2026 WAIRC 00217
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00217



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
FRIDAY, 6 MARCH 2026



DELIVERED
:
WEDNESDAY, 15 APRIL 2026



FILE NO.
:
M 17 OF 2024



BETWEEN
:
DELIA GAVRIL


CLAIMANT





AND





STATE OF WESTERN AUSTRALIA


RESPONDENT

CatchWords : INDUSTRIAL LAW – Application for costs – Whether the proceedings were instituted vexatiously or frivolously – Prior claim made and discontinued by the claimant – Whether the discretion to award costs should be exercised – Respondent’s costs arising from claimant’s conduct in the litigation – Award of costs made
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Industrial Relations Legislation Amendment Act 2024 (WA)
Fair Work Act 2009 (Cth)
Cases referred
to in reasons: : Gavril v The State of Western Australia [No 2] [2026] WAIRC 00031; (2026) 106 WAIG 245
Butler v Total Tools Holdings Pty Ltd (Costs) [2026] FCA 106
Attorney-General v Wentworth (1988) 14 NSWLR 481
The Commissioner of Police of Western Australia v AM [2010] WASCA 163
Manescu v Baker Hughes Australia Pty Ltd [2022] WASCA 94; (2022) 102 WAIG 1113
Pettit v Evolution Mining Ltd [2016] FCA 1304
Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987
Buchanan v G&R Rossen Pty Ltd [2020] WAIRC 00388; (2020) 100 WAIG 507
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77
Gavril v Director General Department of Education, WA [2024] WAIRC 00378; (2024) 104 WAIG 862
Gavril v Director General Department of Education [2025] WAIRC 00096; (2025) 105 WAIG 453
Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 00558; (2021) 101 WAIG 1480
Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Falcon Investigations and Security Pty Ltd [2001] WAIRC 03311; (2001) 81 WAIG 2425
Result : Costs order made
Representation:
Claimant : Self-represented
Respondent : Mr J. Carroll (of counsel)

REASONS FOR DECISION
Background
1 On 23 January 2026, the Industrial Magistrates Court of Western Australia (the Court) published its second reasons for decision in these proceedings, determining and dismissing the claimant’s originating claim alleging that the respondent took damaging action against her contrary to s 97A(1) of the Industrial Relations Act 1979 (IR Act) (Gavril [No 2]). Gavril v The State of Western Australia [No 2] [2026] WAIRC 00031; (2026) 106 WAIG 245.

2 In its response lodged on 15 May 2025, the respondent sought an order for costs, including its legal costs.
3 On 9 February 2026, the respondent applied for an order for its legal costs of the proceedings, fixed in the amount of $35,000 (Costs Application). The grounds for making the Costs Application were set out in a schedule attached to the application and in an affidavit affirmed by John Matthew Carroll, a legal practitioner employed at the State Solicitor’s Office, on 9 February 2026 (Carroll Affidavit).
4 On 24 February 2026, the claimant applied for an order that the Costs Application be stayed pending the determination of the claimant’s appeal to the Full Bench of the Western Australian Industrial Relations Commission (Full Bench) lodged pursuant to s 84 of the IR Act. In the alternative, the claimant sought an order for the Costs Application to be adjourned pending the determination of the appeal (Stay Application). The grounds for making the Stay Application were set out in an affidavit affirmed by the claimant on 23 February 2026 (Claimant’s Affidavit).
5 The Stay Application was listed to be heard on the same day as the Costs Application.
6 The claimant opposed the Costs Application and the respondent opposed the Stay Application.
7 These are the Court’s third written reasons for firstly, dismissing the Stay Application and, secondly, granting the Costs Application. The Court gave oral reasons for dismissing the Stay Application and reserved its decision on the Costs Application at the hearing on 6 March 2026. The Court also indicated that it would provide written reasons following that hearing.
Stay Application
8 Pursuant to reg 7(1)(c) of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (the Regulations), the Court has the power to ‘stay any case, either generally or until a specified date’.
9 Regulation 4 of the Regulations defines ‘case’ to mean ‘any proceedings in the court involving or in connection with the court’s general jurisdiction as defined in s 81CA(1) of the [IR Act].’
10 Section 81AC(1) of the IR Act was deleted as a consequence of amendments in the Industrial Relations Legislation Amendment Act 2024 (WA). Unfortunately, Parliament did not make consequential amendments to the Regulations. The Court’s general jurisdiction is now contained in s 81A of the IR Act. See s 81AA of the IR Act, definition of ‘general jurisdiction’.

11 The question is whether this now prevents the Court from considering stay applications either in this case or at all, where the Court’s power to manage ‘cases’ are generally derived from reg 7 of the Regulations. Put another way, if the Court’s case management powers are referrable only to the now non-existent s 81AC(1), the Court can either:
(1) run cases how it likes provided it is in accordance with the Court’s duties under reg 5 of the Regulations (that is, ignore reg (7)); This may not assist, however, where reg 5 of the Regulations also refers to ‘cases’ which is referrable only to s 81AC(1) of the IR Act and, therefore, to a non-existent ‘general jurisdiction’.
or
(2) infer Parliament did not intend to curtail, or interfere with, the Court’s ability to manage cases in accordance with reg 7 of the Regulations, and overlooked the consequential amendment That is, in the definition of ‘case’ in the Regulations an amendment is required to amend s 81AC(1) to s 81A of the IR Act.
to the Regulations where the definition of ‘general jurisdiction’ in the IR Act did not materially change the Court’s jurisdiction.
12 Where the Court has continued to hear and determine cases in accordance with the practice and procedures contained in the Regulations, particularly reg 7, it seems prudent to continue to do so, and urge the necessary amendment so as to remove any doubt.
Claimant’s Grounds
13 The claimant’s grounds for the Stay Application are that she has appealed Gavril [No 2] and the Costs Application is founded upon findings made in that decision. The claimant asserts that a stay (or an adjournment) pending the determination of the appeal will avoid potential duplication and promote procedural efficiency. Claimant’s Affidavit [4], [6] and [9].

Respondent’s Grounds
14 The respondent’s grounds for opposing the Stay Application are that the commencement of an appeal does not operate as a stay of the ‘primary judgment’. The most efficient course is for the Costs Application to be determined as soon as practicable by the ‘trial judge’ whilst the proceedings are fresh in the judicial officer’s mind. Thereafter, if the parties are dissatisfied with the outcome, the parties can lodge an appeal, and it may be heard at the same time as the appeal of Gavril [No 2]. To that end, the appeal of Gavril [No 2] is currently at a preliminary stage.
The Claimant’s Submissions
15 The claimant submitted that she has exercised a statutory right of appeal against Gavril [No 2], and the appeal process now forms part of the ongoing litigation. As a matter of proper case management, the Court should not determine the issue of costs when the substantive decision is under appeal. The Costs Application should be ‘deferred’ where this is ‘the course most consistent with judicial economy, procedural adherence and the statutory policy governing costs in this jurisdiction’. ts 3.

16 The greater efficiency lies in resolving the appeal first and determining costs now would introduce an additional procedural layer, albeit the claimant recognised that this might give rise to two appeals. ts 4  5.

