HEARING DATE: Written submissions up to 27 November 2025

JUDGMENT OF: The Honourable President Justice Dolphin

Costs - Monetary claim proceedings - Primary judgment held the applicant's evidence and submissions were insufficient to establish his contentions that a Deed of Release should be set aside - The Deed was not set aside, and the respondent is not estopped from relying on the Deed - The Deed prohibits the applicant from receiving any further money other than as provided for by the terms of the Deed - With the respondent being successful in defending the monetary claim, it sought a costs order against the applicant - Further written submission ordered with regards to the costs issue - Jurisdictional question of whether the applicant's monetary claim proceedings were brought under s 9 or s 10 of the Fair Work Act 1994 (SA) - If s 9, then the costs provisions of the Fair Work Act 2009 (Cth) relevant - If s 10, then a consideration of the costs to be awarded on the same basis as costs would be awarded in corresponding civil proceedings brought in the District Court of South Australia or the Magistrates Court of South Australia - Consideration of the applicant's conduct of the proceedings - Exercise of discretion. Held: Exercise of discretion to make a costs order is enlivened - Applicant warned before and during the proceedings that his case had no prospect of success - Applicant put on notice as to costs before and during the proceedings - Despite the many off-ramps provided to him, the applicant proceeded to judgment - Applicant prosecuted his unnecessary case and prolonged the litigation - In all the circumstance of the case, the respondent should be compensated for the legal costs it incurred in successfully defended the proceedings - Costs to be assessed on the the Minor Civil costs scale of Schedule 6, Part 4 of the Uniform Civil Rules 2020 South Australia.

Summons v 1414 Degrees Ltd [2025] SAET 118

Harradine v Chief Executive of the Department for Education and Child Development (No 2) [2020] SAET 193

Lyons v Legalese Pty Ltd & Ors (No 2) [2017] SASC 2

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Mericka v Rathbone (2016) 125 SASR 563

Treasury Wine Estates Vintners Limited v Pearson [2019] FCAFC 21

Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102

1. The primary judgment in this case was delivered on 30 October 2025. It determined that the Deed of Release entered into between the parties on 14 July 2021 - that being after the termination of employment - was valid and would not be set aside. As such, the respondent was not estopped from relying on the Deed as an absolute defence to Mr Summons' claim for further monies owed to him. Therefore, Mr Summons was unsuccessful with his within action.
2. In that judgment, I said that before making a final order to dismiss Mr Summons' proceedings, I would hear from the parties further through written submissions as to the issue of costs. That being as the respondent had contended that Mr Summons should pay its costs in the event that he was to be unsuccessful.
3. I made orders that would see the respondent file its written submissions on costs by 13 November 2025, and Mr Summons his written submissions by 27 November 2025. Those orders were complied with.
4. Essentially the contentions are these: the respondent said that as it was successful in defending Mr Summons' monetary claim proceedings that he should pay its costs, indeed, on an indemnity basis; Mr Summons argued against that saying he should pay no costs at all.
5. The issue of costs in this case raises some interesting questions, which I will set out in detail below. Suffice it to say the issues are complicated.
6. Confusingly, in this judgment I will refer to two pieces of applicable legislation with the same name: the Fair Work Act 1994, and the Fair Work Act 2009. The earlier in time is a South Australian enactment, whereas the later in time is legislation from the Commonwealth Parliament. They shall be referred to as the FW Act (SA) and the FW Act (Cth).
7. The central issue for determination, that will decide which path the costs question progresses down, is what legislative provision was Mr Summons' monetary claim filed under? Was it s 9 or s 10 of the FW Act (SA)? To answer that question, the relevant provisions of the FW Act (SA) are to be examined.
8. Also, it is an important factor in this costs determination that Mr Summons' monetary claim was for the amount of $8,176.83.

1. Chapter 2, Part 1 of the FW Act (SA) concerns the jurisdiction of the South Australian Employment Tribunal, and the South Australian Employment Court that sits within that. Sections 9 and 10 are contained in that Part and are set out below. Section 9 was very recently amended taking effect on 1 January 2026. Given that the costs issue was reserved prior to that date, the previous version is referred to below:

Fair Work Act 1994 (SA)

9 - Jurisdiction to decide monetary claims under industrial laws or instruments

(1) SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine monetary claims of the following kinds:

**(a) a claim for a sum due to an employee or former employee from an employer or former employer under - **

(i) the Fair Work Act 1994, an award, enterprise agreement or contract of employment; or

(ii) the Commonwealth Act, or an award or agreement under the Commonwealth Act;

(b) a claim for a sum due to an employer or former employer from an employee or former employee under -

(i) the Fair Work Act 1994, an award, enterprise agreement or contract of employment; or

(ii) the Commonwealth Act, or an award or agreement under the Commonwealth Act;

(c) a claim for compensation to an employee or former employee from an employer or former employer for failure to make contributions (before or after the commencement of this Act) for the benefit of the claimant to a superannuation fund;

(d) a claim for payment of a benefit against the trustee of a superannuation fund to which contributions have been made.

Commonwealth Act means the Fair Work Act 2009 of the Commonwealth

10 - Jurisdiction to hear and determine questions arising under contracts of employment

(1) SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine any question, action or claim founded on, or otherwise arising out of or in relation to, a contract of employment (including a contract of employment that has been terminated) including (but not limited to) -

(a) a claim for damages with respect to a breach of a contract of employment (including a claim where the employee under a contract of employment has been dismissed); and

(b) a claim to recover a liquidated sum or debt under a contract of employment; and

(c) an action for an order for specific performance; and

**(**6) The costs in any proceedings under this section will be awarded on the same basis (and in accordance with the same rules) as costs would be awarded in a corresponding civil action or claim brought in the District Court or the Magistrates Court (as the case may be).

(7) This section does not limit the operation of section 9.

(8) This section does not limit the operation of the Return to Work Act 2014.

