“A very rare occasion” – Full Bench orders costs against frivolous litigant

The Full Bench has made orders that an appellant pay costs to the respondent, finding that the appeal was instituted frivolously.


In 2019, the appellant commenced proceedings (the first proceedings) before the Industrial Magistrates Court (IMC), alleging the respondent failed to comply with federal and State industrial instruments; and failed to pay overtime. The proceedings were dismissed by her Honour Scaddan IM in December 2019. The appellant appealed this decision to the Full Bench of the Commission (the first appeal).  In August 2020, the Full Bench dismissed the appeal in that matter, on the basis that the appellant’s claim before the IMC in the first proceedings, the subject of the appeal, involved the exercise by the court of its jurisdiction under the Fair Work Act 2009 (Cth) (FW Act), and the Full Bench did not have jurisdiction to hear the matter. 

In September 2020, the appellant commenced further proceedings (the second proceedings) before the IMC under the FW Act. The respondent made an application to the court that the appellant’s claim at first instance be struck out.  The Industrial Magistrate concluded that the applicant’s claims had either been, or ought to have been, litigated before the court in the first proceedings, and dismissed the claim. On an application for costs by the respondent, the Industrial Magistrate did not award costs, finding that the proceedings before the court were not instituted “vexatiously or without reasonable cause”.  However, her Honour, Hawkins IM, did observe that the appellant came “perilously close”.

The appellant appealed the decision of the second proceedings to the Full Bench under s 84 of Act (the second appeal). The Full Bench listed the appeal for hearing to show cause why it should not be dismissed for want of jurisdiction.


The appellant claimed that, as the court in the second proceedings dismissed his claim in the exercise of its powers to strike out the application under the Magistrate’s Court (Civil Proceedings) Act 2004 (WA) and the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), being State laws, that the Full Bench had jurisdiction to hear the appeal. The respondent contended that the appeal should be dismissed for want of jurisdiction, contending that the first appeal made it clear that the only avenue of appeal from a decision of the court exercising jurisdiction under the FW Act, is to the Federal Court. The respondent again made an application for costs. 


The Full Bench considered that, under s 565 of the FW Act, an appeal from the court when “exercising jurisdiction” under the FW Act, can only be brought in the Federal Court. The Full Bench considered that a while the IMC may exercise its various procedural and other powers under State legislation, this does not alter the law that the jurisdiction exercised by the court is federal only.  

The Full Bench considered that given the procedural history, the appellant, while self-represented, was no stranger to the exercise of State and federal jurisdiction by the IMC and Full Bench.  The appellant had acknowledged in his notice of appeal in the second appeal, that the Full Bench had no jurisdiction in relation to an appeal from the court exercising federal jurisdiction under the FW Act.

The Full Bench considered that this was one of the ‘very rare occasions’ when a costs order in favour of the respondent should be made. The Full Bench dismissed the matter for want of jurisdiction and ordered that the appellant pay costs to the respondent in the sum of $5,150.00.

The decision can be read here.