Sivwright v St Ives Group Pty Ltd (No 3)

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FEDERAL COURT OF AUSTRALIA

Sivwright v St Ives Group Pty Ltd (No 3) [2024] FCA 833    

File number: WAD 244 of 2020
Judgment of: FEUTRILL J
Date of judgment: 30 July 2024
Catchwords: COSTS – application for costs in a matter arising under the Fair Work Act 2009 (Cth) – unreasonable act – conduct of defence - voluminous documentary evidence – cross-examination of affidavit deponent
Legislation:

Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A)

Evidence Act 1995 (Cth) ss 4, 11, 27, 29(1), 56, 192; Ch 2

Fair Work Act 2009 (Cth) ss 570, 570(2)(a), 570(2)(b)

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Federal Court Rules 2011 (Cth) rr 1.34, 29.09

Cases cited:

BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347

Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156

Sayed v Salvation Army Housing [2023] FCA 526

Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486

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

Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063

Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321

Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 27
Date of hearing: 26 June 2024
Counsel for the Applicant: Mr BJ Willesee
Solicitor for the Applicant: Bailiwick Legal
Counsel for the First Respondent: Ms FA Stanton
Solicitor for the First Respondent: Minter Ellison
Counsel for the Second, Third, Fourth and Fifth Respondents: Ms HR Millar
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 (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

FEUTRILL J

DATE OF ORDER:

30 JULY 2024

THE COURT ORDERS THAT:

1.The applicant pay the fifth respondent’s costs of the proceeding and, otherwise, there be no order as to the costs of the proceeding.

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


REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

  1. On 8 September 2023, upon the originating application of Loretta Sivwright, the Court made orders granting her leave to make an application alleging unlawful discrimination by St Ives Group Pty Ltd and Michael Heath, dismissing the application as against Michelle De Ronchi, Bruce Ross-Adams and Tracy Rowling and reserving costs: Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063. These reasons concern the costs reserved.

  2. Ms Sivwright contends that orders should be made to the following effect:

    (1)St Ives pay Ms Sivwright’s costs of the proceeding from 8 January 2021, other than those costs the subject of the order of Jackson J of 22 February 2022.

    (2)Ms Sivwright pay Ms Rowling’s costs of the proceeding.

    (3)There be no orders as to costs of the proceeding as against Mr Heath, Ms De…

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Details
Case
[2024] FCA 833
Decision Date

CaseChat Overview and Summary

In the case of Sivwright v St Ives Group Pty Ltd (No 3), the applicant, Ms Sivwright, sought a costs order against St Ives, the respondent, in relation to proceedings that arose under the Fair Work Act 2009 (Cth). The primary legal issues for the court to determine were whether St Ives' reliance on documentary evidence and the cross-examination of an affidavit deponent were unreasonable acts within the meaning of the Fair Work Act, and whether the context of the proceedings as a whole should be considered in assessing the reasonableness of St Ives' conduct.

The court examined the nature and extent of St Ives' reliance on documentary evidence, noting that such reliance is not inherently unreasonable. The court held that, while St Ives' reliance on certain documentary evidence might have been extensive, it was not unreasonable given the context of the case. Furthermore, the court found that the cross-examination of Dr Blumberg, the affidavit deponent, was not unreasonable as Ms Sivwright did not object to it and no application was made to prevent or limit it. The court also held that the context of the proceedings as a whole was relevant, but it would be unfair to attribute the length and complexity of the final hearing solely to St Ives, as other respondents had adopted similar positions and contributed to the proceedings.

The court ultimately decided that St Ives' conduct was not unreasonable and that Ms Sivwright's application for costs against St Ives should be dismissed. The court ordered that the applicant, Ms Sivwright, pay the fifth respondent's costs of the proceeding, while no other orders as to costs were made. This decision highlights the importance of considering the specific circumstances of each case when determining the reasonableness of conduct in legal proceedings.

Orders

Orders of the court

1. The applicant pay the fifth respondent’s costs of the proceeding and, otherwise, there be no order as to the costs of the proceeding.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