(9) In this section - contract of employment means a contract recognised at common law as a contract of employment. (emphasis and underlining added)

1. As an aside, the amendments to s 9 were to effectively edit and streamline placita (a) and (b) to read '... under this Act, a workplace law, an award, an enterprise agreement or a contract of employment.' The definition of 'workplace law' is broad enough to include the FW Act (Cth). The amendments do not change legal effect of the section.
2. The above bold emphasis to the sections has been added to highlight the issues regarding costs. The underlining has been added to highlight the respondent's arguments as to the correct basis of Mr Summons' action. Apropos of that, the respondent's primary case was that s 10 of the FW Act (SA) is the correct provision. Mr Summons contended otherwise, saying s 9 was the basis of his claim.
3. Why that distinction is important is that if s 10 is the correct basis, the direction in subsection 10(6) will be operative - costs will be awarded on the same basis as a corresponding civil claim brought in the District Court of South Australia or in the Magistrates Court of South Australia. That is, in the ordinary course, the successful party can expect to have its costs paid by the unsuccessful party.
4. That legislative imprimatur is reinforced with Chapter 2, Part 5 of the FW Act (SA), which provides further governance regarding special provisions relating to monetary claims.
5. At s 30, a 'monetary claim' is defined as an action under s 9, or a claim for a sum due or a debt under s 10 of the FW Act (SA). Importantly, s 36 provides the rules as to costs in monetary claim proceedings. That section is set out below in full:

Fair Work Act 1994 (SA)

(1) The South Australian Employment Court may only award costs in proceedings based on a monetary claim as follows -

(a) the Court may award costs on a claim for non-payment of superannuation contributions to cover reasonable expenses incurred by the claimant to establish the present value of the loss; and

(2) In connection with the operation of subsection (1)(b) -

(a) costs need not be awarded so as to follow the event; and

(b) the Court, in considering whether to award costs and, if so, the extent of the award, must take into account -

(ii) the relevant positions and circumstances of the appellant and the respondent (and of the successful and unsuccessful parties); and

(iii) the nature of the question in dispute and whether the proceedings have a broader impact than simply inter-parte proceedings between individual parties,

and may take into account such other matters as the Court thinks fit to ensure a just outcome in the circumstances of the case.

(3) This section does not apply in relation to a claim under section 10.

1. As is well known and accepted by the parties, Mr Summons' present monetary claim proceedings are not for the non-payment of superannuation contributions, nor are they an appeal. As such, the direction at s 36(1) - that only in those circumstances can a costs order be made - would present an obstacle for any litigant seeking such an order in a monetary claim proceeding under s 9 of the FW Act (SA). However, the situation is markedly different with a monetary claim under s 10 of that Act. As subsection 36(3) makes clear - this section does not apply in relation to a claim under section 10.
2. Before I go on to determine whether s 9 or 10 of the FW Act (SA) is the correct basis for Mr Summons' monetary claim under that Act, a further wrinkle in this case must be explained.
3. If s 9 of the FW Act (SA) is the correct provision, then the question arises whether in exercising power under that section to deal with Mr Summons monetary claim, this Court was acting under State or Commonwealth legislation. That is, either the FW Act (SA) - s 9(1)(a)(i), or the FW Act (Cth) - s 9(1)(a)(ii). The answer for the former under sub-placita (i), is straightforward - s 36 as explained above will apply. The answer for the latter under sub-placita (ii) brings in the costs provisions of that Act, s 570 is set out below:

Fair Work Act 2009 (Cth)

570 - Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or [2009](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings. (emphasis added)

1. Sections 569 and 569A are not relevant to the consideration of these proceedings. Placita (c) is similarly not relevant as no proceeding were brought in the Fair Work Commission (FWC).
2. Accordingly, if Mr Summons' action was pursuant to the Commonwealth enactment, not the State, then a consideration must be given to the concepts of instituting proceedings vexatiously or without reasonable cause and unreasonable acts or omissions which cause the incurring of costs. In that regard federal case law on the question of costs under the FW Act (Cth) is relevant.
3. As Mr Summons was employed by a constitutional corporation (a limited company) it was assumed in the primary judgment that his employment was governed by the FW Act (Cth). As such s 9(1)(a)(ii) could potentially have application. However, in the present costs argument the question of whether he brought his monetary claim under s 9 or s 10 of the FW Act (SA) has been squarely put, with the FW Act (Cth) consideration only being relevant if the former section is operable.

Respondent's primary case - s 10 of the Fair Work Act 1994 (SA)

1. The respondent advanced a primary case and an alternative case. The primary case being that despite Ms Summons' application being in the Money Claim format, that it was not an application pursuant to s 9 of the FW Act (SA), but that it was an action pursuant to s 10 of that Act. The relevance of the difference, so the respondent contended, was that the latter section brings in the possibility of a costs award, to it, as if the action was heard in the Magistrates Court of South Australia or the District Court of South Australia.
2. Further, that if s 10 of the FW Act (SA) is the correct provision then s 36 of that Act has no operation, as subsection 36(3) makes plain that the costs limitations imposed by the rest of that section do not apply in relation to a claim under s 10. Accordingly, on the respondent's primary case, if s 10 for the FW Act (SA) is the proper characterisation of Mr Summons action, then costs restriction in s 36 is avoided. Moreover, that the costs rules of either the District Court or Magistrates Court would apply.
3. The respondent's alternative case was that if it was found that s 9(1)(a)(ii) of the FW Act (SA) was the correct jurisdictional basis of Mr Summons' monetary claim, then a cost order should be made against him pursuant to s 570 of the FW Act (Cth) given the circumstances of his case.
4. It is to be understood that Mr Summons argued against the respondent's primary case, he maintained that this monetary claim action was pursuant to s 9, not s 10, of the FW Act (SA). With regards to the respondent's alternative case, he argued his circumstances were such that no order for costs should be made under the FW Act (Cth).
5. To resolve those issues an analysis of Mr Summons' monetary claim must be undertaken.

1. Mr Summons lodged his Application - Money Claim document on 21 March 2023: ET-23-01295. On page 2 of that document the applicant is asked to provide details of their claim, various tick boxes are provided such as wages, overtime rate, allowances, commissions, etc. Mr Summons entered the sum of $8,176.83 in the box for payment in lieu of termination of employment contract. In the box representing the total claimed, he entered that same amount.
2. In the box headed Details about the amount claimed Mr Summons inserted 1,219 words which took up almost three pages. Much of what he said there related to his historical dealings with the respondent, his state of mind when entering into the Deed and his views on the conduct of the respondent. Some of what he said gave clues about the basis of his claim, such as, 'My employment included removal costs from Sydney to Adelaide and later back to Sydney if I did not continue in this role.' He also referenced a 'gesture of goodwill' made by the respondent prior to the entering into of the Deed.

