• [5] The Costs Respondent was sent a further email from my Chambers at 11:28pm on Wednesday, 30 April 2025, requesting that he respond to the 28 April Email by no later than 12:00PM on Thursday, 1 May 2025.

• [6] At 1:18PM on 1 May 2025, the Costs Respondent emailed Chambers as follows:

As I have been flat out busy as a candidate in a Federal Election. I need additional time to respond as we are absolutely flat out from 6AM till 11PM for the next few days. Could we request an extension of a week to respond.

• [7] The Costs Respondent was granted a week's extension to respond, to 4:00PM on 8 May 2025. At 3:28PM on 8 May 2025, the Costs Respondent emailed Chambers addressing the HIT Objection that had been raised. In this email, the Costs Respondent relevantly stated, as follows:

(a) while his annual rate of earnings appeared to exceed the high income threshold (HIT) of $175,000, the HIT's application is 'ambiguous' - no further explanation is provided in respect of any purported ambiguity;

(b) the HIT 'may not have been breached' because his 'actual' earnings did not exceed the HIT, and his future earnings 'were not guaranteed'; and

(c) the HIT Objection was a distraction from his unfair dismissal case, and the role he played as a whistleblower in exposing the Respondent's business and other practices.

• [8] On 9 May 2025, I issued Directions timetabling the matter for a jurisdictional hearing of the Respondent's HIT Objection. Further, my Chambers also sent the Costs Respondent the following email (9 May Email):

I refer to your email below, and respond on behalf of the Deputy President.

Chambers email to you, 28 April 2025 (5:02pm), states "With reference to the attached two decisions of the Fair Work Commission in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia [2012] FWAFB 6108, at paragraphs [8]-[9], and Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment [2021] FWCFB 154, at paragraphs [49]-[50], kindly clarify the basis on which you say you fall under the High Income Threshold (HIT) (which is currently $175,000)."

Your email response relevantly reads (blue highlights removed):

"While my annualised earnings may appear to exceed the High Income Threshold (HIT) of $175,000, potentially limiting the FWC's jurisdiction under the Fair Work Act 2009 (the Act), the HIT's application is ambiguous, and MML's focus on it distracts from the grave public interest issues and procedural unfairness of my dismissal.

Case law (Zappia v Universal Music Australia Pty Limited [2012] FWAFB 6108; Paul Dirkis v Staffing and Office Solutions Pty Ltd [2021] FWCFB 154) interprets the HIT based on annualised earnings. However, my actual payments did not exceed $175,000, and future earnings were not guaranteed, suggesting the HIT may not have been breached. Regardless, the HIT is a distraction from the real issue: MML's systemic misconduct, quick multiple departures of senior tax resources, and the unfairness of my dismissal under s. 394 of the Act."

The summary is that you assert that the HIT has an ambiguous application, and that your actual earnings do not exceed $175,000. Neither of these contentions are sustainable on the materials filed to date. The HIT has no ambiguous application (one is either over the HIT, or they are not). Further, the test is not based upon actual earnings as at the time of dismissal. Both of the cases you cite in your email response reject the assertions that you make about the application of HIT being ambiguous, or subject to an actual earnings test.

More importantly, you have not identified the basis on which you say you fall under the HIT (which is currently $175,000) (per Chamber's email of 28 April 2025, 5:02pm).

Directions in this matter have now been issued to the parties for the filing and serving of evidence and submissions, and the listing of the matter for hearing (to determine (only) whether or not your salary exceeds the HIT). If the position remains as it currently stands at the conclusion of the hearing, your application for unfair dismissal will be dismissed (closed) as the Commission will not have the jurisdiction to deal with your case. In view of what has now been brought to your attention today (9 May 2025), you need to be aware of the provisions as to costs under sections 400A and 611 of the Fair Work Act 2009.

• [9] The Costs Respondent did not respond to the 9 May Email, nor did he discontinue the Application. The parties subsequently filed materials as directed in relation to the Respondent's HIT Objection.

• [10] The HIT Objection was determined on the papers, and upheld in favour of the Costs Applicant (see Decision issued on 11 June 2025, [2025] FWC 1574. The UD Application was also dismissed (for want of jurisdiction) by way of an Order (PR788095) on the same day. The Costs Respondent has not filed an appeal in relation to this Decision or Order.

