Australasian Meat Industry Employees' Union v Meat Inspectors Pty Ltd

1. On 28 September 2023, the Australasian Meat Industry Employees Union (AMIEU) commenced proceedings (Adverse Action Proceedings) alleging contraventions by Meat Inspectors Pty Ltd (Respondent/Meat Inspectors) of the adverse action provisions of the Fair Work Act 2009 (Cth) (FW Act).
2. On 24 February 2025 and 27 March 2025 the final hearing was heard before his Honour Judge Gostencnik (Liability Judge). Judgment was reserved.
3. On 23 July 2025, the Liability Judge published his reasons for judgment (Liability Decision).[1] Orders were made dismissing the substantive application filed by the AMIEU.
4. On 29 July 2025, the Respondent made an application for costs of and incidental to the proceeding fixed in the sum of $36,585.74.
5. On 30 July 2025, the Liability Judge programmed the costs application for determination on the papers.
6. On 16 September 2025, the Liability Judge was appointed as a Judge of the County Court of Victoria.
7. Consequently, on 19 September 2025, the matter was re-docketed to the Court as presently constituted to determine the issue of costs.
8. In short, the Respondent submits that the discretion to award costs is enlivened on the basis that it incurred costs because of the AMIEU:

(a) instituting the Adverse Action Proceedings vexatiously or without reasonable cause; and

(b) engaging in an unreasonable act or omission (by rejecting offers of settlement).

1. For the reasons that follow the application for costs is dismissed.

1. In making and resisting the application for costs the parties rely upon:

(a) for the Respondent:

• the Application in a proceeding filed 29 July 2025;
• the Affidavit of Michelle Joy Christmas filed 29 July 2025;
• the Respondent's submissions filed 20 August 2025;
• the Respondent's submissions in reply filed on 15 September 2025.

(b) for the AMIEU:

• the Affidavit of Brendan Swan filed 10 September 2025; and
• the AMIEU's submissions filed 10 September 2025.

1. The Court as presently constituted has had regard to the materials filed by the parties and the reasons for judgment of the Liability Judge.

1. In Panagiotidis v IProsper Financial Planning Pty Ltd (No 2)[2] her Honour Judge Symons summarised the legal principles and policy behind costs orders:
   1. Section 570 of the Fair Work Act 2009 (Cth) (FW Act) provides as follows:

(1) 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 this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

1. The policy behind s 570 is to ensure that the spectre of costs being awarded against an unsuccessful litigant does not loom so large in the mind of potential applicants that those with genuine grievances and arguable evidentiary and legal bases for them are put off commencing or continuing proceedings.[3]
2. For that reason, the threshold set by s 570(2) is high and the Court's discretion to award costs is to be exercised with caution and in a clear case,[4] in part to avoid discouraging parties from completely and robustly pursuing claims or in equally robustly pursuing their defence of such claims.[5] Even where the threshold is met, the Court retains a discretion.
3. The applicant for costs bears the onus of establishing that one or more of the criteria in s 570(2) are met.

1. The Court as presently constituted respectfully adopts her Honour's summary.
2. In Green v Preston Motors Pty Ltd (No 2)[6] his Honour Judge Blake drew from a Victorian Court of Appeal authority to explain the application of ss 570(2)(a) and (b) of the FW Act.
   1. The purpose, principles and approach to the application of section 570(2)(a) and (b) of the Act in any particular case was summarised recently by the Victorian Court of Appeal in Tucker v State of Victoria (No 2) [2021] VSCA 182 ('Tucker') at [30]-[32].

[30] It is convenient briefly to summarise the approach to be taken to each paragraph.

[31] Section 570(2)(a) asks whether a party has instituted the proceedings 'vexatiously or without reasonable cause'. The following principles emerge from the authorities:

(a) The purpose of s 570(2)(a) is to protect parties from the risk of adverse costs in matters arising under the FWA, while also affording costs protection to parties forced to defend proceedings instituted vexatiously or without reasonable cause.

(b) A proceeding will have been instituted vexatiously if it is scandalous, oppressive, embarrassing, discloses no reasonable cause of action, or is otherwise an abuse of the process of the Court.

(c) A proceeding will have been instituted without reasonable cause if the proceeding lacked reasonable prospects of success at the time it was instituted, having regard to the facts apparent to the instituting party at that time. The focus is on the circumstances of the commencement of the proceeding; the manner in which the proceeding is conducted after it is commenced is irrelevant to para (a) but is instead relevant to para (b).

(d) That the proceeding ultimately fails is not decisive. Nor is it enough that a proceeding is merely misconceived. However, a proceeding will lack reasonable prospects of success where, on the instituting party's own version of the facts, it is doomed to fail.

(e) Where the proceeding at issue is an appeal, the above test as to the absence of reasonable cause applies with minor modifications. The relevant enquiry is whether, having regard to the facts apparent to the applicant at the time of instituting the appeal there were no reasonable prospects of success. In evaluating those prospects, regard may be had to the reasons for judgment or decision under appeal and the grounds relied on to challenge the judgment or decision.

