Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd

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

1. This is an application by the respondents to the proceedings for an order that the applicant, Ms Holly Grofski, pay the costs of an unsuccessful interlocutory application filed on 26 August 2025 pursuant to which she sought leave to file and serve a Further Amended Originating Application and a Further Amended Statement of Claim (FASOC). This would have been the fifth iteration of the statement of claim served on the respondents.
2. On 27 November 2025, I refused leave and dismissed the application. Nevertheless, upon Ms Grofski's undertaking to discontinue related proceedings that had been filed in the Supreme Court of Queensland, I granted her provisional leave to file by 4.00pm on 30 January 2026, yet another further amended originating application and further amended statement of claim, albeit limited to 60 pages. The respondents sought to be heard on the question of costs. A hearing was listed for 13 February 2026.
3. Ms Grofski's claims include claims for relief under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) and under the whistleblower protection provisions of Part 9.4AAA of the Corporations Act 2001 (Cth) arising from alleged adverse action by some of the respondents in relation to her employment at the Coppabella Coal Mine in central Queensland. For that reason, a costs order in favour of the respondents would be contrary to the usual orders in relation to costs in the Fair Work jurisdiction and in relation to matters arising under the whistleblower protection provisions.

570 Costs only if proceedings instituted vexatiously etc.

(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.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 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. Section 1317AH of the Corporations Act is in similar, albeit not identical, terms. It provides:

1317AH Costs only if proceeding instituted vexatiously etc.

(1) This section applies to a proceeding (including an appeal) in a court in relation to a matter arising under s 1317AE in which a person (the claimant) is seeking an order under subsection 1317AE(1).

(2) The claimant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (3) of this section.

(3) The claimant may be ordered to pay the costs only if:

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

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

(Emphasis added.)

1. The bar to engage s 570 of the FW Act is set relatively high. That is no doubt because the effect of the section is to curtail, in proceedings relating to matters arising under the FW Act, the discretion which the Court would otherwise have with respect to costs: Altintas v O'Dea Lawyers (No 2) [2018] FCAFC 187 at [6] per White, Perry and Charlesworth JJ. Thus, the discretion to award costs under s 570 of the FW Act must be exercised cautiously. As Mortimer J explained in Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64]:

... The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties' pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision...

1. The principles that have evolved in relation to s 570 of the FW Act are equally applicable to s 1317AH of the Corporations Act: Mount v Dover Castle Metals Pty Ltd (Costs) [2025] FCA 402 per Katzmann J at [15].

