Federal Court of Australia

Gunawardena v Boeing Aerostructures Australia Pty Ltd (No 3) [2026] FCA 1495

ORDERS

THE COURT ORDERS THAT:

1.    Orders 3, 4 and 5 of the orders of Registrar Curnow dated 3 August 2026 be set aside and in their place there be no order as to the costs of the Deficiency Application.

2.    By 4.00 pm on 16 October 2026 the respondent serve a list of documents pursuant to the orders made on 4 September 2025 in a form that complies with rule 20.22 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

Ex tempore, revised

WHEELAHAN J:

1    The applicant is a self-represented litigant who seeks remedies under the Fair Work Act 2009 (Cth) (FW Act) in relation to the termination of her employment by the respondent.

2    On 4 September 2025, I made an order that the respondent make discovery of documents in three limited categories. The nature and timing of the discovery were calculated to assist the parties in a mediation that I also ordered take place. The mediation occurred in December 2025 but was unsuccessful.

3    At a case management hearing on 30 January 2026, the applicant made an oral application for further discovery based upon a claim that the respondent did not comply with the order made 4 September 2025. I made directions for the filing and service of material by the parties in relation to that application and referred it to a Registrar for hearing and determination. The parties referred to this application in the material as the Deficiency Application.

4    The Deficiency Application was heard by a Registrar of the Court who dismissed the application on 25 May 2026. Upon dismissal of the application, the respondent sought an order for costs on the ground that the applicant’s conduct in maintaining the application was not reasonable: see FW Act, s 570(2). Amongst other things, the respondent relied upon guidance that I gave to the applicant at the case management hearing in relation to matters that the applicant would have to establish to demonstrate that discovery was deficient. One of the matters which I identified was that the respondent’s discovery had been verified on oath. The Registrar heard some oral argument in relation to the costs of the Deficiency Application and then made directions for the filing of written material in relation to the costs of the Deficiency Application and ordered that it be determined on the papers.

5    On 3 August 2026, the Registrar made several orders. In broad terms, the orders made by the Registrar related to –

(a)    the respondent’s costs of the Deficiency Application, which the Registrar ordered that the applicant pay from 20 May 2026 to be assessed in a lump sum; and

(b)    the disposition of a separate application by the applicant for further discovery, which resulted in the Registrar ordering the respondent to make discovery of documents listed in Schedule A to the order.

6    The orders made by the Registrar on 3 August 2026 are now the subject of an application by the applicant for review pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth). In relation to the Deficiency Application, there is no application to review the dismissal of the application on 25 May 2026. The review is confined to an application to set aside the order for costs which was made in the exercise of the delimiting provision in s 570(2) of the FW Act. The review of the costs order is a de novo review of delegated judicial power which is not dependent upon the demonstration of error: Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [1]–[7] (Allsop CJ, Markovic and Colvin JJ).

7    For the following reasons I have decided to set aside the Registrar’s costs order made 3 August 2026, and in its place to make no order as to costs.

8    Rule 20.17(1) of the Federal Court Rules 2011 (Cth) provides that a list of documents must be in accordance with Form 38. Where a party is a corporation, r 20.22(1)(c) requires that the affidavit verifying a list of documents be made by “an officer of the corporation”. That person “must know the facts to make the affidavit”: r 20.22(3). Rule 20.17(4) makes verification under r 20.22 mandatory. The list of persons authorised by r 20.22(1) to make an affidavit is exhaustive, and it does not include the party’s solicitor. The question of who might constitute an “officer of the corporation” for the purpose of an affidavit verifying discovery was referred to by Lindgren J in Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3; 116 FCR 372 at [34]. His Honour noted that the word “officer” was not defined by the Federal Court Rules 1979 (Cth) or by the Act and referred to the definition of “officer” in s 9 of the Corporations Act 2001 (Cth). That definition does not expressly include a corporation’s solicitor unless the solicitor is an officer of a corporation in some other capacity that is specified.

9    In making discovery, the obligations of a party and the party’s solicitor are different. It is the party’s obligation to make discovery. As Besanko J observed in Taylor v Saloniklis (No 3) [2014] FCA 744 at [34], discovery must be given on oath, and it is the oath of the litigant and not its solicitor which is significant. It is the solicitor’s responsibility to advise the party about its discovery obligations and to ensure, as far as possible, that the party complies with the order for discovery: Myers v Elman [1940] AC 282 at 322 (Lord Wright).

10    The respondent’s list of documents dated 2 October 2025 was verified by a solicitor employed by Corrs Chambers Westgarth. The solicitor did not claim to be an officer of, or otherwise to be employed by the respondent. This is not a situation like that considered by Shariff J in Bilal v Ampol Australia Petroleum Pty Ltd (Discovery) [2026] FCA 591 at [54] where the affidavit was made by corporate counsel who was an employee of the respondent, and where it was unnecessary to decide whether employed corporate counsel was an “officer” because his Honour was disposed in the exercise of his discretion to excuse any non-compliance with r 20.22(1)(d).

11    In submitting to the Registrar that the applicant should pay the costs of the Deficiency Application because it was unreasonable to maintain the application, the respondent relied on the fact that it had verified its discovery by affidavit, drawing on observations that I had made to the applicant at the case management hearing on 30 January 2026 and setting out relevant passages of the transcript of that hearing. Verified lists of discovered documents are not required to be filed. My observations at the case management hearing that the respondent’s discovery was the subject of a verified list of documents were based upon counsel for the respondent informing me that the discovery had been verified by affidavit, with counsel submitting at P 7/18 that “[i]t was just discovered in accordance with the usual process”. On this basis I referred at the case management hearing to the significance of the discovery being verified on oath, and stated at P 14/43–44 that the respondent had legal obligations to comply with the Court’s order and that the solicitors for the respondent had professional obligations to ensure that the respondent complied with the order. I am not in any way suggesting that at the case management hearing counsel for the respondent was doing anything other than making honest submissions that accorded with her understanding of the situation. However, the result was that I was unaware that discovery had not been made by the respondent “in accordance with the usual process”. Because the respondent had not made a verified list of documents that complied with the Rules, one of the foundations for the respondent submitting that the applicant’s conduct in maintaining the Deficiency Application was unreasonable falls away and I will set the costs order aside.

12    Nothing in these reasons should be interpreted as a finding that the interim discovery that the respondent in fact gave was incomplete. That is not an issue before the Court. The issue that I have determined is different. The issue is confined to a de novo review of the Registrar’s costs order which I have set aside because the respondent relied on the fact that it had verified its discovery by affidavit when the affidavit did not comply with the requirements of the Rules in relation to discovery by a corporation.

13    I will also order the respondent to serve a list of documents pursuant to the order for interim discovery made 4 September 2025 in a form that complies with the Rules. There is no material currently before the Court which would support the Court excusing non-compliance by allowing the discovery to be verified by an affidavit made by an external solicitor.

Associate:

Dated:    9 October 2026