1. The termination of Mr Summons employment with the respondent was communicated to him via a letter from Wallmans Lawyers dated 23 June 2021. That letter included paragraph [18], which offered to him the following:

Further, as a gesture of goodwill and despite not technically being obliged to do so, our client would be willing to reimburse you for the reasonable costs associated with a relocation to Sydney, up to a maximum of $10,000 total. If you wish to avail yourself of this opportunity, please provide the writer with reasonable proof of purchase after the expense has been incurred, and our client will attend to reimbursing that amount in due course.[1]

1. With regards to that offer of reimbursement, no evidence has been presented that Mr Summons 'availed himself of that opportunity'. That is, there is no evidence that he provided to the respondent's lawyer responsible proof of purchase of any incurred relocation expenses, following his receipt of the letter and before he entered into the Deed.
2. It is not in dispute that any sum representing the gesture of goodwill was not paid to Mr Summons following his receipt of the letter. Instead, it is assumed that the parties engaged in discussions and negotiations which three weeks later resulted in an agreement to resolve their relationship with the Deed of Release, dated 14 July 2021. At that time Mr Summons was, or at least had been, legally represented.
3. The details of the Deed have already been described in the primary judgment.[2] Suffice it to say, the respondent agreed to pay Mr Summons a sum of $23,724.50, in full and final satisfaction and discharge of any and all claims, under his contract of employment and his employment. As said at the onset, in the primary judgment, I held that the Deed was valid and was not set aside. Further, that the respondent was not estopped from relying on the Deed, which as such prohibited Mr Summons from receiving any further money other than as provided for by the terms of the Deed.
4. Essentially that the Deed was an absolute defence to Mr Summons' present proceedings for any Relocation Assistance reimbursement.
5. With that understood, apropos of the costs issue, the respondent argued that in responding to Ms Summons monetary claim it had relied on the Deed, which itself was a complete defence to his monetary claim. But, when it did respond to that claim, it understood that Mr Summons was seeking a sum associated with the gesture of goodwill. That is, what he was seeking to enforce against the respondent was not a term of his contract of employment - the Relocation Assistance at Item 9[3] - but the offer made to him after his employment had been terminated.[4]
6. Accordingly, the framing argued for by the respondent was that the offer - the gesture of goodwill - was not a sum due to Mr Summons under his contract of employment pursuant to s 9(1) of the FW Act (SA), but instead was arising out of or in relation to his contract of employment, as it was an offer made after the termination of that contract. Accordingly, so the respondent argued, s 10(1) of the FW Act (SA) was the correct basis of his action.
7. To understand more of what exactly Mr Summons contended for when he made his monetary claim, further documents will be considered.

Mr Summons' affidavit evidence in the primary case

1. First is an affidavit filed by him dated 28 August 2023. Like his application, most of what he says there is not germane to the present question. However, he does say that along with setting aside the Deed he was seeking two (three) primary results. Those being:
   • The reimbursement of the removalists fees as stated in the letter for AUD$10,000 (clause 18 of the following letter I am claiming less for this part circa $8,046.83).
   • And a public apology ... .
   • A retraction of the ASX announcements ... .
2. Thereafter, Mr Summons attached a copy of the Wallmans letter of 23 June 2021, and then said:

Clause 18 clearly states "our client will attend to reimbursing that amount in due course". Which means having an unlimited timeframe. Clause 11 [the entire agreement clause] of the Deed does not apply to the reimbursement of relocation costs for the following reasons:

1. The reimbursement was not an understanding, negotiation or agreement; it is a term of the employment contract that came into effect on 23 June 2021 [the date of the Wallmans letter].
2. The Deed did not apply to the reimbursement (or any term of employment).

The reimbursement was a separate independent decision by 14D [the respondent] that came into effect before any discussions commenced that led to the Deed. Other than reasonable proof of purchase, the reimbursement was not conditional on anything and came into effect on and from 23 June 2021. As the reimbursement was already in place, not in dispute, not subject to negotiation, and was not withdrawn, it did not form part of the Deed and was not intended to be.[5]

1. And, in summary Mr Summons said in his affidavit:

My primary objective is to have the Deed set aside to force 14D to publicly apologise for the false and fabricated workplace misconduct allegations and to retract all of the damaging ASX announcements. This is of greater value to me than the reimbursement of the removalists costs.[6]

1. Of course, apologises and retractions are not a remedy that can be made under s 9 of the FW Act (SA) as Mr Summons contended for.
2. In the primary judgment I have already found against Mr Summons' argument about the validity of the Deed. Despite what was said in his affidavit about the Deed not being an entire agreement between the parties, I have already found the opposite. A few other aspects of what he said there also require further comment.
3. Mr Summons contention that the respondent's offer of reimbursement of reasonable relocation expense made in the letter of 23 June 2021 had 'an unlimited timeframe', must be rejected. In the Deed, Mr Summons accepted the promises he made therein in full and final satisfaction and discharge of any and all claims against or involving the respondent. 'Claims' was defined in the Deed as:

1.3 Claims means all past, present and future claims, causes of action, costs, demands, entitlements and complaints, however described, including but not limited to those arising pursuant to the Fair Work Act 2009 (Cth), the common law, equity and/or any other Act or Regulation of State or Commonwealth Parliament, and including all claims and/or complaints relating to:

1.3.1 The Contract and the Employment (including their cessation); (underlining added)

1. It is abundantly clear that the reimbursement offer, made by the respondent in the Wallmans' letter of 23 June 2021, was a 'claim' within the very broad definition of that term in the Deed.
2. With regards to his argument that the respondent's offer of reimbursement of reasonable relocation expenses was 'a term of the [his] employment contract that came into effect on 23 June 2021', that must also be rejected. His contract of employment was ended on that day by that letter. The offer made within it, at clause 18, was conditional on him complying with the elements of that. As already said, no evidence has been provided to confirm that Mr Summons availed himself of that offer before he signed the Deed.
3. Finally, Mr Summons' contention that the offer made by the respondent of reimbursement of reasonable relocation expenses in the letter of 23 June 2021, was not a part of the Deed / the Deed did not apply to it / it was already in place and that was the intention of the parties, that must also be rejected. Firstly, the respondent didn't understand the 'intention' of the Deed that way. But moreover, what I have said before and above about the scope of the Deed is a complete answer to that.

