Archive: Nov 8, 2021, 12:00 AM

“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.

Penalties awarded against restaurant owner for failing to produce records

The Industrial Magistrate has awarded penalties to a restaurant owner for contravening the Industrial Relations Act 1979 (the Act) by failing to produce records to the Department of Mines, Industry Regulation and Safety (DMIRS).


The respondent purchased a restaurant around October 2019 and started trading in or about November 2019.

In December 2019 and July 2020, the claimant attended the restaurant. On each occasion, the claimant issued the respondent with a notice that required the respondent provide to DMIRS specified records relating to all employees of the restaurant.  The purpose was to ascertain whether the respondent had observed the provisions of the Act and the Restaurant, Tearoom and Catering Workers’ Award (WA). The respondent failed to provide the records.

In failing to produce records in respect to the two notices, the Industrial Magistrate made orders stating that the respondent had contravened s 102(1)(a) of the Act. The claimant sought payment of a penalty under s 83E(1)(a) of the Act for each of the two contraventions.

Both parties appeared at a hearing on 2 September 2021. The respondent indicated that the relevant documents would be provided by 3 September 2021. The decision of the Industrial Magistrate was reserved to enable the respondent to provide the documents, however the respondent did not comply.


The claimant submitted that the respondent was uncooperative with industrial inspectors and had failed to demonstrate contrition and take corrective action. The claimant contended that the respondent’s actions were repeated and deliberate in that he was in communication with industrial inspectors in respect of the notices and was aware of what was required. The claimant submitted that the respondent had ‘demonstrated … disregard for his obligations as an employer under the Act’.

The respondent did not lodge any submissions and confirmed in the hearing on 2 September 2021 that he did not wish to be heard in respect to the issue of penalty and costs. 


In determining whether the respondent’s conduct warranted the imposition of a penalty, and if so, the appropriate amount, the Industrial Magistrate considered a range of factors. These included:

  • the nature and extent of the conduct which led to the breaches;
  • the circumstances in which the conduct took place;
  • the nature and extent of any loss or damage sustained as a result of the breaches;
  • whether there had been any similar previous conduct by the respondent;
  • whether the breaches are properly distinct or arose out of one course of conduct;
  • the size of the business involved;
  • whether or not breaches were deliberate;
  • whether senior management was involved in breaches;
  • whether the party committing the breach had exhibited contrition;
  • whether the party committing the breach had taken corrective action;
  • whether the party committing the breach had cooperated with enforcement authorities;
  • the need to ensure compliance with minimum standards by the provision of an effective means for investigation, enforcement of employee entitlements; and
  • the need for specific and general deterrence.

The Industrial Magistrate determined that the appropriate penalty for each contravention was $3,250 per breach. The Industrial Magistrate determined that the separate contraventions could be considered as a single course of conduct. Applying the totality principle, and considering the conduct as a whole, the Industrial Magistrate determined that an aggregate penalty of $3,900 was appropriate and proportionate. The Industrial Magistrate additionally ordered the respondent pay the claimant costs of $187.

The decision can be read here.