Richens v Commonwealth of Australia

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.

The history of this proceeding to date 4 The applicant commenced this proceeding in the Federal Circuit Court on 24 August 2016, now almost exactly two years ago. The applicant is currently a Detective Sergeant of the Australian Federal Police (AFP) currently assigned to the Organised Crime Unit in Melbourne. In her amended complaint, filed on 26 September 2016, and on which she has informed the Court she will move at the trial of this proceeding in December 2018, she alleges contraventions of ss 342, 340 and 351 of the Fair Work Act and identifies a series of events which she contends constituted adverse action taken against her, either because she exercised or sought to exercise a workplace right, or for a discriminatory reason, being her sexual orientation and / or marital status. 5 The alleged events about which the applicant complains commence in approximately May 2013 and, it would appear from the amended complaint, the applicant contends the conduct constituting the adverse action is, at least in some respects, ongoing. The conduct includes matters such as the way officers within the AFP dealt with her applications for long service leave and her applications for a transfer to Melbourne, as well as the way in which her complaints about her treatment by some AFP officers were handled and, finally the ongoing refusal (she alleges) of the AFP to appoint her to a position in the Counter Terrorism Unit of the AFP. 6 As is often the case with adverse action proceedings, the applicant's allegations are fact intensive. Even on the face of the complaint, they involve a significant number of officers and employees within the AFP. The applicant herself proposes to call seven witnesses, and has foreshadowed applications for leave to issue subpoena to four additional witnesses. The applicant herself has now filed three substantial affidavits. 7 The proceeding was subject to programming orders in the Federal Circuit Court throughout the second half of 2016 and all of 2017. On 1 August 2017 the Federal Circuit Court ordered that the proceeding be adjourned to 7 June 2018 at 10 am for a final hearing, with an estimated hearing time of six days. Various programming orders were also made on that date, including discovery orders and orders for parties to file affidavits in relation to their witness evidence. After those orders were made, several orders were made extending the timetable, particularly for discovery and for the filing of affidavits. The extension of the timetable meant that all the affidavit evidence filed on behalf of the parties was required to be filed on or before 28 February 2018. It appears that order was substantially complied with. 8 The matter was listed for a directions hearing on 14 March 2018 in the Federal Circuit Court. By this stage, as I have noted, not only was the matter fixed for trial but all trial preparation had been substantially completed. One of the matters that the parties sought to raise before the Federal Circuit Court at the directions hearing was the trial estimate. 9 A transcript of the Federal Circuit Court hearing on 14 March 2018 is available and I have read it. The parties informed the Court on that day that a longer trial would be required than the then fixture of six days. Counsel for the applicant submitted an extra five days was required, making 11 days in total. 10 Answering a question from the Court about how certain that estimate was, counsel for the applicant stated that there were more than 20 witnesses and he "couldn't guarantee" the trial would finish in 11 days. Counsel for the respondent submitted an estimate of 12 to 15 days was realistic. 11 There was considerable discussion between the Court and the parties about estimates, timing, splitting the trial, the likelihood of a successful mediation, and other such matters. His Honour adjourned to consider the matter, and when he returned he indicated he had decided it was appropriate to transfer the proceeding to the Federal Court, and gave reasons for making that order, including describing the situation as a "terribly unfortunate turn of events", but noting that he had no time for even a 10 day trial until March or April of 2019, and that to list it then would place an "unfair burden" on the litigants in his Honour's next duty list (whom, I infer, would expect to be allocated trial dates around that time). If I might say so with respect, his Honour's reasons reflect careful consideration, and an understanding of the difficulties for the parties, but also reflect the very serious pressures and delays which exist in the Federal Circuit Court. 12 The assumption implicit in his Honour's reasons was the parties would be able to get on more quickly in the Federal Court. As it turned out, when the matter was allocated to me, the only hearing dates I had in 2018 were nine days in December 2018. Obviously, that is less than the estimate given by the parties in the Federal Circuit Court. However, if the matter was not listed then, the parties were looking at a hearing date very much further on into 2019, if at all in 2019. This Court's lists, while not under the same pressure in terms of volume as the Federal Circuit Court, are also under pressure. 13 The inevitable result of the Federal Circuit Court's transfer order was that the parties lost their trial date of June 2018. The matter was transferred into my docket on 19 March 2018 and I held a case management hearing on 8 May 2018. At that hearing, and with the consent of the parties, I fixed the matter for trial commencing on 10 December 2018 for nine days. I also ordered that the pleadings, affidavits and other documents filed in the Federal Circuit Court be treated as filed in the proceeding in this Court, and I made a number of other trial preparation orders. It was at this case management hearing that the respondent informed the Court that it proposed to adduce further evidence. 