1. There is no doubt that the respondents have been vexed by Ms Grofski's approach to the proceedings. They point to two separate acts which they say were unreasonable and which have caused them to incur unnecessary legal costs.
2. The first act which is said to be unreasonable was the filing of the interlocutory application itself on 26 August 2025. The following matters bear on that submission.
   1. From as early as 14 May 2025, the solicitors for the First to Fourth and Sixth to Tenth Respondents had advised Ms Grofski of "fundamental deficiencies" in her pleading. They indicated that, "upon the determination of the joinder and disqualification applications, we intend to correspond with you further regarding particular concerns about the ASOC so that they may be rectified in your FASOC, and any strike out application avoided." At that point in time, the Amended Statement of Claim was 47 pages long comprising 140 paragraphs and various annexures in table format.
   2. On 23 July 2025, I heard two interlocutory applications pursuant to which Ms Grofski sought to join another person to the proceedings as a second applicant and seeking an order that MinterEllison, the solicitors for the First to Fourth and Sixth to Tenth Respondents, be restrained from continuing to act as solicitors on the record for the proceedings. I dismissed the applications and indicated that reasons would follow.
   3. As the transcript of that hearing records, I indicated that the parties may benefit from receiving my written reasons before any further programming orders were made. On that occasion, from the Bar table, Ms Grofski signalled her agreement with that suggestion and acknowledged as much in writing to the solicitors for the respondents on 18 August 2025.
   4. Nevertheless, in correspondence dated 28 July 2025 and 31 July 2025, Ms Grofski made proposals to the solicitors for the respondents in relation to the ongoing case management of the matter.
   5. By letter dated 30 July 2025, the solicitors for the First to Fourth and Sixth to Tenth Respondents set out in detail the correspondence that had been exchanged prior to the hearing of the interlocutory applications and explained to Ms Grofski why her applications could not succeed. Although disavowing pursuing her for costs in relation to those applications, the solicitors foreshadowed that future interlocutory applications might force them to bring an application pursuant to s 570(2)(b) of the FW Act.
   6. By letters dated 8 August 2025, in response to Ms Grofski's 28 and 31 July correspondence, both sets of solicitors for the respondents indicated that they thought it appropriate to wait for the publication of my reasons before entering into any further discussions and that they would respond to Ms Grofski within seven days of publication of the reasons.
   7. In her correspondence of 18 August referred to at [9(c)], Ms Grofski said that as it was "coming up on four weeks" since the hearing, she considered "it appropriate to progress discrete procedural matters that do not depend on those reasons." She sought their consent to the transfer of the Supreme Court proceedings to the Federal Court or, alternatively, leave to file a further amended statement of claim, which would include claims made under the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) currently the subject of the Supreme Court proceedings. Ms Grofski said that, were consent not provided to either alternative, she would proceed to file an application for leave to amend on 25 August 2025.
   8. On 22 August 2025, both sets of solicitors for the respondents wrote to Ms Grofski indicating that they would await my reasons before responding to either proposal, as I had suggested at the hearing on 23 July 2025.
   9. On 25 August 2025, Ms Grofski wrote to my Associate to inform my Chambers that she had filed an interlocutory application for leave to amend and that the respondents had indicated that they would not engage with case management matters until after my reasons were delivered. She noted that she had said at the hearing on 23 July 2025 that she would await the reasons but added, "however, I also recall Her Honour's observation that these proceedings have been on foot for over twelve months. With that observation in mind, I consider it appropriate to progress procedural matters that do not depend on the reserved reasons..."
   10. My reasons were published on 26 August 2025.
3. The second matter pointed to by the respondents as unreasonable is the "extraordinarily large" volume of material served by Ms Grofski over the course of approximately 11 weeks. As to this submission, the following matters are relevant.
   1. On the same day that I published my reasons, Ms Grofski served on the respondents the interlocutory application dated 25 August 2025, the letter referred to at [9(i)] of the same date, written submissions of 4 pages, and an affidavit of Ms Grofski which totalled 271 pages, including the proposed FASOC which was 248 pages in length.
   2. On 10 September 2025, the solicitors for the First to Fourth and Sixth to Tenth Respondents wrote to Ms Grofski expressing their view that the FASOC was liable to being struck out. Over a page and a half, a detailed critique of several general and specific aspects of the pleading was made for Ms Grofski's assistance. On the same day, the solicitors for the Fifth Respondent also wrote to Ms Grofski drawing certain deficiencies to her attention and lamenting that she had not afforded them the opportunity to correspond with her regarding particular concerns with her original pleading as they had urged.
   3. On 15 September 2025, I made orders requiring Ms Grofski to provide my Chambers and the solicitors for the respondents with the final version of the draft FASOC on which she wished to rely by 3 October 2025.
   4. On 3 October 2025, Ms Grofski sent an amended interlocutory application dated 3 October 2025, a second draft FASOC which totalled 252 pages, an additional affidavit of 24 pages, and 31 pages of written submissions to the Registry and to the solicitors for the respondents. The second draft FASOC did not make the alterations on the pleading in accordance with r 16.59 of the Federal Court Rules 2011 (Cth).
   5. The solicitors for the First to Fourth and Sixth to Tenth Respondents wrote to Ms Grofski on 9 October 2025 requesting Word-versions of the two draft FASOCs to enable comparison. Ms Grofski refused to provide Word-versions but, on 9 October 2025, provided a 356-page document described as "091025 FASOC Comparison".
   6. On 31 October 2025, the solicitors for the respondents filed written submission based on the second draft FASOC.
   7. On 14 November 2025, Ms Grofski sent to the solicitors for the respondents yet another further amended originating application, written submissions in reply to those filed by the respondents, a third draft FASOC totalling 267 pages, and a document described as "Comparison of 2DFASOC and 3DFASOC", which totalled 373 pages. The documents were accompanied by an email which said that the documents were provided "due to the significant event of the FW statutory bar being raised by the Respondents..."