17 The respondent does not identify any substantive prejudice if the Costs Application was ‘deferred’ pending the appeal.
The Respondent’s Submissions
18 The respondent relied upon a recent Federal Court of Australia decision, Butler v Total Tools Holdings Pty Ltd (Costs) [2026] FCA 106, at [55]:
The Plaintiff submits that as he has exercised his statutory entitlement to appeal, there is a question raised as to the efficient utilisation of the Court’s resources to assess costs at this time. I reject this submission. The principle that an appeal does not operate as a stay reflects that the Court proceeds on the basis that the judgment is correct. The quantification on a lump sum basis of costs ought to be done as soon as reasonably practical.
19 The respondent adopted three principles arising from this decision:
(1) the lodging of an appeal does not operate as a stay;
(2) the Court ought to proceed on the basis that the judgment is correct; and
(3) a determination and assessment of costs ought to be done as soon as practicable.
20 The respondent expanded its submissions orally by suggesting that there is a risk of fragmentation in the proceedings, either at first instance or on appeal if a determination on costs is delayed. The appeal of Gavril [No 2] contains some 50 grounds of appeal and there is likely to be some delay in its determination. The judicial officer who determined Gavril [No 2] may not be the Industrial Magistrate who determines the Costs Application depending on the time taken to determine the appeal.
21 The respondent does not need to identify any prejudice it might suffer if the Costs Application was stayed or adjourned, but to the extent it would suffer prejudice, it is held out of its costs if the Costs Application is determined in its favour.
Determination
22 It is not an efficient use of the Court’s resources to grant the Stay Application. In Gavril [No 2] the Court dismissed the claimant’s claim, and it is appropriate and efficient for the same Industrial Magistrate to hear and determine the Costs Application as soon as practicable after Gavril [No 2] was issued.
23 If the parties are dissatisfied with the outcome of the Costs Application, they may appeal the decision and, where the appeal of Gavril [No 2] is currently at a preliminary stage, the appeal may be heard at the same time as the appeal of Gavril [No 2]. I also suggest that this is the most appropriate use of the Full Bench’s time where a decision from an Industrial Magistrate requires the constitution of a three-commissioner bench. Section 15(1) of the IR Act.

24 There is no discernible prejudice to either party in adopting this course. Further, it is consistent with the Court’s duties in dealing with cases provided for in reg 5 of the Regulations.
25 The Stay Application is dismissed.
Costs Application
26 The power to award costs, relevant to Gavril [No 2], is contained in s 83E(12) of the IR Act:
In proceedings under this section costs must not be given to any party to the proceedings for the services of a legal practitioner or agent of that party unless —
(a) the industrial magistrate’s court finds that the other party has committed a serious contravention; or
(b) in the opinion of the industrial magistrate’s court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.
27 The respondent relies upon s 83E(12)(b) of the IR Act for an order for costs.
28 Section 83E(12) of the IR Act is also predicated on s 83E(10) and s 83(11) of the IR Act. That is, and relevant to the Costs Application, if the Court dismissed an application for the contravention of a civil penalty provision, the Court may order costs but only in accordance with s 83E(12) of the IR Act. Section 97A(1) of the IR Act is a civil penalty provision. Section 97A(3) of the IR Act.

The Respondent’s Grounds
29 The respondent refers to the claimant’s commencement and discontinuance of proceedings in M 138 of 2023 and then commencing proceedings giving rise to Gavril [No 2] (M 17 of 2024). Carroll Affidavit [4]  [8], JMC1  JMC4.

30 The respondent accepts there is a threshold test where the Court must form the opinion that the claimant instituted the proceedings in M 17 of 2024 frivolously or vexatiously.
31 The respondent submits that it is open to the Court to come to this opinion based upon two grounds:
(a) the intention of the discontinuance of M 138 of 2023 and the institution of M 17 of 2024 was to defeat the respondent’s partially successful strike out application in M 138 of 2023 and the Court’s orders made as a consequence; or
(b) the claim in M 17 of 2024 was largely the same case, which the claimant had been put on notice by the Court in M 138 of 2023 was unsatisfactory and included the same wideranging allegations of unfairness thus rendering it ‘so obviously untenable or manifestly groundless as to be utterly hopeless’. ts 7  8; Carroll Affidavit [8], referring to Attorney-General v Wentworth (1988) 14 NSWLR 481, 491.

32 Upon the Court coming to the opinion that the claimant instituted the proceedings in M 17 of 2024 frivolously or vexatiously, thus enlivening the Court’s discretion to order costs, the respondent refers to the manner in which the claimant conducted the proceedings as the basis for the Court exercising its discretion to make a costs order. Noting that enlivening of the Court’s discretion to award legal costs does not mean that an order for the payment of costs will necessarily be made: The Commissioner of Police of Western Australia v AM [2010] WASCA 163; (2011) 91 WAIG 6 [26].

The Claimant’s Grounds
33 The claimant opposes the Costs Application for, principally, five reasons:
(1) the procedural history of the proceedings is inconsistent with the Costs Application in that there were no findings of an abuse of process or that the proceedings were vexatiously or frivolously commenced. Following strike out applications, the proceedings were allowed to continue;
(2) the claimant represented herself in complex litigation and complied with Court orders to the best of her ability;
(3) there is a high standard to be met and the proceedings were commenced in good faith;
(4) the proceedings went to a ‘full merits hearing’; and
(5) policy reasons where the awarding of costs is ‘exceptional’. Claimant’s response to the Costs Application lodged 3 March 2026, 1  3.

The Law
34 The respondent relies upon the Industrial Appeal Court (IAC) decision in The Commissioner of Police of Western Australia v AM [2010] WASCA 163; (2011) 91 WAIG 6 (AM) where an analogous provision of the IR Act was considered. Section 86(2) of the IR Act which is in the same terms as s 83E(12)(b).

35 As set out in the respondent’s grounds, there is essentially a two-step process before a costs order can be made under s 83E(12)(b) of the IR Act:
(a) the enlivening of the Court’s discretion to order costs rests upon the Court forming the opinion that the institution or defending of the proceedings was vexatious or frivolous; and
(b) consideration of whether in all of the circumstances of the case, including the general policy of s 83E(12), the Court should exercise its discretion to make no order as to costs. AM [25]  [27] (Buss J), (Le Miere J agreeing).

36 Buss J in AM, at [33], considered the meaning of the words ‘frivolously’ and ‘vexatiously‘:
[T]he word ‘vexatious’, in its ordinary meaning, has a broader connotation than the word ‘frivolous’… Their Honours [in Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467] referred to this statement of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481:
(1) Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
(2) They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
(3) They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless (491).
In Transport Workers’ Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22, Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers v Clark (1995) 62 IR 334 and Matthews v Cool or Cosy Pty Ltd [2003] WASCA 136, this court adopted, in relation to the expression ‘the proceedings have been frivolously or vexatiously instituted or defended’ in s 86(2), the various expressions of the test referred to by Barwick CJ in [General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125] for deciding whether a claim or defence in pending proceedings should be summarily terminated on the ground that it does not disclose a reasonable cause of action or defence. It was unnecessary in those cases for this court to consider the broader connotation of ‘vexatiously’ compared with ‘frivolously’. AM [33] (Buss J), (Pullin and Le Miere JJ agreeing).

37 At [36], Buss J also stated:
[S]omething substantially more than either a lack of success, or the prospect of a lack of success, must be established before an unsuccessful party can be held to have frivolously or vexatiously instituted or defended, as the case may be, an appeal under s 90.
38 Notably, the IAC in Manescu v Baker Hughes Australia Pty Ltd [2022] WASCA 94; (2022) 102 WAIG 1113 (Manescu) made an order for costs under s 86(2) of the IR Act, accepting that the appeal in that case was one of ‘those very rare occasions on which the costs of a legal practitioner should be awarded to the successful party.’ (emphasis added) Manescu [69].

39 There were two reasons the IAC found the appeal in Manescu had been instituted frivolously or vexatiously:
(a) the appellant’s grounds of appeal were so obviously untenable that they could not possibly succeed and were so obviously manifestly groundless, where the Full Bench did not have jurisdiction to hear and determine the appeal and the appellant had previously had an appeal dismissed on the basis that the Full Bench had no jurisdiction to hear an appeal from the Court exercising federal jurisdiction under the Fair Work Act 2009 (Cth) (FWA); and
(b) even though the appellant was a self-represented litigant, they continued to press the appeal knowing that appeals from original decisions of the Court exercising jurisdiction under the FWA lies to the Federal Court of Australia (and not to the Full Bench or the IAC). Manescu [80]  [82].

