Background
This proceeding concerned common questions in Riley Gall’s claim against Domino’s Pizza Enterprises Limited. On 22 July 2026, the Court delivered reasons in Gall v Domino’s Pizza Enterprises Limited (No 4) [2026] FCA 967.
Paragraph [1697] of those reasons addressed Common Question 29(a), concerning the applicant’s underpayment loss. The parties had made a drafting mistake in subparagraph 29(a)(iii), rendering that part of the question incoherent. Murphy J did not identify the mistake when giving the original answer.
The Court’s Holding
Murphy J held that the error could be corrected under r 39.05(e) and (h) of the Federal Court Rules 2011 (Cth). The Court ordered that paragraph [1697] of the No 4 reasons be amended, removing its first sentence.
As amended, paragraph [1697] states that the applicant’s underpayment loss was not assessed by the methods in Common Question 29(a)(i) or (ii), but by the method in 29(a)(iii). The loss assessment required deciding, from the evidence and inferences, what the applicant would more likely than not have been paid had Dominoids and MC Pizza known during the relevant period that Award rates applied. It was not simply a comparison between Award entitlements and the pay or entitlements actually received under the agreements.
Key Takeaways
- The Court corrected an incoherent answer caused by a drafting error in a common question supplied by the parties.
- Underpayment loss was assessed through a counterfactual factual inquiry based on evidence and inference.
- The assessment was not a mechanical calculation of the difference between Award rates and actual contractual pay.
Why It Matters
The decision clarifies the intended answer to the loss question in the underlying employment proceeding. It confirms that the relevant damages inquiry turns on what would probably have occurred if the employers had known the Award applied, rather than solely on a numerical comparison of rates and contractual terms.