[32] The following principles apply in the case of s 570(2)(b):

(f) Paragraph (b) is enlivened when two criteria are satisfied:

(i) one party has engaged in an 'unreasonable act or omission'; and

(ii) that unreasonable act or omission has caused the other party to incur costs.

(g) Unreasonableness is to be determined objectively. It is a question of impression and degree, to be assessed by reference to the particular circumstances of a given case.

(h) Unreasonableness is not to be confused with negligence or inefficiency. A failure to conduct litigation in the most efficient way does not, without more, enliven the paragraph. The fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness.

1. The Court as presently constituted respectfully adopts his Honour's summary.

1. The Liability Judgment is 25 pages long. After introducing the proceeding his Honour made the following uncontroversial findings of fact:

(a) the Respondent provided meat inspection and certification services;

(b) Mr Stephen Leight was employed by Hardwick Meatworks Pty Ltd (Hardwicks) for 20 years (the last 12 years as a meat inspector);

(c) Mr Leight was a longstanding member of the AMIEU;

(d) in October 2022, Hardwick put Mr Leight on notice of its intention to outsource the function of meat inspections;

(e) in early 2023, Hardwick entered into a contract with the Respondent to provide meat inspections services;

(f) on 14 February 2023, the Respondent sent Mr Leight a "letter of offer and contract of employment". The offer invited Mr Leight to indicate his acceptance;

(g) on 19 February 2023, Mr Leight sent the offer to his union (specifically to the AMIEU's Victorian Branch Assistant Secretary, Mr Adam Blyth);

(h) on 20 February 2024, Mr Leight spoke with Mr Blyth and asked him "to review the material and to deal with the Respondent on his behalf";

(i) on 24 February 2025, the Respondent sent a follow up email noting that Mr Leight had not accepted the offer;

(j) on 3 March 2023, Mr Blyth sought information from the Respondent about the terms proposed in the employment contract in respect of "one of [his] members";

(k) following a request from the Respondent to do so, on 14 March 2025, Mr Blyth identified that his member was Mr Leight;

(l) on 15 March 2025, the Respondent responded to Mr Blyth's request for information by writing directly to Mr Leight. The Respondent was prepared to amend the terms of the contract with Mr Leight (e.g. the probation period was removed);

(m) neither Mr Leigh nor Mr Blyth responded to the amended contract of employment;

(n) on 24 March 2025, the Respondent withdrew the job offer made to Mr Leight. The Respondent said "that it was subject to operational imperatives to fill the position, and so it withdrew the earlier offer to employ Mr Leight". The Respondent's sole Director and Chief Executive Officer was identified as the decision maker; and

(o) on 31 March 2023, Hardwicks terminated Mr Leight's employment by reason of redundancy.

1. It was uncontroversial in the Adverse Action Proceeding that the withdrawal of the offer of employment was adverse action. The Respondent conceded the same in its Amended Defence filed on 21 February 2025 (i.e. within days of the hearing commencing). Therefore, the overarching issue in the proceeding was the reason why the offer was withdrawn ("the because" question).
2. The Liability Judge noted that the AMIEU contended that:

... the respondent took the adverse action against Mr Leight because:

• Mr Leight and/or Mr Blyth for Mr Leight's benefit exercised a workplace right by making an inquiry in March 2023 in relation to Mr Leight's employment, within the meaning of s 341(1)(c) of the FW Act; and/or
• Mr Leight had engaged in an industrial activity within the meaning of s 347(b)(vii) of the FW Act by seeking to be represented by the applicant.[7]

Although the respondent says that it has discharged its burden to rebut the statutory presumption, its primary contention is that the statutory presumption does not arise. Consequently, there are some prefatory issues requiring resolution before the overarching issue may be determined. First, whether s 341(1)(c)(ii) requires an 'inquiry' or 'complaint' under s 341(1)(c) to have a relevant 'source', such as an applicable industrial instrument or employment contract, to constitute the exercise of a workplace right which attracts the protection of s 340. Second, whether Mr Leight as a prospective employee can exercise the workplace right in s 341(1)(c). Third, whether the applicant has established that Mr Leight engaged in an industrial activity by seeking to be represented by the applicant, there being no dispute that the applicant is an industrial association as defined in s 12.[8]

(a) set out the relevant statutory scheme;

(b) cited with approval the matters relevant for determination[9] having regard to a decision of the Full Court of the Federal Court of Australia in Alam v National Australia Bank Limited;[10]

(c) addressed the central question of whether "the matters raised in Mr Blyth's 3 March 2023 email [were] a complaint or an inquiry?". His Honour noted that:

Neither of the applicant's written submissions direct attention to whether the email communications Mr Blyth had with the respondent in relation to the offer of employment and proposed contract for Mr Leight were complaints or inquiries.[11]