40 That is, the appellant knew their appeal was incompetent for want of jurisdiction, but continued to press the appeal, nonetheless.
41 Unlike the costs provision in s 570(2)(b) of the FWA, s 83E(12) does not include an order for costs if the Court ‘is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs’.
42 In respect of the analogous s 570(2)(a) of the FWA, Section 570(2)(a) of the FWA (when read with s 570(1)) states ‘[t]he party may be ordered to pay the costs only if the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause’.
the following is also relevant to s 83E(12) of the IR Act: Referred to in Buchanan v G&R Rossen Pty Ltd [2020] WAIRC 00388; (2020) 100 WAIG 507 [55].

(a) In Pettit v Evolution Mining Ltd [2016] FCA 1304, Barker J said:
[Section 570 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 unusually only in exceptional circumstances that costs will be awarded under s 570. Pettit v Evolution Mining Ltd [2016] FCA 1304 [62].

(b) In Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987, Jessup J said:
[T]here is a danger of the exceptions in s 570(2) 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) 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) are to be crossed by a party which succeeds on the application concerned. Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987 [14].

The Institution of M 17 of 2024 – Vexatious or Frivolous?
43 The history of the commencement and discontinuance of M 138 of 2023 forms the backbone to the respondent’s first ground in assessing whether M 17 of 2024 was instituted vexatiously or frivolously.
M 138 of 2023
44 The claimant commenced M 138 of 2023 on 22 November 2023 seeking orders: reinstating her as a ‘permanent employee with no probation period’; requiring an ‘external investigation to find out who deleted [her] work and implement disciplinary action so this does not happen in the future to other employees’; requiring disciplinary action for the ‘the people involved in all the bullying’; and ‘financial compensation’. Carroll Affidavit at JMC1

45 Other than a vague reference to s 97A(1) of the IR Act in one paragraph, the remainder of the statement of claim was a running commentary on the claimant’s issues in the workplace.
46 Notably, the reason given by the claimant for the orders sought was to ‘help my healing as I am struggling to process all the injustice that has happened to me.’ Carroll Affidavit at JMC1, 26.

47 The only order remotely capable of being made by the Court pursuant to s 97B(2) of the IR Act, if in fact it was a claim under s 97A, was financial compensation. Section 97B(2)(c) of the IR Act.

48 Unsurprisingly, the respondent sought to strike out the claimant’s statement of claim but accepted the claimant should be given an opportunity to re-draft her claim. Notably, the respondent did not seek a costs order in relation to M 138 of 2023 and the claimant re-drafting her claim. Carroll Affidavit at JMC2.

49 On 25 January 2024, the Court heard the respondent’s application to strike out the claimant’s statement of claim. Carroll Affidavit at JMC3.
The Court explained to the claimant what was required and also informed the claimant that the Court could not make the orders sought (save for financial compensation). Notably, the Court informed the claimant:
So rather than what’s being sought by the Department, which is for your claim to be struck out and you start again, my preference is for you to amend your originating claim, to put to one side, for the moment, okay? I’m not saying for all time. I’m just saying put to one side for the moment, all of the things that you say has happened, all right, and focus on what powers you say the Industrial [Magistrates] Court can assist you with, where you say the employer has done the wrong thing.
I can’t say it – I can’t tell you what to put in. I can’t tell you and give you advice about what action you may or may have. Those are matters that you are going to have to work out the best you can. I accept that you may not be able to get or afford legal advice, if that was something that was open to you. But equally, we can help you with the process, but we can’t do it for you.
So would you like some additional time to amend your originating claim? Carroll Affidavit at JMC3, 34
(emphasis added)
50 The claimant indicated that she did want time to amend the claim and, after discussing with the claimant a suitable time frame, the Court then informed the claimant:
You need to file another – you file the form 1.1, I think it is, which is where you say ‘Originating claim’, and – form 29. Sorry. It’s a form 29. My Judicial Support Officer has helpfully told me. So it will say ‘Amended claim’ or ‘Amended originating claim’. So long as it has the word ‘Amended’ in there. Use the form 29, I’m told.
…
It’s an Industrial Magistrates form under our Regulations. So – but you should be able to locate it online. Carroll Affidavit at JMC3, 37.

51 Consistent with the discussion, the Court issued orders, relevantly that:
2. The claimant is to lodge and serve an amended claim together with a Form 29 – Multipurpose Form under the title, Amended Claim, on or before 23 February 2024. Carroll Affidavit at JMC4.

52 The relevance of what happened next manifests from the claimant’s response to the respondent’s assertion in the Costs Application that the claimant discontinued M 138 of 2023 to ‘defeat’ the Court’s order referred to above. The claimant says:
The respondent’s assertion at paragraph 11 that the present claim was commenced ‘to try to defeat an order’ in earlier proceedings and therefore constitutes abuse of process is unsupported in fact and unsustainable in law. The documentary record demonstrates that on 31 January 2024 the Applicant sought procedural guidance from the Registry as to the steps required to discontinue and recommence proceedings. The Registry Services Team Lead responded the same day, outlining the prescribed process for filing a Form 18 Notice of Discontinuance and, if desired, recommencing by lodging new originating forms. The Registry expressly confirmed that discontinuance was available and explained the procedural alternatives, including amendment through Form 29. The Applicant acted transparently and in accordance with those instructions. There was no concealment, no attempt to relitigate a finally determined issue, and no breach of any prohibitory order of the Court. Discontinuance pursuant to the Rules is a recognised procedural right; it is not inherently abusive. Claimant’s response to the Costs Application, 4.

