2025 WAIRC 00280
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00280



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
ON THE PAPERS



DELIVERED
:
MONDAY, 12 MAY 2025



FILE NO.
:
M 139 OF 2024



BETWEEN
:
ROBERT ARNOLD


CLAIMANT





AND





BENALE PTY LTD ATF THE FLETCHER UNIT TRUST T/A FLETCHER INTERNATIONAL WA


RESPONDENT

CatchWords : INDUSTRIAL LAW – Costs – s 570(2) of Fair Work Act 2009 (Cth) – small claims procedure – whether claimant instituted proceedings vexatiously or without reasonable cause for purpose of s 570(2)(a) – whether claimant engaged in an unreasonable act or omission which caused the respondent to incur costs for purpose of s 570(2)(b) – application for costs dismissed
Legislation : Fair Work Act 2009 (Cth)
Instrument : Meat Industry Award 2020
Case(s) referred
to in reasons: : Arnold v Benale Pty Ltd atf The Fletcher Unit Trust [2025] WAIRC 185
Australian Workers Union v Leighton Contractors Pty Limited (No 2) [2013] FCAFC 23; (2013) 232 FCR 428
Saxena v PPF Asset Management Ltd [2011] FCA 395
Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166; (2014) 145 ALD 548
Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392
Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2) [2023] FCA 20
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Sivwright v St Ives Group Pty Ltd [2022] FCA 136
Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351
Bywater v Appco Group Australia Pty Ltd [2019] FCA 799
Shea v EnergyAustralia Services Pty Ltd (No 2) [2015] FCAFC 14
Arnold v Fletcher International WA [2025] WAIRC 30
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574
Result : Application dismissed
Representation:
Claimant : Self-represented
Respondent : Mr D. Bates (representative)



REASONS FOR DECISION



1 The claimant, Robert Arnold (Mr Arnold), commenced this underpayment claim against his employer, Benale Pty Ltd atf the Fletcher Unit Trust t/a Fletcher International WA (Fletcher International), by way of the small claims procedure under s 548 of the Fair Work Act 2009 (Cth) (FW Act). His claim had two components. First, he claimed payment of weekend penalty rates ‘for the last six years’ Originating Claim
under clause 24.1 of the Meat Industry Award 2020 (Weekend Penalty Claim). Second, Mr Arnold claimed that he had been underpaid $5.70 per hour because Fletcher International decreased, rather than increased, his base rate of pay in 2023 (Wage Underpayment Claim).
2 I dismissed Mr Arnold’s claim following a hearing on 19 March 2025. My reasons for dismissing the claim are set out in Arnold v Benale Pty Ltd atf The Fletcher Unit Trust [2025] WAIRC 185 (Substantive Decision).
3 Fletcher International now seeks an order for the claimant to pay the entirety of its legal costs incurred in the proceedings, totalling $24,007.50 pursuant to s 570 of the FW Act. Fletcher International says the proceedings were commenced vexatiously and without reasonable cause, and that the claimant’s conduct in the proceedings was unreasonable and caused it to incur costs.
4 Fletcher International states in its application that it relies on s 570(2)(a) and (b), but its grounds for invoking those sub-sections differed in relation to the Weekend Penalty Claim and the Wage Underpayment Claim. In neither case did Fletcher International’s submissions seek to substantively demonstrate that the proceedings were commenced vexatiously, as that word is properly understood (see [12] below).
5 The application for costs therefore involves consideration of the following issues:
(a) Whether the Weekend Penalty Claim was instituted without reasonable cause.
(b) Whether the Wage Underpayment Claim was instituted without reasonable cause.
(c) Whether Mr Arnold acted unreasonably for the purpose of s 570(2)(b) in maintaining his Wage Underpayment Claim after the Response was filed.
(d) Whether Mr Arnold acted unreasonably for the purpose of s 570(2)(b) in failing to disclose particular information to the Fair Work Ombudsman (FWO) and to Fletcher International’s Human Resources manager before commencing these proceedings.
(e) If the answer to (c) or (d) is yes, whether that conduct caused Fletcher International to incur costs.
6 If the threshold for an award of costs is reached and I am inclined to exercise the discretion to award costs, I must also consider whether there is some special or unusual feature which would justify an award of indemnity costs.
Principles
7 The law concerning orders for costs is settled. The limited power to award costs is found in s 570 of the FW Act. It says:
570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
8 Section 570 confers a discretion to order costs where a pre-condition of s 570(2) is met. This discretion must be exercised judicially according to the terms defining it. It must also be exercised with caution because of the exceptional nature of the power in an otherwise non-costs jurisdiction. Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 (AWU v Leighton Contractors) per Dowsett, McKerracher and Katzmann JJ at [8].

