Spears v South Australian Wine Group Pty Ltd

Associated Leisure Ltd (Phonographic Equipment Company Ltd) v Associated Newspapers Ltd [1970] 2 QB 450; [1970] 2 All ER 754; [1970] 3 WLR 101

Australian Metropolitan Life Assurance Company Ltd v Ure [1923] HCA 29; (1923) 33 CLR 199; (1923) 30 ALR 53

Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954

Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587

Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001; (2011) 213 1R 32

Davy v Garrett [1878] UKLawRpCh 8; (1877) 7 Ch D 473

Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431

Fair Work Ombudsman v Quincolli Pty Ltd and Anor [2011] FMCA 139

Fair Work Ombudsman v Quincolli Pty Ltd and Anor [2012] FMCA 712

Fundit Ltd v Jonesys Earthworx Pty Ltd (in liq) [2025] FedCFamC2G 1574

Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367

Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116

Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714; (2023) 379 FLR 217

Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 3) [2024] FCA 643

McNamara v Era Pacific Pty Ltd [2021] FCCA 1689; (2021) 308 IR 214

Mills v Major North Pty Ltd [2025] FedCFamC2G 1531

Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamunda [2023] FedCFamC2G 404

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449

Potter v Fair Work Ombudsman [2014] FCA 187

Potter v Fair Work Ombudsman [2014] HCASL 150

Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556

Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491

Re Culleton [2017] HCA 3; (2017) 91 ALJR 302; (2017) 340 ALR 550

Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 74 A Crim R 462; (1994) 68 ALJR 688

Sims v Jooste QC [2013] WASCA 245

Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262

Spears v South Australian Wine Group Pty Ltd (No 2) [2025] FedCFamC2G 2677

Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031

Spears v South Australian Wine Group Pty Ltd [2024] FCA 94

Storry v Weir (No 2) [2022] FCA 1360

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; (1985) 60 ALR 68

Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 67 ALJR 485; (1993) 112 ALR 289

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534)

Protection of Public Participation Bill 2008 (SA)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

(a) application in a proceeding filed 18 September 2025 for discovery; and

(b) application in a proceeding made in written submissions filed 4 August 2025 and 18 September 2025, and orally at hearing, for the re-opening of the liability hearing in these proceedings,

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Before the Court are two applications in a proceeding. The first is an application in a proceeding filed 18 September 2025 by the applicant, Alana Spears ("Ms Spears"), seeking orders for discovery ("Discovery Application") of a document, the "Business Impact Analysis" (which is Exhibit DH-5 to the affidavit of David Harris filed 27 September 2025 ("Harris Affidavit")), filed by the respondent, South Australian Wine Group Pty Ltd ("SAWG"). The second is an application in a proceeding made in written submissions filed 4 August 2025 and 18 September 2025, and orally at hearing, for the re-opening of the liability hearing in these proceedings ("Re-Opening Application"). Both applications in a proceeding are opposed by SAWG.

1. The substantive general protections application was one made under the Fair Work Act 2009 (Cth) ("FW Act"), and solely under and in relation to the FW Act. The issues in contention in relation to the substantive application as it was argued before the Court included:

(a) whether there was adverse action in relation to Ms Spears by reason of her dismissal from employment by SAWG on the basis of an alleged redundancy;

(b) whether a redundancy payment was payable by SAWG, or whether, because it was alleged by SAWG to be an employer with fewer than 15 employees and thus a small business employer a redundancy payment was not payable, a matter which included determination of whether other companies were associated entities of SAWG for the purpose of assessing the number of employees;

(c) an allegation of a failure by SAWG to provide payslips to Ms Spears;

(d) an alleged breach of the award by SAWG; and

(e) an allegation of a failure by SAWG to provide a Fair Work Information Statement ("FWIS") to Ms Spears, which was admitted by SAWG.

1. In Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031 ("Spears No 1"), the Court made declarations and orders including the following:
   1. Declares that the Respondent contravened s 125(1) of the Fair Work Act 2009 (Cth) by failing to give the Applicant a Fair Work Information Statement, but otherwise orders that the application filed 1 December 2020, as amended by an amended application filed 15 February 2021, be dismissed.
   2. The parties are to confer forthwith with respect to penalty and a penalty hearing.
   3. The matters otherwise be adjourned to a directions hearing at 12.00pm on 2 February 2024.
2. On 2 February 2024 an order was made adjourning the matter sine die, with liberty to apply on seven days' notice, and as the Court recalls that was done on the basis that there had been an application for special leave to appeal made by Ms Spears to the High Court in respect of Spears (No 1) which had been rejected, and then a subsequent application for an extension of time in which to appeal Spears (No 1) was made to the Federal Court and was pending.
3. On 23 August 2024 the application for an extension of time in which to appeal was dismissed by the Federal Court in Spears v South Australian Wine Group Pty Ltd [2024] FCA 94 ("Spears-Federal Court"). For reasons which are not apparent to the Court, the matter was not then relisted before this Court until 6 June 2025, and on that date the Court made orders listing the penalty hearing for 21 October 2025, and made certain procedural orders, including for the filing of affidavit evidence in relation to the penalty hearing. The penalty hearing was subsequently relisted to 20 October 2025.
4. Consequent upon the orders for filing of affidavit material, Ms Spears filed an affidavit on 4 August 2025 ("Spears August 2025 Affidavit"), and another affidavit on 18 September 2025 ("Spears September 2025 Affidavit") (collectively "Spears' Affidavits"), the Spears September 2025 Affidavit being filed in conjunction with the Discovery Application. The Spears' Affidavits do contain some factual material, but primarily contain submissions and seek orders relevant to the discussion of the matter as to whether a non-lawyer ought to appear for SAWG, in relation to which an application in a proceeding by SAWG to appear by a non-lawyer was dismissed in Spears v South Australian Wine Group Pty Ltd (No 2) [2025] FedCFamC2G 2677 ("Spears No 2"), and to the Discovery and Re-Opening Applications.
5. The issues raised in the Spears' Affidavits concern the provenance of, and evidence given, concerning the Business Impact Analysis which is the subject of the Discovery Application. The Spears' Affidavits also allege ineffective legal representation resulting in matters being omitted from the claims made in the substantive general protections application and subsequent pleadings, which were prepared and filed by lawyers then acting for Ms Spears. Those lawyers withdrew from these proceedings on 26 July 2021. Ms Spears says that there are five matters supported by the evidence but not expressly pleaded, which were omitted from relevant documents by her lawyers. Ms Spears also asserts that there are breaches of three separate pieces of legislation:

(a) the FW Act;

(b) the Work Health and Safety Act 2012 (SA) ("WHS Act"); and

(c) the Protection of Public Participation Bill 2008 (SA) ("PPP Bill").

1. The breaches alleged will be outlined in a more detail later on in these Reasons for Judgement, but essentially, Ms Spears seeks orders:

(a) in the Discovery Application, for discovery of the Business Impact Analysis, and requiring SAWG to produce the original electronic version of the Business Impact Analysis, including all associated metadata; and

(b) in the Re-Opening Application for:

(i) leave to amend the pleadings in the substantive general protections application to include the additional claims outlined;

(ii) an order for consolidation of allegedly related claims under the:

• (A) FW Act;
• (B) WHS Act; and
• (C) PPP Bill,

or, in the alternative, an order for directions or referrals to enable the matters to be adjudicated in a single forum;

(iii) the Court to take into account SAWG's alleged abuse of process and breaches of the PPP Bill in initiating two separate defamation proceedings during these proceedings; and

(iv) such further or other orders as the Court considers appropriate.

1. In the Discovery Application and the Re-Opening Application Ms Spears alleges fraud, misrepresentation and perjury, by SAWG and its officers.