(d) dealt with the case as pleaded by the AMIEU. His Honour noted that "Mr Blyth's email of 3 March 2023 does not deploy the language of a complaint" before defining complaint, by reference to relevant authorities, as "communication which, whatever its precise form, is reasonably understood in context as an expression of grievance".[12] His Honour concluded that "the text of the email is much more akin to an inquiry, rather than a complaint";[13] and

(e) noted that "the respondent accepted that the matters raised with the respondent by Mr Blyth's 3 March 2023 email in relation to the proposed contract, were 'inquiries'... [but not] an inquiry within the meaning of s 341(1)(c)(ii) of the FW Act".[14]

1. The next question addressed by the Liability Judge was whether s 341(1)(c)(ii) of the FW Act required "a complaint or inquiry in relation to a person's employment to have a relevant instrumental source?". This was a crucial question.
2. The Liability Judge:

(a) noted the Respondent's submission that "the alleged inquiries... were made in respect of the offer of employment as found in the proposed contract and were not founded on, sourced, or anchored in, an entitlement";[15]

(b) noted that AMIEU submitted that "relying on [Cummins South Pacific Pty Ltd v Keenan][16]... 'no extant right or entitlement' needs to exist".[17] And later, further noted that Bromberg J's reasoning in Cummins was obiter;[18]

(c) noted that "whether the ability to make a complaint or inquiry requires an instrumental source or entitlement, has been the subject of divergent judicial views";[19]

(d) observed that complaints are not confined to those made to external bodies, but include "complaints and inquires... made to the employer in relation to the person's employment";[20]

(e) cited[21] the Full Court in Alam (itself referring to Collier J in Whelam v Cigarette & Gift Warehouse Pty Ltd)[22] noting that:

... it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision stop is also to be noted that Collier J did not report to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).[23]

(f) further cited[24] the Full Court in Alam:

It is possible, but in our view unlikely, that the legislative intention is that employees should be regarded as having the ability to make an enquiry in relation to their employment only when a right or entitlement to do so has been formally granted or acknowledged by some form of instrument. In our view, this points against a requirement that the ability to make a complaint or inquiry have itself an instrumental source.[25]

(g) noted[26] that in Alam, the Full Court decided that "irrespective of [its] own views concerning the proper construction of s 341(1)(c)", the principle of comity required it to "proceed on the understanding of s 341(1)(c) indicated by the unanimous decision of the Full Cout in Whelan";[27]

(h) held that:

Given the binding authority of Whelan and Alam, the applicant's contention that for Mr Leight to exercise a workplace right (in the sense of being able to make a complaint or inquiry of the kind contemplated in s 341(1)(c)(ii) of the FW Act, no "extent right or entitlement" needs to be needs to exist, cannot be accepted... The source must be established for the workplace right to exist.[28]

(i) cited[29] Snaden J in Wong v National Australia Bank Limited:

...It is not sufficient that a complaint or inquiry is made simply because the employee feels (with justification or otherwise) that he or she has something to complain or inquire about. What must be shown is some right or entitlement to make the complaint or inquiry. ... In Maric v Ericsson Australia Pty Ltd [2020] FCA 452, Steward J held (at [55]).

For a person to be able to make an inquiry, that capacity must be anchored in a legal entitlement of some kind, whether it be statute, contract law, the common law of Australia, or some other instrument or thing that confers legal rights...[30]

(j) noted that at the relevant time Mr Leight was a prospective employee and consequently, the "matters the subject of [the] inquiry made ... in March 2023 ... were not anchored in any kind of legal entitlement";[31]

(k) considered that the Applicant had failed to establish "that the terms of the proposed contract were settled or that any term of the proposed contract conferred on Mr Leight any legal right or capacity to enforce any right".[32] It followed that s 341(3) of the FW Act could not operate to confer upon Mr Leight the "'workplace rights' he... would have 'if... he were employed'".[33] This conclusion was supported by Steward J having found in Maric that - because a prospective employee/employer had failed to agree upon "the content of... [an employment contract as well as] its final form" - the "statutory fiction created by s 341(3)" did not operate to confer upon the employee the right to make a complaint or inquiry;[34]

(l) noted that, in closing submissions, the AMIEU had seemingly sought to anchor the workplace right in the FW Act on the basis of the proposed contract not having a flexibility clause.[35] This was rejected because it had not been put to the Respondent's witnesses during the hearing, and the case had not been pleaded in that way;[36]

(m) concluded that:

(i) "Mr Leight did not have, nor did he exercise a workplace right";[37]

(ii) the AMIEU failed to establish the existence of a workplace right as an "objective fact";[38]

(iii) s 361 (the reverse onus) was not enlivened;

(n) for completeness, referred to the AMIEU's written outline filed before trial and noted that "the existence of those rights as workplace rights had not been pleaded";[39]

(o) noted that Steward J's assertion in _Maric - _that there was "much to be said for the proposition" that s 341(1)(c)(i) necessarily prevented s 343(3) from conferring upon prospective employees a right to make complaints/inquiries - had been made in obiter.[40] Indeed, whilst the Liability Judge appeared similarly disposed to this proposition, he ultimately regarded it as "neither necessary nor desirable to determine the construction issue";[41]