9 This means that the case for a costs order must be clearly demonstrated by the party seeking the costs order. Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6].

10 In relation to the precondition in s 570(2)(a), the relevant question is whether the proceedings had reasonable prospects of success at the time it was instituted, not whether it ultimately failed. AWU v Leighton Contractors at [7].
 
11 That can be tested by asking whether the party bringing the action, on the facts apparent to the party, properly advised, should have known the claim had no reasonable prospects of success. Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166; (2014) 145 ALD 548 at [9]  [10].
A distinction can be drawn between cases where success depends on resolution in the claimant’s favour of one or more arguable points of law, and cases which are misconceived, unsupportable, incompetent or hopeless. Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 (Australian and International Pilots Association) at [36]; Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574 at [29].
Pursuit of cases in the latter category can be characterised as unreasonable.
12 A respondent who submits that a proceeding was brought vexatiously must demonstrate that the predominant purpose in instituting it was to harass or embarrass, or to gain a collateral advantage unrelated to the vindication of the rights, privileges or immunities in respect of which it was instituted. Messenger v Commonwealth of Australia (No 2) [2023] FCA 20 (Messenger) at [14].
If a proceeding is instituted by a claimant who does not intend to prosecute it to conclusion; but instead seeks to use it as a means of obtaining some advantage for which it was not designed or some collateral advantage that is beyond what the law offers, then it might be said to have been instituted vexatiously. Messenger citing Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 526-527.

13 Whether a party has engaged in an ‘unreasonable act or omission’ for the purposes of s 570(2)(b) turns on the facts and circumstances of the case. Sivwright v St Ives Group Pty Ltd [2022] FCA 136 per Jackson J at [9].

14 Even if the Court is satisfied of a s 570(2) precondition, it retains a discretion not to order costs. Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 per Pagone J at [12]; Bywater v Appco Group Australia Pty Ltd [2019] FCA 799 at [11].

15 Once the power to award costs is enlivened under s 570(2) of the FW Act, the Court can make an order for costs to be paid on an indemnity basis, with the general law principles as to the award of such costs applying. Shea v EnergyAustralia Services Pty Ltd (No 2) [2015] FCAFC 14 at [10].

16 The test as to whether indemnity costs should be awarded is whether the justice of the case might so require or, whether there exists some special or unusual feature of the case to justify the Court departing from the ordinary practice. Australian and International Pilots Association.

Was the Weekend Penalty Claim instituted unreasonably or vexatiously?
17 Fletcher International’s basis for seeking costs was that Mr Arnold has, on five prior occasions, sought to agitate his claim for weekend penalty rates. Fletcher International submitted that:
Responding to Mr Arnold’s six (6) claims or complaints regarding payment of Weekend Penalty Rates has, for the Respondent, been exhausting, time-consuming, costly, and unreasonable in circumstances where:
(a) on each and every occasion, it has ultimately been determined that the Claimant is not entitled to payment of the Weekend Penalty Rates;
(b) on each and every occasion, the Claimant has wilfully and unreasonably refused to accept the conclusion that he is not entitled to payment of Weekend Penalty Rates. To that end, the Respondent notes that at the conclusion of the Hearing in the Current Matter - and while still on the record - the Claimant asked the Court who he should complain to next given the Court's dismissal of his application;
(c) on each and every occasion, the Claimant has failed to properly particularise and prosecute his claim, despite the onus of proof resting solely on him. For example, in the Current Claim - as was the case in his five (5) previous and nearly-identical claims – the Claimant:
(i) failed to present any evidence of any kind whatsoever regarding the proper interpretation and application of the applicable industrial instrument; and
(ii) failed to present any evidence of any kind whatsoever regarding any precedent or other authority in support of his claim for payment of Weekend Penalty Rates;
(d) the Claimant was informed, in writing, by a qualified Fair Work Inspector at the FWO as recently as December 2023 that he was unequivocally not entitled to payment of Weekend Penalty Rates;
(e) there have been no changes made to the Award in the fifteen (15) years since its commencement which could have resulted in the Claimant reasonably apprehending that he had become entitled to payment of Weekend Penalty Rates despite all the previous and consistent determinations to the contrary;
(f) the Claimant has plainly initiated all six (6) of his nearly identical claims on the grounds that he “believes” he should be paid more for the work he performs despite that “belief”, regardless of how genuinely it may be held;
(i) having no valid legal basis; and
(ii) being unenforceable by any court, tribunal, or statutory authority; and
(g) made demonstrably false statements - both verbally and in writing - in support of the Current Claim… Respondent’s submissions [34].