53 The claimant then inserted into the response an email from the Court’s Registry dated 2 February 2024, which is referred to below. As will become apparent, the claimant, at best, mischaracterises and, at worst, is disingenuous about, what occurred so as to best serve her response.
54 On 29 January 2024, the Court’s Registry sent an email to the parties with the Court’s orders and attached a blank Form 29 – Multipurpose Form with instructions on how to lodge the form.
55 On the same day, the Court’s Registry also sent an email to the claimant with the following information:
(a) A list of legal practitioners specialising in employment law.
(b) The contact details of two community legal centres who undertake employment law.
(c) The procedure to make an interlocutory application to the Court.
56 On 31 January 2024, the claimant sent an email to the Court’s Registry stating:
I would really appreciate if you could inform me what the steps are required to close a claim and open another one.
57 On 2 February 2024, the Court’s Registry responded to the claimant’s query as follows:
To discontinue the abovementioned claim, you need to complete and lodge a Form 18 – Notice of Discontinuance (Form 18), a blank copy is attached for your reference and convenience.
After you have lodged (and then served) a Form 18, the abovementioned claim will be formally closed. Then if you intend to recommence a claim in the Industrial Magistrates Court you will need to complete and lodge a Form 1.1, Form 1.2 and Form 1.3 – Originating Claim and attach a Statement of Claim (as you have done to commence the abovementioned claim).
I note in your current claim you have been ordered to file an Amended Claim. To file an Amended Claim, you do not need to file a Notice of Discontinuance or new claim forms. To file your Amended Claim, you need to file a Form 29 – Multipurpose Form and attach an accompanying document that sets out your claim in the manner discussed at the hearing held on 25 January 2024. You need to lodge and serve your Amended Claim on or before 23 February 2024. (original emphasis)
58 On 7 February 2024, the claimant again emailed the Court’s Registry stating:
I would like to close the abovementioned case and reopen it.
Please advise how I can serve the form 18.
59 On 9 February 2024, the Court’s Registry emailed the claimant in response:
I refer to your email below. I attempted to contact you via telephone yesterday but was unsuccessful.
I would like to speak with you in person to clarify your intentions, please contact the Registry by telephone on (08) 9420 4467 and ask to speak with [the Registry Services Team Lead].
60 On 12 February 2024, the claimant emailed the Court’s Registry in response stating:
Thank you for your prompt response.
As I won’t be available to contact you by phone in the next few days, as per your request, I would greatly appreciate it if you could share the response to my query via email.
Urgency is crucial in addressing my case, and your understanding is highly valued.
61 On 13 February 2024, the Court’s Registry emailed the claimant in response:
Further to the below and the attached email sent on 2 February 2024, as you indicate you intend to proceed with your claim at the Court, there is no requirement to complete and lodge a Form 18 – Notice of Discontinuance.
If you no longer wish to proceed with your claim, please complete and lodge with the Court the Form 18 – Notice of Discontinuance. I confirm the Form 18 attached to your email below is incomplete and blank. I confirm that after you have filed the Form 18 the claim will be closed.
62 On 19 February 2024, the claimant lodged, by email, a Form 18 – Notice of Discontinuance, discontinuing M 138 of 2023. This was the only email where the claimant copied the respondent into the correspondence. The Form 18 – Notice of Discontinuance was later served on the respondent.
63 On 21 February 2024, the claimant lodged M 17 of 2024.
64 As the email correspondence from the Court’s Registry shows, the Court staff informed the claimant up to 13 February 2024 that she was not required to discontinue M 138 of 2023 to comply with the Court’s order to amend her claim. Further, the Court staff informed the claimant that the Form 18 – Notice of Discontinuance was to be lodged if she no longer wanted to proceed with the claim.
65 To the extent the Court Registry ‘expressly confirmed that discontinuance was available’, this was in the context of responding to a direct request by the claimant for information on closing a claim. However, in response to the second part of the claimant’s request to ‘open another one’, the Court Registry specifically referred to the order to lodge an amended claim and informed the claimant that she did not need to lodge a notice of discontinuance or new claim forms. The claimant was informed that she could lodge an amended claim with the Form 29 – Multipurpose Form, consistent with what she was told by the Court on 25 January 2024 and, thereafter, ordered by the Court.
66 To the extent the Registry Services Team Lead outlined the ‘prescribed process for filing a Form 18 Notice of Discontinuance, and, if desired, recommencing by lodging new originating forms’, again, this was in the context of responding to a direct request by the claimant for information. However, the Registry Services Team Lead did not in any manner indicate that this was what the claimant should do. To the contrary, the claimant was informed that she could lodge an amended claim with the Form 29 – Multipurpose Form, consistent with the Court’s order.
67 The claimant further responds to the Costs Application that a ‘[d]iscontinuance pursuant to the Rules is a recognised procedural right; it is not inherently abusive’, Claimant’s response to the Costs Application, 4.
and, again, refers to the email from the Court’s Registry dated 2 February 2024.
68 In this statement, the claimant conveniently omits three things:
(1) first, she did not merely discontinue M 138 of 2023 because two days later she commenced M 17 of 2024, being ostensibly the same claim;
(2) secondly, the claimant was told by the Court’s Registry that to comply with the Court’s order to amend the claim, she was not required to discontinue M 138 of 2023 but instead she could ‘file a Form 29 – Multipurpose Form and attach an accompanying document that sets out your claim in the manner discussed at the hearing held on 25 January 2024’; and
(3) thirdly, as late as 13 February 2024, the claimant was informed ‘as you indicate you intend to proceed with your claim at the Court, there is no requirement to complete and lodge a Form 18 – Notice of Discontinuance. If you no longer wish to proceed with your claim, please complete and lodge with the Court the Form 18 – Notice of Discontinuance’.
69 The claimant also responds to the Costs Application that ‘[t]he Applicant acted transparently and in accordance with those instructions. There was no concealment, no attempt to relitigate a finally determined issue, and no breach of any prohibitory order of the Court.’ Claimant’s response to the Costs Application, 4.

70 In this statement, the claimant, again, conveniently omits four things:
(1) first, the claimant did not copy the respondent into the email to the Court Registry dated 2 February 2024. The respondent was not copied into any email until the claimant lodged the Form 18 – Notice of Discontinuance;
(2) secondly, the Court’s Registry and the Registry Services Team Lead did not provide the claimant with any ‘instructions’ on what to do but responded to the claimant’s direct requests for information and also informed the claimant that she was not required to lodge a Form 18 – Notice of Discontinuance to comply with the Court’s order to lodge an amended claim;
(3) thirdly, there was no breach of ‘any prohibitory order of the Court’ because, simply put, there was no such order made. The Court ordered the claimant to lodge an amended claim by a certain date. The claimant did not do so. Instead, the claimant lodged a Form 18 – Notice of Discontinuance; and
(4) fourthly, in lodging M 17 of 2024, the claimant sought to relitigate the same issue the subject of M 138 of 2023, irrespective of whether it was ‘finally determined’ or not.
M 17 of 2024
71 The claimant did not make an application to withdraw the notice of discontinuance lodged in M 138 of 2023 but lodged a new originating claim in M 17 of 2024.
72 Pursuant to reg 15 of the Regulations, where a party wants to discontinue the whole or part of a claim, the party is required to lodge and serve a notice of discontinuance in the approved form (the Form 18). The voluntary withdrawal from proceedings brings the proceedings to an end. While the Regulations do not prevent a new application for the same claim being filed, once proceedings have been discontinued a further application making the same claim could be regarded as an abuse of process and struck out or permanently stayed. UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77.

73 In the claimant’s response to the Costs Application, the claimant states:
The respondent’s allegation of abuse was implicitly addressed during the hearing of 3 July 2025. At page 27 of the 3 July 2025 hearing transcript, The Magistrate observed that the discontinuance and recommencement may have been ‘irregular’ and ‘may constitute an abuse of process’, but expressly recognised that the Applicant was self-represented and that there ‘may have been a misunderstanding’, and allowed the matter to proceed.
[…] matter. And I should note for completeness’ sake is that there has been a very sound reason why a pretrial conference has not occurred in this matter. It’s simply because the claim commenced its first iteration back in 2023. The claimant discontinued her claim following Court orders made to clarify the claim, and then restarted the claim again. That was subject to a determination by the Court that notwithstanding that is irregular and may constitute an abuse of process, given the claimant is self-represented, the Court allowed the claim to continue because there may have been a misunderstanding.
But it should not ever be seen as a way to circumvent Court orders either in that case or in any other case. Thereafter, there have been many attempts to have a statement […] See extracts annexed to these reasons for the full quote.