1. A reading of the Spears' Affidavits makes it apparent that what she seeks to have the Court do is not just obtain discovery of the Business Impact Analysis, but also to entirely re-open the liability part of these proceedings, the subject of the judgment in Spears (No 1), and in the course of doing so, raises an array of matters for consideration, including, as best and as shortly as the Court can summarise them:

(a) in relation to the creation of the Business Impact Analysis, that it was not created, as asserted at the liability hearing, on or between 20 and 25 August 2020, but in October 2020 after the filing of the substantive general protections application;

(b) that SAWG, and in a practical sense here that means Mr Harris, engaged in perjury and misled the Court in relation to the Business Impact Analysis, and falsely used contemporaneous Chinese anti-dumping allegations as a pretext for Ms Spears' dismissal, and contradicted her alleged redundancy by indicating to Ms Spears on or about 24 August 2020 that SAWG intended to hire another full-time employee;

(c) that Ms Spears' legal representation was ineffective and resulted in significant matters being omitted from the substantive application and subsequent pleadings (noting that Ms Spears' lawyers withdrew as her lawyers in July 2021 in circumstances where the liability hearing did not occur until November 2022, and consequently, certain matters were omitted from the substantive application and subsequent pleadings) including:

(i) three instances of alleged adverse action relating to her dismissal, which she says relates to a pay inquiry in December 2019, and two alleged instances of workplace bullying involving Mr Harris, and a Mr Hourigan who was an employee of SAWG; and

(ii) two alleged breaches of the WHS Act in relation to failure to consult and the causing of psychological injury and coercion;

(d) a request for alleged breaches of the FW Act, the WHS Act, and the PPP Bill, to be consolidated and adjudicated in a single forum (presumably in this Court although it is not expressly said so), and noting that allegations of breach of the PPP Bill appeared to relate to defamation actions brought in relation to Ms Spears, seemingly by at least Mr Harris, and which Ms Spears submits are an abuse of process; and

(e) that if discovery, and it would seem production, of the "original electronic version" of the Business Impact Analysis is not provided, then:

(i) the Business Impact Analysis "be expunged from the record as evidence"; and

(ii) the liability judgment in Spears (No 1) be set aside to enable a comprehensive review of the case.

1. In considering whether to grant the Re-Opening Application the Court must have regard to the overarching civil practice and procedure obligations under s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCOA Act") which provides as follows:

(1) The overarching purpose of the civil practice and procedure provisions...is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The civil practice and procedure provisions...must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The civil practice and procedure provisions...are the following, so far as they apply in relation to civil proceedings:

(a) the Rules of Court;

(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).

1. Rule 24.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) ("GFL Rules") deals with varying or setting aside a judgment or order after it has been entered, which is effectively what is sought here in terms of Spears (No 1) and the orders made in relation thereto (as set out at [3] above). Rule 24.04 of the GFL Rules is in the following terms:

The Court may vary or set aside a judgment or order after it has been entered if:

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction; or

(e) it does not reflect the intention of the Court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in a judgment or order; or

(h) there is an error arising in a judgment or order from an accidental slip or omission.

1. In determining whether or not to re-open a case and allow further evidence to be led, the Federal Court in Ample Source International Ltd v Bonython Metals Group Pty Ltd (No 6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J, observed in relation to the relevance of the proposed material as follows:

Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 45 FCR 128 at 138-139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 must now inform the principle.

1. The decision to reopen a case and allow further evidence is a discretionary one: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 ("Rich") at [18] per Austin J where the New South Wales Supreme Court said that the following factors are relevant to the exercise of a Court's discretion to re-open:

(a) the degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

(b) the nature of the proceeding;

(c) the extent to which a party embarking upon this course is calling further evidence during the hearing;

(d) whether calling further evidence ought reasonably to have been foreseen;

(e) what explanation is offered for not having called further evidence during the hearing;

(f) the consideration of fairness that a respondent is entitled to know all the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence to be adduced on the matters in question; and

(g) the prejudice to a respondent in terms of the delay in the completion of the proceeding and consequential costs.

1. Regard must also be had to the public interest in the finality of litigation: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33, CLR at 302-303 per Mason CJ.
2. In Fair Work Ombudsman v Quincolli Pty Ltd and Anor [2012] FMCA 712 ("Quincolli - Re-Opening") post the liability judgment (the liability judgment is Fair Work Ombudsman v Quincolli Pty Ltd and Anor [2011] FMCA 139 ("Quincolli - Liability") and prior to the penalty hearing, the respondents sought to re-open their case in relation to liability. The then Federal Magistrates Court ("FM Court") considered the principles in relation to reopening but dismissed the re-opening application noting at [10] per Driver FM that:

[T]he pending and proximate hearing on penalty would be significantly delayed if the case on liability were to be re-opened. It would be inappropriate to delay the penalty hearing in favour of what may be no more than a fishing expedition.

1. Potter v Fair Work Ombudsman [2014] FCA 187 ("Potter") was an appeal by the second respondent against Quincolli - Liability. The FM Court's refusal to reopen was reaffirmed in Potter at [54]-[59] per Cowdroy J, noting the respondent's submission of additional evidence did not address any critical findings in the first decision, and observing at [56] that:

His Honour [Driver FM] considered the evidence and the principles relating to the reopening of a matter and concluded that the interests of justice would not be served by allowing the application, especially in view of the significant delay since the date of delivery of the first decision.

1. In Potter v Fair Work Ombudsman [2014] HCASL 150 the High Court refused special leave to appeal Potter observing at [4] per Bell and Gageler JJ that:

The applicant seeks to agitate matters in this Court that were determined by Cowdroy J applying well-settled principles. The application for special leave does not disclose any basis upon which to doubt the correctness of his Honour's decision. It also does not identify any question of principle sufficiently important to warrant a grant of special leave. The application is dismissed.

1. In Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 3) [2024] FCA 643 ("Koolan Iron Ore (No 3)") the applicant sought to re-open the case after reasons had been given but before orders were made. As to when leave should be granted to re-open the Federal Court observed at [32]-[34] per Jackson J that:
   1. Nevertheless, in assessing where the interests of justice lie, the stage that the proceeding has reached must be relevant. In Spotlight at [17], the Victorian Court of Appeal (Harper and Tate JJA and Beach AJA) said:

There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.

1. These considerations must apply all the more strongly where reasons for judgment have been delivered. It is obviously not in the interests of justice to permit a party, without very good cause, to reopen its case after it has received reasons for decision and has had the opportunity to assess how its evidence or arguments could be improved in order to overcome findings it does not like. Although made in the context of an application to reopen after orders had been made, the following comment by the Full Court in Davis (at [9]) surely applies:

The public interest in the finality of litigation does not permit the losing side to reopen a case just because, in retrospect, it can be seen that better evidence about some matter in dispute might have changed the result. Were it otherwise, there would be no end to litigation.

1. In Re Culleton [2017] HCA 3 at [21]-[22], Gageler J described the policy of the law as follows (footnote omitted):

In University of Wollongong v Metwally(No 2) (1985) HCA 28, six Justices of the High Court said:

'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.'

Metwally (No 2) was a case in which an application to re-open was made after orders had been pronounced and perfected.

1. In Storry v Weir (No 2) [2022] FCA 1360 ("Storry (No 2)") the applicant filed an interlocutory application seeking a stay of a sequestration order after final judgment had been handed down. The applicant did so under r 39.05 of the Federal Court Rules 2011 (Cth) equivalent to r 24.04 of the GFL Rules [which is set out at [12] above]. The application was dismissed.
2. In Storry (No 2):

(a) at [5] per Thomas J the Federal Court noted that:

An application under r 39.05 of the Rules is not an appeal and is not a substitute for an appeal. The exercise of the power under r 39.05 of the Rules does not involve an inquiry as to the merits of the judgment and is conditioned by the terms of r 39.05 of the Rules. It can only be exercised if the requirements outlined in the rule are satisfied.

