In the circumstances of this matter, I am satisfied that the Applicant has acted unreasonably in failing to attend three hearings and to comply with directions, and that I should exercise my discretion under s.399A and dismiss her unfair dismissal application. [emphasis added]

• [26] The Costs Respondent submissions include the following:

(a) It's more than what I would have received from any unfair dismissal outcome.

(b) I did have cause and it was most definitely not made as a vexatious complaint.

(c) I did try to liaison with chambers in regard to mental health issues and being able to attend the hearing after matters that were brought up with the only intention to bring bad light on myself prior to the hearing, as a simple question in the form of "am I attending "would have given the council the same answer.

(d) The respondent has still not paid wages and entitlements that are owing from November 2024 and to date has ignored all directions from ombudsman, and the direction given to the respondent at the mediation back in January 2025.

• [27] Adopting the approach to s.400A of the Act in Gugiatti[9], I am persuaded that the Costs Respondent engaged in unreasonable acts or omissions in connection with the conduct or continuation of the application that caused the costs Applicant to incur additional costs.

• [28] Without repeating my conclusions as relied upon by the Costs Applicant, I am satisfied that the Costs Respondent's repeated failures to both attend multiple hearings and comply with directions was unreasonable, including because she omitted to provide credible explanations for her absence and non-compliance caused the Costs Applicant to incur costs. Accordingly, I have decided to exercise my discretion to award costs to the Costs Applicant.

• [29] The Costs Applicant has submitted its itemised costs, and I'll exercise my discretion to award costs as per the items that are reasonable given the circumstances.

• [30] I do not accept all the items in Annexure A (itemised schedule of costs) as submitted by the Costs Applicant as being incurred as a direct consequence of the Cost Respondent's acts or omissions, with some fee items preceding the first non attendance at a hearing for 4 March 2025. The legal costs and disbursements incurred by the Costs Applicant in relation to 4 March 2025 hearing would have been incurred by them in the ordinary course of advancing their defence to the Costs Respondents substantiative claim. Accordingly, items 1 to 80 in Annexure A and relevant disbursements have not been included.

• [31] With the exception of items 139 and 143, the remainder of the items in Annexure A from 98 to 173 will be included in the award for costs as will the disbursements with item numbers 177 and 181 to 185. I consider that all the costs associated with the costs application, detailed in Appendix C (Jelmac costs preparing Costs Application), totalling $5,265 arose as a direct consequence of the Cost Respondent's acts and omissions.

• [32] A cost order to this effect will be separately issues and will require the Costs Respondent to pay the amount of $16,822.40 to the Cost applicant within 21 days of the date of the order.

[1] Church v Eastern Health (2014) 240 IR 377; [2014] FWCFB 810; BC201423076.

[4] Baker v Salva Resources Pty Ltd (2011) 211 IR 374; [2011] FWAFB 4014

[6] Digital Hearing book for U2025/xxxx pp 305-306, [10]-[19].

[7] Ryman v Thrash Pty Ltd (t/a Wisharts Automotive Services) [2016] FWCFB 1638; BC201615380, [4].

[8] Ms Erinn McGowan v Jelmac Australia Pty Ltd [2025] FWC 981, [50]-[51].

[9] Gugiatti v Solariscare Foundation Ltd [2016] FWCFB 2478; BC201615280.

Printed by authority of the Commonwealth Government Printer