Olson v Keefe (No 4)

• Jurisdiction: Australia Federal only
• Judge: BROMWICH J
• Judgment Date: 17 May 2019
• Neutral Citation: [2019] FCA 691
• Date: 17 May 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Olson v Keefe (No 4) [2019] FCA 691

File number:	NSD 1498 of 2016
Judge:	BROMWICH J
Date of judgment:	17 May 2019
Catchwords:	COSTS – where repeated attempts made by applicant to rectify pleadings – where applicant denied leave to file further amended statement of claim – whether costs of application should be awarded to the respondents on an indemnity basis – whether costs should be payable forthwith – held: indemnity costs ordered, not payable forthwith
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) s 43(2) Federal Court Rules 2011 (Cth) r 40.13
Cases cited:	Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd (No 2) [2008] FCA 697 Ingot Capital Investments Pty Ltd and Others v Macquarie Equity Capital Markets Ltd (No. 7) [2008] NSWSC 199; 65 ACSR 324 Liberty Financial Pty Ltd v Scott (No 4) [2005] VSC 472 Liberty Financial Pty Ltd v Scott [2005] VSCA 263 Mead v Watson as liquidator for Hypec Electronics [2005] NSWCA 133; (2005) 23 ACLC 718 Olson v Keefe (No 2) [2017] FCA 1168; 122 ACSR 395 Olson v Keefe (No 3) [2018] FCA 2001 Olson v Keefe [2019] FCA 339 Orrcon Operations Pty Ltd v Capital Steel & Pipe Pty Ltd (No 2) [2008] FCA 24 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; 257 ALR 503 Rissanen v Nunan [2019] NSWSC 418 Rosegum Corporation Pty Ltd v Young, in the matter of Rosegum Corporation Pty Ltd (No 2) [2017] FCA 36 Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Date of hearing:	Determined on the papers
Date of last submissions:	23 April 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Applicant:	Mr G Hatcher SC with Mr H Stitt
Solicitor for the Applicant:	Mills Oakley Lawyers
Counsel for the Respondents:	Mr Y Shariff with Mr N Condylis
Solicitor for the Respondents:	King & Wood Mallesons

ORDERS

		NSD 1498 of 2016
BETWEEN:	KEVIN OLSON Applicant
AND:	MICHAEL THOMAS KEEFE First Respondent ; HILCO MERCHANT RESOURCES LLC Third Respondent ; HILCO MERCHANT AUSTRALIA PTY LTD ACN 150 215 875 Fourth Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	17 MAY 2019

THE COURT ORDERS THAT:

1. Order 2 made on 18 December 2018 be varied such that it reads:

The applicant pay the first, third and fourth respondents’ costs of and incidental to the applicant’s request to file a further amended statement of claim on an indemnity basis, as agreed or assessed.

2. The applicant pay the first, third and fourth respondents’ costs of and incidental to the interlocutory application filed 29 March 2019 on an ordinary basis, as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1. On 18 December 2018, I delivered judgment in Olson v Keefe (No 3) [2018] FCA 2001, refusing a request by the applicant in this proceeding, Mr Kevin Olson, to file a second version of a further amended statement of claim (second FASOC). At [46] of the judgment, I concluded in respect of the application and topic of costs that:

Leave to file the FASOC in the draft form provided to the Court on 25 June 2018 is refused. There does not seem to be any apparent reason why costs should not follow the event, and I will so order. The respondents foreshadowed seeking costs on an indemnity basis. The threshold for such an order is substantial. I will, however, allow an opportunity for such an application to be brought.

2. On the same day, I made orders which included the following:

1. The applicant be refused leave to file a further amended statement of claim in the draft form provided to the Court on 25 June 2018.

2. The applicant pay the costs of the first, third and fourth respondents as agreed or assessed.

3. The first, third and fourth respondents be granted leave to make an application for a further or different costs order by 4.00 pm on 30 January 2019.

3. Order 3 was stayed on 17 January 2019, pending the determination of an appeal by Mr Olson of the above orders. Mr Olson also sought an extension of time to appeal against orders made on 16 October 2017 summarily dismissing the proceeding against the second respondent and parts of his amended statement of claim in respect of the first, third and fourth respondents (respondents): see Olson v Keefe (No 2) [2017] FCA 1168; 122 ACSR 395. Those applications, heard by Lee J, were unsuccessful: see Olson v Keefe [2019] FCA 339 (Appeal Applications).

4. On 22 March 2019, I granted the respondents, by consent, an extension of time to make an application for a further or different costs order in respect of Mr Olson’s application to file his second FASOC. On 27 March 2019, the respondents filed an interlocutory application and an accompanying affidavit of the respondents’ solicitor, which sought that:

1. Order 2 made on 18 December 2018 be varied to read as follows: ‘The applicant pay the costs of the first, third and fourth respondent on an indemnity basis as agreed or assessed’.

2. The Court further order that: ‘Costs ordered under order 2 on 18 December 2018 be payable forthwith’.

3. The applicant pay the first, third and fourth respondents’ costs of the application forthwith.

4. Any further order the Court deems appropriate.

(Emphasis in the original)

5. Following consultation with the parties, I considered it appropriate that the respondents’ interlocutory application be determined on the papers, and accordingly made orders on 4 April 2019 for the filing of submissions and evidence. Submissions were filed by both parties, but only the respondents sought to adduce evidence, being the affidavit of the respondents’ solicitor, Ms Natalie Tatasciore of King & Wood Mallesons, sworn 27 March 2019 (Tatasciore affidavit).

6. Pursuant to an order dated 1 May 2019, Mr Olson has since filed a FASOC with the consent of the respondents. A procedural timetable is in place for the closure of pleadings by early July 2019.

Background

7. The request to file the second FASOC was obviously not Mr Olson’s first attempt at re‑pleading his case. By way of background, and noted at [7]–[8] of Olson v Keefe (No 3), there have been repeated attempts by Mr Olson to rectify fundamental defects in his pleadings, especially in so far as they seek to plead causes of action going beyond a claim of breach of contract arising out of his employment with, in the alternative, the third or fourth respondent, or both. The respondents have maintained, in...