(b) the Federal Court dealt with the principles in relation to re-opening where it was alleged that the judgment was obtained by fraud, observing at [14]-[20] per Thomas J as follows:

1. The setting aside or varying a finalised judgment under r 39.05 of the Rules is a power that is only to be exercised in exceptional circumstances. There is a public interest in the finality of litigation and this is a factor which weighs heavily in an application based on r 39.05 of the Rules.
2. Allegations of fraud are "extremely serious" and the fraud must be "directly material" to the judgment challenged: Wu Avin Operations Pty Ltd (No 2) [2006] FCA 792 at [24] (per Kenny J).
3. The power to set aside a judgment after it has been entered "does not extend to forms of malpractice not amounting to fraud": Clone Pty Ltd v Players Pty Ltd (in liq) (recs and mgrs apptd) (2018) 264 CLR 165; [2018] HCA 12 at [41] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). Their Honours observed (at [62]) that "[f]raud needs to be clearly pleaded and proved".
4. In Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262 (Spalla), French J (as his Honour then was) set out the criteria for success in an action seeking to set aside a judgment on the basis of fraud (at [60]) (referring to Kirby P (as his Honour then was) in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 ) as follows:

Kirby P set out the essential criteria for success in an action seeking to set aside a judgment on the basis of fraud. In summary they were as follows:

1. The essence of the action is fraud and particulars of the fraud claimed must be exactly given and the allegations established by the strict proof which such a charge requires.

2. It must be shown by the party asserting that the judgment was procured by fraud that there has been a new discovery of something material in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.

3. Mere suspicion of fraud raised by fresh facts later discovered will not be sufficient to secure relief.

4. Although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud and although there may be exceptional cases where such proof of perjury would suffice, without more to warrant relief of this kind, the mere allegation or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment.

5. It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge.

6. The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.

Kirby P said, at 539:

In summary [the applicant] must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.

(italics in original)

1. In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) [1992] FCA 367; (1992) 37 FCR 234 , the Full Court of the Federal Court (Spender, Gummow and Lee JJ) reviewed the equitable jurisdiction to set aside a judgment on the basis that it was obtained by fraud and adopted the following summary by Gordon QC (from his article "Fraud or New Evidence as Grounds for Actions to set Aside Judgments" (1961) 77 LQR 358 (Pt 1), 533 (Pt 2)) (at 241):

(a) evidence newly discovered since the trial;

(b) evidence that could not have been found by the time of the trial by exercise of reasonable diligence;

(c) evidence so material that its production at the trial would probably have affected the outcome; and when the fraud charged consists of perjury, then:

(d) the evidence must be so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered must have that result.

1. In order to set aside a judgment, it must be established that "the successful party was responsible for the fraud which taints the judgment": Laffer v Michelmore Real Estate Group Pty Ltd [2014] FCA 495 at [41] (per Besanko J).
2. The appellant must clearly plead and prove that the respondent, as the successful party, was responsible for any fraud which is claimed to have tainted the judgment. The evidence of such fraud must be a new discovery of evidence that was not reasonably available earlier.

1. In Storry (No 2) the applicant's "amended interim application to set aside judgment and order" also sought interim orders for the hearing of consolidated associated matters and discovery applications. The Federal Court, however, made it clear to the parties it would only deal with the applicant's request to set aside the sequestration order and interlocutory judgment, and that it would not deal with the other interim orders sought: Storry (No 2) at [6] per Thomas J.
2. The complexities associated with allegations of fraud, and including therein the alleged misrepresentations and perjury are well recognised by the courts, and it is said that allegations of fraud or misrepresentation must be distinctly alleged and distinctly proved: Davy v Garrett [1878] UKLawRpCh 8; (1877) 7 Ch D 473 at 489 per Thesiger LJ. Hence, allegations of fraud and misrepresentation should not be pleaded at all unless there is clear and sufficient evidence to support them: Associated Leisure Ltd (Phonographic Equipment Company Ltd) v Associated Newspapers Ltd [1970] 2 QB 450; [1970] 2 All ER 754; [1970] 3 WLR 101, QB at 456 per Lord Denning MR. The use of the word "fraud" in a pleading is not sufficient where it is nothing more than a bald assertion pleaded without particulars or reasonable particularity of the circumstances said to constitute the fraud: Australian Metropolitan Life Assurance Company Ltd v Ure [1923] HCA 29; (1923) 33 CLR 199; (1923) 30 ALR 53, CLR at 219-220 per Isaacs J. In Sims v Jooste QC [2013] WASCA 245 the majority in the WA Court of Appeal observed, at [12] per Pullin and Newnes JJA that:

It is well established that such allegations should not be made unless there is a proper factual basis for them, and where such allegations are made, they must be clearly and distinctly alleged. A party should not be obliged to defend any legal proceedings for any period based on generalised allegations of dishonesty or impropriety. It is improper for a party to make generalised allegations of fraud: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 at [24].

1. The seriousness of raising fraud as an issue can also be ascertained from the fact that the more serious the issue of which proof is required, the more cogent and clear the evidence needed to establish it: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449, ALJR at 171-172 per Mason CJ, Brennan, Deane and Gaudron JJ, and s 140(2)(c) of the Evidence Act 1995 (Cth).

1. Because both the Re-Opening and Discovery Applications relate to the Business Impact Analysis it is necessary to set out what is asserted in relation to the Business Impact Analysis and what the terms of the Business Impact Analysis are before further considering the Re-Opening and Discovery Applications.

1. In the Spears September 2025 Affidavit Ms Spears asserts that:

(a) the Business Impact Analysis was submitted with the intention to mislead the Court;

(b) in the interests of justice, the original electronic version of the Business Impact Analysis should now be made available for immediate examination, and if it is withheld:

(i) the Business Impact Analysis should be expunged from the record as evidence; and

(ii) the judgment in Spears (No 1) be set aside to enable a comprehensive review of the case free from reliance on the Business Impact Analysis;

(c) the Court should consider the conduct of SAWG in allegedly falsifying the Business Impact Analysis concerning the genuineness of Ms Spears' purported redundancy;

(d) the Court should give due consideration to the legal and procedural ramifications of the alleged perjury committed by SAWG (effectively, that is, by Mr Harris) during these proceedings; and

(e) she has, as a direct consequence of the Court's reliance on the allegedly falsified Business Impact Analysis, suffered:

(i) ongoing distress and hardship; and

(ii) severe financial ramifications.

1. The Business Impact Analysis is in the following terms:

SA Wine Group Pty LTD

Chinese Government Anti-Dumping Enquiry

Business Impact Analysis & Response Strategy (Extract) - Confidential

Background

• Since March 2020, SAWG business has been severally affected by the Covid-19 outbreak.

• Most of the restaurants and hotels in the world have been shut down or curtailed severely since then. This has greatly reduced on-premise wine consumption.

• Although there were some signs of improvement in the broad market post Covid-19 lockdowns, this was being driven by significantly increased retail sales.

• The Company's total trading income over the three months from July 1 was projected to drop by about 50% compared to the same period last year. (This projection has proven correct actual reduction in trading income is 64% lower than the same period last year).

• SAWG has not had a presence in the retail market, selling only one product to a single retailer. We needed a strategy to spread the business away from export to servicing domestic retailers.

• Response: employ an additional full-time person (with retail trade experience) to develop and grow the retail sales market.

Chinese Anti-Dumping Disruption

• On the 24th August SA Wine Group Pty Ltd was named as one of the 10 wine exporters in Australia (out of a total of 2,500 exporters) to be investigated by the Chinese Government for dumping wine into China in breach of World Trade Regulations.

• 80% of SAWG business is preparing wines for the Chinese market.

• A mooted tariff of 200% on wines being imported into China would obviously put the company out of business.

• The effect of SA Wine Groups being named in the investigation effectively stopped inquires for wine shipments dead.

• SAWG was confident it would be cleared of any illegal trading activity but needed to immediately curtail costs in response to a lack of current orders.

• SAWG customers continue to defer orders whilst it remains unclear whether tariffs are going to be placed on Australian wines imported into China. It is the importers (SAWG customers) who will have to pay any additional duties so this is understandable. These Customers can easily go to South America to source wine not shipped from Australia

• Current financial year projections are for a drop in turn-over and gross profit of around 60%, resulting in a significant and unsustainable trading loss.

