NDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA CatchWords : INDUSTRIAL LAW – Application for costs in proceedings under the Fair Work Act 2009 (Cth) – Whether the late discontinuance of a claim was an unreasonable act pursuant to s 570(2)(b) of the Fair Work Act 2009 (Cth) – Whether other acts were unreasonable acts pursuant to s 570(2)(b) of the Fair Work Act 2009 (Cth) – Turns on own facts Legislation : Fair Work Act 2009 (Cth) Instrument : DOF Management Australia Pty Ltd Maritime and MUA Offshore Oil and Gas Enterprise Agreement 2023 Cases referred to in reasons: : Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2026] FCA 126 Buchanan v G&R Rossen Pty Ltd [2020] WAIRC 00388; (2020) 100 WAIG 507 Suda Ltd v Sims (No 3) [2014] FCCA 2127 Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574 Result : Application for costs is refused Representation: Claimant : Ms S Sayed (of counsel) Respondent : Mr R Boothman (of counsel) REASONS FOR DECISION Background The issue for determination by the Industrial Magistrates Court of Western Australia (the Court) is whether the Construction, Forestry and Maritime Employees Union (the Union) should pay DOF Australia Pty Ltd’s (DOF) costs following the Union’s discontinuance of its originating claim the morning of the trial hearing. On 19 December 2025, the Union lodged an originating claim alleging DOF had failed to comply with cl 28 of the DOF Management Australia Pty Ltd Maritime and MUA Offshore Oil and Gas Enterprise Agreement 2023 (the Agreement) by failing to reimburse travelling expenses for an employee within a specified period of time. In doing so, the Union alleged DOF contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) (the Claim). The Union sought the payment of a civil penalty payable to the Union. On 19 January 2026, DOF lodged a response denying it had breached the Agreement and opposed the imposition of a civil penalty. Procedural History At a directions hearing before the Court on 26 March 2026, the Union was ordered to provide further and better particulars of claim in respect of what expense(s) it says was not paid by DOF and the specific clause it alleged had been breached by DOF. The expense relied upon by the Union was a $53.45 taxi fare incurred by an employee on 15 August 2025 travelling from a hotel to the Perth Airport, which was reimbursed by DOF on 8 November 2025 (the Taxi Fare). The Union alleged that DOF breached cl 28.7 of the Agreement by failing to reimburse the employee within 28 days of the production of the receipt for the Taxi Fare. DOF contended that on the proper construction of cl 28.7 of the Agreement, the Taxi Fare was not an expense of a kind contemplated by cl 28 of the Agreement. That is, cl 28 of the Agreement did not require DOF to reimburse taxi fares for travel between the hotel and an airport in the employee’s circumstances. At the same directions hearing (referred to in paragraph 5), the Court accepted a suggestion that the parties confer on their own timeframe in preparing for a hearing on 3 June 2026. That is, the Court noted the Claim was between sophisticated litigants and experienced counsel who were familiar with the Court’s processes. Accordingly, the Court accepted that where there was a defined issue for determination, principally the construction of a term of the Agreement, with little (if any) dispute on the facts, that the parties were in a good position to come to an arrangement which best suited them in respect of the time required to lodge and serve any witness statements and written submissions, provided it was completed before 29 May 2026. The only exception to this was that the Court required the further and better particulars and associated response to be lodged and served by 2 April 2026 and 17 April 2026 respectively, and a statement of agreed facts to be lodged and served on or before 1 May 2026. Therefore, all the preparatory steps for the hearing of the Claim occurred between 26 March 2026 and 29 May 2026. To their credit, the parties generally complied with this, with the last document (written submissions) lodged by DOF on 27 May 2026. The parties prepared a statement of agreed facts as ordered, which contained all of the essential facts upon which the Claim could be determined by the Court. While the Union lodged and served a witness statement signed by the employee concerned, the contents of the witness statement did not alter the essential facts, and DOF indicated to the Union that it did not require the employee for cross-examination at the hearing of the Claim. One additional issue is that 1 June 2026 was a public holiday in Western Australia. On 2 June 2026, DOF requested that the Union consent to the