Fair Work Act 2009

s.394 - Unfair dismissal

Application for unfair dismissal remedy - application for costs - s.400A.

• [1] This decision concerns an application for costs made by Manage Meant Pty Ltd (Respondent/Costs Applicant) against Mr James Delany (Applicant/Costs Respondent) pursuant to s.400A of the Fair Work Act 2009 (Cth) (FW Act) (Costs Application).

• [2] By the Costs Application, the Respondent seeks an order that the Applicant pay costs incurred by it in defence of the Applicant's application for an unfair dismissal remedy (UFD Application) because of the Applicant's unreasonable acts or omissions in connection with the conduct or continuation of the matter.

• [3] The Respondent contends that each of the following were unreasonable acts or omissions in connection with the conduct or continuation of the UFD Application:

a) The Applicant's failure to discontinue the UFD Application upon receiving the Respondent's Form F3 Response or after conciliation;

b) The Applicant's failure to provide any substantive evidence in reply to the detailed facts and circumstances relied on by the Respondent in the Form F3 Response; and

c) The Applicant's decision to discontinue the UFD Application without explanation.

• [4] The Respondent says those acts and omissions caused it to incur legal costs and disbursements in the amount of $27,742.05.

• [5] The matter was heard before me on 3 March 2023.

• [6] I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Ms P Forster. The Respondent was represented by Mr P Almond.

• [7] The following documents were tendered into evidence:

• Witness statement of Mr Paul Almond, the Respondent's solicitor (Exhibit 1);

• Witness statement of Mr Dominic Grasso, solicitor employed by Kennedy's (Australasia) Partnership, the law firm representing the Applicant (Exhibit 2);

• Witness statement of the Applicant dated 4 October 2022 (Exhibit 3);

• Jpeg Image of email time/date stamped 5:52pm on 14 February 2023 (Exhibit 5).

• [8] None of the witnesses were required for cross examination and the matter proceeded on the basis of the written submissions, supplemented by oral submissions at the hearing.

• [9] For the reasons that follow, the Costs Application is dismissed.

• [10] In setting out the relevant background, I have had regard to the uncontested facts, the evidence tendered in the Costs Application, and the material available to the parties on the Commission's UFD Application file.

• [11] The Respondent specialises in building/property management services, such as repair and maintenance, to strata owner corporations. The Respondent is owned and operated by Annie Nielsen and Darren Gardner.

• [12] On 3 April 2017, the Applicant commenced employment with the Respondent as a building manager. Throughout his employment with the Respondent, the Applicant worked at different sites and was for some period, a member of the Respondent's senior leadership team.

• [13] One of the Respondent's clients was a property known as Moore Park Gardens (MPG).

• [14] In or about September 2021, the Respondent assigned the Applicant to the role of building manager at MPG.

• [15] On 27 April 2022, the Respondent gave notice to MPG that it was terminating the building management contract effective from 30 June 2022. The Respondent contends that it did so on the basis of information and advice provided to it by the Applicant that MPG was a particularly difficult property to manage and that it was not sustainable for the Respondent to continue with the building management contract at MPG.

• [16] The Respondent and MPG subsequently agreed to extend the effective date of termination of the building management contract to 31 July 2022.

• [17] On Friday 1 July 2022, the Applicant resigned from his employment with the Respondent. The Applicant gave the Respondent four weeks' notice, advising that his last day of employment would be 29 July 2022.

• [18] Later that evening, and over the course of the weekend, the Respondent states that it became aware that the Applicant had established his own building management company and was intending to provide building management services to MPG.

• [19] On Monday 4 July 2022, the Respondent terminated the Applicant's employment with immediate effect for serious misconduct. The Applicant was not given notice or payment in lieu. The letter of termination stated:

We note that you tendered your resignation with four weeks' notice on 1 July 2022.

Nevertheless, your employment was terminated on 4 July 2022.

The discovery of serious misconduct by you, the leader on site (Moore Park Gardens) lead us to terminate your employment effective immediately.

On several occasions recently you stated to us that Moore Park Gardens was a hostile environment, that there was no way that this could be made workable and that you would not want to continue to serve the site. After specific questions from Annie Nielsen, Darren Gardner and Dave Haggerty on the viability of providing appropriate service to site, you repeatedly confirmed that you believed we should terminate the contract.