1. Brief commentary on what Mr Summons submitted in his written submissions in the primary case is necessary.
2. His written submissions of 14 November 2023 did not address the question of which section of the FW Act (SA) he was pursuing his monetary claim under. In those submissions, his attention was on setting aside the Deed, which for various reasons he alleged was invalid.[7]
3. A similar stance was taken by him in his written submissions of 25 September 2025. There, Mr Summons' entire focus was on maintaining that the Deed should be set aside. Nothing was said about which section of the FW Act (SA) he was pursuing his monetary claim under.[8]
4. In its Answer to Mr Summons' monetary claim, the respondent did not address the issue of which was the relevant section of the FW Act (SA). However, in its written submission of 22 September 2023, it submitted that while Mr Summons' monetary claim was ostensibly made by him under s 9 of the FW Act (SA), it was not properly characterised as such. Instead, the correct characterisation was under s 10 of that Act, and therefore an award of costs could be made under s 10(6). Indeed, such an order for costs was sought there.[9]
5. Nothing further was said by the respondent on the issue of the correct section in its additional two sets of written submissions filed in the primary case. Although in the latter of the two, the request for an order for its costs was reiterated.[10]

The parties submissions on whether s 9 or s 10 of the FW Act (SA)

1. Turning now to what the parties have submitted on the costs question - that is, whether the correct jurisdictional basis of Mr Summons' monetary claim was pursuant to s 9 or s 10 of the FW Act (SA). As said above, the respondent argues for s 10, Mr Summons for s 9.
2. Given that it is the respondent's running to make - to satisfy the Court that a costs order can and should be made - its submissions will be addressed first.

1. Addressing why s 9 of the FW Act was the incorrect provision, the respondent submitted that Mr Summons monetary claim for reimbursement of reasonable relocation expenses - as offered in the letter of 23 June 2021 - was not for a sum due under his contract of employment (s 9 (1)(a)(ii)); rather, it was a monetary claim for 'a separate offer made to him by his former employer, following the termination of his employment.'[11]
2. Section 10(1) of the FW Act (SA) was the correct provision, so the respondent argued, because the offer of reimbursement of reasonable relocation expenses made in the letter of 23 June 2021, was an offer arising out of or in relation to a contract of employment (including a contract of employment that has been terminated), namely Mr Summons' terminated employment contract. To put that another way, the gesture of goodwill offered in the letter of 23 June 2021, was an entirely separate arrangement to the contract of employment between the respondent and Mr Summons which had been terminated.[12]
3. Further support for that proposition was said to be found in the fact that in the primary judgment the Court had been asked to determine a question ... arising out of or in relation to a contract of employment (including a contract of employment that has been terminated). That question being whether the Deed was valid - whether the respondent could rely on it as an absolute defence to Mr Summons' monetary claim. Hence, with that analysis understood, it was apparent that s 10(1) of the FW Act (SA) was the jurisdictional foundation of Mr Summons' monetary claim.[13]
4. With those arguments accepted, so the respondent contended, the Court was compelled to find that s 10 of the FW Act (SA) was operable. Moreover, with that being so, the Court must award costs to it, as 'costs followed the event' as per s 10(6) of the FW Act (SA). With that said however, the respondent accepted that the Court retains discretion as to whether or not costs should be awarded. But that on the facts of this case no exception to the general rule of costs following the event was evident.[14]

1. Indeed, the respondent urged a consideration of Mr Summons' 'unreasonable actions taken during proceedings.' The first of such being that on 15 March 2023, the respondent's lawyers wrote to Mr Summons advising that any yet-to-be filed monetary claim would have no prospects of success, given the Deed. As such, he was advised that an application for costs would be made in the event he was unsuccessful.[15]
2. The second factor referred to was that pursuant to the practices and procedures of this judicial body, at the initial stage of these proceedings, the parties engaged in conciliation before a Commissioner.[16]
3. A conciliation conference took place on 15 May 2023, but no settlement of the matter was achieved. Given that result, s 43(13) of the South Australian Employment Tribunal Act 2014 was enlivened, as below:

(13) If settlement of a matter is not reached at a compulsory conference, the member of the Tribunal presiding at the conference -

(a) must give to the parties an assessment of the merits of the party's case; and

(b) must seek to recommend ways to resolve any matter in dispute.

1. Because of the commands in that subsection, the Commissioner authored a document headed Assessment and Recommendations, dated 15 May 2023, which was sent to the parties. Thereafter, in line with our practices, that document was stored confidentially on an electronic case management system. I did not view that document prior to the delivering of judgment on 13 November 2025. I only viewed that document in consideration of the present costs arguments.
2. In that Assessment and Recommendations document, the Commissioner gave her assessments of the merits of the case and proposed a settlement option. Suffice it to say, the Commissioner was persuaded by the respondent's case and concluded that because of the signed Deed, it appeared that Mr Summons had no ability to pursue the matter.
3. The respondent argued that the Commissioner's view that Mr Summons' monetary claim appeared to have no prospect of success was significant as it demonstrated his unreasonable action in continuing to prosecute his action to judgment, within which he caused it to incur legal costs.[17]
4. The third aspect to the respondent's contention that Mr Summons had acted unreasonably in pursuing his monetary claim, was that he repeatedly had referenced using the proceedings for 'ulterior motives.' Those being, as referred to above, his mistaken belief that the proceedings could provide the remedies of a public apology and a retraction of ASX announcements. Those remedies being beyond the jurisdiction of this Court.[18]
5. Within the rubric of the ulterior motives argument, the respondent also referenced an email that Mr Summons had sent to Chambers which it said demonstrated his unreasonable approach to the proceedings.[19]
6. Finally, as to its argument that s 10 of the FW Act (SA) was the correct provision, the respondent contended that the general no costs rule found in subsections (1) and (2) of s 36 of that Act did not apply because of subsection (3).[20]
7. Accordingly, the respondent's case was that a costs order to it was not only lawfully correct, but it was also reasonable and appropriate.
8. With regards to the quantum of the costs sought by the respondent, a sum of $18,086.20 was said to have been incurred in total. And, that if costs were to be awarded on an 'indemnity' basis', then that amount should be paid to it by Mr Summons. If costs were to be awarded not on an indemnity basis, but as per 'scale' then the amount should be $12,660.00.[21] The respondent did not identify which scale it was relying on.
9. It will assist the reader to know something about the concepts of indemnity costs and scale costs. Indemnity costs are all costs, including fees, changes, disbursements etcetera, incurred by a party in the litigation, provided that such costs are not unreasonable: effectively all of the reasonable solicitor and client costs. Indemnity costs are ordinarily only awarded in extreme cases where the other party has, for example, engaged in misconduct, has prosecuted the case for an ulterior motive, has made deliberate false statements, or to penalise the party for having maintained an action with no real prospect of success.
10. Scale costs are more properly referred to as party/party costs. Such costs are the fair and reasonable costs of a party in litigation but are not all of the costs of that party incurred with their legal representative. Instead, a relevant scale of legal costs will be relied upon. Different courts have different scales or schedules of what reasonable party/party costs will be. More complex matters in higher courts attract greater amounts than straightforward cases in lower jurisdictions. When courts make costs orders, they are usually on a party/party basis, unless the circumstances warrant an order for indemnity costs, as explained above.

