2026 WAIRC 00747
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00747



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
ON THE PAPERS



DELIVERED
:
WEDNESDAY, 22 JULY 2026



FILE NO.
:
M 40 OF 2026



BETWEEN
:
ISABEL JAI MENZIES


CLAIMANT





AND





CARDAV GROUP PTY LTD


RESPONDENT

CatchWords : Industrial Law – small claim - application to amend witness statement – Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) – regulation 7(1)(l) – consideration of prejudice to respondent – amendment allowed
Legislation : Fair Work Act 2009 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Hair and Beauty Industry Award 2020

Result : Application granted



REASONS FOR DECISION
1 This small claim proceeding relates to whether the respondent, Cardav Group Pty Ltd (the Company), underpaid the claimant, Ms Isabel Menzies, in contravention of the Hair and Beauty Industry Award 2020 whilst she was employed by the Company as an apprentice hairdresser.
2 The claim is listed for hearing on 19 August 2026.
3 On 19 May 2026 I made directions, amongst others, for the parties to lodge witness statements which would stand as the evidence-in-chief at the hearing. Ms Menzies was required to lodge her witness statements by 2 June 2026 and she did so.
4 The Company was required to lodge its witness statements by 16 June 2026, and it did so on 15 June 2026.
5 On 9 July 2026 Ms Menzies applied to be allowed to submit an amended witness statement, in the form of an amended witness statement attached to her application. She explained in her application that she sought to amend her original witness statement because she had used the wrong payslips to prepare her original witness statement, and the calculations attached to it. The correct payslips came to her attention as they were attached to the Company’s witness statement lodged on 15 June 2026.
6 The amendments proposed involved the deletion of one paragraph of the original witness statement and the substitution of new schedules calculating the alleged underpayment. The alleged underpayment claimed is, by the amended calculations, $7,619.83 compared with the original claimed amount $9,992.12, and an amount referred to in the original witness statement of $8,426.14.
7 I directed that the application to amend be determined on the papers. After receiving and considering the Company’s response, on 22 July 2026, I made orders permitting the amendments. These are my reasons for making those orders.
8 The Company opposed the applicant being permitted to amend her witness statement given the lateness of the application, and the proximity to the hearing date. The Company pointed out that the claimant has had plenty of time to consider her calculations, that she has changed her claim several times, and that her calculations are confusing. Needless to say, the Company disputes Ms Menzies claim, both in its original and amended form.
9 The witness statements are not yet evidence before the Industrial Magistrates Court of Western Australia (the Court). The directions made on 19 May 2026 envisage the witness statements being tendered as evidence-in-chief at the hearing. One of the purposes in directing that the parties lodge their witness statements is to ensure that the parties are not taken by surprise in relation to evidence that will be led at hearing. Another is to give the parties an opportunity to consider and plan what responsive evidence they may wish to lead, and what questions they might ask of witnesses in crossexamination.
10 The Court has power to allow a party to amend any document lodged by the party. Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) reg 7(1)(l).
In exercising the power, the Court is to be guided by what the interests of justice require.
11 The amendments sought to be made are minor. They do not change the general nature of the evidence that Ms Menzies proposes to give. Indeed, the amendments sought are not really about contested facts. Rather, they are about how the claimant quantifies her claim.
12 The hearing of the claim is some four weeks away. There is ample time for the respondent to consider the effect of the amendments and lodge responsive material if it wishes to.
13 While I accept there is some prejudice suffered by the Company in that it has to deal with the amendments, and that will involve some time, the prejudice is very limited. The prejudice could be seen to be balanced somewhat by the fact that, because the amendments reduce the quantum Ms Menzies claims, they also narrow the scope of what is in dispute.
14 On the other hand, it is contrary to the interests of justice to bar Ms Menzies from correcting her witness statement and advancing the case that she seeks to make and the evidence she wishes to give.
15 Accordingly, I was satisfied that on balance, the interests of justice favoured Ms Menzies being allowed to amend her witness statement. I accordingly ordered that:
1. The claimant be permitted to amend her Witness Statement and payslip reconciliation in accordance with the Amended Witness Statement that is Annexure A and the amended reconciliation that is Annexure B to the claimant’s application dated 9 July 2026.
2. The respondent is permitted to file any witness statements in response to the claimant’s amended witness statement, by lodging the witness statement(s) with the Court and then providing a stamped copy to the claimant on or before 4 August 2026.
3. Any witness statement filed pursuant to order 2 above shall –
a. be attached to a Form 29 – Multipurpose Form under the heading ‘Witness Statement in Response’;
b. be written in numbered paragraphs;
c. identify at the beginning of the statement the identity of the person making the
d. statement and the nature of that person’s relationship to the parties to the claim;
e. detail the evidence to be given by the person at trial; and
f. have attached copies of any documents referred to in the witness statement.



R. COSENTINO
INDUSTRIAL MAGISTRATE