Business Response

• Re-focus the business strategy from diversification and growth to survival.
  • Expansion would carry overheads and direct costs (Minimum $150k) that could not be recovered in the short to medium term.
  • The likelihood of increasing (or maintaining) turn-over this financial year has evaporated, with no immediate prospect of recovery.
    • Cancelled the Seek advertisement for an additional staff member
    • notified applicants on the 25th August.
• Lower costs to attempt to recover to a break-even result this financial year.

  • 60% of SAWG costs are staff related expenses:

    • reduce staff numbers/hours
    • withhold bonuses for the 2020 FVE

  • Suspend Owners' Management Fees

  • Moratorium on rent payable to the Owners.

  • Other expenses such as travel, trade shows and samples have already reduced significantly with limitations on travel and will continue to be closely managed.

Staffing Adjustments

• Immediately eliminate one (of the three) staff positions:
• Must retain Chinese language skills given the critical importance of securing maximum sales success and rebuilding of relationships in the dominant market
• Must maintain the accountancy function, debtor and creditor control with access to the company's accountancy software and bank accounts.
• The role that does not encompass either of these pre-requisites is filled by Alana Spears. Alana and our Chinese staff member do not currently have access to the company's bank accounts. There are no plans to change this situation.

Unfortunately, because Alana's position it is a part-time role, the impact of making it redundant will be reduced. Nevertheless, it is the only immediate option to reduce costs

• Carefully monitor forward cost projections and balance staff hours for remaining staff accordingly
  • Staff have indicated a preparedness to reduce working hours if circumstances necessitate.
  • Attempt to rebuild the business with a more diverse customer base when the future is clearer.

Ms Spears' evidence about the Business Impact Analysis

1. The Business Impact Analysis is mentioned in Ms Spears' affidavits filed for the liability hearing, as follows:

(a) in an affidavit sworn 11 August 2021 ("Spears 11 August 2021 Affidavit") at [113]:

On the 9th of October I received a copy of Mr Harris's response to the claim with the SAWG including the SAWG Business Impact Analysis & Response Strategy. As part of the Business Response, it was stated that SAWG notified applicants on the 25th of August. I was not notified.

(b) in an affidavit sworn 12 November 2021 ("Spears 12 November 2021 Affidavit") at [9]:

In his initial Response to the General Protections claim and also detailed in the Business Impact Analysis document, which is not dated, Mr Harris stated that on the 24th of August the South Australian Wine Group was named as one of the 10 exporters in Australia to be investigated by the Chinese Government for dumping wine into China.

1. Ms Spears did not give any evidence about the Business Impact Analysis in her examination-in-chief, cross-examination or re-examination.

Mr Harris' evidence on the Business Impact Analysis

1. In the Harris Affidavit at [16]-[18] Mr Harris said as follows:
   1. On 14 August 2020, the Respondent advertised a position on seek.com.au. This new position related to a new marketing initiative that the Respondent was taking in response to the decline in sales suffered as a result of the effects of COVID-19, and the developing situation in China, and was for a new sales position to work with the Australian supermarkets. The position that was advertised had nothing to do with the Applicant's position. Prior to the position being advertised it had been discussed with the Respondent's sales staff, which included the Applicant, to the extent that we discussed that the Respondent was going to try to move into supplying and buildings brands for Australian supermarkets. The new position wasn't to replace the Applicant. The Applicant understood because she had said something along the lines of "That's good because I don't have time to work up programs for supermarkets". Other staff members also clearly understood this was to be a new position for a new program.

17. The Applicant did not apply for this position.

1. The Chinese Government then made an announcement that ten companies in Australia were going to be investigated and banned for dumping wine. The Respondent was one of the ten companies that was named by China as a company that was going to be investigated and banned from the Chinese market. Following a review of the Respondent's business impact analysis and response strategy (at some stage between 20 and 25 August 2020, but I cannot remember exactly when) it was decided that the Respondent's business should refocus its operation from expansion to survival. The advertisement on seek.com.au was withdrawn and people who had applied for the position were notified on 25 August 2020. It was obvious from customers cancelling wine orders that the Respondent was going to lose a significant portion of business. I feared the company would not survive. A true and correct copy of an extract of the Respondent's Business Impact Analysis and Response Strategy (in the context of Chinese Government Anti-Dumping Enquiry) is annexed to this affidavit as Exhibit "DH-5".

1. The Business Impact Analysis was first mentioned at the liability hearing during cross-examination of Mr Harris by Ms Spears on day one. Mr Harris gave the following evidence under cross-examination in relation to when the Business Impact Analysis was created, at p 95 of the transcript:

HIS HONOUR: As I said at the outset this morning, it's not a general inquiry, it's a matter of the court examining what's pleaded, what the evidence is in relation to those pleadings.

MS SPEARS: When was the SAWG strategy and analysis generated?

MR AUSTIN: That has been answered, your Honour.

MS SPEARS: When was it?---Between 20 and 25 August. It's in the affidavit.

Are we able to have an exact date established for that, with evidence?---I just answered the question.

Well, during the voice-recorded meeting on the 24th, you still state that you want someone full time. So I think establishing what date exactly that strategy was made is relevant.

HIS HONOUR: So what's the question, Ms Spears?

MS SPEARS: What date was the strategy implemented and do you - - -?---Well, it's in my - it's - - -

- - - have evidence of that date?---Well, I - it's in my affidavit. I - I - that's all I'm going to say about it.

1. Ms Spears then moved on to ask questions about prior dealings with WorkCover.

Whether an oral call for production made by Ms Spears

1. In relation to whether there was an express oral call by Ms Spears for production of the Business Impact Analysis made during the liability hearing, as set out at [31] above, the relevant questions by Ms Spears were "[a]re we able to have an exact date established for that, with evidence?" and "[do] you ... have evidence of the date [the strategy was implemented]?".
2. The specific question was whether Mr Harris had evidence in relation to the date that the Business Impact Analysis was created, a question which Mr Harris met by referring to his evidence in the Harris Affidavit.
3. On the second day of the liability hearing the following exchange occurred, at p 103 of the transcript:

MS SPEARS: Sorry, your Honour.

Yesterday, I asked for evidence of the date that the SAWG analysis and strategy plan had been put into place. Have you provided that evidence today?

MR AUSTIN: There wasn't a request for the document in relation to that to my recollection, your Honour. There were three categories, and they have been produced. My understanding of the question was - - -

HIS HONOUR: And I think the evidence - I mean, it might not be perfect, Ms Spears, but the evidence, as I recall it, was that that was a document or a situation which evolved over a period of some days from the 20 to 25 August.

MR AUSTIN: Yes.

MS SPEARS: But there's no date for when the document was provided to show that they - any such meeting or any such strategy had been put into place.

HIS HONOUR: Well, you can - - -

MS SPEARS: It could have been done months later.

HIS HONOUR: You can ask the question whether - you can ask the question.

1. Ms Spears then moved on to ask questions about her working outside of normal hours to accommodate international students.
2. In the circumstances the Court has concluded that Ms Spears made no express call for production of the Business Impact Analysis and that SAWG did not produce the original of the Business Impact Analysis because a call for production thereof had not been made.

1. The Business Impact Analysis document was not mentioned in the parties' opening submissions.
2. In SAWG's closing submissions SAWG's Counsel Mr Austin said at p 108 of the transcript as follows:

Now - and your Honour has heard from Mr Harris that there's a genuine business need for this - there was the Chinese antidumping notification and investigation - that over a period of days, he developed with Mr Van Heurck, a consultant of the company, a strategy to deal with the antidumping fallout. And that was to ensure that the business survived, and there are a number of cost-cutting measures and the cost-cutting wasn't limited to reducing the number of staff and reducing Ms Spears' position or termination Ms Spears' position. As you can see, part of that paper indicates that the ad in relation to Seek for the additional employee was cancelled. There were other cost-cutting measure that Mr Harris gave evidence about.