In reliance on this advice from you, and in order to look after your workplace well-being, Manage Meant issued a notice of termination of our contract with the Moore Park Gardens Community Association. It is now evident that your advice was incorrect. You have been negotiating with the Community Association to contract with it to continue to work there under your own business without Manage Meant. On 30 June 2022 you had a conversation with a contractor used across Manage Meant. In that conversation you said that you intend to manage Moore Park Gardens now that we have terminated the contract. This is completely at odds with your advice to us.

• [20] On 8 July 2022, the Applicant filed the UFD Application. In the UFD Application, the Applicant does not dispute that he tendered for, and was awarded, the building management contract for MPG from 1 August 2022. However, the Applicant disputes the Respondent's contention that he effectively 'engineered' the process and disputes that he engaged in serious misconduct. The Applicant states that following the Respondent terminating its contract with MPG, he saw an opportunity to start his own building/property management business and submitted a tender for the contract. The Applicant also stated that his dismissal was unfair because his contract of employment does not permit dismissal without notice.

• [21] On 1 August 2022, the Respondent filed is Form F3 Response. In the Form F3 Response, the Respondent set out in some detail its version of the events leading up to the termination of the MPG contract, the Applicant's dismissal and matters that it discovered after 4 July 2022. In relation to the latter, the Form F3 Response states that the Respondent discovered:

• The Applicant had registered his company Alliance Management Services (AMS) in 2019;

• The AMS website and that it implies that the Applicant had managed particular sites on behalf of AMS rather than the Respondent.

• The Applicant had saved his AMS CV on his work computer;

• That the Applicant had used the Respondent's computer, email and intellectual property to prepare a tender proposal for the MPG contract, a contract of employment for a current employee of the Respondent to work for AMS, and to communicate with MPG about prospective building managers that AMS would assign to MPG.

• [22] On 15 August 2022, the Applicant sent an email to the Fair Work Commission (Commission), as well as Ms Nielsen and Mr Gardner, in which he provided a reply to the Form F3 Response (Applicant's Reply). In the Applicant's Reply, he generally set out whether he agreed, disagreed, or viewed as irrelevant, the matters set out in Part 3 of the Form F3 Response.

• [23] In the Applicant's Reply, the Applicant disputed the Respondent's version of events that led to the Respondent terminating its building management contract with MPG. The Applicant also disputed that his conduct in submitting a tender for the MPG building management contract after the Respondent had given notice that it was terminating its contract was a breach of his contract of employment.

• [24] On 16 August 2022, the Commission conducted a conciliation conference with the parties. The parties did not reach a resolution of the matter.

• [25] On 9 September 2022, the matter was allocated to my Chambers.

• [26] On 14 September 2022, the matter was listed for a case management and directions hearing. The Applicant was represented by Mr Justin Le Blond. Mr Gardner and Ms Nielsen appeared for the Respondent. After giving the parties the opportunity to make submissions on proposed directions, I made directions requiring the parties to file and serve material to be relied on at the hearing as follows:

• [27] I also determined that the UFD Application would be listed for hearing in person on 8 November 2022 and made directions for the filing of submissions on the issue of permission to be represented by a lawyer at the hearing. After the completion of case management matters, the parties engaged in further without prejudice conciliation, but were unable to reach a resolution.

• [28] On 15 September 2022, my Chambers issued a notice of listing and directions which set out the directions made the previous day.

• [29] On 28 September 2022, the Applicant applied for an extension of three business days to file his materials and that a commensurate extension be provided to the Respondent. The extension was granted.

• [30] At 12:19pm on 11 October 2022, Ms Nielsen sent correspondence to my Chambers seeking a copy of the directions issued on 15 September 2022 and foreshadowing the Respondent making a request for an extension to file its materials. At 12:38pm on 11 October 2022, Ms Nielsen sought an extension of three business days (commensurate with that granted to the Applicant) for the Respondent to file its materials.

• [31] At 4:00pm on 11 October 2022, my Chambers sent correspondence to the parties confirming the Respondent's request was granted. The correspondence attached amended directions for the filing of materials as follows:

• [32] At 5:24pm on 11 October 2022, Ms Nielsen sent correspondence to my Chambers advising that she did not receive the original directions issued on 15 September 2022 and requested that her email address be added to the Commission's file.