18 The five prior claims or complaints Fletcher International rely upon span an eleven-year period from May 2013 to May 2024.
19 In May 2013 Mr Arnold made a complaint to the FWO about his rate of pay. The complaint was resolved by mediation. It pre-dates the period that is the subject of the current claim. There is nothing before me which establishes that, by the mediated agreement, Mr Arnold agreed to forego his right to make any claims which might arise in the future. Neither the fact that Mr Arnold made this complaint in the past, nor that he agreed to compromise it, shows that the current claim was made vexatiously or without reasonable cause.
20 In December 2020 Mr Arnold’s union, the Australasian Meat Industry Employees’ Union (AMIEU), sent a short email to Fletcher International. The email stated:

21 The email relates to issues other than weekend penalty rates. It relates to payment for work on public holidays and shift loadings.
22 The AMIEU then requested copies of Mr Arnold’s weekly payslips and employment contract, which Fletcher International provided. The AMIEU made no subsequent contact with Fletcher International.
23 Fletcher International suggest that the fact the AMIEU did not press any claim on behalf of Mr Arnold means that the AMIEU ‘apprehended the Claimant was not entitled to payment of weekend penalty rates.’ Respondent’s submissions [20].
There is just no basis for me to form such a conclusion. The fact that the union made the enquiries it did on behalf of Mr Arnold does nothing to demonstrate that Mr Arnold’s present claim was instituted unreasonably.
24 In October 2022 Mr Arnold engaged MKI Legal to act on his behalf. By letter dated 10 October 2022, MKI Legal requested copies of Mr Arnold’s employment records for the past seven years. The letter made no claim or complaint, and did not allude to any legal cause of action against Fletcher International. It did no more than purport to exercise the right under s 535 of the FW Act and the Fair Work Regulations 2009 (Cth) to inspect employee records.
25 It is more than a stretch to describe this correspondence as a ‘complaint’ as Fletcher International has done. In any event, the request to inspect employee records does nothing to show that the present claim was instituted unreasonably.
26 In July 2023 Mr Arnold contacted the FWO concerning Fletcher International’s nonpayment of weekend penalty rates. I accept that the substance of his claim in this respect was the same as his Weekend Penalty Claim in these proceedings.
27 The FWO undertook an investigation of Mr Arnold’s complaint. The FWO Inspector concluded that Mr Arnold:
[I]s not entitled to any penalty rates as identified in clause 24.1(a) or 24.1(b) of [the Award] unless the Company and Mr Arnold by agreement enter into the conditions of clause 24.1 and clause 14.3(b) by altering the ordinary hours worked. Respondent’s submissions [28].

28 The investigation was concluded with no further action by the FWO.
29 The Inspector’s email contains the Inspector’s opinion as to the correct construction and application of the Award. Those conclusions are not binding on the Industrial Magistrates Court of Western Australia (IMC). The Inspector’s conclusions were not supported by any detailed reasoning and were also somewhat equivocal, being conditioned on there being an absence of an agreement under clause 24.1 and clause 14.3(b). I do not agree with Fletcher International’s description of the FWO Inspector’s email as informing Mr Arnold that he was ‘unequivocally not entitled to payment of Weekend Penalty Rates.’ Respondent’s submissions [34](d).
I note that the Inspector’s construction of the Award does not accord with my reasons at [70] of the Substantive Decision.
30 Mr Arnold commenced these proceedings because the FWO did not take further action in relation to his weekend penalty rates complaint. In doing so, he was not acting unreasonably. Rather, it was the natural next step in circumstances where he disagreed with, or was unpersuaded by, the Inspector’s conclusions.
31 The fifth complaint Fletcher International relies upon is an application for a Stop Bullying Order Mr Arnold made to the Fair Work Commission in May 2024. In its written submissions, Fletcher International represented ‘the substance’ of this claim as:
[O]nce again, that he was not being paid correctly by the Respondent for his weekend night shifts. Respondent’s submissions [31].