1. The Business Impact Analysis document was not mentioned in Ms Spears' closing submissions.

1. In Spears (No 1) at [60] and [77]-[81] per Judge Lucev the Court found as follows:
   1. What subsequently happened, as a result of the Anti-Dumping Enquiry and the concurrent consideration and development by Mr Harris and Mr Hourigan of the Business Impact Analysis, was that it became evident, seemingly on 25 August 2020, that SAWG's sales into China, which comprised about 80 percent of its total sales, might almost immediately drop to nothing, and that immediate steps were required to "re-focus the businesses strategy from diversification and growth to survival" and to reduce SAWG's costs in order for it to survive: Harris Affidavit at [18] and Annexure DH5 (Business Impact Analysis). That resulted in at least two decisions being made: one was to cancel the new position and the other was to make Ms Spears' position of Sales Manager redundant. Those decisions are reflected in the Business Impact Analysis. On 25 August 2020 applicants for the new position were advised that SAWG would not be proceeding to fill the position.

...

1. Dealing first with the dismissal by reason of redundancy it is plain that the dismissal constitutes adverse action: FW Act, s 342(1), Item 1(a). The question for determination is therefore whether the dismissal was for a prohibited reason. The onus falls on SAWG to establish that the dismissal was not for a prohibited reason: FW Act, s 361(1).

2. Mr Harris gave evidence as to the reasons for the dismissal of Ms Spears on the basis of redundancy. In essence those reasons were that the announcement by the Chinese Government of the Anti-Dumping Enquiry in relation to Australian wine sometime in the week or so before 20 August 2020 was foreshadowed to result in an extraordinarily dramatic decrease in the amount of wine exported to China, with those exports accounting for approximately 80 percent of SAWG's business as at August 2020: Harris Affidavit [30] and [32] and Annexure DH5; Hearing Transcript, p 75. On 24 August 2020 SAWG was specifically named by the Chinese Government as one of 10 exporters in Australia to be investigated by the Anti-Dumping Enquiry: Harris Affidavit, Annexure DH5. The foreshadowed decrease in turnover consequent upon the Anti-Dumping Enquiry was on top of a decrease caused by the COVID-19 crisis in the 2019/2020 which saw SAWG's turnover drop from $8.9m in 2018/2019 to $6.7m in 2019/2020 (a decrease of just under 25 percent): Harris Affidavit at [38]. Ultimately, the foreshadowed decrease in turnover came to pass, with a decrease from $6.7m in 2019/2020 to just $1.4m in 2020/2021 (a decrease of just under a further 80 percent). It is fair to observe that the adverse effects upon the Australian wine industry of the Anti-Dumping Enquiry and the subsequent tariff increases are notorious.

3. In response to the Anti-Dumping Enquiry Mr Harris undertook the Business Impact Analysis with Mr Hourigan between 20 and 25 August 2020. It was on 24 August 2020, during the course of undertaking the Business Impact Analysis and on the day of the 24 August 2020 Meeting, that SAWG was named as one of 10 Australian exporters to be specifically investigated by the Anti-Dumping Enquiry. The Business Impact Analysis (Harris Affidavit, Annexure DH5):

(a) identified by way of background the severe effect of COVID-19 on the business, and that a need had been identified for an additional full-time salesperson, with retail experience, to be employed to develop and grow the retail sales market;

(b) said that on 24 August 2020 SAWG was named as one of 10 Australian exporters to be specifically investigated by the Anti-Dumping Enquiry;

(c) said that 80 percent of SAWG's business was preparing wines for the Chinese market;

(d) observed that a mooted Chinese tariff of 200 percent on wines "would obviously put the company out of business";

(e) said that the effect of SAWG being named as one of those being investigated "effectively stopped inquiries for wine shipments dead";

(f) noted that customers were deferring orders whilst it remained unclear as to whether tariffs were going to be imposed on Australian wine exported to China;

(g) observed that "[c]urrent financial year projections are for a drop in turn-over and gross profit of around 50%, resulting in a significant and unsustainable trading loss";

(h) identified the need to re-focus the business strategy "from diversification and growth to survival";

(i) noted that the likelihood of increasing or maintaining turnover in the current financial had "evaporated, with no immediate prospect of recovery";

(j) noted that the Seek advertisement for an additional staff member had been cancelled and applicants notified accordingly;

(k) observed that 60 percent of SAWG's costs were staff related expenses; and

(l) identified that it was immediately necessary to eliminate one of the three staff positions, and in that regard observing that:

• Must retain Chinese language skills given the critical importance of securing maximum sales success and rebuilding of relationships in the dominant market
• Must maintain the accounting function, debtor and creditor control with access to the company's accountancy software and bank accounts.
• The role that does not encompass either of these pre-requisites is filled by Alana Spears. Alana and our Chinese staff member do not currently have access to the company's bank accounts. There are no plans to change this situation.
• Unfortunately, because Alana's position it is a part-time role, the impact of making it redundant will be reduced. Nevertheless, it is the only immediate option to reduce costs

1. Mr Harris was cross-examined as to these reasons, and under cross-examination at Hearing Transcript pp 81-82 said that:

(a) SAWG did not want Ms Spears managing its finances, which meant that another employee, Kirsty had to stay, and that it did not want Ms Spears to have access to its bank accounts because of her "constant financial difficulties";

(b) that Chinese language skills would still be necessary in the business; and

(c) Mrs Harris (Mr Harris' wife) could fill any relationship roles with customers "for no expense",

and hence Ms Spears "was the only staff member we could spare".

1. The reasons provided by SAWG are clear, cogent and comprehensible reasons for making Ms Spears position redundant. The Court accepts that SAWG was forced by the Anti-Dumping Enquiry and its immediate effects and anticipated long term effects to make Ms Spears position as Sales Manager redundant so as to immediately reduce costs. The reasons thus provided by SAWG positively establish that Ms Spears was not dismissed for a prohibited reason, and discharge the evidentiary onus under s 361(1) of the FW Act.

1. In Spears - Federal Court at [42]-[55] per O'Sullivan J the Federal Court found that:
   1. Ms Spears contends that the Business Impact Analysis was undated and therefore unreliable so that the primary judge erred in receiving it into evidence. She contends that during the trial she made repeated requests to the respondent for evidence of the creation date.
   2. In her application for special leave to appeal, Ms Spears relies on provisions of the Evidence Act 1929 (SA) to support her contentions.
   3. Ms Spears submits that if the Business Impact Analysis is found to have been created on a date that differed to the evidence provided at the trial, a full review of her claims should ensue, including the addition of new claims she seeks.
   4. The respondent submits, correctly, that the Evidence Act 1929 (SA) does not apply to proceedings before the Federal Circuit and Family Court (Division 2) and therefore, that Act cannot be relied upon by Ms Spears.
   5. The respondent submits further that this ground fails as it does not identify any error made by the primary judge.
   6. The receipt into evidence of a document that is inadmissible may be a basis upon which to appeal but that will depend on a myriad of circumstances.
   7. The Business Impact Analysis is at annexure DH-5 to the affidavit of David Harris, affirmed 27 September 2021, which was taken as read and received into evidence before the primary judge. No objection to Mr Harris' affidavit, nor to annexure DH-5 being received into evidence was made by Ms Spears before the primary judge. Ms Spears cross-examined Mr Harris on the document at trial.
   8. A consideration of the transcript of the trial before the primary judge reveals that in cross-examination, in answer to a question from Ms Spears about when the Business Impact Analysis was created, Mr Harris said between 20 and 25 August 2020.
   9. Whereas the Evidence Act 1929 (SA) did not apply to the proceedings before the primary judge, the Evidence Act 1995 (Cth), which did apply, provides for the admission into evidence of business records: s 69.
   10. On the basis of the matters deposed to by Mr Harris in his affidavit at [18] and annexure DH- 5 to that affidavit, the Business Impact Analysis was admitted properly into evidence.
   11. I accept the respondent's submission that this ground does not identify an error made by the primary judge. Accordingly, there is no merit in this ground.
   12. For completeness, I note that on 5 February 2024, Ms Spears attempted unsuccessfully to file a subpoena in this Court for the respondent to produce a dated copy of the Business Impact Analysis. She now applies to the Court for leave to issue a subpoena to the respondent seeking production of "computerised evidence of the creation date".
   13. I note further that Ms Spears also raises in her submissions mixed matters of evidence and a submission that an inquiry should be made on appeal as to whether Mr Harris has committed perjury.
   14. To the extent these matters are raised, they do not alter my view that there is no merit in this ground.