14 There had been a change of counsel on the respondent's side and the new counsel for the respondent informed the Court that the respondent's evidence was incomplete in two respects: firstly there was some additional evidence that needed to be given, or notice of additional evidence from existing witnesses, and then secondly there were "some additional witnesses that have been identified very recently that we are going to need to call some evidence from." 15 Counsel explained the reason for this in the following way: MR SNADEN: I can't remember what it was. All of those decisions - perhaps not all of them, but a lot of them - were made by committees, and so far to date we haven't called these - that is to say, we haven't got affidavits filed for every member of the committee. We have to do that. Because of the reverse onus, if we don't do that, we are exposed - we are at risk of not being able to discharge the onus. Now, the overwhelming bulk of those people will be of no interest to Mr McKenney; I wouldn't hold him to that, but my assessment would be that they will be of no interest to him, that he will require them for very minimal cross-examination if at all, and that's a decision for him to make. I don't see it as putting in jeopardy the nine days that we have talked about for the hearing of evidence, but I raise it now. There are a number of people from whom we are going to be - - - HER HONOUR: How many? MR SNADEN: There's at least 25. HER HONOUR: More? MR SNADEN: Yes. At least 25 more. HER HONOUR: That makes 45 witnesses? MR SNADEN: It does. It does, and as I say, your Honour - - - HER HONOUR: How big are these committees? MR SNADEN: Well, bigger than they should be, I dare say. I can only stress what I've already said, your Honour. HER HONOUR: Is that the only explanation? MR SNADEN: For - - - HER HONOUR: For all the additional witnesses? That these are - you may have affidavit evidence from one committee member who made one decision, but you don't have it from the X other members of the committee? MR SNADEN: Who were involved in that decision-making process, yes. That's right. We have got - there are key people, as your Honour will appreciate. All of them we have affidavit material already for, albeit some of it needs to be supplemented in a minor way. But there are these others that to date just haven't been called which in my assessment need to be called if we are to discharge the reverse onus. Now, I put them in a separate category; I don't describe them as key, in the sense that I imagine Mr McKenney, if he requires them at all, would require them for a very short period in cross-examination. But they are there, they are relevant. Not only relevant, they are necessary. 16 What counsel for the respondent foreshadowed is indeed what has occurred. The respondent also sought leave at the case management hearing before me on 14 August 2018 to file two further affidavits from two further witnesses whom counsel stated were currently on sick leave, and in relation to whom therefore the deadline for filing affidavits was not able to be met. I granted leave for those affidavits to be filed. That means there are 33 new affidavits in total on which the respondent will seek to rely at trial. 17 Thus, although this Court has attempted to give the parties the earliest hearing date in this Court which was reasonably practicable, and although the parties have worked cooperatively to ensure the matter is ready for trial in December 2018, it is apparent as the applicant submitted, that the nine hearing days which are allocated may not indeed be sufficient given the large volume of new affidavit material that has been filed. 18 I emphasise that I was of the view that - with tight case management and the parties co-operating - nine days was likely to be sufficient for evidence and openings, on the material as it stood before the Federal Circuit Court. Now that there are 33 more affidavits filed, completion of the evidence appears to be in real jeopardy, and that is without accounting for the responsive evidence to be filed on behalf of the applicant. 19 Although, as discussed at the case management hearing on 14 August 2018, there may be ways to conduct the trial more efficiently (such as by the use of an agreed statement of facts) the forensic reality facing the applicant is that considerable judgment will have to be exercised in determining both the length of cross-examination, and the length of any evidence in chief, which is required to be given orally, in accordance with the Court's directions made at the first case management hearing in relation to evidence that is likely to be both material and controversial. 20 The Court must be astute to ensure that the combination of a fixed number of hearing days and the avalanche of affidavit material by the respondent does not deprive the applicant of a fair trial by placing her legal representatives in a position where they feel pressure to make either inappropriate concessions on the evidence or where they feel they do not have sufficient time to explore matters in cross-examination which are necessary to properly advance the applicant's case. 21 The parties will be expected to be highly cooperative and highly efficient so that the very best attempt is made to complete the evidence in the allocated time in December 2018. Nevertheless, this must be done in a way that is fair to both parties, and at the moment I do have some concerns that the amount of affidavit material produced by the respondent has put completion of the evidence in the allocated time in real jeopardy. 22 With that background, I turn to the resolution of the costs application.

