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Practice and procedure

Potential operation of s570 of the Fair Work Act 2009 (Cth) does not operate as a bar to the production of documents relevant to an application for security for costs

In Dove v Everforex Financial Pty Ltd [2023] FCA 1171 (3 October 2023) the Federal Court (Goodman J) dismissed the respondent/cross-applicant’s Everforex Financial Pty Ltd (Everforex) application to set aside Notices to Produce.

In doing so, the Court held (among other things) that s570 of the Fair Work Act 2009 (Cth) (FW Act) does not operate as a bar to the production of documents relevant to an application for security for costs.

The Court’s decision to dismiss the application considered a range of matters. One of those matters was the relevance of s570 of the FW Act.

Section 570(1) of the FW Act provides that a party to proceedings (including an appeal) in a court (including a court of a state or territory) in relation to a matter arising under the FW Act may be ordered to pay costs incurred by another party to the proceedings only in the limited circumstances established by that section. This includes the matter set out in s570(2), such as that the party instituted the proceedings vexatiously or without reasonable cause.

The first applicant sought (among other things) that Everforex provide security for the first applicant’s costs of the relevant cross-claim (at [7]).

The first applicant issued Notices to Produce to Everforex requiring Everforex to produce for inspection various documents, including financial statements (at [9]-[11]).

Everforex opposed the Notices to Produce on various bases. Among other things, Everforex argued that insofar as the documents sought were relevant to Everforex’s ability to meet an adverse costs order: s570 of the FW Act applies to the relevant cross-claim; there is “no prospect” that s570(2) of the FW Act would be satisfied in relation to the relevant cross-claim; this means there is no prospect that Everforex would have costs ordered against it; this means that the Court should not make an order requiring Everforex to provide security for costs or to produce documents relevant to the matter of security for costs; and the Court must form the view that it is likely to grant the security for costs application before requiring the production of the documents sought (at [13]).

The Court was prepared to accept that s570 of the FW Act would apply to the cross-claim because of the broad language used in the expression “in relation to a matter arising under this Act” in s570(1) of the FW Act. However, the Court was not prepared to accept that there was “no prospect” that s570(2) would be satisfied. Instead, the Court was prepared to accept that there was “some” prospect that s570(2) would be satisfied and, therefore, that the discretion to award costs against Everforex may arise (at [26]).

The Court also refused to accept Everforex’s argument that the Court was required to find it likely that security would be ordered before Everforex should be required to produce the relevant documents (at [27]).

The Court rejected Everforex’s submissions that the Full Court of the Federal Court had held in Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd [2020] FCAFC 194; (2020) 283 FCR 123 that it was not possible for security for costs to be provided in a proceeding to which s570 of the FW Act applied (at [29]).

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