(p) addressed whether Mr Leight engaged in industrial activity (pleaded incorrectly as "industrial action") by seeking to be represented by the AMIEU within the meaning of s 347(b)(vii) of the FW Act. His Honour concluded he could not "accept that Mr Blyth's conduct of sending the respondent his 3 March 2023 email is capable of amounting to Mr Leight seeking to be represented by an industrial association within the meaning of... the FW Act".[42] His Honour came to this conclusion because the email of 3 March 2023 did not identify Mr Leight. Mr Blyth only identified Mr Leight on 14 March 2023;

(q) observed that:

There are plainly elements of the evidence recited above which may constitute Mr Leight seeking to be represented by the [AMIEU]. That is evident from the conversations between Mr Leight and Mr Blythe on 19 and 20 February 2023. But that is not the case that is pleaded.[43]

(r) dismissed the industrial activity claim; and

(s) although it was unnecessary to address the issue of whether the Respondent discharged its onus (because it had not been enlivened), his Honour accepted the evidence of the decision maker, Mr Dart, and held that the onus would have been discharged.

1. The Respondent contends that the discretion in s 570(1) of the FW Act to award costs in their favour is enlivened pursuant to ss 570(2)(a) and (b) because the AMIEU instituted this proceeding vexatiously or without reasonable cause, and that the AMIEU - in rejecting either or both of the Respondent's offers of settlement made in 2024 - engaged in an unreasonable act or omission which caused the Respondent to incur costs.

Did the AMIEU institute the proceeding vexatiously or without reasonable cause?

1. With reference to Tucker, it is worth repeating the principles relevant to assessing whether s 570(2)(a) applies. These principles are as follows:

(a) instituted vexatiously means to commence a proceeding that is scandalous, oppressive, embarrassing, discloses no reasonable cause of action, or is otherwise an abuse of the process of the Court;

(b) instituted without reasonable cause means a proceeding lacked reasonable prospects of success at the time it was instituted, having regard to the facts apparent to the instituting party at that time;

(c) in assessing whether proceedings were instituted without reasonable cause, the focus is on the circumstances at the time of commencement;

(d) how a proceeding is conducted after it is commenced is irrelevant to para (a) but is instead relevant to para (b);

(e) that a proceeding ultimately fails is not decisive. Nor is it enough that a proceeding is merely misconceived; and

(f) a proceeding will lack reasonable prospects of success where, on the instituting party's own version of the facts, it is doomed to fail.

1. At the time that the proceeding was commenced the AMIEU's National Industrial Officer made a lawyer's certification to the Court that, "In relation to the statement of claim filed on behalf of the applicant, the factual and legal material available to me at present provides a proper basis for each allegation in the pleading." The pleading, dated 27 September 2023, was settled by counsel. This supports a conclusion that the AMIEU had, at the time it commenced the proceeding, given proper consideration to its prospects of success. It was not a frivolous endeavour.
2. In respect of s 570(2)(a) the Respondent submitted that,

(a) at the time of its decision to institute the proceeding "the Applicant, properly advised (as it plainly was), knew or ought to have known that ... its causes of action ... included basic factual and legal elements which it had to prove in order for those causes of action to be maintainable";

(b) "two important elements of the pleaded causes of action were not available to be found established on the facts known to the Applicant, because the Applicant could not prove or establish:... [(i)] the existence of and exercise of an alleged workplace right constituted by the making of an inquiry... [and (ii)] the occurrence of industrial activity in the form of seeking to be represented by an industrial association";

(c) the inability to establish the two important elements meant that the "reverse onus ... could not be enlivened";

(d) the "clear factual and legal reality was that the conduct in (or of) sending the 3 March 2023 email ... was not an inquiry within the meaning of ... the FW Act, because the prospective employee ... did not have the requisite ability to make that inquiry". For this proposition the Respondent relied upon Maric[44] and Alam.[45] The Respondent contended that:

When the Applicant commenced the preceding, the existence of that ability, and an instrumental source or entitlement underpinning that ability, if the relevant workplace right is to exist, was well established as a matter of law by Full Court and single judge authority of the Federal Court of Australia, all of which was binding on [the FCFCOA];

(e) by those authorities the Liability Judge was bound "to answer the question of whether Mr Leight had and exercised a workplace right in respect of the making of the inquiry or inquiries on 3 March 2023 as 'no'";

(f) further, that the sending of the email on 3 March 2023 "could not simply and fairly be characterised, as a matter of fact and law, as engaging in industrial activity by seeking to be represented by an industrial association within the meaning of the ... FW Act"; and

(g) that "there was no arguable point of law in respect of the workplace right element of the [AMIEU's] claim."