• [11] On 25 June 2025, the Costs Applicant filed its Costs Application, seeking payment of costs under s.400A and s.611 of the FW Act on the grounds that:[3]

1. Under s.400A of the FW Act, the Costs Respondent engaged in unreasonable conduct in connection with the conduct and continuation of the matter (the Application) because:

1. The Costs Respondent was not a person protected from unfair dismissal because his annual earnings exceeded the HIT.

1. The Costs Respondent filed the Application, being an unfair dismissal application.

1. The Costs Respondent continued on with the Application from 8 May 2025, contending that the HIT was ambiguous and the HIT Objection was a distraction.

1. The Costs Respondent continued the matter from 9 May 2025, despite the advice contained within the Commission's 9 May Email.

1. Costs were incurred by the Costs Applicant by [because of] the Costs Respondent's unreasonable omission in connection with and continuation of the matter, being the failure to withdraw the matter.

1. Under s.611 of the FW Act, the Costs Respondent made the Application vexatiously or without reasonable cause because:

1. The Applicant was not protected from unfair dismissal because his annualised earnings exceeded the HIT, and still filed an Application for unfair dismissal.

1. Prior to filing the Application, it should have been reasonably apparent to the Costs Respondents that the Application had no reasonable prospects of success in the circumstances.

1. From at least 9 May 2025 onwards, it should have been reasonably apparent to the Costs Respondent that the Application had no reasonable prospects of success, under circumstances where such advice had been given [to the Applicant] by the Commission in its 9 May Email.

• [12] On 26 June 2025, my Chambers issued Directions for the filing of materials, and set the Costs Application down for hearing in person in Sydney on 7 August 2025. At the hearing, the Costs Respondent, Mr Vivek Singha, appeared for himself, and Mr John Fernon, of Senior Counsel, appeared (with permission) for the Costs Applicant (Metal Manufactures Pty Limited), instructed by Ms Sabine Hunter, Solicitor, Breen and Breene lawyers.

• [13] At the costs hearing, the Costs Applicant made submissions consistent with its Outline of Submissions filed in the Costs Application proceedings. The Costs Applicant filed and relied upon an itemised Schedule of Costs in support of its Costs Application.

• [14] The Costs Respondent's written submissions filed per the Directions largely did not address the issue of the Costs Application, nor did they engage with the points raised by the Costs Applicant. In short, the Costs Respondent sought reinstatement to his former role, raised a number of allegations of fraud against his former employer, and spoke about his personal experiences as a federal political candidate, the importance of the rule of law, his desire for Australia to have a bright future, and his family's personal struggles with illness and disability.[4]

• [15] The Costs Respondent also submitted that calculating his earnings by reference to 'projected earnings' (or an annual rate of earnings) is invalid. In support of this contention, the Costs Respondent relied upon what appears to be the incomplete citations: 'FWC Rule XXXX and Murray Hobson v Murrin Murrin [2024]'.[5] I observe that the case Mr Murray Hobson v Murrin Murrin Operations Pty Ltd [2025] FWC 157 (to which it appears the Costs Respondent was referencing), does not support the submissions made by the Applicant.

• [16] The Costs Applicant raised in his oral submissions two further case law references relied upon by the Costs Respondent, MVC Security Pty Ltd [2018] FWC 1840 and Corey v Metro Trains [2013] FWC 7893, and pointed out that these cases do not exist (and may have been referenced via reliance on some form of artificial intelligence). I concur with the Costs Applicant that these cases do not exist. I note that the Costs Respondent was forthcoming in his written submissions as to the use of AI in preparing his materials.

• [17] In his oral submissions, the Costs Respondent made submissions largely directed at the alleged behaviours and practices of his former employer, and reiterated of his position that he was not jurisdictionally barred from making the UD Application because he had not 'received' wages of more than $175,000 in the period (of less than 12 months) prior to his dismissal. He further reiterated that the HIT Objection was a 'distraction' from what he characterised as the nefarious and tyrannical habits of his former employer.[6]

• [18] The Costs Applicant, in its oral submissions in reply, raised its concerns "that the proceedings would appear to be used as some sort of platform to make allegations against the Costs Applicant, and indeed, those representing the Costs Applicant, without any factual foundation or relevance which is not appropriate."[7]

• [19] The power to award costs under s 611 of the FW Act is limited. It reads:

(1) A person must bear the person's own 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 prospect 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.

Note: This subsection is a civil remedy provision (see Part 4-1)."

(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."

• [21] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[8] (Church), the Full Bench clearly articulated the relevant legislative provisions of the FW Act;

"[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:

2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.

2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.

2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.

2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.

