Background
Fahad Ullah, acting without legal representation, brought proceedings alleging that OM Security Pty Ltd and three other respondents contravened the Fair Work Act 2009 (Cth) during and at the termination of his employment as a security officer. During early case management, he requested an urgent hearing because he mistakenly believed several respondents had failed to comply with an order requiring them to file further evidence and submissions. The order, however, required additional material only if the respondents wished to rely on it.
Although solicitors for two respondents explained the misunderstanding and warned that they would seek costs if the hearing proceeded, Ullah declined to consent to its vacation. At the hearing, he relied on other matters, including potentially joining iCare, filing supplementary submissions, and raising evidentiary issues. The primary judge found that none justified an urgent hearing and ordered Ullah to pay OM Security’s and Meriton Property Services’ costs, totalling $1,500, on the basis that his unreasonable act had caused them to incur costs within s 570(2)(b) of the Fair Work Act.
Ullah sought leave to appeal the costs orders. OM Security separately challenged competency and sought dismissal of what it described as Ullah’s “appeals,” even though only applications for leave were before the Court.
The Court’s Holding
Justice Wigney dismissed the application for leave to appeal. The primary judge’s reasons were sparse, but the basis of the decision was sufficiently apparent: Ullah had unreasonably caused an urgent, unnecessary case management hearing to be convened, requiring OM Security and Meriton to incur costs. That conclusion was open on the evidence and disclosed no error of principle or other discretionary error of the kind identified in House v The King.
Ullah’s status as a self-represented litigant did not make the costs order erroneous. The primary judge had previously explained the relevant procedures, and Ullah’s filings demonstrated that he was intelligent, articulate, and capable of researching and presenting legal arguments. The Court rejected allegations that Ullah had been denied procedural fairness or that the primary judge displayed apprehended bias, finding that he had ample opportunities to justify the hearing and oppose costs.
The Court also was not satisfied that refusing leave would cause substantial injustice. Even assuming error, the $1,500 at stake did not warrant appellate intervention absent a serious miscarriage of discretion or an important error of principle. OM Security’s misconceived competency objection and related interlocutory application were also dismissed, and the Court made no order as to costs.
Key Takeaways
- A costs order may be made under s 570(2)(b) of the Fair Work Act when a party’s objectively unreasonable act or omission causes another party to incur costs, despite the statute’s general protection against adverse costs.
- Self-represented status is relevant but does not excuse unreasonable procedural conduct, particularly where the litigant has received guidance and demonstrates substantial capacity to understand the process.
- Leave to appeal a discretionary procedural order requires both sufficient doubt about the decision and substantial injustice if leave is refused; appellate courts exercise particular caution when reviewing case-management and costs decisions.
Why It Matters
The decision illustrates the limits of the Fair Work Act’s costs protection. Although awards under s 570 are exceptional and mere inefficiency or a misguided approach is not necessarily unreasonable, a party may face costs for persisting with an unnecessary hearing after the underlying mistake has been clearly explained.
It also confirms that courts assess the procedural assistance owed to self-represented litigants in light of the individual litigant’s abilities and the guidance already provided. Self-representation does not confer immunity from costs caused by objectively unreasonable conduct.