There was no determination that the proceeding constituted an abuse. The claim was not struck out. It was managed and permitted to continue to a full merits hearing. That procedural history is fundamentally inconsistent with an assertion that the proceeding was instituted with improper purpose or in circumstances of manifest groundlessness.
It is relevant to note that the Registry correspondence dated 31 January 2024 (attached) demonstrates that the discontinuance and recommencement followed express procedural guidance from Registry Services. The Applicant sought advice as to available options and acted in accordance with prescribed forms. That context was not known to the court at the time the observation concerning ‘irregularity’ was made. Properly understood, the procedural history reflects an attempt to comply with formal requirements rather than to circumvent them. Such conduct is inconsistent with abuse of process or vexatious institution. Claimant’s response to the Costs Application, 4  5.
(emphasis added)
74 The claimant continues to assert her reliance on the ‘express procedural guidance from Registry Services’ to apparently explain why she discontinued M 138 of 2023 and ‘recommenced’ M 17 of 2024. As discussed above, it is patently incorrect to assert or, even suggest, that the Court’s Registry procedurally guided the claimant to discontinue one claim and commence another. To reiterate, the email correspondence clearly demonstrates that the Court’s Registry gave information in response to a direct request and then informed the claimant that she was not required to lodge a Form 18 – Notice of Discontinuance to comply with the Court’s order to lodge an amended claim in M 138 of 2023.
75 The claimant is either misguided on this issue or deliberately mischaracterising the communication.
76 For the avoidance of any doubt, it is wholly rejected that the Court’s Registry in any way provided any advice, information, or procedural guidance for the claimant to discontinue M 138 of 2023 and commence M 17 of 2024. To the contrary, the email correspondence clearly shows that the Court’s Registry made every effort to inform the claimant that she was not required to discontinue M 138 of 2023 to comply with the Court’s order to lodge an amended claim, even providing the claimant with a blank Form 29 – Multipurpose Form. The Court’s Registry then went one step further and sought to clarify with the claimant whether, in fact, she wanted to discontinue M 138 of 2023.
77 The claimant’s reference to the various hearings before the Court are also contextually deficient.
78 Following the lodgement of M 17 of 2024, the respondent made an application on 5 March 2024 to strike out the claim, dismiss the proceedings and sought an order that the claimant pay the respondent’s costs of the proceeding on the basis that the claim was frivolously or vexatiously instituted (the Strike Out Application).
79 The grounds of the Strike Out Application, included, in summary, that the claim was unclear and the respondent could not answer to the claim, the claimant had been given an opportunity to replead her claim in M 138 of 2023 and did not take this opportunity and, where the claim in M 17 of 2024 was in largely similar terms to M 138 of 2023, the discontinuance of M 138 of 2023 and commencement of M 17 of 2024 was designed to defeat the Court’s order in M 138 of 2023.
80 On 12 March 2024, the claimant lodged an application for the Industrial Magistrate hearing M 17 of 2024 to recuse herself because she wanted a different industrial magistrate to hear the claim (the Recusal Application).
81 As will be discussed shortly, the Recusal Application was withdrawn by the claimant at the hearing of the Strike Out Application, but because it was discussed during the hearing, it is relevant to make reference to it.
82 On 17 April 2024, the Strike Out Application was heard. The claimant was represented by an industrial agent See s 112A and s 81E of the IR Act.
at the hearing.
83 During the hearing, counsel for the respondent referred to the Recusal Application and sought to tender the claimant’s affidavit in support because it explained the claimant’s reasons for discontinuing M 138 of 2023 and supported the Strike Out Application as an abuse of process. Transcript, Gavril v Director General Department of Education, WA, Industrial Magistrates Court, 17 April 2024, (Strike Out Application Transcript) 4  5.

84 Whether, in retrospect, the Court’s approach was right or wrong, what is apparent from the transcript of the Strike Out Application and later transcripts, is that the Court was attempting to find a way forward so as not to be stuck in a loop of applications or appeals. To that extent, it is also apparent that the Court tried to find a practical solution to having M 17 of 2024 heard and determined, bearing in mind the nature of the Court’s jurisdiction. Further, the claimant was now represented by an industrial agent.
85 However, contrary to the claimant’s response, the Court made the following observations on 17 April 2024 (in summary, but extracts have been annexed to these reasons in more detail with references):
(a) a review of the Court file demonstrated the claimant was in regular contact with the Court Registry and it did not encourage her to discontinue the claim and start a new claim;
(b) the claimant continues to recite all of the information from M 138 of 2023 rather than identifying what her claim is about, albeit M 17 of 2024 includes a heading ‘Damaging Action’ and refers to two items that may fall within the definition of ‘damaging action’; Section 97 of the IR Act.