1. In his written submissions, Mr Summons argued that his primary case was that s 9 of the FW Act (SA) was the correct provision. And, as such, no costs order should be made because of the general no costs rule in s 36 of that Act. He also advanced an alternative case that if s 10 of the FW Act (SA), not s 9, was the correct provision then discretion should be exercised to not make a cost order against him.[22]
2. Arguing for his primary position, Mr Summons submitted that his 'claim was properly a monetary claim arising out of the employment relationship (relocation reimbursement offered as part of a termination in the letter of 23 June 2021).' Therefore, he said s 36 of the FW Act (SA) applied. He then said:

The relocation offer was made in connection with and arising out of the termination of my employment. It was intrinsically linked to the employment relationship. As such, my claim was properly a monetary claim arising from employment falling under section 9 of the State FW Act.[23] (original emphasis remains)

1. As can be understood, Mr Summons' submission above confuses s 9 and s 10 of the FW Act (SA). Section 9 does not deal with claims made 'in connection with and arising out of the termination of employment.' Subsection 9(1) deals with a claim for a sum due to an employee or former employee from an employer or former employer. The 'former' qualifier signifies that such a claim can be brought - for a sum due - even if the employment relationship has ended. That is, a sum that was due during the currency of the employment. Subsection 10(1) contains the close approximation to the words used by Mr Summons above in that it deals with a claim founded on, or otherwise arising out of or in relation to, a contract of employment (including a contract of employment that has been terminated).
2. In reinforcing his point about s 9, Mr Summons argued that:

The relocation promise was made by the employer in the termination letter and was intrinsically linked to the employment relationship. It was at least reasonably arguable that the claim fell within section 9(1)(a) (monetary claim), engaging the general no-costs approach in section 36. The proposed reimbursement was not an understanding, negotiation, or agreement; it is a term of the employment contract that came into effect on 23 June 2021.[24]

1. What Mr Summons contends for is that the respondent's offer to him of reimbursement of reasonable relocation expenses was a term of his employment contract. Moreover, that that term came into effect on 23 June 2021, being the same day his contract of employment was terminated. That reasoning is flawed for the following reasons.
2. The source of his entitlement to any monies for the reimbursement of relocation expenses was his contract of employment which commenced on 4 January 2021. As explained in the primary judgment, the relevant clause - term - in that regard are the Additional Benefits as described at Item 9.[25]
3. Next is the fact that the offer made in the letter of 23 June 2021 was not a 'term of his contract of employment'. His contract of employment had already ended when the offer was made, or, alternatively, had simultaneously ended when the offer was made.
4. Further, the offer was characterised as a 'gesture of goodwill' which was being made despite there being no obligation to do so.
5. Accordingly, Mr Summons submissions that s 9 of the FW Act (SA) is the applicable jurisdictional basis for his monetary claim cannot be accepted.
6. Mr Summons did not provide reasons as to why he said s 10 of the FW Act (SA) did not apply to his monetary claim.

1. In the primary judgment it appeared that Mr Summons' monetary claim proceedings were commenced pursuant to s 9 of the FW Act (SA), and as such, as he was employed by a constitutional corporation, that the FW Act (Cth) would then become relevant. On closer analysis however, and after hearing and considering further submissions from the parties, that assumption is incorrect.
2. As found above, when Mr Summons had the opportunity to clarify exactly what money he was claiming, and how this Court should pay it to him, he reinforced that it was not the potential relocation assistance reimbursement from Item 9 of his contract of employment that he was seeking; but was the gesture of goodwill, offer of reimbursement of reasonable relocation expense, from the Wallmans Lawyers letter of 23 June 2021, that was the foundation stone of his claim. Had his claim be founded on the former, then his argument that s 9 of the FW Act (SA) was the correct jurisdictional basis would have had more strength.
3. Instead of seeking to enforce a term of his contract of employment to pay to him a sum due, Mr Summons cast his case as a claim for the payment of a promise made, not during the currency of that contract, but after his employment had been terminated: that the promise came into effect on 23 June 2021. Indeed, he was explicit in arguing that that promise was made in connection with and arising out of the termination of my employment. It was intrinsically linked to the employment relationship. As such, my claim was properly a monetary claim arising from employment. That is, he stresses the promise arose out of the termination of his contract of employment, not that the promise was a term of that contract; that the promise was intrinsically linked to his employment relationship, not that it was part of that relationship; and, that his monetary claim arose from his employment, not that it was a claim under his contract of employment.
4. With the above scrutiny explained the flaws in Mr Summons arguments are exposed and the strength of the respondent's submissions recognised. The respondent is correct in its primary submission that s 10 of the FW Act was the jurisdictional basis of Mr Summons monetary claim. That being as it is now clear that Mr Summons was seeking to enforce the payment of the gesture of goodwill, made in the Wallmans letter of 23 June 2021, and that that claim was not for a sum due to him under his contract of employment. It was claim that arose out of or in relation to his contract of employment, that contract having been terminated. Accordingly, I find that s 10 of the FW Act (SA) is the correct jurisdictional basis of Mr Summons' monetary claim proceedings.
5. With that finding made, s 36 of the FW Act (SA) (the general no costs rule) is avoided and s 10(6) of that Act turns to be considered:

The costs in any proceedings under this section will be awarded on the same basis (and in accordance with the same rules) as costs would be awarded in a corresponding civil action or claim brought in the District Court or the Magistrates Court (as the case may be).