Resolution of the costs application 23 I have set out my understanding of the principles and approach to the discretion in s 570(2) in Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64]-[68]. That decision also involved consideration of the discretionary power in s 43(3)(f) of the Federal Court of Australia Act 1976 (Cth), which is not an issue on this application. I noted in Ryan v Primesafe in those paragraphs that the discretion in s 570(2) should be exercised cautiously and the case for its exercise should be clear, in part to avoid discouraging parties from completely and robustly pursuing claims of contravention under the Fair Work Act, or in equally robustly pursuing their defence of such claims. However, I also observed that s 570 was an access to justice provision in the sense that the ordinary position would be that parties may pursue these claims without the apprehension of adverse costs orders if they are unsuccessful. 24 I further noted that as an access to justice provision, s 570 contemplates parties and their legal representatives will access the Court responsibly, and that it is important in exercising the discretions in s 570 to recall that those discretions must be exercised taking into consideration the terms and objectives of s 37M and s 37N of the Federal Court Act. At [66] I said it was necessary to reconcile the objectives in s 37M with the access to justice provisions in s 570 and that reconciliation: …occurs through a focus on the reasonableness of the parties' conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put. 25 Counsel for the applicant also referred the Court to the Full Court's decision in Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; 170 FCR 574. In that case the Full Court (Tamberlin, Gyles and Gilmour JJ) noted that the predecessor provision to s 570 applied when two criteria were satisfied. The first was that there was an unreasonable act or omission, and the second was that there was a causal link between that unreasonable act and omission and another party incurring costs in connection with the proceeding. Both criteria need to be satisfied before this Court's discretion is enlivened. 26 In Clarke the Full Court concluded that the respondent had not engaged in "an unreasonable act of omission" in the late abandonment of some of its defence, and in the use of a notice of contention to advance what the Full Court described as "a previously minor and ultimately unsuccessful argument". The Full Court made the following observations: Simply because a party does not conduct its litigation in the most efficient way does not mean the Court should not exercise its discretion in s 824(2) of the WR Act to make a costs order. …. Although it is arguable that the lateness of the concession may have put the appellants to some extra costs, we are of the view that it cannot be characterised as "unreasonable" in the circumstances of this case. Indeed, while courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best. 27 Although in this proceeding the Court raised the question of costs at the first case management hearing in May 2018 once the respondent foreshadowed filing a considerable volume of further affidavit material, the application is still made at a relatively early stage of the litigation, even if it is somewhat ironic to describe as an "early" stage a point at which a proceeding has been on foot for two years. What I mean by that is that the matter has not yet come to trial. The necessity and relevance of the respondent's affidavit material, in the context of the issues that are really in dispute between the parties, cannot yet be confidently assessed. 28 What can be said, as counsel for the respondent quite properly submitted, was that an important consideration in this proceeding is that the respondent bears a reverse onus under s 361 of the Fair Work Act. It is also significant, as counsel for the respondent submitted at the May 2018 case management hearing, that at least some of the decisions or conduct about which the applicant complains appear to be decisions taken by one or more committees within the AFP. At least at this preliminary stage it is appropriate for the respondent to take a cautious approach to the discharge of its burden of proof under s 361, by considering it is necessary to adduce evidence from each member of those committees, which is what I understand it has now done. 29 There can be no doubt, as counsel for the respondent eventually accepted during argument on the application, that the applicant has and will continue to incur substantial additional costs because of the volume of affidavit material now filed by the respondent. That is, counsel for the respondent properly recognised, that