1. In respect of s 570(2)(a) the AMIEU submitted that:

(a) "if the Respondent had confidence in the conclusion and the case was as weak as its correspondence articulated, then the Respondent ought to have applied for summary judgement or an application for a separate question to be tried (on the point of the existence or exercise of a workplace right). It failed to do either of those things; arguably this is inconsistent with the overarching purpose of the civil practise and procedure provisions ... which inter alia seek to facilitate the just resolution of disputes as quickly, expensively and efficiently as possible. The truth is that the Respondent did not apply for either of these things because it knew there was an arguable and contentious case that was novel";

(b) "[t]he Applicant carefully crafted its case based on the defence filed on 28 October 2023, which pleaded two reasons for the taking of the adverse action. That defence had a deemed admission that it took the adverse action because our member participated in industrial activity. In this regard, the applicant was, at the relevant time, on good footing to win the matter (regardless of any finding on the existence or exercise of a workplace right). One day before the trial, Judge Gostencnik granted the respondent leave to amend its defence to add in further subjective reasons for taking the adverse action - no written reasons were provided for permitting the defence to be amended either at the time or in the substantive decision. The amended defence significantly affected the applicant's case"; and

(c) "there were several factually novel features in this matter which distinguish it from other case".

1. In respect of s 570(2)(a) the Respondent submitted in reply that:

(a) "the Respondent's cost application does not depend upon 'the respondent's construction' of the relevant legislative provisions in Part 3-1 of the Fair Work Act 2009 (Cth) but rather upon the Federal Court's authoritative construction, which at all material times, including at the commencement of this proceeding, was binding upon this Court";

(b) "[t]he submissions to the effect that the Respondent 'ought to have' applied for certain interlocutory relief (such as summary judgment or determination of a separate question) is ... irrelevant to the present question"; and

(c) "whatever the defence and amended defence pleaded is irrelevant to the question of whether the Applicant instituted the proceeding without reasonable cause".

1. In Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5)[46] the Federal Court of Australia was concerned with penalty proceedings brought by the ACCC in which the regulator lost. In support of an order for indemnity costs the respondent contended that the ACCC's case was "hopeless" and "bound to fail" and that it should have been aware of that, or at least of the "inherent and objective weakness" in its case before it commenced the proceedings. After referring to relevant authorities Wigney J observed that (citations omitted):

11. Two things should perhaps be noted about these descriptions of the types of cases in which an indemnity costs order may be warranted. First, they use expressions which suggest a high degree of certainty concerning the deficiencies in the losing party's case. It would appear not to be enough that the losing party's case was simply weak or tenuous. Second, and relatedly, the deficiencies must be sufficiently manifest and clear such that it can be inferred that the losing party would or should have appreciated them when the action was commenced or continued, at least if they had given proper consideration to, or been properly advised about, the merits of their case.

12. In assessing whether a case can be said to "have no chance of success", or to be "hopeless" or "foredoomed to fail", and that the losing party should have known that to be the case, it is also necessary to be wary of reasoning with the benefit of hindsight. As Goldberg J said in Re Kingsheath Club of the Clubs Ltd (in liq)... it is "easy with hindsight to make an observation that an action has no chance of success, after the matter has been fully argued and has enjoyed considered attention of experienced solicitors and senior and junior counsel".

1. As the authorities reveal the mere fact that a party "suffered a loss" in a proceeding would not justify the ordering of costs in a Fair Work matter. The fact that the AMIEU failed in every respect (and would also have failed had the s 361 onus been enlivened), does not mean that costs should be awarded against it.
2. The Liability Judge acknowledged that "whether the ability to make a complaint or inquiry requires an instrumental source or entitlement, has been the subject of divergent judicial views".[47]
3. Although the Adverse Action proceeding was similar to Maric in that it also related to pre-contractual negotiations, the matters were not identical. Unlike in Maric, the "inquiries" being made in the present matter were made by the union of the prospective employee, not the prospective employee themselves. Further, Mr Leight was seeking advice from his union as a union member. These factors gave the Adverse Action Proceeding an industrial character not present in Maric and invested the matter with a certain novelty. In those circumstances it was open to the Liability Judge to distinguish Maric, noting also that Steward J's comments about whether prospective employees are covered by section 341(1)(c)(ii) were clearly obiter and thus, represented an undetermined issue of law. This matter does not rise to the necessary high degree of certainty about failure that the Respondent contends for.
4. It is also clear from a reading of the Liability Decision that AMIEU's claim suffered from poorly drafted pleadings (especially the industrial activity limb). That means that while the case pleaded was misconceived, it was not doomed to fail.
5. In all the circumstances of this matter while the case advanced by the AMIEU might have been a "tall order" it was not without reasonable cause. While the AMIEU's case had difficulties, it is readily apparent why the AMIEU made an assessment, at the time it commenced proceedings, that its prospects of success were not "hopeless". There is no suggestion in this matter (and it was not contended by the Respondent) that the AMIEU acted with an ulterior motive. It was not a vexatious proceeding. The AMIEU brought a proceeding. That proceeding fell short. With the benefit of hindsight, and in light of the Liability Decision, the AMIEU might not have commenced the proceeding. However, that is not the test time.
6. For the reasons set out above the Court is not satisfied that the conditions for the Court's discretion to award costs under s 570(2)(a) of the FW Act are engaged.