1. As said at the onset, it is an important factor in the consideration of this costs issue, that Mr Summons' monetary claim was in the amount of $8,176.83.
2. That amount as claimed determines that the Magistrates Court is the correct judicial body when considering 'corresponding civil action or claim' for the purposes of subsection 10(6) of the FW Act (SA). That being as s 8(1)(a) of the Magistrates Court Act 1991 authorises that court to hear and determine an action (at law or equity) for a sum of money where the amount claimed does not exceed $100,000.00.
3. However, there is a further jurisdictional limit in that court with regards to minor civil actions. Section 3 of the MC Act defines a minor civil action as a small claim. Such a claim itself is defined as 'a monetary claim for $12,000.00 or less'. Mr Summons' claim for $8,176.83 is less than that jurisdictional limit. As such, had he brought his monetary claim proceedings in the Magistrates Court, those proceedings would have been dealt with as a minor civil action.
4. Section 38 of the MC Act directs a practical and cost effective approach to the trial of minor civil actions. In that regard the trial will take the form of an inquiry by the Magistrates Court into the matters of the dispute, rather than an adversarial contest. Also, the parties need not be bound by pleadings, nor is the Magistrates Court bound by the rules of evidence. Like with the principles governing hearings in this Court,[26] when hearing a minor civil action, the Magistrates Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
5. The issue of costs in the Magistrates Court is dealt with at s 37 of the MC Act. In that regard, s 37(1) is apposite and is set out below:

Subject to this Act and the rules, costs in any civil proceedings will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).

1. Accordingly, the basis of any costs award will be subject to the MC Act and the rules; the Uniform Civil Rules 2020 South Australia. Costs will be in the discretion of the Court. And costs can be awarded against any person.
2. With the above explained, this Court foundational basis to make an award of costs in its discretion is understood. What then of the rules?
3. Chapter 16 of the UCR deals with costs. Within that chapter is Part 2 which sets out Costs Scales. And within that, rule 192.3 introduces of the Minor Civil costs scale. Part 3 of Chapter 16 discusses Scale costs in proceedings. Within that Part, rule 193.2 provides guidance as to assessing costs in Magistrates Court proceedings. Subrule (2) provides that unless the Court orders otherwise, costs orders in minor civil actions are to be determined in accordance with the Minor Civil costs scale. Part 4 of Chapter 16 makes rules for the ordering of costs. Rules 194.3(1) advises that the Court may order that costs be awarded -

(a) on the standard costs basis, solicitor/client basis, indemnity basis or another basis specified by the Court;

(b) in accordance with the Higher Courts costs scale, Magistrates Court costs scale, Minor Civil costs scale or Fast Track costs scale; or

(c) on a combination of different bases or scales for different components of costs.

1. Note the disjunctive 'or' between placitum (b) and (c). It is clear that the general costs rules at rule 194.3 envisage flexibility to the Court to craft the most appropriate costs order.
2. The analysis of the UCR does not end there. A whole chapter - Chapter 24 - is devoted to minor civil actions in the Magistrates Court. There, all aspects of such proceedings from interpretations, pre-action steps, institution, pleadings, hearing, and so on, are codified. When engaging in minor civil actions in the Magistrates Court parties are bound by such rules. Relevantly, Part 11 of Chapter 24 deals with costs; there, rule 341.1 states:

(1) A successful party in a minor civil action is ordinarily entitled to costs on the Minor Civil costs scale in Schedule 6 Part 4.

(2) Subrule (1) is subject to the discretion of the Court under rule 193.2.

(3) Subrule (1) is subject to the Court finding proper cause exists to make no order as to costs for failure to comply with Part 2 of this Chapter.

1. Therefore, in minor civil actions, the ordinary course is for the successful party to be entitled to costs on the appropriate scale. However, as with s 37(1) of the MC Act, such an award will be in the discretion of the court.
2. Schedule 6 of the UCR provided the Costs scales - Part 2 Higher Courts costs scale - Part 3 Magistrates Court costs scale - and relevantly, Part 4 Minor Civil costs scale. The Minor Civil costs scale is essentially a list of descriptions of court processes and legal events with a corresponding monetary value. For example, item 3, where an action is defended and legal advice is provided in the pre-trial processes, the monetary value is 5% of the quantum of the claim. The meaning of "quantum" is defined in Part 1 of Schedule 6, effectively the total amount of the monetary claim.[27]
3. Accordingly, I find that the correct scale of costs applicable in this case is the Minor Civil costs scale of Schedule 6, Part 4 of the UCR.

1. As the respondent has successfully established that s 10 of the FW Act (SA) is the correct jurisdictional basis of Mr Summons monetary claim, subsection (6) is to be followed. As explained above, the rules relating to minor civil actions in the Magistrates Court are to be considered. In that regard, whilst ordinarily the successful party would be entitled to its costs, that question is within the discretion of this Court. Accordingly, should this Court exercise its discretion to make an award of costs in favour of the respondent?
2. Mr Summons argued that such discretion should not be exercised. He stressed: his self-represented status; his documented psychological injury; his severe financial hardship; the legal complexity of the case; and his reasonable conduct. He also stressed 'proportionality' arguing that the legal costs sought - $18,086.00 indemnity or $12,660.00 scale - far exceeded his monetary claim of $8,176.83.[28]
3. With regards to the warnings given to him before and during the litigation, Mr Summons argued that the letter from the respondent's lawyer of 15 March 2023 - which also contained a costs warning - did not of itself demonstrate that he continued to act without reasonable cause. He said that he considered that warning and continued to gather pertinent relevant evidence and narrowed his focus on the validity of the Deed and the relocation reimbursement.[29]
4. The Commissioner's Assessment and Recommendations, Mr Summons submitted was preliminary and was made without oral evidence, full medical clarification on capacity or complete submissions.[30]
5. As for the respondent's submissions of him having an ulterior motive, Mr Summons clarified that his claim was for monetary relief within jurisdiction. He also argued that during the proceedings he had not engaged in any vexatious or unreasonable conduct and that at all stages participated in Court processes and complied with orders.[31]
6. Other reasons why discretion to award costs should not be exercised, Mr Summons contended, were his financial hardship and vulnerability; the public interest and access to justice; and, the nature of the Deed payment, his no personal benefit from that and the unfair scope of the deed. He also argued that because his case had been heard and determined on the papers that he was unable to present bank statements, produce clarification from his medical practitioners, explain the chronology of relocation payments and expenses and provided removalist receipts which he said had been provided to the respondent.[32]
7. In the 2020 case of Harradine v Chief Executive of the Department for Education and Child Development (No 2)[33] a Full Bench made comment about the exercise of a court's discretion regarding a costs order pursuant to s 10(6) of the FW Act (SA):