St Ives also submits that its conduct must be placed into the context of the proceeding as as whole and taken into account with Ms Sivwright’s conduct. Here, St Ives draws attention to two interlocutory skirmishes concerning documents to which Dr Blumberg made direct or indirect reference in one of his affidavits. St Ives requested production of the documents which Ms Sivwright refused. St Ives made applications to compel Ms Sivwright to produce her documents which she resisted up to the hearing of the applications before abandoning her resistance and producing the documents at the last minute. Ms Sivwright’s conduct resulted in Jackson J making an adverse costs order against her on the ground that her act in resisting production of the documents the subject of the second interlocutory application was unreasonable within the meaning of s 570(2)(b) of the Fair Work Act: Sivwright (No 1) at [39]-[41], [45].Was St Ives’ reliance on documentary evidence unreasonable? In Sivwright (No 2) at [100]-[101] the Court made the following observations about the appropriate approach to be taken to the merits of an application for leave under s 46PO(3A):100I approach consideration of the merits of the application for leave from the stand-point that s 46PO(3A) is a filter. It is intended to remove from consideration by the Court applications where use of the Court’s resources (and the parties’ resources) is disproportionate to the merits of the alleged unlawful discrimination. However, in the exercise of the Court’s discretion to grant leave, it is not generally appropriate to undertake a detailed examination of the merits of the proposed application. Nonetheless, there may be circumstances in which it is appropriate to undertake a close examination of the legal or factual issues the applicant proposes to advance to determine if the allegations are ‘reasonably arguable’. 101I also approach consideration of the merits of the factual issues the applicant proposes to advance from the perspective that, in general, it is not appropriate for the Court to attempt to resolve conflicts of affidavit evidence on an interlocutory application: Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 734; Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; (1968) 118 CLR 618 at 622. Typically, on an interlocutory application, the question of whether it discloses ‘a serious question to be tried’ or a claim or defence has ‘reasonable prospects of success’, is answered on the basis that the statements of fact contained in the affidavit(s) on the application are accepted as true: e.g., Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd [1999] FCA 256; (1999) 45 IPR 144 at [91]-[94], [99], [101]-[102]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 at [43]-[45]. However, 'this does not mean that [the Court] is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be': e.g., Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 at 341.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

At the case management hearing for listing the application for final hearing Ms Sivwright made no submission to the effect that cross-examination of Dr Blumberg was not necessary, relevant, appropriate or in the interests of justice. There was no objection to his cross-examination and no application for the Court to make any directions preventing or limiting any cross-examination. At a subsequent case management hearing when the Court raised the necessity for a two-day hearing, again Ms Sivwright made no objection to cross-examination or application for directions to prevent or limit it. In these circumstances, requiring Dr Blumberg to attend for and cross-examining him on his affidavit evidence was not unreasonable in the relevant sense.Is the context of the proceedings as a whole a relevant consideration? While I do not accept that Ms Sivwright’s conduct that resulted in an adverse costs order being made against her provides any relevant context for the question of whether the impugned acts of St Ives were ‘unreasonable’, the parties’ conduct of the proceedings as a whole was a factor that contributed to the length and complexity of the final hearing. Accordingly, it would be unfair to attribute responsibility for the length and complexity of the final hearing solely or predominantly to St Ives. All other respondents were, in effect, content to ride on St Ives’ coattails in defence of Ms Sivwright’s application. All other respondents submitted that Ms Sivwright’s claims were not reasonably arguable and, in substance, adopted or endorsed St Ives’ submissions with respect to Ms Sivwright’s claim that Mr Heath’s sexual advances were ‘unwelcome’. At the case management hearing for listing the application for final hearing all other respondents indicated that they intended cross-examining Dr Blumberg, but, depending on the nature of St Ives’ cross-examination, they may not need to do so and agreed that a two-day hearing was necessary. At a subsequent case management hearing, the necessity for a two-day hearing was confirmed by all respondents. Again, all other respondents joined in St Ives’ submissions regarding delay and Ms Sivwright’s explanation for it and relied, in part, on St Ives’ cross-examination of Dr Blumberg. Thus, the other respondents’ submissions strongly suggest that, if St Ives had not undertaken its defence of the application in the way in which it did, the other respondents would have done so. Accordingly, while all other respondents except Mr Heath were successful in having the application dismissed against them on different grounds, all other respondents must bear the same or almost the same responsibility for the manner in which the merits of Ms Sivwright’s claims were put in issue and for the cross-examination of Dr Blumberg on the issue of delay. It follows that Ms Sivwright has adopted an inconsistent approach to costs in that she asserts that St Ives acted unreasonably and yet evidently accepts that Mr Heath acted reasonably for essentially adopting and relying upon the same acts. Further, regarding the cross-examination of Dr Blumberg, as has already been mentioned, Ms Sivwright made no opposition to that cross-examination and made no application by which she sought to prevent or limit it. To suggest after the fact that the cross-examination was unnecessary (because it was largely ineffective) does not bespeak unreasonableness in the relevant sense. Moreover, Ms Sivwright also contributed to the length of the hearing by failing to take any steps to attempt preventing, limiting or curtailing the cross-examination.