Was there an unreasonable act or omission by the AMIEU?

1. With reference to Tucker it is worth repeating the approach to be taken in relation to s 570(2)(b). They are as follows:

(a) unreasonableness is to be determined objectively;

(b) it is a question of impression and degree, to be assessed by reference to the particular circumstances of a given case;

(c) unreasonableness is not to be confused with negligence or inefficiency; and

(d) the fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness.

1. The Respondent identified two unreasonable acts and/or omissions being the rejection of its offers to settle made on 8 January 2024 (First Offer) and 23 July 2024 (Second Offer).[48]
2. In the First Offer the Respondent's solicitors wrote:

7. Absent Mr Leight's acceptance of the offer of employment, there can be no claim predicated on a legal employment relationship having been formed as between Mr Leight and our client.

8. Mr Leight cannot assert that he enjoyed a "workplace right" to request contractual amendments because no concluded employment agreement was ever entered into and the proposed contract did not confer the right to do so.

9. Nevertheless, I set out above, our client answered the inquiries which had been raised for an on behalf of Mr Leight and, despite having answered inquiries, our client received no further communication from Mr Leight to confirm his intentions with regard to the offer of employment.

10. Having waited for more than five weeks for Mr Leight's acceptance of the offer of employment, it became necessary for our client to consider alternate placements, noting that the Australian Government Authorised Officer role was a senior, and necessary, appointment that which needed to be filled.

11. Consequently, our client withdrew the offer of employment (as it was entitled to do) by written notice on 24 March 2023.

12. In all the circumstances, we are of the view that the union's claim is bound to fail.

13. We are therefore instructed to offer to resolve this matter on the basis that our client will bear its own costs incurred to date in exchange for the discontinuance of the application which has been made against our client.

1. The First Offer was made pursuant to the principles in Calderbank v Calderbank,[49] and was open for acceptance until 4.00 pm on 22 January 2024. On 9 January 2024 AMIEU rejected the First Offer.
2. The Second Offer was in the form of a Notice of Offer to Compromise pursuant to the Rules of the Court, made in the following terms:

1. The applicant discontinues its claim against the respondent.

2. The applicant not seek recovery of the costs the subject of the order made by Judge Riley in the FCFCOA on 11 June 2024.

3. The parties otherwise bear their own costs, of and incidental to this proceeding.

1. The Second Offer was also a Calderbank offer and was open for 14 days. In the accompanying letter the Respondent's solicitors wrote:

19. This offer is made on the basis that we consider your member's claim to be without substance (sic) of merit.

20. In making this assertion we rely upon the submissions filed in the Federal Circuit Court in which we have set out why your member's claim is flawed as a matter of law, given the fact that it is established, by Federal Court authority (which binds the Federal Circuit Court) that a prospective employee, such as your member, does not enjoy a "workplace right" to seek to negotiate the terms of his perspective employment.

1. On 23 July 2024 the AMIEU rejected the Second Offer. Unnecessarily, the AMIEU accused the Respondent of making "two ridiculous offers".
2. In respect of s 570(2)(b) the Respondent submitted that:

(a) they had reminded the AMIEU "of the reality that its case was bound to fail and was given, and otherwise had, multiple opportunities to discontinue the proceedings";

(b) the AMIEU "exhibited [a] cavalier attitude to settlement of the proceeding";

(c) the First Offer was "made at a very early stage of the proceeding before more substantial costs had been incurred";

(d) by "promptly and unreasonably rejecting the offers of settlement made by the Respondent, the [AMIEU], on each occasion engaged in unreasonable act or emission, which caused the Respondent to continue to incur costs in defending the preceding"; and

(e) the rejection of the offers to settle "occurred at a time when the [AMIEU] knew or should have known that its case was bound to fail."

1. In respect of s 570(2)(b) the AMIEU submitted that,

14. The rejection of the two relevant offers was not in itself an unreasonable act or omission because the seeking of declaratory relief and pecuniary penalties is a proper basis for refusing an offer (Mount v Dover Castle Metals Pty Ltd).[50]

1. In respect of s 570(2)(b) the Respondent submitted in reply that offering not to "pursue the [AMIEU] for costs in circumstances where [its] claim had no reasonable prospect of success" was "a key and valuable element" of its offers to settle.
2. In its reply submissions the Respondent did not address the AMIEU's contention that "the seeking of declaratory relief and pecuniary penalties is a proper basis for refusing an offer".