Claim be heard ‘on the papers’, thus obviating the need for either counsel or the parties to attend the hearing on 3 June 2026. On 3 June 2026 at 8.47 am, the Union lodged a notice of discontinuance withdrawing from the whole of the Claim. The Union’s intention to discontinue the Claim was conveyed to DOF’s counsel on 2 June 2026 at approximately 11.00 pm. Application for Costs The parties appeared before the Court on 3 June 2026, where DOF made an application for costs pursuant to s 570(2)(b) of the FWA. Section 570(1) of the FWA provides that a party to proceedings in a court (which includes the Court) in relation to a matter arising under the FWA may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with (relevantly) s 570(2) of the FWA. Relevant to DOF’s application for costs, section 570(2)(b) of the FWA confers on the Court a discretionary power to award costs if the Court is satisfied that the Union’s unreasonable act or omission caused DOF to incur costs. The Law In Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2026] FCA 126 (Kwinana Bulk Jetty Case), Dowling J, at [6], summarised relevant principles relevant to an application for costs under s 570(2): the discretion conferred by s 570(2) should be exercised cautiously, and the case for its exercise should be clear: Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64] (Mortimer J); BDR21 v Australian Broadcasting Corporation [No 2] [2021] FCA 1347 at [25] (Halley J); the reason for caution in the exercise of the discretion conferred by s 570(2) is the potential for discouraging parties to pursue, in a complete and robust way, the claims they seek to make under the Act, or the defence to those claims, and to ensure that the spectre of costs does not loom so large as to discourage parties from commencing, continuing or responding to claims: Ryan at [64]; BDR21 at [26(f)] and the cases cited; unreasonableness is to be determined objectively and is to be assessed by reference to the particular circumstances of the case: see BDR21 at [26(e)] and the cases cited; the word ‘unreasonable’ in s 570(2)(b) is not capable of precise definition and is inherently sensitive to context. It is appropriate for a court to examine the context or circumstances of the relevant conduct to ascertain whether that conduct could be characterised as unreasonable: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36 at [18] (Flick, Reeves and O’Callaghan JJ); inefficient conduct of the case or a misguided approach may be relevant to, but will not be conclusive of, unreasonableness: see BDR21 at [26(b)] and [26(c)] and the cases cited; and a failure to accept a reasonable offer of compromise, including an offer expressed in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333, is capable of constituting an unreasonable act or omission for the purposes of s 570(2)(b) of the Act: see Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221 at [166] (Tracey, Gilmour, Jagot and Beach JJ); Salama v Sydney Trains [No 2] [2021] FCA 1200 at [14] and [39] (Burley J). In Buchanan v G&R Rossen Pty Ltd [2020] WAIRC 00388; (2020) 100 WAIG 507, Industrial Magistrate Flynn (as he was then), at [55], also summarised principles from various authorities: Section 570 of the FW Act is ‘to be understood as reflecting a legislative policy of protecting parties to proceedings under the Act from costs orders so that a party with a genuine grievance will not be discouraged from pursuing a remedy to which they may be entitled, or from pursuing litigation in the manner which they deem best, for fear of an adverse costs order … Consequently, it is usually only in exceptional circumstances that costs will be awarded under s 570’: Pettit v Evolution Mining Ltd [2016] FCA 1304 [62]. The focus of s 570(2)(a) of the FW Act is upon the ‘institution of proceedings’ by the respondent to an application for costs. The focus of s 570(2)(b) of the FW Act is upon the ‘unreasonable act or omission’ of the respondent to an application for costs. Section 570(2)(b) of the FW Act alone is relevant to an application for costs against an employer who has unsuccessfully defended a claim: Fair Work Ombudsman, Kearns & Schmidt v Atkins Freight Services Pty Ltd [2016] SAIRC 19 [81]. Section 570(2)(b) of the FW Act applies when two criteria are satisfied. ‘The first criterion is that one party must have engaged in “an unreasonable act or omission” … [W]hether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have “caused another party to the proceeding to incur costs in connection with the proceeding”. Once both criteria are satisfied, then the Court “may” in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party’: Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1526 [4]. ‘[T]here is a danger of the exceptions in s 570(2) [of the FW Act] being used in circumstances in which the most that one can say is that the losing party had a self-evidently weak case … [T]hat is not the kind of situation to which s 570(2) [of the FW Act] is addressed. There must be a higher level of criticism or disapprobation which the court is able to express about a losing party’s case if the bars in paras (a) and (b) of s 570(2) [of the FW Act] are to be crossed by a party which succeeds on the application concerned’: Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987 [14]. Section 570(2)(b) of the FW Act ‘is not necessarily engaged because: (a) a party does not conduct litigation efficiently; (b) a concession is made late; (c) a party may have acted in a different or timelier fashion; or (d) a party has adopted a genuine but misguided approach: Suda Ltd v Sims [No.3] [2014] FCCA 2127 [72]. The Unreasonable Acts Alleged DOF submits that the alleged unreasonable acts by the Union included: the deficiency in the Claim requiring further and better particulars; the introduction of additional pleadings within its written submissions; denying the Claim being heard ‘on the papers’; and the last-minute discontinuance of the Claim with late notice to DOF’s counsel. Underpinning DOF’s submissions is its concern that there is now no precedent value for DOF, and the Union can institute future proceedings on the same issue, whereas there was no obvious prejudice in the Claim being heard ‘on the papers’ and the Court giving a determination potentially benefiting both parties. Further, DOF submits that the amount the subject of the Claim was trivial and was paid by DOF, following further enquiries being made (and before the institution of the Claim). Thus, DOF submits that the proceedings caused it to incur costs for a trivial amount, paid by DOF, and was ultimately discontinued by the Union on the day of the trial hearing, which may have resolved the proper construction of a term of the Agreement. The Increase in Costs Caused DOF submits that the Union’s unreasonable acts caused an increase in its costs where: it was required to apply for and respond to further and better particulars not particularised in the originating claim; having understood the Claim via the further and better particulars, the Union sought to introduce other terms of the Agreement in its written submissions; and it prepared for the hearing only to pivot late in the proceedings to address the discontinuance and costs application. Underpinning DOF’s submissions is, again, the hearing of the Claim could have been ‘on the papers’ obviating the need to attend Court, including attending for the purposes of the costs application. Further, the late notice of the Claim’s discontinuance ‘threw away’ DOF’s preparation for the substantive hearing and required DOF to attend to preparing the costs application and attending in person at the hearing. DOF outlined to the Court the costs it says it incurred because of the Union’s unreasonable acts. Union’s Response to Costs Application The Union opposes DOF’s application for costs. The Union submits that the Claim was not deficient and the further particulars were provided after ordered to do so by the Court. Thereafter, there was conferral between the parties to progress the Claim to a hearing. The Union says it corresponded with DOF’s counsel on 20 May 2026 about whether the Union’s witnesses were required for cross-examination and DOF only raised the issue of the hearing being heard ‘on the papers’ on 2 June 2026. The Union’s counsel had some difficulty obtaining instructions. However, after considering DOF’s written submissions, it was decided that the Claim would be discontinued and DOF’s counsel was advised on 2 June 2026 of the Union’s intention to discontinue the Claim (there did not appear to be any dispute that this occurred at 11.00 pm). The Union referred to the tight time frame involved in the Claim. Determination For the following reasons, I am not satisfied that the alleged unreasonable acts relied upon by DOF amount to unreasonable acts by the Union for the purposes of enlivening the entitlement to costs under s 570(2)(b) of the FWA. First, the provision of further and better particulars was part of the procedural steps clarifying the Claim. A party does not necessarily engage in an unreasonable act because its pleadings are in some way initially deficient and this is promptly remedied. Secondly, the Union, in conjunction with DOF, otherwise conducted the litigation in an efficient manner. That is, there was limited involvement by the Court, with the parties largely determining the preparatory