The general principles were summarised by Hinton J in Lyons v Legalese Pty Ltd & Ors (No 2)[34] by reference to various superior court authorities including primarily the High Court decision of Oshlack v Richmond River Council,[35] which is further referred to below.

The starting position is that the discretion is confined only by subject matter, scope and purpose, such that the width of the discretion maximises the possibility of doing justice in every case, whilst recognising the need for consistency in judicial adjudication by reference to principles and guidelines. Costs are compensatory in nature and are awarded not by way of punishment, but to indemnify the successful party against the expense incurred by reason of the legal proceedings.[36]

Thus, the outcome of the proceedings becomes the primary consideration in the exercise of the discretion as it identifies who is to be compensated. The general rule necessarily becomes "a relevant consideration in any exercise of the discretion in relation to costs".[37] Fairness and policy dictate that it is the successful party who ordinarily should be compensated, as the successful party would not have incurred costs if proceedings had not been brought. The potential liability for costs contributes to discouraging unnecessary litigation and encouraging responsibility in the conduct of litigation. However, the general rule is not absolute, and the discretion must be exercised judicially and not capriciously, having regard to all relevant factors, and upon the facts leading up to and connected with the litigation.[38]

Fairness may provide reason to depart from the general rule in whole or in part. Thus, whether it is fair to award the successful party costs may depend upon that party's conduct of the matter.[39] The conduct of a successful party in prosecuting a matter may disentitle it to the benefit of the general rule in whole or in part. Examples include lax conduct which invites the litigation; the unnecessary protraction of proceedings; success on points not argued below; prosecuting a matter solely for the purpose of increasing costs; or obtaining relief which the unsuccessful party had already offered: McHugh J in Oshlack.[40]

1. The primary consideration as to the exercise of discretion to award costs in the respondent's favour, is the outcome of the proceedings. The respondent was successful. As such, that criterion is met. However, the question is whether, having regard to the particular circumstances of this case, there is any reason as a matter of fairness why the respondent should not have its costs of defending Mr Summons' monetary claim in accordance with the general rule that costs follow the event: Rule 341.1 UCR.
2. Looming large in the consideration of whether discretion should be exercised to make an award of costs is the existence of the Deed. The gesture of goodwill made in the Wallmans letter of 23 June 2021 which Mr Summons sought to enforce, was made before the Deed was agreed and entered into by the parties.
3. The Deed was made on 14 July 2021. Pursuant to it, the respondent paid to Mr Summons a sum of $23,724.50, in full and final satisfaction and discharge of any and all claims, under his contract of employment and his employment. The Deed was unambiguous about that; it was front and centre; a lump sum of money in exchange for a release from all claims.
4. Despite the payment made to him under the Deed, Mr Summons sought to enforce the promise of the gesture of goodwill. In responding to that, the respondent, through its lawyers, wrote to him on 15 March 2023, advising that any claim to be made for such monies would have no prospects of success given the existence of the Deed. He was put on notice, that if he brought such a claim and was unsuccessful, then an award of costs against him would be sought.
5. Despite that warning Mr Summons proceeded. On 20 March 2023, he brought his monetary claim proceedings in this Court.
6. Responding to that monetary claim, on 5 May 2023, the respondent filed its Answer / Response document in this Court. In that document, the respondent denied Mr Summons' claim for $8,176.83 as being baseless. It asserted that the Deed was an absolute defence to his monetary claim and that he was precluded from making such a claim.
7. Despite that warning Mr Summons proceeded.
8. On 15 May 2023 the parties engaged in a conciliation conference conducted by a Commissioner. No resolution of the monetary claim proceedings was achieved. Following that conference the Commissioner authored an _Assessments and Recommendation_s. In that document, the Commissioner stated that because of the Deed he had signed, it appeared that Mr Summons had no ability to pursue the matter.
9. Despite that warning Mr Summons proceeded.
10. In written submissions dated 22 September 2023, the respondent laid out its case, arguing that the Deed was an absolute defence to Mr Summons' monetary claim proceedings, and sought its dismissal. Also, in those submissions Mr Summons was put on notice that the respondent would be seeking an order for its costs after his proceedings had been dismissed. In that regard, Mr Summons was advised that the respondent considered that he had brought his proceedings not under s 9 of the FW Act (SA) but under s 10. As such, a costs order against him could be made.
11. Despite that warning Mr Summons proceeded.
12. The respondent expanded on its arguments - in response to additional information provided by Mr Summons - in further written submissions of 1 December 2023. Again, the dismissal of his proceedings was sought. And again, Mr Summons was put on notice that the respondent would be seeking an order for its costs after his proceedings had been dismissed.
13. Despite that warning Mr Summons proceeded.
14. In its final set of written submissions dated 17 October 2025, the respondent reinforced that the Deed precluded Mr Summons from making his monetary claim and sought its dismissal. The respondent also sought an order for its costs and requested that that issue be determined once the substantive claim had been disposed of.
15. Despite that warning Mr Summons proceeded.
16. The primary judgment in these monetary proceedings saw none of Mr Summons' arguments find success; he was wholly unsuccessful. He cannot say that he hadn't been warned.
17. The above exposé demonstrates that even before he commenced his monetary claim proceedings Mr Summons had been warned that he would not find success. Throughout the proceedings he received similar warnings. He chose to proceed, ultimately to judgment, as was his right. However, such a choice brings with it consequences. Before he commenced the proceedings, and throughout, he was put on notice that if he was to be unsuccessful that a costs order would be sought against him. It must be assumed that he was cognisant of that consequence in making his repeated decisions to proceed.
18. There is no doubt that the failure of Mr Summons to heed any of the warnings given to him, caused the respondent to; firstly, incur legal costs, and secondly to continue, and continue, to incur such costs up to and now beyond judgment.
19. In considering whether any of the respondent's conduct in the proceedings may disentitle it to all or some of its costs, as said above, even before the proceedings were commenced, it had advised Mr Summons that he had no prospects of success and that the consequence would be an adverse costs order. Such warnings were repeated throughout the proceedings. This was not the case that the respondent held back any evidence or arguments, only for that information to be produced at a later stage for maximum adversarial advantage. The respondent was up-front with Mr Summons from the onset.
20. Whilst I have taken on board what Mr Summons has said about his self-represented status and proportionality, his other arguments as to why discretion should not be exercised to make a cost order, were not persuasive. Indeed, the whole point of an Assessments and Recommendations document following unsuccessful conciliation is to provide the Tribunal's preliminary evaluation on the success, or otherwise of the litigation to assist the parties in their decision-making. If that evaluation aligns with the eventual result, then it is of significance.
21. I also accept that Mr Summons complied with orders and that his conduct in the litigation was reasonable. But the issues are the fact of the litigation to begin with, and its continuing prosecution. I do not accept his criticisms of the hearing and determination of these proceedings on the papers. There was no bar to him providing the information and making the clarifications he claims he was unable to do.
22. With all of the above explained, I am persuaded that there should be a costs order in the respondent's favour. Mr Summons commenced unnecessary litigation and prolonged that litigation despite the many off-ramps he was provided with. Whilst it was only fair that he had the opportunity to prosecute his views to judgment, it is also only fair that the respondent should be appropriately compensated for its incurred legal costs, in successfully defending his monetary claim pursuant to s 10 of the FW Act (SA).