1. There is no general rule that in proceedings involving the prospect of the imposition of civil penalties the rejection of an offer of compromise (framed as a Calderbank offer) will not be unreasonable and will not give rise to costs being awarded. The usual principles apply.
2. However, the authorities in this area suggest that important public policy questions may arise in the settlement of penalty proceedings.
3. In Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd[51] the Federal Court of Australia was concerned with penalty proceedings brought by the ACCC in which the regulator lost. A question arose whether costs should be on the usual party-party basis or indemnity basis. The Respondent contended costs should be on an indemnity basis because it achieved a better result than the offer it made to the ACCC. Justice Alsop (as he was then) was not prepared to depart from the usual rule:

12. ... I do not see any unreasonable conduct of the applicant in running the case as it did. A rejection of an offer in a penalty case such as this brings with it considerations of public responsibility for the administration of an important piece of Commonwealth legislation that do not attend an offer in a civil suit. I'm not prepared to criticise the assessment or decision of the applicant in running the case in the face of the offer to settle it...[52]

1. In Colgate-Palmolive, Wigney J observed that (citations omitted),

11. There is some authority in support of the need for restraint or reticence before making indemnity costs orders against regulators who bring actions in the public interest. In Australian Competition and Consumer Commission v Leahy Petroleum Pty Limited, Gray J said the following (at [24]):

It is apparent that the ACCC has cast upon it significant responsibilities on behalf of the public, to ensure as far as practicable that there is compliance with the provisions of the Trade Practices Act. When the ACCC has commenced and pursued a proceeding in respect of alleged contraventions of a provision of the Trade Practices Act, and there is no suggestion that it has acted with any ulterior motive, the Court should not be quick to award costs against it on anything other than the usual party-party basis when the ACCC has suffered a loss in the proceeding. Excessive readiness to force the ACCC to compensate the winning party to a greater extent than the normal party-party costs incurred might operate as a deterrent to the ACCC against bringing proceedings in the exercise of its public functions.

...

16. ... the nature of penalty proceedings, involving as they often do important questions of public policy arising from the enforcement of regulatory legislation, does not make them as amenable to commercial settlement as ordinary civil litigation. The issues involved in such litigation extend well beyond commercial considerations and dollars and cents.

17. What could perhaps be said about the position of regulators such as the Commission is that, before making an order for indemnity costs against the Commission when it has been unsuccessful in a penalty proceeding, the Court would ordinarily need to be affirmatively satisfied to a high degree not only that the proceeding was hopeless or foredoomed to fail, but also that the Commission ought to have realised that to be the case before commencing or while pursuing the proceeding. The Court should generally be slow to infer, in the absence of fairly compelling facts and circumstances, that a regulator charged with important statutory functions and duties, such as the Commission, would commence or pursue penalty proceedings in enforcement of regulatory legislation in such circumstances.

18. It might also be added, in this context, that the legislation administered by Commonwealth regulators is often complex and the cases they commence and pursue are often difficult to prove. The public responsibilities of regulators mean that they must, on occasion, pursue hard cases; cases based on circumstantial or highly contentious evidence or perhaps unsettled areas of law. It follows that it might reasonably be expected that they will lose some cases, sometimes emphatically. A regulator who chooses only to pursue easy cases and easy targets might perhaps have an excellent strike rate in terms of winning cases, but it would not be doing its job. These types of considerations, which do not apply to ordinary civil litigants, should be taken into account when assessing whether an indemnity costs order against a regulator such as the Commission is warranted.[53]

1. There is an analogy to be drawn between the cost issue in the ACCC cases (where the usual rule is party-party costs) and the present industrial matter (where the usual rule is that no costs are awarded). In both cases a court should not be quick to depart from the usual rule.
2. So, while there is no general principle that regulators do not have costs awarded against them other than in accordance with the usual rules, the fact that a regulator (or an entity akin to a regulator) is the applicant provides context to an application for costs that seeks to depart from the usual rules.
3. Having regard to the above authorities, it is relevant to a consideration of reasonableness in the present matter that the Adverse Action Proceeding was not an ordinary civil dispute.
4. In this matter, it is relevant that the Adverse Action Proceeding was commenced by an industrial association (i.e. the AMIEU) and that:

(a) by operation of s 539(2), item 11 of the FW Act industrial associations (like unions) have a statutory right to commence civil penalty proceedings in respect of general protections; and

(b) a union's right to commence civil penalty proceedings is the same as an inspector, meaning An inspector means a Fair Work Inspector (appointed as such under s 700 of the FW Act) and the Fair Work Ombudsman.