32 Mr Arnold’s Stop Bullying Order application was attached to Fletcher International’s Human Resources Manager, Matthew Nelson’s witness statement, Exhibit R1.
filed for the purpose of the hearing of Mr Arnold’s claim. I did not accept it into evidence during the hearing, as it was not relevant to the issues then before me. I have had regard to it in relation to this costs application, given that it has been referred to and is relied upon by Fletcher International.
33 Contrary to Fletcher International’s submissions, the application is not in substance about not being paid correctly for weekend night shifts. The application says:


34 Self-evidently, the application is unrelated to Mr Arnold’s Weekend Penalty Claim in these proceedings.
35 Fletcher International tacked onto its submissions additional reliance on proceedings brought by Mr Arnold in Fair Work Australia in 2010. There was scant evidence before me of the nature of these proceedings, although the March 2010 agreement Exhibit C1.
which Mr Arnold relied upon in the substantive hearing, may have been connected with those proceedings.
36 Any such application to Fair Work Australia must necessarily be irrelevant to Mr Arnold’s initiation of, and conduct in these proceedings, for the same reasons stated at [19] above and because Mr Arnold’s work patterns in 2010 were not the same as his work pattern that is the subject of the claim in these proceedings.
37 Fletcher International’s assertion that on each and every one of the above five (or six) occasions it was ultimately determined that Mr Arnold is not entitled to payment of weekend penalty rates is wrong. No binding or authoritative determination to that effect was ever made. These proceedings are the first occasion that Mr Arnold’s claim about weekend penalty rates has been determined.
38 Accordingly, it follows that Fletcher International has not made out its assertion that Mr Arnold has wilfully and unreasonably refused to accept the conclusion that he is not entitled to weekend penalty rates.
39 It also follows that Fletcher International’s complaint that Mr Arnold has failed to particularise and prosecute his prior claims leads nowhere, as the claims other than the 2023 FWO complaint, cannot be described as ‘nearly-identical’. Respondent’s submissions 34(c).
There is no evidence to suggest the 2023 FWO complaint was not particularised or prosecuted. To the contrary, it was investigated and concluded.
40 Fletcher International argues that Mr Arnold’s making of false statements verbally and in writing, justifies a finding that he instituted the proceedings unreasonably or vexatiously. I assume Fletcher International is meaning statements that were made to the IMC. It relies in this regard on two ‘statements’.
41 Both statements were contained in a typed document titled ‘Saturday & Sunday Nights’. Exhibit C4.
It is undated. It was a document that Mr Arnold attached to his Originating Claim. Although Mr Arnold identified it during his evidence as a document he had created, it was not tendered into evidence by him. Rather, it was Fletcher International’s representative who sought that it be accepted into evidence. ts 13.

42 Fletcher International’s representative then cross-examined Mr Arnold on the document. It says ‘[a]t present I work weekends and only get paid $24.54 day shift wage.’ Exhibit C4.
Mr Arnold readily accepted in cross-examination that this statement was not correct, and that he was paid above that amount. ts 24.
But even before cross-examination, Mr Arnold confirmed his rates of pay in his evidenceinchief, as being reflected in payslips which he put into evidence. Exhibit C3.