The alternative conclusion - s 9 of the FW Act (SA)

1. If the wrong conclusion has been reached about the correct jurisdictional basis of Mr Summons' monetary claim being pursuant to s 10 of the FW Act (SA), then I would have reached a similar result on costs pursuant to s 9 of that Act.
2. If s 9(1)(a) of the FW Act (SA) was correct jurisdictional basis of Mr Summons' monetary claim, as said above, given that the respondent corporate status the Commonwealth's FW Act (Cth) would apply. As clarified by the Full Court of the Federal Court in Treasury Wine Estates Vintners Limited v Pearson,[41] once a matter involves any aspect of federal jurisdiction, ordinarily, the whole of the controversy will be in federal jurisdiction and there will be no residue in respect of which the court could or would exercise State jurisdiction to the extent it is applicable. That is, once within the federal law, there is no room for concurrent State law.[42]
3. As such, the general costs rule in s 36 of the FW Act (SA) would be bypassed, and instead s 570 of the FW Act (Cth) would fall to be considered. Helpfully in Dahdah v Platinum Distributors Australia Pty Ltd (Costs)[43] the Full Court of the Federal Court explained the discretionary principles to be considered pursuant to s 570. Taking those into account, and for the reasons as set out above, I would have found that given the existence of the Deed, Mr Summons' monetary claim proceedings were instituted without reasonable cause as he had no real prospects of success / had no substantial prospect of success.
4. If such a costs order was made on that basis, then the correct scale in my estimation would be in accordance with Schedule 2 the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025. Ironically, on my preliminary examination the costs of these proceedings under that scale would be greater than costs under the State law of the Minor Civil costs scale of Schedule 6, Part 4 of the UCR.

1. The Application - Money Claim filed on 21 March 2023 is dismissed.
2. Pursuant to s 10(6) of the Fair Work Act 1994 (SA) the respondent is to have its reasonable costs in accordance with the Minor Civil costs scale of Schedule 6, Part 4 of the Uniform Civil Rules 2020 South Australia. Such costs are to be agreed or adjudicated.

[1] Respondent's Cost Submissions 13 November 2025 [5]: Exhibit R1 Affidavit of Sarah Lithgow, 14 June 2023, Annexure SL-1.

[2] Summons v 1414 Degrees Ltd [2025] SAET 118.

[4] Respondent's Costs Submissions 13 November 2025 [6].

[5] Affidavit of Jamie Summons 28 August 2023 page 2.

[7] Outline of Submissions for the Applicant's Response 14 November 2023 [5].

[8] Applicant's Further Submissions in Reply 25 September 2025 [3] & [23].

[9] Answer / Response 5 May 2023; Outline of Submissions of the Respondent 22 September 2023 [29]-[30].

[10] Further Submissions of the Respondent 1 December 2023; Respondent's Submissions in Reply 17 October 2025 [10].

[11] Respondent's Costs Submissions 13 November 2025 [19.1].

[16] At the time, South Australian Employment Tribunal Rules 2017 r 85; now, South Australian Employment Tribunal Rules 2024 r 113.

[17]Respondent's Cost Submissions 13 November 2025 [29.2]-[29.3].

[21] Respondent's Cost Submissions 13 November 2025 [30]-[32].

[22] [Applicant's] Submissions in Response to Costs Application 18 November 2025 [4] and [5].

[25] Summons v 1414 Degrees Ltd [2025] SAET 118 [15]-[16].

[26] South Australian Employment Tribunal Act s 32(1)(c).

[27] See also Uniform Civil Rules South Australia 2020 r 67.5(4).

[28] [Applicant's] Submissions in Response to Costs Application 18 November 2025 [8].

[33] Harradine v Chief Executive of the Department for Education and Child Development (No 2) [2020] SAET 193 [37]-[41].

[34] Lyons v Legalese Pty Ltd & Ors (No 2) [2017] SASC 2.

[35] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[37] Mericka v Rathbone (2016) 125 SASR 563 at [172] (Doyle J).

[41] Treasury Wine Estates Vintners Limited v Pearson [2019] FCAFC 21.

[43] Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102.