s.604 - Appeal of decision

Appeal against decision [2025] FWC 3059 of Deputy President Boyce at Sydney on 13 October 2025 in matter number C2025/3637- stay refused

• [1] Jakub Drazdik has applied for a stay under s 606 of the Fair Work Act 2009 (Act) in connection with his appeal against a decision of Deputy President Boyce on 13 October 2025 ( [2025] FWC 3059). In his decision, the Deputy President concluded that Mr Drazdik had unreasonably caused Damien Fitzgerald to incur costs in connection with Mr Drazdik's application under s 365 of the Act, and that Mr Drazdik would be ordered to pay Mr Fitzgerald $3,107.50 in costs under s 375B of the Act. The order subsequently issued by the Deputy President requires Mr Drazdik to make this payment by 3 November 2025.

• [2] The principles that apply to stay applications under s 606 are well established. Before granting a stay, the Commission must be satisfied that the appeal presents an arguable case, with some reasonable prospects of success both in respect of permission to appeal and the merits, and that the balance of convenience weighs in favour of a stay. The parties requested that the stay application be determined on the papers and I consider this the appropriate course.

• [3] Mr Fitzgerald's costs application before the Deputy President related to Mr Drazdik's conduct in the leadup to the hearing of his application for an extension of time within which to bring his s 365 application. On 30 June 2025, Mr Fitzgerald made Mr Drazdik an offer to settle the matter. Mr Drazdik made a counteroffer. Mr Fitzgerald did not accept it. On 1 July 2025, Mr Drazdik wrote to Mr Fitzgerald, stating that the matter had settled. The next day, Mr Fitzgerald replied, denying this. Why Mr Drazdik thought the matter had settled is unclear. In any event, it was not until the hearing on 10 July 2025 that Mr Drazdik told the Deputy President that he regarded the matter as having settled.

• [4] Section 375B states that the Commission may make a costs order against a party in a s 365 matter if the Commission is satisfied that the party caused costs to be incurred by the other party because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter. The Deputy President found that s 375B was engaged because Mr Drazdik had unreasonably failed to advise the Commission that he regarded the matter as settled, and that the appropriate course would have been for Mr Drazdik to ask the Commission to vacate the hearing on 10 July 2025. Instead, it was only at the hearing that Mr Drazdik told the Deputy President that he regarded the matter as having settled. The Deputy President considered that Mr Fitzgerald's legal costs in preparing for and attending the hearing on 10 July 2025 should not have been incurred, and that the amounts sought by Mr Fitzgerald in respect of 9 and 10 July 2025 were reasonable.

• [5] The notice of appeal contains 5 grounds. By his first ground, Mr Drazdik contends that he acted on his lawyer's advice, that he never intended to cause Mr Fitzgerald to incur unnecessary costs, and that he would have discontinued the application earlier had he understood the legal risks involved. The second ground states that there was no signed settlement agreement to discontinue the case prior to the hearing, and that Mr Drazdik met his procedural obligations and relied on his lawyer's advice. The third, fourth and fifth grounds of appeal variously stated that Mr Drazdik has left Australia, that his mental health has deteriorated, that he is experiencing financial hardship, that he is unable to pay the ordered amount, and that he feels that he has been punished for exercising his legal rights.

• [6] None of these matters are valid appeal grounds, because they do not speak to any error on the part of the Deputy President. They amount to a plea for a different overall evaluation of the costs application. Appeals exist for the correction of error in a member's decision, not for an appeal bench simply to consider the original application for itself. The notice of appeal fails to present an arguable case of appealable error.

• [7] Based on the material before me, I do not consider that Mr Drazdik has an arguable case, with some reasonable prospect of success, either in respect of permission to appeal or the appeal itself. In these circumstances, there is no proper basis to stay the order. It is therefore unnecessary to consider the balance of convenience, but I will record my view that the balance of convenience does not favour a stay. Ordinarily, a submission of incapacity to pay could weigh in favour of staying a payment order, but no evidence of incapacity has been provided other than an unsworn assertion by the appellant. Mr Drazdik said that if a stay were not ordered, the purpose of the appeal would be defeated. To the extent that it is suggested that it could be difficult to recoup the costs if the appeal were successful, there is no evidentiary foundation for such a conclusion. The starting point is that Mr Fitzgerald is entitled to the benefit of the success of his costs application. There would need to be a good reason to interfere with the order. In my view there is no such reason.

• [8] For these reasons, the application for a stay is refused.

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