1. Having regard to what is set out above, including what was said by the Federal Court in Spears - Federal Court, it is evident that:

(a) there was no objection to the receiving into evidence of the Harris Affidavit, to which the Business Impact Analysis was annexed;

(b) Ms Spears was allowed to cross-examine Mr Harris at the liability hearing;

(c) the transcript of the liability hearing shows that Ms Spears cross-examined Mr Harris on the Business Impact Analysis; and

(d) Mr Harris gave evidence that the Business Impact Analysis was created between 20 and 25 August 2025, and:

(i) that evidence was accepted by the Court at the liability hearing; and

(ii) in respect of the admission of that evidence the Federal Court found that there was no error made by this Court.

1. In the circumstances, there was nothing irregular about the admission into evidence of the Business Impact Analysis or the evidence given in relation to it by Mr Harris, and the admission into evidence of the Business Impact Analysis does not thus, of itself, provide a basis for re-opening the liability hearing.

1. The allegations of fraud, misrepresentation and perjury relate to the Business Impact Analysis and its date of creation. As set out above Mr Harris gave evidence at the liability hearing which was accepted by the Court, and the acceptance of which was not found to be in error by the Federal Court, that the Business Impact Analysis was created between 20 and 25 August 2025.
2. At the liability hearing the allegations of fraud, misrepresentation and perjury now made by Ms Spears:

(a) were not made in the terms now made, and were barely made at all;

(b) were the subject of very limited questions in cross-examination;

(c) were not the subject of further cross-examination when Ms Spears was given the opportunity to further specifically cross-examine Mr Harris in relation to the Business Impact Analysis and its date of creation; and

(d) were not matters raised in closing submissions: see [40] above.

1. Before the Federal Court Ms Spears would appear to have raised the issue of alleged perjury by Mr Harris, but the Federal Court found that to the extent that that matter was raised it did not alter its view that no error was identified in relation to any alleged improper admission of evidence in the liability hearing: Spears - Federal Court at [54]-[55] and [39] per O'Sullivan J.
2. Further, the allegations of fraud, misrepresentation and perjury now made by Ms Spears:

(a) have never been particularised, or at least properly particularised;

(b) are not based on any newly discovered facts;

(c) are based on mere suspicion on existing facts which do not disclose fraud, misrepresentation or perjury; and

(d) do not go beyond mere allegations.

1. In all the circumstances, the allegations of fraud, misrepresentation and perjury now made by Ms Spears are bare allegations unsupported by any material evidence in circumstances where the Court at first instance accepted the evidence of Mr Harris as to the date of creation, and Ms Spears has not met "[t]he burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud or other relevant taint, [which] lies on the party impugning the judgment": Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262 at [60] per French J (referring to the judgment of Kirby P in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534).

1. Ms Spears also now makes allegations of incompetence and, seemingly, possibly negligence, by her former lawyers in the drafting of the substantive general protections application by failing to include:

(a) three instances of alleged adverse action relating to her dismissal, which she says relates to a pay inquiry in December 2019, and two alleged instances of workplace bullying involving Mr Harris, and a Mr Hourigan who was an employee of SAWG ("Alleged Pay Inquiry and Bullying Allegations"); and

(b) two alleged breaches of the WHS Act in relation to failure to consult and the causing of psychological injury and coercion ("WHS Act Allegations").

1. The Court did not in Spears (No 1) deal with the Alleged Pay Inquiry and Bullying Allegations because they were not pleaded and were not put or relied upon as workplace rights by Ms Spears at the liability hearing in the terms seemingly now asserted. To the extent that the Alleged Pay Inquiry and Bullying Allegations might relate to matters dealt with in the August 2020 Letter (defined in Spears (No 1) at [5(g)]) those matters were comprehensively set out and addressed in Spears (No 1) at [23]-[43] per Judge Lucev with the Court concluding at [43] that it was "not satisfied that the giving of the August 2020 Letter to Ms Spears was adverse action by SAWG under s 342(1) of the FW Act, or that it contravened the prohibited reason in s 351 of the FW Act as alleged".
2. With respect to the WHS Act Allegations in Spears (No 1) at [88]-[91] per Judge Lucev the Court observed as follows:
   1. Ms Spears also made a written submission that the adverse actions taken by Mr Harris following the discovery that Ms Spears was injured at work during her employment with SAWG were deliberately negligent and malicious and constituted a breach of the Work, Health and Safety Act 2012 (SA) ( 'WHS Act' ) which requires that a person conducting a business or undertaking must consult with an employee with regard to major workplace changes affecting the employee's health and safety. Ms Spears says that due to financial constraints and the fact that she has been required to become her own investigative legal representative she has been too physically and mentally exhausted and time poor to follow up these incidents with Safe Work SA. She says that she does not intend to take any further action, but requests that the Court order SAWG be subjected to a workplace investigation by Safe Work SA concerning their company policies and procedures for managing employee complaints and in particular with regard to workplace bullying and harassment, including procedures for managing an employee who is suffering from a mental health condition such as workplace stress.
   2. SAWG's written submissions were filed prior to those of Ms Spears, and so no written submission, nor any oral submission was made by SAWG on this issue.
   3. The Court notes that Ms Spears has not submitted that there is a contravention of the general protections provisions of the FW Act in relation to this issue, and none was pleaded in the Amended Claim Form 2 prepared by her former lawyers, and it is not therefore necessary nor appropriate for the Court to deal with the issue as if it were pleaded as a contravention of the general protections provisions of the FW Act.
   4. This Court is a court of limited statutory jurisdiction. It has no jurisdiction to order a South Australian State authority, which is not a party to the proceedings, and which has played no part in the proceedings, to undertake an investigation into an alleged breach of the WHS Act by SAWG. If Ms Spears wishes such an investigation to be undertaken by the person or body responsible for such matters under the WHS Act she must make her own complaint to that person or body.
3. Ms Spears thus raised the matters relating to the WHS Act Allegations, or very similar related matters, in a written submission at the liability hearing which were dealt with by the Court. There is no doubt that provisions of workplace health and safety legislation which provide employees with benefits (such as the right to be consulted concerning health and safety matters or to have a workplace free from hazards) constitute workplace rights: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001; (2011) 213 1R 32 at [56]-[57] per Dodds-Streeton J; Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954 at [112] per Judge Lucev; McNamara v Era Pacific Pty Ltd [2021] FCCA 1689; (2021) 308 IR 214 at [99]- [102] per Judge Tonkin; Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamunda [2023] FedCFamC2G 404 at [76]- [78] per Judge Ladhams; Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714; (2023) 379 FLR 217 at [17] per Judge Lucev. Ms Spears did not seek to pursue these matters as workplace rights or contraventions of general protections under the at the liability hearing: at [88] and [90] per Judge Lucev, but rather sought, unsuccessfully, that this Court order a South Australian state authority to investigate her complaints of alleged breaches of the : at [88] and [90]-[91] per Judge Lucev. Ms Spears now seeks to re-open the liability hearing and run a different case, seemingly based on pursuing the same matters as workplace rights. But Ms Spears cannot re-run the case: she is bound by her prior conduct of the case, and the outcomes that flowed therefrom, including the judgments and orders made: ; ; at - per Gageler J; ; (1985) 59 ALJR 481; (1985) 60 ALR 68; ALJR at 483 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ.
4. In Spears - Federal Court at [64]-[66] per O'Sullivan J the Federal Court found that there was no merit in a proposed ground of appeal based on a claim that the WHS Act Allegations were not included in the substantive general protections application because of ineffective counsel.
5. If, as Ms Spears asserts, her lawyers did not raise the WHS Act Allegations, and they were, as it appears they may be: see [53] above, matters which might have been raised as FW Act contraventions, and as a consequence of that failure she has suffered loss and damage, her remedy lies against her former lawyers: an applicant deprived of a right by reason of a lawyer's incompetence or negligence has a remedy against the lawyer concerned: Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 at [17] per McHugh J.
6. In the circumstances the alleged incompetence of Ms Spears' former lawyers does not provide a basis for a re-opening of the liability hearing.

