Sivwright v St Ives Group Pty Ltd

Case [2022] FCA 136

FEDERAL COURT OF AUSTRALIA

Sivwright v St Ives Group Pty Ltd [2022] FCA 136

File number: WAD 244 of 2020
Judgment of: JACKSON J
Date of judgment: 22 February 2022
Catchwords: COSTS - costs associated with interlocutory application and amended interlocutory application - application of Fair Work Act 2009 (Cth) s 570 - reasonableness of conduct in resisting interlocutory applications on basis of legal privilege and relevance - expert report referring to earlier expert report - relevance - conduct not unreasonable in resisting original interlocutory application - earlier expert report referring to other documents - waiver of legal privilege - conduct unreasonable in resisting amended interlocutory application
Legislation:

Australian Human Rights Commission Act 1986 (Cth) s 46PO

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (Cth) s 126

Fair Work Act 2009 (Cth) s 401, 570

Sex Discrimination Act 1984 (Cth)
Cases cited:

Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 804

Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574

FCA US LLC v Mahindra Automotive Australia Pty Ltd [2021] FCA 1091

Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221

Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954

PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53

Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 45
Date of hearing: 15 February 2022
Counsel for the Applicant: Mr PG Brunner
Solicitor for the Applicant: Bailiwick Legal
Counsel for the First Respondent: Ms FA Stanton with Ms J McKenzie
Solicitor for the First Respondent: Minter Ellison
Counsel for the Second, Third, Fourth and Fifth Respondents: Mr A Gregg
Solicitor for the Second, Third, Fourth and Fifth Respondents: Clyde & Co Australia

ORDERS

WAD 244 of 2020
BETWEEN:

LORETTA SIVWRIGHT

Applicant
AND:

ST IVES GROUP PTY LTD

First Respondent

MICHAEL HEATH

Second Respondent

MICHELLE DE RONCHI

Third Respondent

BRUCE ROSS-ADAMS
Fourth Respondent

TRACY ROWLING
Fifth Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

22 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The applicant must pay the first respondent's costs of the interlocutory application dated 9 September 2021 as amended on 3 November 2021, but only in so far as those costs were incurred:

(a)after the provision to the first respondent of the report of Dr Lawrence Blumberg dated 14 June 2021; and

(b)up to and including the hearing of 20 January 2022.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

JACKSON J:

  1. In this proceeding, the applicant seeks leave under s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to make an application alleging breaches of the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) by the respondents. Among the affidavits she has filed in support…

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AGLC
Sivwright v St Ives Group [2022] FCA 136
Case
[2022] FCA 136
Decision Date

CaseChat Overview and Summary

In the matter of Sivwright v St Ives Group Pty Ltd, the Federal Court was tasked with determining the reasonableness of the conduct of the applicant in resisting interlocutory applications on the basis of legal privilege and relevance. The applicant had previously argued that certain documents were protected by legal privilege, and that others were irrelevant to the proceedings. The first respondent subsequently applied for costs associated with the interlocutory applications.

The central legal issue before the court was whether the applicant's conduct in resisting the interlocutory applications was reasonable. The court had to consider the application of the Fair Work Act 2009 (Cth) section 570 and assess the applicant's conduct in light of the evidence presented, including an expert report by Dr Lawrence Blumberg. The court also had to consider whether the earlier expert report, which referred to other documents, was relevant to the proceedings and whether there had been a waiver of legal privilege.

The court found that the applicant's conduct in resisting the original interlocutory application was not unreasonable, as there was a genuine dispute about the legal privilege of certain documents and their relevance to the proceedings. However, the applicant's conduct in resisting the amended interlocutory application was unreasonable. The court found that the earlier expert report, which referred to other documents, was relevant to the proceedings, and that there had been a waiver of legal privilege. As a result, the applicant was ordered to pay the first respondent's costs of the interlocutory application, but only in so far as those costs were incurred after the provision of the report of Dr Lawrence Blumberg dated 14 June 2021, and up to and including the hearing of 20 January 2022.

Orders

Orders of the court

1. The applicant must pay the first respondent's costs of the interlocutory application dated 9 September 2021 as amended on 3 November 2021, but only in so far as those costs were incurred:

(a) after the provision to the first respondent of the report of Dr Lawrence Blumberg dated 14 June 2021; and

(b) up to and including the hearing of 20 January 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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