(c) the claimant had abandoned orders sought in M 138 of 2023 where they were not orders capable of being made by the Court;
(d) up until recently the claimant was self-represented and it was a serious step to strike out the whole of the claim preventing a person from having their proceedings determined by the Court, and it was likely that such an order would be appealed;
(e) however, the respondent’s position was the same as that in M 138 of 2023; that is, it still had little idea of what the claim was about and could not respond to the claim, but commencing a new claim, rather than complying with the Court’s orders, was not appropriate;
(f) the claimant was subject to the same rules as everyone else and was required to comply with Court orders whether she was self-represented or not;
(g) the claimant could not discontinue a claim and commence a new claim hoping for another judicial officer. The claimant could not choose the industrial magistrate she thought would best serve her outcome;
(h) the Court is a public resource, and it has an obligation to ensure that the litigation progresses in an economical and efficient manner as required under the Regulations;
(i) the respondent had not suffered a prejudice beyond the inconvenience of having to deal with the second claim and the incurrence of some modest costs at this point in time; and
(j) the respondent offered to write and identify the issues that, from the respondent’s perspective, if clarified, the respondent was likely to be able to answer to those issues. That would then result in the claimant lodging and serving further and better particulars of claim with the Form 29 – Multipurpose Form.
86 Following the hearing of the Strike Out Application, the Court made the following relevant orders (the April 2024 Orders):
2. On or before 24 April 2024, the respondent is to identify to the claimant issues for clarification with respect to the claim.
3. On or before 7 May 2024, the claimant is to lodge and serve Further and Better Particulars of claim under cover of a Form 29 – Multipurpose Form.
4. On or before 28 May 2024, the respondent is to lodge a response to the claim (including the Further and Better Particulars).
87 That M 17 of 2024 was not struck out as an abuse of process on 17 April 2024 says more about the Court attempting to give the claimant a ‘fair go’. In declining to make a determination that M 17 of 2024 was an abuse of process in the Strike Out Application, the Court is not prevented from making a determination on the institution of M 17 of 2024 for the purposes of the Costs Application.
88 On 3 July 2025, the Court made reference to the fact that it might be an abuse of process to have commenced M 17 of 2024 (as referred to by the claimant in her response to the Costs Application). However, what the claimant omitted to say was that the Court’s comments were also made in the context of giving oral reasons following the claimant’s application for discovery of certain documents, to explain why there had been no pre-trial conference in M 17 of 2024 relevant to the provision of documents under the Regulations. Transcript, Gavril v State of Western Australia, Industrial Magistrates Court, 3 July 2025, 25  31.
Again, annexed to these reasons is an extract of the Court’s oral reasons, with references.
89 What is significant, however, is that between 17 April 2024 and 23 April 2025 there were other orders made for the claimant to clarify her claim such that the respondent could respond to it.
90 On 15 May 2025, a response to M 17 of 2024 was lodged and served.
The Same Claim?
91 As for the second ground, a review of the originating claim in M 138 of 2023 and the originating claim in M 17 of 2024 shows that the claimant:
(a) inserted s 97A of the IR Act into M 17 of 2024;
(b) amalgamated paragraphs from M 138 of 2023 into one paragraph in M 17 of 2024;
(c) removed paragraphs [75], [76] and [80] referred to in M 138 of 2023 from M 17 of 2024;
(d) included more information in M 17 of 2024 regarding issues she complained about on around 1 May 2023;
(e) included more information in M 17 of 2024 regarding a meeting with Fiona Anning on 12 May 2023; and
(f) from paragraph [193] in M 17 of 2024, identified events she says amounted to ‘damaging action’.
92 Save for the above, the originating claims in M 138 of 2023 and M 17 of 2024 were identical and was an exercise in ‘cutting and pasting’ one originating claim to another.
Determination on Vexatious or Frivolous
93 I am satisfied and I find that the institution of M 17 of 2024 was for the collateral purpose of defeating the Court’s orders dated 25 January 2024 in M 138 of 2023 and to secure the prospect of a different industrial magistrate presiding over the claimant’s claim.
94 In addition, the claimant wanted her issues determined, which was not limited to a claim within what is capable of determination under s 97A of the IR Act. That is, the claimant, contrary to her assertion that ‘the procedural history reflects an attempt to comply with formal requirements rather than to circumvent them’, Claimant’s response to the Costs Application, 5.
did not attempt to comply with the Court’s order in M 138 of 2023, but instead discontinued M 138 of 2023, and commenced M 17 of 2024 which was ostensibly the same proceedings as M 138 of 2023.
95 The claimant wanted a claim determined but only if it was the claim she wanted to be determined, irrespective of whether it was within the Court’s power. This conclusion is highlighted by how the claimant conducted the proceedings after commencing M 17 of 2024.
96 However, for the purposes of the threshold test, I am satisfied and I find M 17 of 2024 was vexatiously instituted where:
(a) the respondent’s strike out application of M 138 of 2023 included an option for the claimant to re-plead her claim without any costs implication;
(b) during the hearing on 25 January 2024, the Court explained that the claimant was required to re-plead her claim and gave her an opportunity to do so, also explaining what the claimant was required to do;
(c) the Court ordered the claimant to lodge and serve an amended statement of claim;
(d) the Court’s Registry liaised with the claimant informing her on at least two occasions that she was not required to discontinue M 138 of 2023 and provided her with the necessary Court forms to comply with the order;
(e) on one of those occasions, the Court’s Registry distinguished between continuing the proceedings and no longer wanting to continue the claim; and
(f) instead of complying with the Court’s order, the claimant discontinued M 138 of 2023 and two days later commenced the same claim (M 17 of 2024) and lodged a further application for another industrial magistrate to hear M 17 of 2024, which was subsequently withdrawn.
97 For the avoidance of doubt, in reaching the determination with respect to M 17 of 2024 being vexatiously instituted, I am satisfied that the ‘substantially more than a lack of success, or the prospect of a lack of success’ Manescu [68].
has been established, and that this finding has been reached independent of the outcome in Gavril [No 2].
The Discretion – Should a Costs Order be Made?
98 The respondent submits that if the threshold test is met, the following factors weigh in favour of granting the Costs Application, in summary:
(a) repeated applications by the claimant for interlocutory orders of no merit;
(b) the claimant attempting to introduce new causes of action where the causes of action were known to the claimant since mid-2024;
(c) the claimant attempting to re-litigate the fairness of workplace outcomes rather than litigating the substance of the claim;
(d) in closing written submissions, the claimant made numerous references to cases that do not exist;
(e) in closing written submissions, the claimant impermissibly expanded the claim and attempted to adduce further evidence; and
(f) the claim was devoid of merit based on findings made in Gavril [No 2].
99 The claimant response, in summary, is that:
(a) the statutory framework prohibits costs subject to narrow exceptions;
(b) the proceedings were not manifestly groundless having survived interlocutory applications to strike out the case and where the Court made detailed factual findings and credibility assessments;
(c) the respondent has not identified any improper purpose, notwithstanding that Gavril [No 2] contained criticisms of case citations and the attempted expansion of the claim;
(d) she represented herself and was given no costs warnings;
(e) the case was not ‘hopeless’ or ‘devoid of merit’ and caution should be exercised in awarding costs in industrial proceedings;
(f) the dismissal of interlocutory applications followed the ordinary course of case management (no costs order was made at the time), otherwise the Court exercised ordinary case management control; and
(g) there is no suggestion or finding the claimant ‘fabricated authorities knowingly or acted with intent to mislead the Court’. Claimant’s response to the Costs Application, 10.
The claimant was under stress at the time.
100 The history of the proceedings following the institution of M 17 of 2024 is relevant, as are certain findings made in Gavril [No 2].
101 Order 2 of the April 2024 Orders was made following discussions at the hearing of the Strike Out Application and was made to assist the claimant to, again, lodge a statement of claim which was capable of being responded to. That is, the respondent was in little better position to that in M 138 of 2023 when the Court ordered the claimant to amend her statement of claim.
102 The originating claim in M 17 of 2024 served no useful purpose beyond identifying that the claim was, in fact, made pursuant to s 97A of the IR Act, which could reasonably be expected to have been inserted into any amended claim in M 138 of 2023.
103 Following the respondent identifying to the claimant the issues with respect to M 17 of 2024, the claimant lodged further and better particulars on 8 May 2024. Notably, the claimant made an effort to particularise her claim as it related to s 97A of the IR Act. However, the claimant continued to seek remedies such as ‘pay workers compensation for pain and suffering’ and ‘payment of claimant’s entitlement under the Award’. Further and better particulars of claim lodged 8 May 2024, 10.
Notably, the claim was not a minimum entitlements claim and the Court has no jurisdiction with respect to workers compensation.
104 The respondent made a further strike out application on 14 May 2024 (the Second Strike Out Application), which was heard on 6 June 2024. Reasons for decision was delivered orally on 13 June 2024 and resulted in the first written reasons in these proceedings which were published on 28 June 2024 (the Strike Out Reasons). Gavril v Director General Department of Education, WA [2024] WAIRC 00378; (2024) 104 WAIG 862.

105 The Strike Out Reasons made reference to the lengthy discussions on 13 June 2024, which clarified the claim into three proposed grounds of which the respondent conceded it could now respond to those grounds. Strike Out Reasons [16].

106 However, the third proposed ground remained problematic, but the Court accepted that this ground was salvageable with further particulars being provided. Strike Out Reasons [19].
However, there were parts of M 17 of 2024 which were struck out but not before the Court, again, referred to the existing further and better particulars being a restatement of the claimant’s history in the workplace.
107 The claimant was ordered to lodge and serve a second further and better particulars in respect of proposed ground 3. The claimant lodged these further and better particulars on 8 July 2024 but 10 days later sought to stay the proceedings where she had appealed the orders made following the Strike Out Reasons.
108 In the Strike Out Reasons, at [75], the Court observed:
It may be that the claimant is trying to convey the cumulative effect of her complaints or enquiries, but if this is the case, then it ought to be properly particularised, possibly in ground 3, so it can be fairly answered by the respondent.
109 This is important because on 21 October 2025, eight days prior to the Trial on 29 October 2025, the claimant sought to further amend the claim to include a cumulative component, which was also the subject of commentary by the Full Bench at [32]:
Indeed, the Industrial Magistrate expressly said that if Ms Gavril is relying on the cumulative effect of the complaints or enquiries referenced in Part 1 and Part 2, as the reasons for the Ground 3 damaging action, then she ought to properly plead that in compliance with Order 3. Gavril v Director General Department of Education [2025] WAIRC 00096; (2025) 105 WAIG 453 (Full Bench Decision).

110 On 24 October 2025, the Court heard the application to further amend the claim and dismissed the application as it related to the substantial amendments sought, giving oral reasons for doing so. Transcript, Gavril v State of Western Australia, Industrial Magistrates Court, 24 October 2025, 16  23.

111 The Full Bench dismissed Full Bench Decision [28] where the Full Bench concluded that it had no jurisdiction to hear an appeal from the Court’s orders where the orders did not finally dispose of, or finally determine, the claimant’s claim.
the claimant’s appeal arising from the Strike Out Reasons following which, on 26 March 2025, the claimant lodged an application for leave to amend her statement of claim and rely upon the amended statement of claim attached to the application.
112 The respondent lodged its response on 15 May 2025.
113 The relevance of this is that from the institution of M 17 of 2024, the claimant amended her claim four times unnecessarily increasing the work to be done by the respondent in response. Further, it was also unnecessary because the Court in ordering the claimant to lodge an amended claim in M 138 of 2023 sought to give the claimant the same opportunity.
114 In Gavril [No 2], the following was noted:
(a) the irrelevant aspects of the case and the claimant’s evidence; Gavril [No 2] [39].