[27] In the context of s.570 and its legislative antecedents, courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (i.e. the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act."[9]

• [22] In Hansen v Calvary Health Care Adelaide Limited[10] a Full Bench of the Commission said in relation to s.611 generally:

"[15] It is trite to observe that the statutory and policy imperative underpinning a costs application under the Act, is that a person in a matter before the Commission must bear their own costs. So much is plainly obvious by the precise and unambiguous language of s 611(1).

[16] However, the statutory scheme sets out the relatively circumscribed circumstances in which an order for costs might be found by the Commission to be appropriate in a particular case. It includes the exercise of discretionary power where the Commission is satisfied that one, or more of the circumstances set out in s 611(2), has been established. If such circumstances are established, the Commission, in the broad exercise of its discretion, may make an order that a person/s bear some, or all of the costs of another person, in relation to the application, including on an indemnity basis, or decline to make any order at all."

• [23] In Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth v Rick Adaszko,[11] Deputy President Beaumont crucially noted that:

"The starting point in relation to costs of proceedings before the Commission is that each person involved in a matter must bear their own costs. This statutory imperative is said to have derived from the policy purpose that a person is entitled to make or defend an application made under the Act, without the risk that a costs order may be made against them."

"Section 611 contains no indication of the considerations which the Commission must take into account in deciding how to exercise its discretion. The discretion conferred is expressed in general, unqualified, terms."[12]

• [24] The relevant principles concerning the interpretation and application of s.611(2)(a) of the Act were comprehensively stated in Church, and can be summarised as follows:

1. An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.

1. An application is not made without reasonable cause simply because the application did not succeed.

1. Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether there was no substantial prospect of success.

1. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause.

1. In relation to an appeal, the question becomes whether the appeal has no substantial prospect of success. The prospect of success must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If there is a not insubstantial prospect of the appeal achieving some success, it cannot fairly be described as having been made without reasonable cause.

1. An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, is manifestly groundless or discloses a case where the tribunal is satisfied it cannot succeed.[13]

• [25] In relation to s.611(2)(b), the principles were summarised by the Full Bench in Baker v Salva Resources Pty Ltd[14] (footnotes omitted):

"[10] The concepts within s.611(2)(b) 'should have been reasonably apparent' and 'had no reasonable prospect of success' have been well traversed:

• 'should have been reasonably apparent' must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• A conclusion that an application 'had no reasonable prospect of success' should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable."[15]

• [26] In Keep v Performance Automobiles Pty Ltd,[16] a Full Bench further stated:

"As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that 'it should have been reasonably apparent' to that person that their application had 'no reasonable prospect of success'. The expression 'should have been reasonably apparent' in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant's subjective belief.

There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had 'no reasonable prospects of success'. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996:

'unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available'."[17]

• [27] In Qantas Airways Limited v Mr Paul Carter,[18] the Full Bench stated that it was clear from the terms of s.611 that the point at which the Commission must determine whether or not an application was vexatious, without reasonable cause or had no reasonable prospect of success, was when the application was made.[19]

• [28] It is also appropriate to refer to the decision of Justice Snaden of the Federal Court in Macushla Pty Ltd (Trading as Sunnytop Bakery Ciabatta Della Nonna) v El Souki[20]:

"In Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166; (2014) 145 ALD 548 (Dowsett, Tracey and Katzmann JJ), a Full Court of this Court endorsed (at [9]) what was said about the application of s 570(2)(a) of the FW Act in Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 (Pagone J). There, Pagone J, at [8], said that:

'...[t]o exercise the discretion conferred by [s 570(2)(a) of the FW Act] the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470, 473. The relevant provisions reflect 'a policy of protecting a party instituting proceedings from liability for costs' and costs will rarely be awarded unless justified by exceptional circumstances: see Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; (2006) 156 FCR 275 at [60]. In Kangan Batman Institute it was said by the Full Court at [60] that 'a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure'. In Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 Wilcox J indicated at 264 that one way of testing whether a proceeding was instituted 'without reasonable cause' was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no 'substantial prospect of success'. His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant's own version of the facts.'"[21]

• [29] The Explanatory Memorandum to the Fair Work Bill 2012 states the following with respect to s.400A of the Act:

"168. Item 4 inserts a new section 400A to enable the FWC 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.

169. 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.

170. 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.

171. 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."

• [30] Relevantly, the Full Bench of the Commission said in Gugiatti v SolarisCare Foundation Ltd[22] that:

"s.400A is concerned with unreasonable acts or omissions in connection with the "conduct or continuation" of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place."

