Background
R S R Gunawardena, acting without counsel, brought Fair Work Act claims concerning the termination of her employment by Boeing Aerostructures Australia Pty Ltd. The Court had ordered Boeing to make limited interim discovery to assist a court-ordered mediation. After the mediation failed, Gunawardena sought further discovery, contending that Boeing had not complied with the earlier discovery order.
A Registrar dismissed that “Deficiency Application” and later ordered Gunawardena to pay Boeing’s costs from 20 May 2026, on the basis that maintaining the application had been unreasonable under s 570(2) of the Fair Work Act 2009 (Cth). Boeing had relied in part on the proposition that its discovery had been verified on oath. Gunawardena sought a de novo review of the costs order, not of the dismissal of the discovery application itself.
The Court’s Holding
Wheelahan J set aside the Registrar’s costs order and substituted no order as to costs. The foundation for Boeing’s submission that Gunawardena had acted unreasonably was undermined because Boeing’s list of documents had not been validly verified under the Federal Court Rules 2011 (Cth).
For a corporate party, the affidavit verifying discovery must be made by an officer of the corporation who knows the relevant facts. Boeing’s affidavit had instead been sworn by an external solicitor at Corrs Chambers Westgarth, who did not claim to be an officer or employee of Boeing. The Court made no finding that Boeing’s actual discovery was incomplete, but ordered Boeing to serve a compliant list of documents by 16 October 2026.
Key Takeaways
- A corporation’s discovery affidavit must be sworn by an authorised corporate officer, not merely its external solicitor.
- A defective verification can defeat a costs argument based on the opposing party’s alleged unreasonableness in pursuing discovery.
- A review under s 35A(5) of the Federal Court of Australia Act is de novo and does not require proof of Registrar error.
Why It Matters
The decision reinforces that discovery is the litigant’s obligation and that the Rules’ verification requirements carry substantive consequences. A solicitor may advise and assist with discovery, but cannot replace the required corporate deponent merely by swearing the verifying affidavit.
In Fair Work proceedings, where costs are generally restricted, a party seeking the s 570(2) exception must ensure that the factual basis for an asserted unreasonable act or omission is sound.