• [33] At 2.14pm on 13 October 2022, the Respondent filed a Form F53 Notice that it has a lawyer, Mr Almond.

• [34] At 5.16pm on 13 October 2022, the Respondent made an application to adjourn the proceedings to provide Mr Almond with sufficient time to take instructions, provide the Respondent with legal advice, and prepare the Respondent's materials. In support of the adjournment, it was stated that the Respondent had not received the original directions issued on 15 September 2022 and that only upon receiving the amended directions, did it gain an understanding of the nature of the material to be filed to defend the proceedings.

• [35] On 14 October 2022, I refused the application to adjourn the hearing of the matter, but made further amended directions for the filing of materials as follows:

• [36] On 28 October 2022, Mr Almond filed the Respondent's materials over two emails. The first email attached four witness statements and included a link to a drop box for a bundle of documents identified as Exhibit MM.

• [37] The email also included the following text:

I have not provided a bundle of 'confidential' documents, referred to in the statement of Ms Nielsen as 'Exhibit AN Con.' The respondent will be seeking orders to protect these from disclosure due to them being the confidential information of the respondent.

• [38] A short time later, Mr Almond sent a second email which attached the Respondent's submissions on the merits of the UFD Application, as well as submissions on the issue of permission to be represented by a lawyer.

• [39] At 2.18pm on 3 November 2022, Mr Almond sent correspondence to Mr Le Blond seeking the Applicant's consent for a confidentiality order in relation to Exhibit AN Con. The correspondence included the specific wording of the proposed order and the proposed covering correspondence to be sent to the Commission.

• [40] At 9:41am on 4 November 2022, Mr Le Blond sent correspondence to Mr Almond noting that the filing and serving of Exhibit AN Con has been withheld since 28 October 2022 and that the Respondent has elected to do nothing until 3 November 2022. Mr Le Blond stated that the Applicant does not consent to a confidentiality order and suggested the Respondent approach the Commission without further delay.

• [41] At 10:04am on 4 November 2022, Mr Almond sent correspondence to my Chambers seeking to have the matter urgently listed for the purpose of a hearing an application for a confidentiality order.

• [42] At 11.19am on 4 November 2022, Mr Almond sent correspondence to Mr Le Blond proposing an interim arrangement pending further order of the Commission. The interim arrangement required the Applicant and his legal representatives to agree to a confidentiality undertaking.

• [43] At 11:57am on 4 November 2022, Mr Le Blond sent correspondence to Mr Almond advising that the Applicant will await the determination of the Commission.

• [44] At 3:33pm on 4 November 2022, Mr Almond sent correspondence to Mr Le Blond advising that the Respondent will consent to further amended directions for the Applicant to file any supplementary witness statement in response to Exhibit AN Con by 12:00pm on Monday 7 November 2022. This proposal was conditional upon the Applicant and his legal representatives agreeing to a confidentiality undertaking.

• [45] At 3:44pm on 4 November 2022, my Chambers sent correspondence to the parties advising that I would deal with the issue of confidentiality at the commencement of the hearing on Tuesday 8 November 2022.

• [46] At 5:51pm on 4 November 2022, Mr Le Blond sent correspondence to my Chambers advising that the Applicant was not able to comply with the directions to file materials in reply as the Respondent has not served all its evidence. The Applicant requested the intervention of the Commission.

• [47] At 9:23am on 7 November 2022, Mr Almond sent correspondence to my Chambers which attached a Form F52 Application for an order for production of documents. By that application, the Respondent was seeking an order that the Applicant produce various documents by 10:00am on Tuesday 8 November 2022.

• [48] At 10:32am on 7 November 2022, my Chambers sent correspondence to the parties advising that the matter will be listed for mention and directions at 4:00pm on 7 November 2022 to deal with:

• The Respondent's application for an order for production of documents.

• [49] Arising out of the mention and directions hearing:

• • A confidentiality order was issued in relation to Exhibit AN Con;[1]

• The Respondent was directed to file and serve Exhibit AN Con by 4:00pm on 8 November 2022;

• The hearing listed for 8 November 2022 was adjourned;

• The Applicant was directed to file and serve his materials in reply by 4:00pm on 15 November 2022; and

• The Respondent's application for an order for production of documents was adjourned pending the filing of the Applicant's materials in reply.

• [50] The Applicant did not file any materials in reply by 15 November 2022.