(b) the Court’s role not extending to an investigation in to the alleged deletion of work files from an ‘S’ drive; Gavril [No 2] [40].

(c) errors in references relied upon by the claimant both in respect of the citations and the purported principles the claimant alleged the references stood for; Gavril [No 2] [41]  [43].
and
(d) the expansion of the claim in closing submissions and the continual references to the denial of procedural fairness by the respondent during her employment. Gavril [No 2] [44]  [45].

115 The Court concluded that the manner in which the claimant conducted the claim suggested she wanted to re-litigate issues in the workplace and the claim was her vehicle for doing so. Gavril [No 2] [45].

116 The claimant’s cross-examination of the respondent’s witnesses bore little resemblance to a claim made under s 97A of the IR Act, and was arguably an attempt to vindicate her grievances.
117 The relevance of this is that it underscores earlier comments made by the Court that the claimant’s purpose in commencing M 17 of 2024 was principally to litigate the substance of her grievances in the workplace under the umbrella of a claim of damaging action pursuant to s 97A of the IR Act.
118 The Court also observed that while the claimant was self-represented, she had an obligation to ensure that any references to case law were accurate. It was certainly not for the respondent to ‘fact check’ the claimant’s submissions for accuracy of case citations.
119 Excluding the Stay Application, the claimant made 13 interlocutory applications, including two applications made after the Trial concluded. Not all component parts of the applications were without merit, but, by way of example the following applications lacked merit either in full or in part:
(a) an application to amend the whole of the amended claim after the claimant appeared to have used an artificial intelligence tool to redraft the amended claim. To the extent the Court granted the claimant’s application, the amendments corrected typographical errors and included information that was already before the Court; Claimant’s Application lodged 21 October 2025; Orders made by the Court on 24 October 2025.

(b) an application for a declaration of an adverse inference to be drawn against the respondent or the respondent’s lawyer; Claimant’s Applications lodged 20 June 2025 and 4 September 2025.

(c) an application to amend the pleadings in accordance with the Full Bench’s decision ‘which confirmed the right to reintroduce previously struck out portions of the claim’. Notably, the Full Bench made no such statement, confirmed no such right and dismissed the appeal; Claimant’s Application lodged 26 March 2025.

(d) an application requiring the respondent to file and serve an affidavit explaining when, how and on whose authority, documents were provided to WorkCover and the Court take into account the respondent’s conduct in relation to any credibility rulings; Claimant’s Application lodged 18 September 2025.
and
(e) an application for a declaration that the respondent has failed to comply with the Court’s order and the respondent be barred from filing or relying upon evidence and that the Court draw an adverse inference against the respondent. Claimant’s Application lodged 22 September 2025.

120 It is unquestionably the case that the claimant’s conduct in the proceedings unreasonably increased the respondent’s costs in defending the case.
121 The claimant says that the outcome in Gavril [No 2] is not indicative of her claim being devoid of merit, nor is it a basis for granting the Costs Application where M 17 of 2024 was fully argued and was subject to findings made by the Court as to the facts and the law. The claimant relies on the Court not making findings, either in Gavril [No 2] or in earlier interlocutory applications, that the proceedings were without merit or were improper or an abuse of process.
122 The claimant’s response is misguided. The Court had previously indicated that the commencement of M 17 of 2024 may be an abuse of process. However, in the interests of ensuring that cases are dealt with justly, where the claimant was self-represented, the Court afforded the claimant the benefit of the doubt and enabled the proceedings to continue. The respondent largely acquiesced to this course.
123 This was not an invitation to the claimant to conduct the proceedings in an unwieldly manner.
124 Further, having allowed the claimant to continue litigating M 17 of 2024, the Court’s responsibilities were to hear and determine the proceedings, including interlocutory applications. Absent any further application by the respondent that called for a determination on the character of the proceedings, there was no basis for the Court to do so. However, there is now a requirement for the Court to make such determination because the Costs Application demands it.
125 For the following reasons I am satisfied that M 17 of 2024 was devoid of merit:
(a) there were facts, which were reasonably within the claimant’s knowledge but which she challenged nonetheless and in doing so, attempted to create a different scenario. By way of example, in respect of the First Complaint, the claimant asserted that she raised concerns with Mr Wheeler about his discriminatory and bullying behaviour including making derogatory comments about her to other training support officers. A cursory look at the email forming the First Complaint Exhibit 1 at annexure 7; Gavril [No 2] [65].
demonstrates that it contains no allegation of discriminatory or bullying behaviour, nor does it contain any allegation or reference to ‘derogatory comments’ about her. A similar example is in respect of the Seventh Complaint, where the claimant asserted that she made a complaint to Mr Mastrolembo about a previous payroll inquiry about the payment of taxation on leave loading and cost of living payment. See generally, Gavril [No 2] [97]  [104] and the references therein.
A cursory look at the emails forming the Seventh Complaint demonstrates that the emails were sent to Payroll Services, and only copied to Mr Mastrolembo, and the emails were sent some four months after Payroll Services advised the claimant that the calculations were correct but if she provided further information, Payroll Services would investigate further. The claimant relied upon the Seventh Complaint as part of the reason why the Fourth Damaging Action was taken by Ms Anning. However, as the facts demonstrated in the associated emails to and from the claimant, Ms Anning was only aware of the Seventh Complaint after the meeting with claimant and the union official where the claimant was informed her contract would not be extended;
(b) the claimant’s continued referencing of the alleged damaging actions as being ‘abusive’, ‘unreasonable’, ‘unfair’ or ‘unjustified’, underscores the primary purpose of the proceedings as a challenge to the substance of the Complaints rather than the Complaints themselves. By way of example, in respect to the alleged Third Damaging Action the claimant said Ms Anning took damaging action against her by ‘failing to adopt a formal and fair process in demoting her to a lower-level position’. As the claimant was aware, she was never demoted to a lower level and remained at all times at Level 3. The real gravamen of the claimant’s complaint surrounding the Third Damaging Action was that she did not agree with the respondent’s assessment that it was more likely the claimant did not know how to save work to the work folders; and
(c) four out of the nine Complaints were found to have not met the characteristics of an employment-related inquiry or complaint, Gavril [No 2] [216].
none of the alleged damaging actions were found to have met the statutory definition of ‘damaging action’ under s 97(1) of the IR Act, Gavril [No 2] [219]  [265].
and the claimant sought remedies that were not within the Court’s power to order. By way of example, the claimant sought an order for reinstatement as a permanent employee when she was never dismissed from her employment. In addition, her claim was never litigated on the basis that she was dismissed from her employment, and she has never been appointed as a permanent employee of the public service. For the avoidance of doubt, this assessment is unrelated to the outcome determined in the Gavril [No 2], and is one of the factors that demonstrates the lack of merit of the case.
Determination
126 I am satisfied and I find that this is the ‘rare case’ Manescu [69].
referred to in Manescu and AM where the Court ought to exercise its discretion in favour of granting the Costs Application.
127 In exercising this discretion, I take into account the general policy reasons associated with a restricted costs power in a jurisdiction where it is generally the case that costs are not awarded, particularly where there may be a disparity between the parties in terms of the resources available to conduct the litigation.
128 However, the power to award costs is available and there will be cases where it is appropriate to do so provided the threshold test is satisfied.
129 I further take into account that a costs order in the Court’s jurisdiction should not operate to deter the lodging of claims, even claims which may, on their face, be weak or poorly expressed. The Court has ample powers under the Regulations to manage cases and it must do so in compliance with reg 5 of the Regulations. One might say this is corollary to a limited costs power, otherwise parties could be put to unnecessary time and expense that cannot be recovered by costs orders if they are the successful party. The respondent made a similar submission on 17 April 2024, see the Strike Out Application Transcript, 7.