1. Ms Grofski resists any order that she be required to pay costs essentially on the basis that she has tried her best to plead what is undoubtedly a complex case and although she may be misguided, she has not acted unreasonably.
2. In her written submissions, Ms Grofski submits first that "the respondents fail on causation". She says that the respondents have failed to establish what portion of their costs were incurred by the allegedly unreasonable conduct, specifically the timing of filing and the volume of material. In particular, Ms Grofski contends that the respondents have failed to establish that, had she waited until after the delivery of the reasons for judgment: they would have consented to leave to amend; the reasons would have rendered the application unnecessary; correspondence would have resolved the matter without a hearing; or the costs would have been lower if the application had been filed later.

1. What is clear from the material before the Court is that the respondents have been making genuine attempts to assist Ms Grofski to put her pleading into an acceptable form. The correspondence makes it clear that the respondents' maintained their position from the outset that they would provide detailed criticism of Ms Grofski's FASOC after my reasons had been published. If Ms Grofski had waited as requested, there could well have been correspondence addressing the deficiencies such that consent may have been forthcoming and certain costs would not have been incurred. That said, I note Ms Grofski's submission that the respondents' would have incurred the same costs whenever the application was made because she "would have always filed the version that was filed believing it to be what was required by the rules." If it be true that she would not have taken any advice, then that submission rather undermines Ms Grofski's claim that her conduct was not unreasonable.
2. Nevertheless, I accept the reticence Ms Grofski expressed in necessarily following the advice of those opposed to her. I also accept her submission that she "felt damned if she did and damned if she didn't" in the face of my criticism of how long the proceedings had already been on foot without any significant progress. However, I reject any assertion that the solicitors for the respondents may have acted in any way improperly or that their correspondence was not "a reliable guide to the legal issues". Such serious allegations ought not be made without a sound basis. None was established.
3. In all the circumstances, I do not consider that the filing of the interlocutory application of itself rises to the standard of unreasonableness within the meaning of s 570 of the FW Act or s 1317AH of the Corporations Act. Given her self-represented status, Ms Grofski was, at most, unwise not to await the offers of the respondents to identify the deficiencies in her pleading.

1. The second matter identified as unreasonable was the vast quantity of material served on the respondents from August 2025 onwards. Three versions of a FASOC, each approaching 300 pages, have been served by Ms Grofski since 25 August 2025. The vice is not merely their length; it extends to the amendments not being done in the manner required by the Rules; potentially adding additional causes of action without making that clear; renumbering the respondents; using differing numbering systems within the document; introducing error in cross-referencing; and using schedules or annexures in a confusing manner.
2. Again, I am conscious that Ms Grofski is a self-represented litigant. Despite having told the Court that she is enrolled in a law degree to assist her with this case, that she has access to texts on pleading, and has been assisted by exemplar pleadings from previous cases, it is obvious that she has set herself a very difficult task and that her pleading remains incoherent and incomprehensible. This is in large part because, as she told the Court at the hearing of her interlocutory application (filed on 9 October 2025) on 27 November 2025, she is not merely bringing personal claims for adverse action allegedly taken against her, she is also seeking to have the law under the CMSH Act "clarified" and to "price [the] deterrent" to effectively deter those who do not fulfil their obligations under that Act through "exemplary damages mainly". Ms Grofski is hoping to expose reprisal action, as to which she understands from the State regulator there is only anecdotal evidence.
3. By the time of the 27 November 2025 hearing, Ms Grofski was already in breach of my orders of 15 September 2025. Although she provided a FASOC on 3 October 2025, as required by order 2 of those orders, it was not the final version on which she intended to rely. She provided her third FASOC to the Registry and to the solicitors for the respondents on 14 November 2025. In the meantime, all respondents had filed written submissions in relation to the second FASOC.
4. Ms Grofski has been granted numerous indulgences in relation to the five iterations of her pleadings to date. A sixth version was in fact also before the Court in the hope that the provisional leave I had granted on 27 November 2025 might be made unqualified. Even a self-represented litigant cannot continue indefinitely to put their opponents to unnecessary costs, even where those opponents are well-resourced corporate litigants. The respondents have incurred 15-months of costs without being given a statement of claim in any sort of form to which they could reasonably be expected to plead.

1. Having weighed all of the matters, I am satisfied that Ms Grofski has acted unreasonably in providing the third FASOC and the associated materials on 14 November 2025. It is appropriate therefore that she be ordered to pay the respondents' costs of and incidental to the interlocutory application filed on 26 August 2025 as from 14 November 2025, to be assessed on a lump sum basis.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.

PEABODY ENERGY AUSTRALIA PCI (C&M) MANAGEMENT PTY LTD