s.365 - Application to deal with contraventions involving dismissal

Hutchinson Legal Pty Ltd, Colin Biggers & Paisley Pty Ltd

Application to deal with contraventions involving dismissal - application for costs

[1] This concerns an application by Mr Rodney Howard Veith made under sections 375B, 376 and 611 of the Fair Work Act 2009 (Cth). Mr Veith seeks an order for costs against his former employer Hutchinson Legal Pty Ltd (First Costs Respondent) and its legal representative, Colin Biggers & Paisley Pty Ltd (Second Costs Respondent).

[2] Mr Veith's costs application is made in the context of his application under s 365 of the Act. Mr Veith was briefly represented by Counsel during that application. Mr Veith seeks the costs of Counsel as well as costs for professional fees and disbursements paid by VK Lawyers to him, as a contracting solicitor to VK Lawyers. Effectively, Mr Veith seeks to recover the costs of Counsel and for him undertaking legal work on his own matter. At all times Hutchinson Legal was represented by CBP.

[3] Having considered the evidence and submissions, I have denied Mr Veith's costs application. My detailed reasons follow.

[4] The history of this matter is short and uncontested. Mr Veith was employed by Hutchinson Legal as a legal practitioner. On 18 June 2025, Hutchinson Legal wrote to Mr Veith to inform him that due to his conduct, the employment relationship had ended by way of him repudiating the employment contact. On 30 June 2025, Mr Veith made his application under s 365. On 8 August 2025, Hutchinson Legal raised a jurisdictional objection in its Form F8A response, saying that Mr Veith had not been dismissed on the basis he had repudiated the employment contract. From the Form F8 and Form F8A, the parties' positions on the alleged repudiatory conduct and their legal significance were highly contested.

[5] On 11 August, 20 August and 8 September 2025, Mr Veith wrote to Hutchinson Legal and CBP disputing the jurisdictional objection and reserving his right to pursue an order for costs if Hutchinson Legal did not withdraw its jurisdictional objection.

[6] I conducted a case management conference for the s 365 application on 10 September 2025. Mr Veith engaged and briefed Counsel to appear for him at the case management conference. I subsequently issued directions for the filing of material regarding the jurisdictional objection. Hutchinson Legal was directed to file first. On 15 September 2025, prior to any party filing materials, Hutchinson Legal advised that it no longer pressed the jurisdictional objection. I then listed the matter for conference on 24 September 2025 and issued a certificate under s 368 shortly after.

[7] On 25 September 2025, Mr Veith sent a without prejudice offer to Hutchinson Legal via CBP to resolve his claim for legal costs.

[8] Mr Veith now seeks that Hutchinson Legal and CPB pay his legal costs of $5,941 incurred in preparing to defend the jurisdictional objection and preparing this costs application.

[9] Mr Veith brings his costs application against Hutchinson Legal and CPB under ss 375B, 376 and 611 of the Act, which are provided below:

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

(a) an application for the FWC to deal with the dispute has been made under section 365; and

(b) 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 dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.

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

"376 Costs orders against lawyers and paid agents

(a) an application for the FWC to deal with a dispute has been made under section 376 or 372; and

(b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person to the dispute; and

(c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospects of success in the dispute; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.

(3) The FWC may make an order under this section only if the other party to the dispute has applied to it in accordance with section 377.

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

(1) A person must bear the person's costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application or the first person's response to the application, had no reasonable prospects of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order."

• [10] In Stephens v Citic Pacific Mining Management Pty Ltd,[1] Deputy President Easton summarised the well-established principles regarding costs applications:

• • In the ordinary course of litigation costs follow the event. The purpose of a costs order is not to punish the unsuccessful party but to compensate the successful party against the expense to which they have been put by reason of the legal proceedings.[2]

• • The purpose or policy of the costs provisions in the Act are to free parties from the risk of having to pay their opponents' costs in matters arising under the Act, while at the same time protecting parties who must defence proceedings that have been brought vexatiously or without reasonable cause.[3]

• • To the extent that the Act's costs provisions protect against cost orders, that protection can be lost by certain conduct.[4]

• • The Act's cost provisions are a deterrent against unreasonable conduct during proceedings, discourage frivolous and speculative claims and assist in the efficient resolution of claims by encouraging all parties to approach proceedings in a reasonable manner.[5]

• • Proceedings under the Act should be scrutinised to ensure that costs are not unreasonably incurred and that the public interest in the orderly and cost-effective administration of justice is not too readily placed to one side.[6]

• [11] The Full Bench in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[7] examined the meaning of "vexatiously or without reasonable cause" and found that "vexatiously" looks to motive. An application will be made vexatiously where the main purpose is to harass or embarrass the other party, or to gain a collateral advantage.[8] The Full Bench found that with regards to the phrase "without reasonable cause" a party cannot be said to have made an application "without reasonable cause" simply because their argument is unsuccessful. The Full Bench further observed that the test:

• • is not whether the application (or response) might have been successful, but whether it should not have been made;[9]

• • involves asking whether upon the facts apparent to the party at the time of instituting its application or response, there was no substantial prospect of success;[10] and

• • is similar to the test adopted for summary judgment, that is, "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "discloses a case which the Court is satisfied cannot succeed".[11]

• [12] Sections 375B and 611 were recently examined by the Full Bench in Roberts v Quantum-Systems Pty Ltd & Mr Michael Lillehagen and Others.[12] The Full Bench made the following observations:

• The power of the Commission to award costs under ss 375B or 611(2) involves a two-stage process.

• • Firstly, the Commission must determine whether the power to award costs is enlivened on the basis it is satisfied that a party caused costs to be incurred because of an unreasonable act or omission (s 375B(1)(b)) or that the application was made or responded to vexatiously or without reasonable cause or in circumstances where it should have been reasonable apparent that the application or response had no reasonable prospects of success (s 611(2)(a) and (b)).[13]

• • Secondly, if the power to make a costs order is enliven, the Commission must consider whether it is appropriate to do so. The use of the word "may" in ss 375B(1) and 611(2) indicate that the Commission retains a discretion. The power of the Commission to award costs mirrors the approach adopted by the courts with respect to a limitation on the circumstances in which an order for costs can be made in s 570 of the Act.[14]

• In Ryan v Primesafe [2015] FCA 8, Mortimer J (as she then was) observed in relation to s 570 that the discretion must be exercised cautiously. The policy behind s 570 is to ensure that the spectre of costs does not deter parties with genuine grievances and arguable cases.

• • The case for exercising the discretion under s 570 of the Act must be clearly demonstrated.[15] The same approach is appropriate with respect to ss 375B(1) and 611(2).[16]

• • The mere fact that a jurisdictional objection has been withdrawn does not necessarily mean that the objection lacked reasonable prospects of success when it was made.[17]

• [13] Costs applications against a lawyer or paid agent were recently examined in Australian Concert and Entertainment Security Pty Ltd Trading as ACES Group v Michael Alkan.[18] In that matter, Deputy President Slevin noted that whether an act or omission is reasonable will be informed by its context and requires an evaluative assessment of all relevant circumstances.[19]

[14] In summary, Mr Veith makes the following submissions regarding Hutchinson Legal:

(a) Hutchinson Legal's jurisdictional objection was without proper foundation and lacked any arguable merit or realistic prospect of success. Given Hutchinson Legal is a law firm with a lawyer who practices in employment law, it should have known this.

(b) The jurisdictional objection was pressed despite Mr Veith putting Hutchinson Legal on notice through various correspondence that he would be pursuing costs if they did not withdraw the objection.

(c) No new facts or developments occurred between Hutchinson Legal filing its Form F8A response on 8 August 2025 and 15 September 2025 when it withdrew its jurisdictional objection.

(d) The jurisdictional objection was only withdrawn after "considerable delay".

(e) Hutchinson Legal did not engage constructively with his without prejudice costs offer.

[15] Mr Veith makes effectively the same submissions regarding CBP. Mr Veith submits that CBP's conduct in advising Hutchinson Legal constituted an unreasonable act and/or omission that caused him to incur costs.

[16] Mr Veith also submits that as Hutchinson Legal and CBP are well-resourced law firms, their delay and conduct cannot be attributed to lack of knowledge. Mr Veith contends that this supports a stronger case for deterrence to dissuade well-resourced parties from misusing their position.

[17] The Costs Respondents provided detailed written submissions addressing each limb of ss 375B, 376 and 611. In summary, the Costs Respondents submit that:

(a) They did not respond to Mr Veith's s 365 application vexatiously. They point to the fact they raised the issue of repudiation with Mr Veith in correspondence on 18 June 2025. The Costs Respondent say that the jurisdictional objection was consistent with a position that was held prior to Mr Veith lodging his s 365 application. There is therefore no ulterior motive.

(b) The tests for "without reasonable cause" and "should have been reasonably apparent" are both objective and high. Hutchinson Legal had an arguable case that Mr Veith had repudiated and thus ended the employment relationship.

(c) Mr Veith's reliance on his correspondence of 11 August, 20 August and 8 September 2025 putting the Costs Respondents on notice is misplaced - what the correspondence shows is that there was a genuine legal dispute between the parties.

[18] The Costs Respondent also disagree with Mr Veith's claim for professional costs for acting for himself in this matter.