"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."[23]

• [31] In this matter, I am satisfied that it should have reasonably been apparent (on an objective basis) to the Costs Respondent that his UD Application had no reasonable or substantial prospects of success (because it was jurisdictionally barred and doomed to fail given the application of the HIT threshold) (s.611(2)(b) of the FW Act). There was never any dispute by the Costs Respondent that his annual rate of earnings was other than $200,000 (excluding superannuation) as at the time of his dismissal (being an amount higher than the HIT), and that he was an award/agreement free employee. Indeed, the Applicant's own Form F2 states that his annual salary at the time of his dismissal was $200,000 per annum.[24]

• [32] Given the foregoing finding, I do not consider it necessary to resolve (or make findings about) whether or not the Applicant commenced his UD Application for vexatious reasons.

• [33] I am also satisfied that the Costs Respondent caused costs to be incurred by the Costs Applicant (on and from 10 May 2025) because of an unreasonable act or omission in connection with the conduct of continuation of the matter, i.e. via the continued pursuit of UD Application despite being advised that the HIT applied to him, as set out in the 28 April Email and the 9 May Email (s.400A(1) of the FW Act).

• [34] The Costs Respondent made various submissions as to why it would not be appropriate for the Commission to exercise its discretion to award costs against him.[25] Taking these reasons into account, I do not consider that such reasons are a basis upon which I ought not exercise my discretion to award costs against the Costs Respondent in this matter. Accordingly, I will make an Order for costs in favour of the Costs Applicant (pursuant to s.611(2)(b) of the FW Act), being costs to be paid by the Costs Respondent to the Costs Applicant in the amount of $7,869 payable within 21 days. In settling on this costs amount, the following sets out my reasoning and calculations:

(a) the Costs Application itemises 36 cost items, plus counsel's fees, and seeks that a costs order be made in the total amount of $18,231;[26] and

(b) in respect of the cost items found in the Costs Application, I have applied s.403 of the FW Act, and Reg 3.08 (and Schedule 3.1) of the Fair Work Regulations 2009 where required, and otherwise exercised my discretion for amounts not prescribed.[27]

• [35] An Order [PR792470] to this effect will be issued contemporaneously with this decision.

[1] Respondent's Form F3 Response at Item [2.2].

[3] Costs Applicant's Form F6 Costs Application at [2.2]; Digital Hearing Book/Court Book (CB), pp.12-13.

[4] Cost Respondent's Submissions, CB, pp. 51-66.

[8] [2014] FWCFB 810, 240 IR 377.

[10] [2016] FWCFB 8162.

[11] [ [2021] FWC 4632.

[13] [2014] FWCFB 810, 240 IR 377, at [23]-[33].

[14] [2011] FWAFB 4014, 211 IR 374.

[16] [2015] FWCFB 1956.

[18] [2013] FWCFB 1811, at [20].

[19] See also Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth v Rick Adaszko [2021] FWC 4632, at [39], and Oz & Kosaroglu v Amity College Australia Limited [2021] FWC 5041, at [37]-[38].

[20] [2019] FCA 643.

[22] [2016] FWCFB 2478.

[23] Ibid, at [61] and [43] (cited in Anthony Christensen v PGG Wrightson Seeds (Australia) PTY LTD T/A PGG Wrightson Limited [2018] FWC 1766).

[24] Form F2, Item 2.1. See also Digital Hearing Book (DHB) at page 12 (email from the Costs Respondent dated 28 March 2025) to Mr Tyler, Mr Price, and Sandra.

[25] Limited financial means, care for disabled son, illness of 85 year old father, disabled sister, looking for accommodation for father and sister, engagement in federal election campaign, See, Applicant's Submissions/Evidence - CB, pp.52-53, and 55-57, 62, 66, and 70-78.

[27] Costs Application - Items 1-6 (allowed, amounts claimed reduced) - $1,260; Item 7 (not allowed); Items 8-12 (allowed) - $732; Items 13-16 (allowed, amounts claimed reduced) - $644; Item17 (allowed, amount claimed reduced) - $650; Item 18 (allowed) - $80; Items 19 (allowed, amount claimed reduced) - $100; Items 20 and 21 (not allowed); Item 22 (allowed) - $125; Item 23 (allowed, amount claimed reduced) - $650; Item 24 (allowed) - $74; Items 25-26 (allowed, amounts claimed reduced) - $300; Item 27 (allowed) - $93; Item 28 (allowed) - $130; Item 29 (allowed) - $270; Item 30 (allowed, amount claimed reduced) $325 ; Item 31 (allowed) - $74; Items 32-33 (allowed, amounts claimed reduced) - $650; Items 34-35 (allowed) - $32; Item 36 (not allowed); Counsel's fees (allowed, amount claimed reduced) - $1,500. Total costs awarded = $7,689.

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