43 In this context, I do not regard the document in question to be a statement to the IMC by which Mr Arnold misrepresents his rate of pay.
44 The second ‘statement’ in the document is ‘I have been told there is no weekend rate available.’ Exhibit C4.
That Fletcher International characterises this as a misrepresentation might seem surprising, given it defended Mr Arnold’s Weekend Penalty Claim on the basis that Mr Arnold was not entitled to weekend penalty rates. It says that its unchallenged evidence was that Mr Arnold had never ‘been told’ that ‘no weekend rate was available’, but that he had been told – repeatedly and consistently by multiple people in multiple forums – that he is not legally entitled to payment of weekend penalty rates because he is a shift worker.
45 Articulating Fletcher International’s argument is enough to reveal its pedantry. In the context of the document, the proceedings and the substance of the dispute, it is simply not open to understand Mr Arnold’s statement to mean that he was told there is no weekend rate available to any person anywhere at any time. A sensible reading of the statement is that he understood that Fletcher International considered he was not entitled to weekend penalty rates. This was nothing but true.
46 Fletcher International have not demonstrated that the Weekend Penalty Claim was instituted vexatiously or without reasonable cause. None of the evidence concerning the previous things Mr Arnold did shows that his present claim had no reasonable prospects of success, was misconceived or incompetent. Mr Arnold’s claim failed because I found, on a proper construction of the Award, that clauses 23 and 24 of the Award are mutually exclusive. At no point had Mr Arnold been so advised by the FWO. Fletcher International had not even articulated this as being the basis for defending Mr Arnold’s claim in its Response filed in these proceedings, or at any time prior to the hearing of the claim.
Was the Wage Underpayment Claim instituted vexatiously or without reasonable cause?
47 My reasons for dismissing this component of Mr Arnold’s claim were set out at [37] to [48] of the Substantive Decision. This component of Mr Arnold’s claim was illogical and broadly inconsistent with the evidence that Mr Arnold knew or ought to have been aware of. It can be said of this component that it lacked any reasonable prospects of success. Mr Arnold should have known this, had he considered the Wage Underpayment Claim properly.
48 Although the hearing involved some evidence about this component of the claim, it was not the focus of the hearing, nor of submissions. Mr Nelson’s witness statement dealt with the issue in seven paragraphs (mirroring the Response) and one annexure of his Witness Statement, which totalled 83 paragraphs, and about 30 annexures. The key facts about Mr Arnold’s rate of pay were uncontentious.
49 A Response was filed by Fletcher International before it was granted leave to be represented. It clearly and comprehensively set out the factual basis of its defence to the Wage Underpayment Claim.
50 When I granted Fletcher International leave to be represented in these proceedings, it was for the principal reason that the Weekend Penalty Claim involved a question of the construction of the Award. Arnold v Fletcher International WA [2025] WAIRC 30 at [10]  [11].
There was no suggestion that the Wage Underpayment Claim involved any legal or factual complexity.
51 The conduct of the defence of the Wage Underpayment Claim did not alter significantly after leave was granted for representation. The evidence filed took things no further than the Response had done.
52 I indicated at the hearing that Fletcher International’s representative need not make closing submissions about the Wage Underpayment Claim, and Mr Arnold made none.
53 Before the hearing concluded, I gave Mr Arnold an opportunity to consider whether he wanted to withdraw this component of his claim. He did not take up that opportunity.
54 Mr Arnold claimed $2,872.80 in relation to this component of the claim. It represented just over 3% of the total quantum Mr Arnold was claiming.
55 While I agree with Fletcher International that this component of the claim was instituted without reasonable cause, I am also mindful that the claim was prosecuted under the small claims procedure. The default position in small claims procedure claims is that legal representation is assumed to be unnecessary. This component of the claim was so obviously unmeritorious that it did not necessitate legal representation or the incurring of legal costs.
56 As Lee J stated in Bywater v Appco Group Australia Pty Ltd [2019] FCA 799 at [11], the Court retains a discretion as to whether it will award costs, even if the preconditions specified by s 570(2) exist. This component of the claim was relatively insignificant in terms of its quantum, the time taken to determine it, and the resources needed for its determination. These factors lead me, as a matter of discretion, not to award costs on the basis that the costs relating exclusively to this component of the claim were or ought to have been relatively insignificant. Further, it would in any event be difficult to identify those costs related solely to the Wage Underpayment Claim. Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 at [12].

Has Mr Arnold’s unreasonable act or omission caused Fletcher International to incur costs?
57 Fletcher International says Mr Arnold acted unreasonably by:
(a) not immediately discontinuing the Wage Underpayment Claim once its Response was filed; and
(b) relying on the 10 March 2010 agreement (exhibit C1) as an agreement for the purpose of clause 14.3(b) of the Award, and therefore in support of the Weekend Penalty Claim, without having disclosed that document during the FWO’s investigation into the 2023 complaint, and without raising it with Mr Nelson, (despite the fact that Mr Nelson was aware of the document’s existence since 2010). ts 56.

58 Dealing first with (a), I refer to what I said in relation to the unreasonable institution of the Wage Underpayment Claim. Just as it was unreasonable for Mr Arnold to have instituted the claim, it was also unreasonable to maintain it. However, Fletcher International has not demonstrated that Mr Arnold’s conduct in this regard caused it to incur costs. The Wage Underpayment Claim was a relatively insignificant part of the overall proceedings.
59 Turning to (b), when s 570(2)(b) refers to an unreasonable act or omission, it is directed at a party’s’ conduct in the litigation. Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [28]  [29].
The points raised by Fletcher International do not go to Mr Arnold’s conduct in litigation. Its reliance on s 570(2)(b) in this instance is misplaced.
Orders and Disposition
60 The conditions of s 570(2) for an award of costs is not reached in relation to Mr Arnold’s Weekend Penalty Claim. There is therefore no call for me to consider whether the circumstances warrant an order for indemnity costs. While the threshold is reached for the Wage Underpayment Claim, I would not exercise the discretion to award costs in light of the relative insignificance of that claim.
61 There will be no order as to costs. Fletcher International’s application will be dismissed.



R. COSENTINO
INDUSTRIAL MAGISTRATE