[19] It is not in contest that Mr Veith's costs application has been made in accordance with s 377 of the Act; Mr Veith made an application under s 365 of the Act; CBP was engaged to represent Hutchinson Legal; and CBP was required to seek leave to appear on behalf of Hutchinson Legal in accordance with s 596 of the Act.

[20] The first question I must determine is whether the first limb in ss 375B, 376 or 611 is enlivened - that is:

• did Hutchinson Legal cause costs to be incurred because of an unreasonable act or omission (s 375B(1)(b));

• were costs incurred because should it have been reasonably apparent that Hutchinson Legal had no reasonable prospects of success in its jurisdictional objection (s 376(2)(a)) or because of an unreasonable act or omission on CBP's part; or

• was the Costs Respondents' response to Mr Veith's s 365 application vexatious or without reasonable cause (s 611(2)(a)) or should it have been reasonably apparent that the response had no reasonable prospects of success (s 611(2)(b)).

[21] I find that the first limb of ss 375B, 376 or 611 of the Act has not been enlivened for the following reasons:

• [22] Firstly, from the materials that the parties filed as part of the Form F8, Form F8A and Mr Veith's uncontested witness statement for his costs application, the end of the employment relationship was highly contentious. The disputed events between the parties included (among many other matters) issues of conflicts of interest; opposing positions between Hutchinson Legal directors; and whether Mr Veith repeatedly disobeyed lawful and reasonable directions to not act in a proceeding.[20] Mr Veith had given notice that he intended to call one of the Hutchinson Legal directors in relation to the jurisdictional objection,[21] and it is clear from the preliminary documentation that it was possible for a number of other witnesses to be called.

[23] Given the level of disputation between the parties that was not tested or resolved, I cannot reach the requisite level of satisfaction that there was unreasonable conduct in pressing the jurisdictional objection.

[24] Secondly, the jurisdictional objection was withdrawn five days after the case management conference and before witness statements and submissions were filed. This does not quarantine a costs respondent from a costs application, but I cannot accept Mr Veith's submission that the jurisdictional objection was withdrawn after considerable delay. This is a factor that supports my finding that the first limb of ss 375B, 376 or 611 of the Act has not been enlivened.

[25] If I had been satisfied that the first limb had been enlivened, I would not have exercised my discretion to award costs in the manner Mr Veith seeks. Whilst noting Mr Veith's arguments regarding the need for deterrence and his grievances with how the Costs Respondents have conducted themselves after the employment relationship ended, respondents withdrawing jurisdictional objections in s 365 applications assist with the timely and informal resolution of such applications. That should be encouraged where appropriate, particularly where the withdrawing of a jurisdictional objection occurs early in the proceeding, such as was the case in this matter.

[26] Accordingly, I order that Mr Veith's application for costs is dismissed.

[1] [2026] FWC 515 [17].

[2] Latoudis v Casey [1990] HCA 59 [13][1990] HCA 59; , (1990) 170 CLR 534 54.

[3] Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23 [7][2013] FCAFC 23; , (2013) 232 FCR 428.

[4] Kangan Batman Institute of Technology and Further Education v AIRC [2006] FCAFC 199 [60][2006] FCAFC 199; , (2006) 160 IR 405 [41].

[5] Explanatory Memorandum,Fair Work Amendment Bill 2012 (Cth) 7.

[6] Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 [31].

[7] [2014] FWCFB 810.

[9] Ibid [30], citing J-Corp Pty Limited v Australian Builders Labourers Federated Union of Workers (WA Branch) [1993] FCA 70; (1993) 46 IR 301 per French J.

[10] Ibid [30], citing Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257.

[11] Ibid [33], citing Heidt v Chrysler Australia Limited (1976) 26 FLR 257 at [272 - 273]; Geneff v Peterson (1986) 19 IR 40 at [87-88]; Hatchett v Bowater Tutt Industries Pty Ltd [1991] FCA 188; (1991) 28 FCR 324 at 327; Re Ross and others, Ex Parte Crozier [2001] FCA 1665; (2001) 111 IR 282 at [12]; Re Australian Education Union (NT Branch) (No.2) [2011] FCA 728 at [30]. Also see Wright v Australian Customs Service, PR 926115, 23 December 2002 per Giudice J, Williams SDP and Foggo C.

[12] [2026] FWCFB 4.

[15] Ibid [26], citing Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] (Bromberg J); Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ).

[16] Ibid, citing Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810; (2014) 240 IR 377 at [27].

[18] [2025] FWC 1696, affirmed on appeal in Michael Alkan v Australian Concert And Entertainment Security Pty Ltd [2025] FWCFB 161.

[20] See: Form F8A question 3.1; Mr Veith's 'Reply to Respondent's Form F8A Response & Jurisdictional Objection' filed on 11 August 2025.

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