s.789FC - Application for an order to stop bullying

Regional Development Australia Brisbane Incorporated

Application for costs - Application for an order to stop bullying at work

[1] On 29 July 2025, Ms Lisa Liang applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act) (the bullying application). The bullying application was completed on 24 August 2025 and served on Regional Development Australia Brisbane Incorporated (RDAB) on 26 August 2025.

• [2] On 27 August 2025, RDAB objected to the bullying application on the basis that there was no future risk of the alleged bullying at work: by the time of its response to the bullying application, Ms Liang was no longer a worker in the business of RDAB and was no longer interacting with Mr Dell in any work context. In my Decision of 10 December 2025, I found that Ms Liang's employment had terminated on 22 August 2025 and I dismissed the bullying application because it had no reasonable prospects of success.[1]

[3] On 24 December 2025, RDAB applied in time for an order for costs against Ms Liang in relation to the bullying application under section 611 of the Act (the costs application). RDAB submits that by the time the bullying application was completed on 24 August 2025, it should have been reasonably apparent to Ms Liang that the bullying application had no reasonable prospects of success (s.611(2)(b)).

[4] I agree with the submission. It was, or should have been, clear to Ms Liang on and after 22 August 2025 that her employment with RDAB had terminated. This followed a period of suspension from duties from 7 August 2025, responsive to a notice of removal from duties issued by the Department of Infrastructure, Transport, Regional Development, Communication, Sport and the Arts (the Department) on 24 July 2025 in relation to Ms Liang (the Notice). The Notice was issued to RDAB but was not communicated immediately to Ms Liang.

• [5] Therein lies the difficulty with the costs application for RDAB. The time for consideration of whether s.611(2)(b) is engaged is, on current authority, when the application to the Commission is made.[2] Although there is some controversy as to the correct legal position on that issue having regard to the words of s.611(2)(b), I proceed on the basis that the authority is to be followed unless and until it is no longer good law.

[6] In this case, the relevant time is 29 July 2025, when the bullying application was made to the Commission. At that time, Ms Liang had taken medical leave from work but remained in employment. Whether she knew that she had been removed from duties at that time is in dispute. Ms Liang denies it and the evidence of RDAB is assumption based on the fact of Ms Liang's opportunity to access the email account to which the Notice was addressed. The dispute is not necessary to resolve because it is uncontroversial that Ms Liang had not, by the time of her application to the Commission, had any formal communication from RDAB in relation to the effect of the Notice on her continuing employment and nor had her employment been terminated. These steps did not occur until 7 August 2025 and 22 August 2025 respectively.

[7] Adopting a cautious approach, it cannot be said with confidence that at the time of applying to the Commission on 29 July 2025, it should have been apparent to Ms Liang that the bullying application had no reasonable prospects of success by reason of the fact that she was no longer an employee of RDAB, even if that became apparent soon after. It does not matter that the application was treated as 'incomplete' and not served on RDAB and Mr Dell until after the employment had come to an end. There is no contention that the bullying application was not validly made. It was made when it was first lodged with the Commission. Subsequent amendments to the application did not constitute the making of a new application.

[8] The outcome in this case is necessarily limited by the power to award costs in s.611 of the Act. It is unlike an application for costs in the unfair dismissal jurisdiction, where the question of costs falls to be considered both under s.400A and s.611. Notably, s.400A expressly provides for costs to be awarded in circumstances where a party caused another party to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the matter. There is no equivalent provision in s.611.

[9] The costs application in AB2025/622 is dismissed.

Ms J Minchinton of IRIQ Law for the costs applicant.

Ms L Evans of Trilogy Law Group for the costs respondent.

[1] Lisa Liang [2025] FWC 3789, 10 December 2025

[2] Qantas Airways Ltd v Carter [2013] FWCFB 1811

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