• [51] At 9:52am on 16 November 2022, Mr Almond sent correspondence to my Chambers noting the Applicant has failed to comply with the directions to file material in reply by 4:00pm on 15 November 2022. The Respondent requested the hearing dates be vacated and the hearing be brought forward.

• [52] At 11:03am on 16 November 2022, Mr Le Blond sent correspondence to my Chambers, attached to which was a Form F50 Notice of Discontinuance. The notice of discontinuance indicated that the Applicant "wholly discontinues this matter".

• [53] On 29 November 2022, the Respondent filed the Costs Application.

• [54] Section 400A of the FW Act provides as follows:

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC's power to order costs under section 611.

• [55] Section 402 of the FW Act provides as follows:

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

• [56] In Baxter Healthcare Pty Ltd v Portelli[2] (Baxter Healthcare), the Full Bench of the Commission stated:

[50] Item 4 of the Fair Work Amendment Bill 2012 inserted a new section 400A into the FW Act to enable the Fair Work Commission to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter. The explanatory memorandum provides as follows:

1. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

1. The FWC's power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

1. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

• [57] In Hansen v Calvary Health Care Adelaide Limited [3] (Hansen), differently constituted Full Bench of the Commission stated:

Section 400A is a relatively recent amendment to the Act (1 January 2013) and is designed to provide the Commission with a discretionary power to award costs against a small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. As stated in the Explanatory Memorandum accompanying the s 400A amendment, 'the power is only intended to apply where there is clear evidence of unreasonable conduct by the first party' and 'is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under s 394'.[4]

• [58] In Gugiatti v SolarisCare Foundation Ltd[5] (Gugiatti), the Full Bench outlined the preconditions to the exercise of discretion in relation to an application made under s.400A, as follows:

[43] Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.[6]

• [59] Notwithstanding the satisfaction of the preconditions set out in s.400A(1), the power to make an order for costs against a party is a discretionary power and it does not automatically follow that an order for costs will follow. In Baxter Healthcare, the Full Bench stated:

[95] We note at the outset that the relevant sections provide that if the requisite jurisdictional facts are established (relevantly, ss. 400A(1) and (2), and s.611(2)) then the Commission may make an order for costs. A costs order does not automatically follow upon a finding of the requisite jurisdictional fact. It is clear from the use of the word 'may' that the Commission retains a discretion as to whether or not to make an order for costs. In that regard these provisions may be contrasted with ss. 418(1) and 424(1), which provide that the Commission must make certain orders if certain jurisdictional facts are present.

Summary of the Respondent's (Costs Applicant) Submissions

• [60] As stated above, the Respondent contends that the Applicant caused it to incur costs because of the following unreasonable acts or omissions in connection with the conduct or continuation of the UFD Application:

a) The Applicant's failure to discontinue the UFD Application upon receiving the Respondent's Form F3 Response or after conciliation;

d) The Applicant's failure to provide any substantive evidence in reply to the detailed facts and circumstances relied on by the Respondent in the Form F3 Response; and

e) The Applicant's decision to discontinue the UFD Application without explanation.

• [61] The Respondent submitted that upon receiving the Form F3 Response, the Applicant had all of the information necessary to understand the evidence that the Respondent would adduce at the hearing of the UFD Application. The Respondent submitted that the Applicant was in no doubt as to the facts and circumstances upon which the Respondent relied to terminate his employment.

• [62] The Respondent submitted that despite being on notice of these matters, the Applicant filed a statement that comprised four pages which devoted one paragraph to responding to the detailed allegations set out in the Form F3 Response. In this respect, the Respondent submits there was no genuine attempt by the Applicant to address and explain the alleged acts of misconduct.

• [63] The Respondent referred to relevant authorities[7] as to what constitutes unreasonable conduct (although in the context of s.570(2)(b) which is similarly worded) and that the policy position of the legislature is to deter a party who continues to pursue or defend an application irrespective of its merits.

• [64] The Respondent submitted that its evidence was merely 'fleshing out' and putting in admissible form the material set out in and attached to the Form F3 Response and that it can be inferred that the Applicant's decision to discontinue the UFD Application was on the basis that he formed a view that the UFD Application would not be successful.

• [65] The Respondent submitted that the Applicant caused the Respondent to incur costs, including costs associated with preparing for the hearing on 8 November 2022, by his unreasonable act or omission in not discontinuing the UFD Application following the conciliation conference or earlier.