1. In terms of SAWG's financial position, there is no particular evidence, and certainly no affidavit evidence as to its financial position.
2. It can be accepted, however, that in circumstances where:

(a) SAWG is a "small business employer" for the purposes of ss 23 and 121(1)(b) of the FW Act: Spears (No 1) at [105]-[106] per Judge Lucev;

(b) SAWG must be represented by lawyers in any re-opened proceedings: Spears (No 2);

(c) Ms Spears seeks to re-open the liability proceedings in their entirety, and to raise additional complex issues related to fraud etcetera; and

(d) at least a further two days of hearing sometime in 2026 may be required if the issues raised by Ms Spears are to be dealt with,

SAWG will incur significant legal fees in the preparation for, and attendance at, any such re-opened liability hearing, in circumstances where, by reason of the Court's judgment in Spears (No 1) delivered on 10 November 2023 and the Federal Court's judgment in Spears - Federal Court dismissing Ms Spears application for an extension of time in which to file a notice of appeal against the orders made in Spears (No 1) delivered on 23 August 2024, SAWG was entitled to consider the liability aspects of these proceedings had been finally determined. The Court also notes that there was a not insignificant delay of more than 12 months between the date of delivery of judgment in Spears - Federal Court and the making of the Re-Opening Application, a delay which could only have reinforced the perception that the liability proceedings in this matter had concluded.

1. In all of the above circumstances the Court is satisfied that there will be prejudice to SAWG if the Re-Opening Application was to be granted, and that this weighs against granting the Re-Opening Application.

1. The Court notes that the overarching purpose of the civil practice and procedure provisions in the FCFCOA Act are set out at s 190(1) and (2) of the FCFCOA Act reproduced at [11] above. The Court notes that these provisions reflect the modern approach to case management: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ, [97]-[98] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431.
2. It follows from what is set out at [57]-[59] above in relation to prejudice to SAWG that for the purposes of s 190(1) and (2) of the FCFCOA Act that any re-opening of the liability part of these proceedings would:

(a) not facilitate the just resolution of this dispute according to law and as quickly, inexpensively and efficiently as possible by causing unnecessary and unwarranted delay and further expense to SAWG (and to the public purse) in the resolution of the matter; and

(b) not be an efficient use of the Court's judicial and administrative resources in dealing with its caseload having regard to the effect and possible detriment to other litigants in other cases awaiting listing for hearing before the Court by resulting in inefficiencies by having another hearing, thereby causing delay in listing a hearing or hearings for another litigant or litigants. This is a particularly relevant consideration in circumstances, where, as is notorious, this Court has, for some years now, had delays of several years in the hearing of, for example, migration judicial review cases: see, for example, the observations in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7]- [8] per Judge Lucev, and a backlog as at 30 June 2024 of more than 17,387 pending migration judicial review cases filed but not yet listed for hearing: Annual Report of the Federal Circuit and Family Court of Australia (Division 2), 2023-2024, p 140.

1. To grant the Re-opening Application and to restore the liability proceedings in this matter to the Court's lists would be contrary to the objects of the over-arching civil practice and procedure provisions in s 190(1) and (2) of the FCFCOA Act.
2. In the circumstances, consideration of the objects of the over-arching civil practice and procedure provisions in s 190(1) and (2) of the FCFCOA Act weighs against granting the Re-Opening Application.

1. The third major issue raised by Ms Spears in her affidavits is the issue of associated jurisdiction, that is, that the proceedings be consolidated with proceedings in other places, and that the Court exercise associated jurisdiction under the FCFCOA Act to determine all those matters, those matters being said to be matters in relation to the:

(a) FW Act;

(b) WHS Act; and

(c) PPP Bill (including alleged abuses of process arising from defamation proceedings threatened or instituted by Mr Harris),

or, in the alternative, an order for directions or referrals to enable the matters to be adjudicated in a single forum.

1. As the Court observed in Spears (No 2) at [41] per Judge Lucev associated jurisdiction can be a difficult and complex issue, and has been the subject of recent disagreement in this Court: see, for example, Fundit Ltd v Jonesys Earthworx Pty Ltd (in liq) [2025] FedCFamC2G 1574 at [47]- [75] per Fary J; Mills v Major North Pty Ltd [2025] FedCFamC2G 1531 at [20]- [30] per Judge Zipser; and see generally Allsop CJ, "Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Australian Bar Review 29 at 47. For reasons which follow those difficulties and complexities do not arise in these proceedings.
2. There is no dispute that the Court has jurisdiction to hear certain claims under the FW Act, including those liability claims determined in Spears (No 1), and the consequent penalty hearing in relation to SAWG's failure to provide a FWIS to Ms Spears.
3. In relation to the WHS Act Ms Spears notably did not seek that the Court make orders in relation to contraventions of general protections under the FW Act arising from workplace rights under the WHS Act, but rather ran her case in the liability proceedings seeking an order that the relevant State authority conduct an investigation into her allegations of breaches of the WHS Act. There is no jurisdiction for this Court to exercise because:

(a) as set out at [43]-[44] above, Ms Spears cannot re-run the liability case: she is bound by her prior conduct of the liability case, and the outcomes that flowed therefrom, including the judgments and orders made consequent upon the case actually run in the liability hearing, in which she made allegations of alleged contraventions of general protections under the FW Act arising from workplace rights under the WHS Act; and

(b) the Court has no jurisdiction to order the relevant State authority to carry out an investigation under the WHS Act: Spears (No 1) at [91] per Judge Lucev.

1. It follows that in the circumstances of this case as it has developed there is no associated jurisdiction to be exercised in relation to any allegations now made by Ms Spears in relation to the WHS Act.
2. The purpose of the PPP Bill was to:

The purpose of this Bill is to protect and encourage public participation and to dissuade persons from interfering with another person's right to engage in public participation by commencing or maintaining, or threatening to commence or maintain, legal proceedings against the other person.

(See Legislative Council of South Australia, Statistics, Second Session of the Fifty First Parliament (24 April 2007 to 14 August 2008) ("Legislative Council SA Statistics") p 36).