1. These two points are indicative of the privileged place unions occupy in the enforcement of the FW Act. Like the Fair Work Ombudsman (in respect of the public), unions have significant responsibilities on behalf of their members to ensure as far as practicable that there is compliance with Fair Work laws and the commencement of proceedings by unions to enforce the FW Act have a unique foundation in the public interest.
2. The above matters are relevant in assessing whether the rejection of the offers to settle were unreasonable. That is to say, in conducting an assessment about whether the AMIEU behaved unreasonably, its position akin to a regulator is relevant. This is especially so when it was seeking to enforce Fair Work laws designed to advance a broader public interest. That does not mean that a union is entitled to behave unreasonably with impunity. Unions are not immune from costs being awarded against them.
3. It is further to be noted that general protection proceedings are often complex. Consequently, having regard to the responsibility of unions to enforce compliance with the FW Act, they too "must, on occasion, pursue hard cases; cases based on cases based on circumstantial or highly contentious evidence or perhaps unsettled areas of law. It follows that it might reasonably be expected that they will lose some cases".[54]
4. In the Origination Application the AMIEU sought the following orders:

(a) declarations that the Respondent contravened the FW Act;

(b) pecuniary penalties;

(c) compensation inclusive of future economic loss and damages for hurt, embarrassment and humiliation;

(d) that pecuniary penalties be paid to the AMIEU; and

(e) interest.

1. If the AMIEU had accepted the offers it would have had to discontinue the proceedings and bear its own costs. It would have had to bear its own costs in any event because of the operation of the FW Act. Both offers required the AMIEU to "walk away". The Second Offer required the AMIEU to forgo $13,500 in costs awarded to it by Judge Riley on 10 June 2024.
2. In a penalty proceeding it is for the court to determine the appropriate sanction, not the parties. The most that the parties can do is jointly propose orders. The offers made by the Respondent would not have even led to that being the position of the parties. Both offers were "all or nothing". There is nothing inherently unreasonable in the AMIEU rejecting both; its rejection of both offers in a penalty proceeding case brought with it considerations of public responsibility for the administration of the FW Act and its role akin to a regulator. The position of the AMIEU is to be contrasted to that of a party in a civil suit to whom an offer is made. Holding the special role that a union does under the FW Act, where it acts in the public interest (including when it seeks to support an individual member - as it did in the present matter), it is not obliged to reach a compromise that does not reflect the nature of the conduct it believes to have taken place. In this matter the AMIEU genuinely held the view that the employment offer made to its member was withdrawn because the AMIEU made inquiries of the Respondent on behalf of their member, Mr Leight. The AMIEU genuinely held the view that the general protection provisions of the FW Act had been breached and that civil penalties ought to be imposed. Determined objectively, the AMIEU did not behave unreasonably in rejecting the First Offer, nor the Second Offer.
3. For the reasons set out above, the Court is not satisfied that the conditions for the Court's discretion to award costs under s 570(2)(b) of the FW Act are engaged.

1. Not being satisfied that the conditions for the Court's discretion to award costs under s 570 of the FW Act are engaged, there is no basis upon which the Court should order costs in this matter.
2. However, even if the conditions for the Court's discretion to award costs under s 570 of the FW Act had been engaged, the Court, in the exercise of its discretion, would not have ordered costs in favour of the Respondent. This is because, having regard to the facts in this matter, awarding costs would likely have the adverse effect of offending the policy behind s 570. Although the precedent value of this decision is little, the spectre of costs being awarded against an unsuccessful union litigant should not loom so large in the mind of potential applicants that those with genuine grievances on behalf of their members (and arguable evidentiary and legal bases for them) are put off commencing or continuing proceedings. Unions should not be discouraged from robustly pursuing claims like those in the present matter.

1. For the reasons set out above, the Application in the Proceeding for costs against the AMIEU must be dismissed. Orders to this effect will be issued with these reasons.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[1] Australasian Meat Industry Employees' Union v Meat Inspectors Pty Ltd [2025] FedCFamC2G 1128 ('Liability Decision').

[2] [2024] FedCFamC2G 797.

[3] Trustee for the MTGI Trust v Johnson (No 2) [2016] FCAFC 190, [8] referring to the observations of Mortimer J (as her Honour then was) in Ryan v Primesafe [2015] FCA 8, [64].

[4] Saxena v PPF Asset Management Ltd [2011] FCA 395, [5]-[6].

[5] Richens v Commonwealth of Australia (as represented by the Commissioner of the Australian Federal Police) [2018] FCA 1276, [23].

[6] [2022] FedCFamC2G 840.

[10] [2021] FCAFC 178, 288 FCR 301, [14] ('Alam').

[16] [2020] FCAFC 204.

[22] [2017] FCA 1534.

[23] Alam v National Australia Bank Ltd [2001] FCAFC 178, [75] ('Alam').

[30] Wong v National Australia Bank Limited [2021] FCA 671, [76] (Snaden J).

[33] Maric v Ericsson Australia Pty Ltd [2020] FCA 452, 23 [58]-[59] (Steward J) ('Maric').

[34] Liability Decision 16-7 [44]; citing Maric 23 [58]-[59].

[44] Maric [58] - [59] (Steward J).

[46] [2021] FCA 246 ('Colgate-Palmolive').

[48] Affidavit of Michelle Joy Christmas on 29 July 2025, annexures MJC1 and MJC3.

[49] [1975] 3 All ER 333.

[50] [2025] FCA 402 (Katzman J).

[51] [2005] FCA 860 ('Baxter').

[53] Colgate-Palmolive 7 [11], 9 [16]-[17] (Wigney J).