Summary of the Applicant's (Costs Respondent) Submissions

• [66] The Applicant submitted that the general rule is that a person in a matter before the Commission must bear their own costs and that it is well established that the Commission must exercise great caution in diverging from this position.

• [67] The Applicant referred to relevant authorities[8] and submitted:

• That the intention of s.400A is not to frustrate or deter access to the jurisdiction or the robust pursuit of genuine claims;

• That what is an unreasonable act or omission will depend upon the circumstances; and

• [68] The Applicant submitted that the Respondent's contention that the Applicant's failure to discontinue the UFD Application upon receiving the Respondent's Form F3 Response or after conciliation was an unreasonable act or omission is without merit and must be rejected.

• [69] The Applicant submitted that following the engagement of legal representation, the Respondent's case was 'recast' to include additional reasons for dismissal and allegations that the Applicant's alleged conduct was in breach of the Corporations Act 2001.

• [70] The Applicant submitted that up until he appointed Mr Le Blond he was effectively self-represented. The Applicant accepted that while the UFD Application nominated a legal representative, that representative's role was limited to providing sporadic and intermittent advice.

• [71] The Applicant submitted that the Commission has not had the benefit of a hearing of the UFD Application and there has not been any findings of fact adverse to the Applicant. In this respect, the Applicant submitted that the allegations made against the Applicant are wholly untested.

• [72] In response to the Respondent's contention that the Applicant's failure to provide any substantive evidence in reply to the detailed facts and circumstances relied on by the Respondent in the Form F3 Response, the Applicant submitted that he was under no obligation to provide a 'substantive' response to the Form F3 Response at the time of filing his submission and evidence in chief.

• [73] In response to the Respondent's contention that the failure to give reasons for discontinuing was an unreasonable act or omission, the Applicant submitted that he was within his rights to discontinue the proceedings after assessing the evidence and submissions of the Respondent, including the Exhibit AN Con, in circumstances where the Respondent's case had been recast.

Summary of the Respondent's (Costs Applicant) Submissions in reply

• [74] The Respondent denied that it had shifted or expanded its case. The Respondent submitted that all of the matters set out in its submission and evidence were addressed in the Form F3 Response.

• [75] The Respondent acknowledged that while the specific allegation that the Applicant breached the Corporations Act 2001 was not set out in the Form F3 Response, the conduct underpinning the allegation was and therefore, it was not a 'new' claim.

• [76] The Respondent acknowledged that the Form F2 Application and Form F3 Response are not pleadings in a strict sense it was nonetheless incumbent upon the Applicant to address the matters raised by the Respondent in its Form F3 Response in his submissions and evidence in chief.

• [77] The Respondent submitted that the failure by the Applicant to do so meant that the Respondent was put in the position of preparing its case without having a real understanding of the case put by the Applicant and did not know what was agreed and what was in dispute. The Respondent submitted most importantly it did not know what the Applicant's position was about the facts making up the valid reason for dismissal.

• [78] The Respondent submitted that in the context of the Costs Application, it was incumbent upon the Applicant to explain why he did not discontinue the UFD Application earlier and that in the absence of an explanation, the 'appropriate inferences' can be made.

• [79] The Respondent agreed with the submissions of the Applicant that there have not been any findings made regarding the truth or otherwise of any of the allegations put against the Applicant. The Respondent submitted that for the purposes of the Costs Application, the truth or otherwise of the allegations does not need to be determined. Rather, it is sufficient that the Applicant was on notice of those matters and chose a course of conduct that was unreasonable.

• [80] There is no dispute that the Costs Application was filed within 14 days after the UFD Application was discontinued.

• [81] The issue in this matter is whether the Applicant caused the Respondent to incur costs because of an unreasonable act or omission, and if so, whether the Commission should exercise its discretion to make an order for costs against the Applicant.

• [82] The Costs Application is brought solely on the basis that the Applicant failed to discontinue the UFD Application at an earlier time.

• [83] The Respondent does not contend that the Applicant unreasonably refused to accept a settlement offer or engaged in any other conduct that could be described as an unreasonable act or omission enlivening the discretion to make an order under s.400A.