1. Ms Spears' reliance on the PPP Bill is, as the Court pointed out to her at the hearing of the Re-Opening Application, misconceived. The PPP Bill never passed into law as it lapsed due to the prorogation of the South Australian Parliament on 14 August 2008: Constitution (Third Session of 51st Parliament) Proclamation 2008, South Australian Government Gazette (14 August 2008) p 3628; Legislative Council SA Statistics, pp 8 and 36. It therefore does not have, and never had, any effect giving rise to any legal obligations. There is therefore no associated jurisdiction to be exercised by this Court in relation to the PPP Bill.
2. Ms Spears also seeks to have this Court exercise associated jurisdiction in relation to two separate defamation proceedings apparently instituted against her by SAWG. Ms Spears alleges that the two sets of proceedings are an abuse of process and seeks that this be considered in any amended pleadings or as part of the Court's overall assessment of SAWG's conduct. It has been observed that any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. The jurisdiction to stay proceedings that are an abuse of process extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 67 ALJR 485; (1993) 112 ALR 289, CLR at 393-394 per Mason CJ, Deane and Dawson JJ; Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 74 A Crim R 462; (1994) 68 ALJR 688, CLR at 286 per McHugh J.
3. The pleadings in the defamation proceedings are not before the Court. Nor is it apparent as to what jurisdiction the defamation proceedings have been brought or by whom they have actually been brought. Nor is it apparent what steps have been taken in respect of the two sets of proceedings or, save for what follows, what orders have been made by whatever court the proceedings have been brought in. The most that can be affirmatively said is that it would appear that at least one of the two sets of proceedings has been completed by the making of an apology by Ms Spears to Mr Harris (who is not a party to the proceedings in this Court) and the payment to Mr Harris of a relatively small sum of money - $1051.60: Spears August 2025 Affidavit at [21].
4. There is simply too little information and a paucity of submissions before the Court to enable it to come to any reasoned conclusion as to:

(a) precisely what defamation proceedings it is dealing with, in which jurisdiction those proceedings have been instituted, who the parties to the proceedings are, and what steps were or have been taken in the proceedings;

(b) whether it might have associated jurisdiction in relation to those proceedings;

(c) whether it ought to, and if so how it might, exercise associated jurisdiction in respect of the defamation proceedings; and

(d) whether the defamation proceedings were/are an abuse of process, and if they were/are, what it is that this Court (as opposed to the court in which the alleged abuse of process occurred) might be empowered to do about such an abuse.

1. In the circumstances there is no basis for the Court to make any findings or orders as to the defamation proceedings and whether they involve or involved an abuse of process by whatever party instituted them, or whether this Court has any form of associated jurisdiction to deal with them.
2. It follows that, for reasons set out above, the Court cannot exercise associated jurisdiction in respect of the WHS Act Allegations and the PPP Bill, and assuming that it has associated jurisdiction in relation to the defamation proceedings it is not prepared to attempt to exercise that jurisdiction in circumstances where there is such a paucity of information before it concerning those proceedings. It further follows, therefore, that there is nothing in relation to the WHS Act Allegations, the PPP Bill, or the defamation proceedings (including the abuse of process allegations) which favours granting the Re-Opening Application.

1. In all the above circumstances there is no basis which favours the Court exercising its jurisdiction to re-open the liability proceedings. It follows that the Re-opening Application must be dismissed.

Overarching civil practice and procedure - legislative provisions

1. In considering whether to grant the Discovery Application the Court must have regard to the overarching civil practice and procedure obligations under s 190 of the FCFCOA Act, which are set out at [11] above.

1. The relevant legislative provisions with respect to discovery in this Court are:

(a) s 176 of FCFCOA Act which provides as follows:

(1) Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).

(2) However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

(3) In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge must have regard to:

(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b) such other matters (if any) as the Court or the Judge considers relevant.

(b) r 16.01 of the GFL Rules which provides as follows:

The Court may make a declaration under subsection 176(2) of the Act to allow discovery.

(c) r 16.07 of the GFL Rules which provides as follows:

(1) The Court may make an order for discovery:

(a) generally; or

(b) in relation to particular classes of documents; or

(c) in relation to particular issues; or

(d) by a specified date.

1. Section 176(2) and (3) of the FCFCOA Act are relevantly in the same terms as the former s 45(1) and (2) of both the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Magistrates Act 1999 (Cth). Rule 16.01 of the GFL Rules is relevantly in the same terms as the former r 14.02 of both the Federal Circuit Court of Australia Rules 2001 (Cth) and the Federal Magistrates Court Rules 2001 (Cth). It follows that earlier judgments of this Court (as either the Federal Circuit Court or Federal Magistrates Court) in relation to discovery remain relevant.

1. In Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367 ("Gallagher") at [31]-[32] per Judge Lucev the then Federal Circuit Court of Australia set out the considerations in relation to an application for discovery, observing as follows:
   1. Relevant considerations to be taken into account in determining whether to make a declaration under s 45 of the FCCA Act that it is in the interests of the administration of justice to order discovery were summarised in Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639; (2007) 210 FLR 314 at [25]- [26] per Lucev FM (by reference to what was then the Federal Magistrates Act 1999 (Cth)) as follows:

"25. In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:

(a) the relevance of any documents sought to be discovered;

(b) the volume of documents sought to be discovered;

(c) whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;

(d) whether discovery would narrow the issues;

(e) whether both parties seek discovery;

(f) whether there is consent to discovery;

(g) whether discovery is 'of benefit' in the litigation; and

(h) the effect of discovery on litigants, especially, vulnerable litigants.

1. The categories of relevant factors for the purposes of s 45(2)(b) of the FM Act are obviously not closed.

1. In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 ("Hartnett Legal Services") the Federal Court dealt with the issues of relevance and disclosure generally for the purposes of s 45 of the FCCA Act and r 14.02(2) of the FCC Rules, and observed at [33]-[35] per Rangiah J that:

"33 Fourthly, it would be quite inconsistent with s 45 of the FCC Act to construe 'disclosure generally' as importing a wide test of relevance. The Peruvian Guano test was formulated on the basis of a desire to 'make the rule as large as we can with due regard to propriety': Peruvian Guano at 63. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret 'discovery generally' as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.

1. In summary, an order for 'disclosure generally' under r 14.02(2)(a) of the FCC Rules is:

'(a) limited to disclosure of documents that are, or have been, in the disclosing party's possession, custody or control; and

(b) limited to documents that are directly relevant to the issues raised by the pleadings or in the affidavits.'

1. That is not to say that it is beyond the power of the Court to make a more expansive order where it is in the interests of the administration of justice to do so, but no such order was made in this case."

1. In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 ("Vinden") at [10]-[13] per Judge Kendall the then Federal Circuit Court of Australia observed as follows:
   1. Overall, there is a reluctance in this Court to grant orders for discovery and interrogatories. Indeed, in Vanden Driesden v Edith Cowan University [2012] FMCA 735; (2012) 226 IR 452, the Court referred to the power as one that is "rarely used".

11. Section 45(1) of the FCCA Act is a general statutory prohibition on discovery.

1. Before granting a declaration under s.45 of the FCCA Act, the Court will specifically consider s.45(2). That section provides:

(2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:

(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.

1. In this Court, there appears to be a presumption that the "fair and expeditious conduct of the proceeding" does not require discovery: Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54]. That does not mean, however, that it will not ever be given.

1. Discovery nevertheless remains very much the exception and not the rule in the practice and procedure of this Court, and traditional discovery is generally prohibited: Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 at [33] per Rangiah J; Gallagher at [32] per Judge Lucev; Vinden at [13] per Judge Kendall.
2. In this case the Discovery Application seeks production of the original electronic version of the Business Impact Analysis and its associated meta data. In light of the Court's conclusion that the Re-Opening Application is to be dismissed, and the liability hearing is therefore not to be re-opened, the Discovery Application faces significant hurdles, including the following:

(a) that discovery remains very much the exception and not the rule in the practice and procedure of this Court;

(b) that traditional discovery is generally prohibited; and

(c) that in light of the dismissal of the Re-opening Application all that remains to be determined in these proceedings is the penalty for SAWG's contravention of the FW Act in relation to its failure to provide Ms Spears with a FWIS. In regard to the assessment of penalty for the FWIS contravention the Business Impact Analysis is irrelevant, and therefore even on ordinary principles for discovery, let alone the highly restrictive principles and statutorily mandated provisions for discovery in this Court, it would not ordinarily be required to be produced.

1. It follows that the Discovery Application cannot succeed, and it must therefore be dismissed.

1. The Court has concluded that Ms Spears' applications in a proceeding:

(a) filed 18 September 2025 for discovery; and

(b) made in written submissions filed 4 August 2025 and 18 September 2025, and orally at hearing, for the re-opening of the liability hearing in these proceedings,

are to be dismissed. There will be an order accordingly.

1. Costs, if any: FW Act, s 570(2), will be reserved.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.