Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276

FEDERAL COURT OF AUSTRALIA

Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276 File number: VID 306 of 2018

Judge: MORTIMER J

Date of judgment: 22 August 2018

Catchwords: COSTS – application for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) – application denied

Legislation: Fair Work Act 2009 (Cth), ss 340, 342, 351, 361, 570 Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 43

Cases cited: Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; 170 FCR 574 Ryan v Primesafe [2015] FCA 8; 323 ALR 107

Date of hearing: 14 August 2018

Registry: Victoria

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 36

Counsel for the Applicant: Mr M G McKenney

Solicitor for the Applicant SLF Lawyers

Counsel for the Respondent: Mr J Snaden with Ms Z Maud

Solicitor for the Respondent Norton Rose Fulbright Australia

ORDERS VID 306 of 2018

BETWEEN: KATHRYN LEE RICHENS Applicant

AND: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE) Respondent

JUDGE: MORTIMER J DATE OF ORDER: 22 august 2018

THE COURT ORDERS THAT:

1. The applicant's application for costs pursuant to s 570(2) of the Fair Work Act 2009 (Cth) is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J: 1 This case has an unusual and somewhat unfortunate litigation history to this point, which must be taken into account in determining the current application. The applicant has applied for costs orders pursuant to s 570(2) of the Fair Work Act 2009 (Cth). The basis for the application is the filing by the respondent of 31 witness affidavits (consisting of 24 new witness affidavits and 7 supplementary affidavits) upon which it proposes to rely at the trial of this proceeding in December 2018, together with two further affidavits it has foreshadowed it will file, and in addition to 17 existing affidavits from the Federal Circuit Court upon which it proposes to rely. This will make a total of 50 affidavits, from 40 witnesses, on which the respondent proposes to rely. 2 The applicant submits that the filing of such a large body of affidavit material, at this stage and in the particular circumstances of this proceeding, is an unreasonable act by the respondent, which has caused the applicant to incur additional costs, being the costs of her legal representatives reading, considering and advising her about the content of those additional 33 affidavits, as well as preparing responsive affidavit material on her behalf. 3 For the reasons set out below, although I consider the applicant has been placed in an invidious and unfortunate position, I do not consider it is correct to characterise the respondent's conduct in filing these affidavits as unreasonable. Therefore the application must be refused, subject to comments I make at [36] below.