steps and complying with orders otherwise made by the Court. Save for the notice of discontinuance being lodged, from the Court’s perspective, the litigation was lean and streamlined. Thirdly, the reference to other clauses in the Agreement in the Union’s written submissions, while annoying, did not markedly change the character of the Claim. Sadly, it is often the case that parties add or subtract issues in written submissions, or do not stay on point. Without more, of itself, wandering written submissions do not necessarily amount to an unreasonable act, particularly where otherwise, as already stated, the litigation was efficiently conducted. Fourthly, following the lodgement of DOF’s written submissions on 27 May 2026, there was three business days for the Union to decide to continue or discontinue the Claim. While it might be a question of degree, there was a ‘short window of time’ to form a view one way or another and lodge the notice of discontinuance. I accept that from DOF’s perspective, the consequence for it and its counsel is that costs and time were expended in preparing for trial the next day. However, on balance, this factor in this case weighs in favour of a decision that the late discontinuance of the Claim was not unreasonable. Overall, I am not satisfied that, notwithstanding the lateness in discontinuing the Claim along with the other acts identified, the high level of criticism or disapprobation of the Union’s conduct in the proceedings has been crossed required to meet the requirement under s 570(2)(b) of the FWA. The gravamen of DOF’s application for costs is its apparent frustration in the pettiness of commencing a claim about the payment of a very small amount of money, which was paid by DOF in any event and where DOF expressed doubts about the basis underpinning the requirement to pay, only to have the claim discontinued at literally the 11th hour. In that sense, DOF is deprived of certainty on the issue and fears it will be put to future costs to defend the same or similar types of claims. The Union now has the benefit of DOF’s written submissions on the issue, which appears to have prompted the discontinuance of the Claim. One imagines that a different argument may arise if the same issue was or continued to be relitigated. Other Issues In Court, DOF outlined the costs it sought by reference to the Legal Profession (Magistrates Court) (Civil) Determination 2024 (Determination), where the maximum allowable hourly rate for a senior practitioner is $484 per hour. DOF’s counsel stated that a bill of costs had been completed the day before in the amount of $14,046 (which included the cost of attendance at the hearing on 3 June 2026). Counsel accepted that the hourly rate charged was higher than the maximum hourly rate under the Determination. Following a short adjournment, DOF submitted to the Court that the costs sought as a result of the Union’s unreasonable act(s) was $5,665 by reference to item 16, item 13, item 15 and item 4 in the Determination. However, DOF indicated that if an amount of costs was agreed, it was prepared to accept $5,000. The Union’s Counsel did not have instructions to agree an amount of costs (if the Court granted the costs application). The Union’s counsel was given an opportunity to obtain instructions on this point and the Court invited counsel to email the Court a response. As indicated to the Union, the Court understood the costs application was opposed, but merely gave the Union an opportunity to agree or not an ‘amount’ of costs, where counsel said she did not have instructions. In response to that opportunity, the Court received an email, which stated that the Union did not agree to the proposed amount of $5,000. It also went further and made an unhelpful statement that the Union ‘reserves its right to appeal any findings’. This statement does not assist and is not relevant to any matter before the Court. Had it been necessary to find an amount for the purposes of DOF’s costs application, then an amount for time spent, in part, preparing for a hearing that did not proceed due to its discontinuance on the day of the hearing, preparing for a costs application and submissions and attending court on 3 June 2026 is reasonable. I would have found that a total amount of $5,132 was reasonable for: counsel’s attendance at the hearing on 3 June 2026 with a junior practitioner ($2,277); preparation of submissions by counsel ($1,452); and preparation for the hearing ($1,403). Outcome Where I am not satisfied of the threshold requirement of an unreasonable act or acts by the Union for the purposes of s 570(2)(b) of the FWA, the application for costs is refused. D. SCADDAN INDUSTRIAL MAGISTRATE