• [84] Section 400A is sufficiently broad enough to permit an order for costs to be made in circumstances of an unreasonable refusal or failure to discontinue an unfair dismissal application.[9]

• [85] Where it is contended that the unreasonable act or omission was the failure to discontinue an application, the point in time at which it becomes apparent to an applicant that there was not substantial prospect of success will be critical in determining whether s.400A is enlivened.[10]

• [86] The Respondent submits that the point in time in this matter should have been upon receipt of the Form F3 Response or following the conciliation conference on 14 September 2022.

• [87] The Respondent's contention is based upon the Applicant being put on notice of the matters set out in the Form F3 Response and his purported failure to take issue with those matters. However, the Respondent's contention ignores the Applicant's Reply in which he set out a response to each paragraph in Parts 3.1 and 3.2 of the Form F3 Response.

• [88] As noted above, the Applicant put the Respondent on notice that he disputed the Respondent's version of events that led to his dismissal, a position he maintained in his evidence in chief. While the evidence in chief was brief, there can be no basis for the Respondent to assert that it was not aware of the Applicant's position and that the matters were in dispute.

• [89] As has already been pointed out, this matter did not proceed to a hearing. This means no evidence was heard by the Commission, no findings of fact were made, and no final decision was made. At its highest all that is before the Commission is untested allegations that the Applicant engaged in serious misconduct which are denied by the Applicant.

• [90] While it is true that the Applicant identified a legal representative on UFD Application, beyond that, there is no evidence before the Commission or on the Commission's file that that representative took an active role in representing the Applicant in the matter. For example, the UFD Application is signed off by the Applicant and was filed by the Applicant. The Applicant also filed the Applicant's Reply.

• [91] It is apparent from the UFD Application and the Applicant's Reply that he was genuinely aggrieved by the manner of his dismissal, including the Respondent's decision not to provide notice or payment in lieu, a matter the Applicant contends was a breach of his contract of employment.

• [92] Although, I do not accept the Applicant's submission that the Respondent 'recast' its case to the extent submitted, it is clear that the alleged breaches of the Corporations Act 2001 was a new and significant inclusion.

• [93] After having appointed Mr Le Blond and having received the totality of the Respondent's evidentiary case, in evidentiary form, including Exhibit AN Con, the Applicant discontinued the matter. This indicates that this is the most likely point at which it became apparent to the Applicant that there was not a substantial prospect of success in the UFD Application.

• [94] I also do not accept that the Applicant's decision not to discontinue sooner after receiving the Respondent's materials was unreasonable. It is reasonable for the Applicant to be afforded a sufficient opportunity to review the materials and seek advice. The Applicant did not receive the totality of the Respondent's materials until 8 November 2022. Furthermore, it was the failure by the Respondent to act sooner in relation to the application for confidentiality order that was the catalyst for the events that led to the hearing being adjourned. Having foreshadowed the making an application for a confidentiality order, the Respondent took no action for seven days. There has been no explanation by the Respondent or Mr Almond as to why no action was taken until 3 November 2022.

• [95] For the reasons set out above, I am not persuaded that s.400A of the FW Act is enlivened.

• [96] I am not satisfied that it was unreasonable for the Applicant to not discontinue the proceedings after receiving the Form F3 Response or after the conciliation conference on 14 September 2022. Accordingly, I have no jurisdiction to order costs pursuant to s.400A of the FW Act.

• [97] Furthermore, even if the jurisdictional preconditions had been satisfied, for the foregoing reasons, I would as a matter of discretion decline to make an order for costs against the Applicant.

• [98] The Costs Application is dismissed. An order to that effect will be issued with this decision.

[1] PR747697.

[2] [2017] FWCFB 3891.

[3] [2016] FWCFB 8162.

[5] [2016] FWCFB 2478.

[7] Stolz v Registered Clubs Association of New South Wales [2022] FCA 1451 at [26]; BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347 at [26]; Nesbitt v Dragon Mountain Gold Limited [2015] FWC 7980 at [24].

[8] Hansen; Gugiatti; McCloskey v Norgrove Training Pty Ltd [2019] FWC 732; Somasundaram v Department of Education and Training, North-Eastern Victoria Region [2016] FWC 1504.

[9] Jones v Brite Services [2013] FWC 4280 at [28].

[10] Stagno v Frews Wholesale Meats [1998] AIRC 949; Meys v Sawtell Hotel [2016] FWC 5561 at [45].

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