there could be no disputing the proposition that the respondent's "act" in filing such a large volume of additional affidavit material has caused, and will cause, the applicant to incur further costs. Although counsel for the respondent sought to contend that the second limb of s 570(2) was not met, I consider it clearly is. The real question is whether the act of the respondent, in filing such a large volume of additional affidavit material at this stage of the proceeding, is an unreasonable one. 30 I do not consider the respondent's conduct in filing a large volume of additional affidavit material is capable of being characterised as unreasonable. To the contrary, in the circumstances I have described, it is a forensic approach which, at this stage, is open to the respondent. 31 No doubt it was also open to the respondent to have formed a view that a smaller volume of affidavit material would suffice for its defence of the proceeding and to have proceeded on that basis in the Federal Circuit Court. Perhaps after the trial it will be apparent that no more evidence was really needed, and what has now occurred will be seen as an overreaction, with this tremendous volume of evidence ultimately proving unnecessary. Perhaps, on the other hand, the respondent's decision to adduce evidence contained in an additional 33 affidavits will be vindicated. It is simply too early to tell. 32 However, at this point, it cannot be described as unreasonable behaviour for the respondent to reassess its position on a transfer to this Court, where the opportunity presents itself for such a reassessment to occur. The applicant's sense of frustration that the respondent has taken advantage of this opportunity can be readily understood. The respondent is a very well-resourced and large federal agency, with public funds available to it to defend this proceeding. The applicant is an individual, seeking to advance her own claims. The disparity in resources is obvious. 33 That disparity is not, of itself, a reason to characterise the respondent's conduct as unreasonable. If the respondent were, in some way to take advantage of its superior resources and to adopt an approach to the proceeding which involved either what might be described as a "war of attrition", or as a tactic swamping an individual applicant with so much material that she or he could not afford to continue the proceeding, then if such conduct was established to the satisfaction of the Court, it might well provide a basis for a costs order under s 570. There has been no such allegation in this proceeding, and there is no evidence of such conduct on behalf of the AFP. Nevertheless, it is important for a well-resourced public agency such as the AFP to be conscious of its privileged position in litigation such as this and to be careful not to take advantage of it in a way which might bring it into conflict with its model litigant obligations. As I say, to date I have seen no evidence that the AFP is adopting such an attitude. 34 The application must be refused, on the basis that the conduct of the AFP in filing an additional 33 affidavits to be relied on at the trial in December 2018 cannot presently be characterised as unreasonable. 35 It is appropriate however to emphasise two further matters. First, refusal of the applicant's costs application under s 570(2) at this juncture does not in my opinion preclude the applicant at the conclusion of the trial making a further costs application, which might include an application for the costs incurred in responding to this voluminous affidavit material if, at the conclusion of the trial much of the affidavit material has proven to be irrelevant or unnecessary. There is no basis at the moment to suggest that might be the outcome, but I consider it is important to emphasise that I do not see the applicant as precluded by the refusal of the current application from bringing a later application under s 570(2) if the circumstances at the time justify it. 36 Second, and of critical significance going forward, the litigation history of this proceeding and the nature of the interests at stake, make it imperative that the parties apply considerable dedication and effort to planning the conduct of the trial in December so that the eight days of evidence are used as effectively and efficiently as they can be. This is a proceeding, more than most, where the parties' obligations under s 37N of the Federal Court Act (and those of their legal representatives) must be at the forefront of their minds. The Court expects the parties to do all that is reasonably practicable to ensure that the evidence is completed in the time allocated for trial. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.