisa Pepers to Ms Lee Jeffery on 12 October 2021" in the particulars to [85(b)(iii)]. I otherwise allow the amendments at [69(g) and (h)], [85(b)(iii)] and [60(a)(iv)] of the Proposed Further Amended Statement of Claim. I note for completeness that the text at [60(a)(iv)] needs to be underlined to make clear that subparagraph is an amendment.

1. The respondent seeks its cost of and incidental to this application for leave to amend. The applicant has been partly successful. As such, I do not consider it is appropriate to make any orders for costs under the provisions contained within the Act.

1. The applicant is granted leave to file a Proposed Further Amended Originating Application, and a Further Amended Statement of Claim consistent with these reasons, by 4:00 pm on Wednesday 10 December 2025.
2. I will hear from the parties immediately about the appropriate next steps for timetabling the matter for hearing.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.