130 However, in initiating or defending a case, parties have an obligation to do so for the legitimate purpose of litigation itself, and not for some other purpose. They are also required to conduct the litigation in accordance with any orders or directions made by the Court, and to advance their case accurately and in good faith. These obligations apply equally to self-represented litigants and those who are legally represented or represented by an industrial agent.
131 To the extent the claimant complains that the Court did not warn her of the possibility of a costs order, I note that the respondent put the claimant on notice of an application for costs on:
(a) 5 March 2024 when it made the Strike Out Application;
(b) 6 June 2024 at the hearing of the Second Strike Out Application; Transcript, Gavril v Director General Department of Education, WA, Industrial Magistrates Court, 6 June 2024, 17.
and
(c) 15 May 2025 when the respondent filed its response to the amended statement of claim.
132 The Costs Application was no surprise.
133 I have considerable doubt that even if the Court had warned the claimant, she would not have heeded it.
134 The manner in which the claimant conducted the proceedings unnecessarily increased the time and expense associated with the respondent defending the proceedings. That the respondent is the State of Western Australia does not mean it should otherwise absorb the costs of a legal practitioner, if the Court is satisfied a costs order should be made.
135 Alternatively, I am also satisfied that for the reasons given the claim was devoid of merit.
136 I am satisfied the Costs Application should be granted where I am satisfied that the Court should exercise its discretion to make an order for the payment of the respondent’s legal costs pursuant to s 83E(12) of the IR Act.
The Amount to be Awarded
137 The respondent produced a draft bill of costs based on the time the respondent’s legal practitioner spent working on the proceedings for the respondent. Carroll Affidavit [10]  [11], JMC5.

138 The total of the draft bill of costs is $46,600 but the respondent claims a reduced amount of $35,000, applying an approximately 25% discount.
139 The respondent’s lawyer applied a rate of $400 per hour.
140 The respondent suggests that where there is no costs scale applicable to the Court, In Manescu, at [84], the IAC also observed there was no prescribed scale of costs applicable to appeals in the IAC. Further, with respect to the IAC, it is not clear how the court arrived at the costs amount or what scale it used to do so. However, in Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 00558; (2021) 101 WAIG 1480 [36], the Full Bench applied, as a guide, the costs scales in the Legal Profession (District Court Appeals) (Contentious Business) Determination 2018, made under the Legal Profession Act 2008 (WA), applying to appeals to the District Court of Western Australia.
it is open for the Court to have regard to the scale of costs contained in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 or in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 given compensation is uncapped under s 97A of the IR Act and the maximum penalty exposure was $325,000. See generally, Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Falcon Investigations and Security Pty Ltd [2001] WAIRC 03311; (2001) 81 WAIG 2425 [45].

141 Alternatively, applying the costs scale in the Legal Profession (Magistrates Court) (Civil) Determination 2024, the maximum allowable hourly rate for a senior practitioner is $484 per hour.
142 The respondent notes that its claimed hourly rate is below the maximum hourly rate of any of the determinations, and none of the items claimed go above the limits provided for in the Legal Profession (Magistrates Court) (Civil) Determination 2024. The respondent also referred to the Legal Profession (Magistrates Court) (Civil) Determination 2022 in respect of earlier legal work undertaken.

143 There was no legal argument on the issue. For that reason, and where I do not need to resolve which determination should apply to the Court because the hourly rate claimed by the respondent is under that provided for in the Legal Profession (Magistrates Court) (Civil) Determination 2024 (and well under the higher court determinations), I have applied the Legal Profession (Magistrates Court) (Civil) Determination 2024. I accept the hourly rate applied by the respondent. Further, a review of the respondent’s draft bill of costs shows that the respondent’s legal practitioner has not claimed items beyond the scale amount and in many cases, it is well under the amount claimable.
144 Accordingly, I am satisfied that the legal costs sought by the respondent are reasonable in all of the circumstances.
145 Notwithstanding this, there are two possible alternatives: costs awarded where the Court found the claim was devoid of merit; and costs awarded if the claim was found to be not devoid of merit. In the former case, in my view, the respondent may be entitled to all of the costs claimed, including the costs of the hearing, In the latter case, in my view, the respondent would not be entitled to claim the costs of the hearing, or at least the discretion to award costs may not extend to the costs of the hearing.
146 That is, in finding that the claim was devoid of merit, the respondent has incurred unnecessary costs in defending an unmeritorious claim.
147 However, if I am wrong in finding the claim was devoid of merit, the reasons for the discretion to award costs otherwise remains but I would limit the award of costs to those unnecessary costs incurred by the respondent for all tasks identified save for the preparation and attendance at trial in the amount of $12,800.
148 In this circumstance, the amount of costs awarded would be $33,800 $46,600 − $12,800 = $33,800.
or $25,350 (if the respondent’s 25% discount $35,000 ÷ $46,000 ≈ 75%.
was applied).
Outcome
149 For the preceding reasons, the Costs Application is granted. Pursuant to s 83E(12) of the IR Act the claimant is ordered to pay the respondent’s costs for the services of a legal practitioner in the amount of $35,000.
Order Made
1. Pursuant to s 83E(12) of the IR Act the claimant is ordered to pay the respondent’s costs for the services of a legal practitioner in the amount of $35,000.




D. SCADDAN
INDUSTRIAL MAGISTRATE
Annexure to Reasons – Excerpts from Court Transcripts
17 July 2024 Strike Out Application Transcript
150 The Court asked respondent’s counsel what prejudice the respondent would likely suffer as a result of the discontinuance of M 138 of 2023 and institution of M 17 of 2024, in doing so the Court observed:
[N]o question in my mind that the claimant had other avenues that were open to her, and the Court file plainly demonstrates that she was in regular contact with the Registry, who did their very best to assist the claimant, and did not in fact encourage her to discontinue the claim and start a new claim. To the contrary, gave her other options that she could have explored. Strike Out Application Transcript, 5.

151 After respondent’s counsel argued that the prejudice the respondent faces is that they are still ‘vexed with a claim that’s deficient’ that is still largely in the same terms as M 138 of 2023:
Well, I’ve had a look at the two claims and I would agree with you, that contrary to what I’ve suggested to Ms Gavril, that she doesn’t engage in a recitation of information that would be potentially evidence rather than actually identifying what her claim is, and she has continued to do that, unfortunately. What we do have, however, is a heading on what I’ll call the second claim immediately preceding paragraph 193, ‘Damaging Actions’, which does seem to, to the best of her ability, identify what she says is her damaging action that she alleges, both in respect of the payroll and then in respect of the taxation term.
…
[I]f I accept that, that’s her claim. She then bears the onus of establishing that in accordance with the legislation. The rest of it is, unfortunately, a recitation of every incident she set out in the earlier – in claim number 1. That is arguably evidence rather than – or her evidence rather than the claim itself. But some of the things that she was looking for in the orders sought appear to have been abandoned, properly abandoned, because they’re not things that the Court could have ordered, in any event.
…
I’ll go back to the point that I made earlier though. In real terms, what is the prejudice suffered by the respondent that cannot otherwise be corrected, bearing in mind I’ve got an – well, I had, up until recently, a self-represented litigant and it is a serious step to strike out the whole of the claim in order to prevent someone from having their litigation heard by the Court. And I would hazard a guess that it wouldn’t be viewed well by another jurisdiction. Strike Out Application Transcript, 6  7.

152 In response, counsel reiterated that the claim was deficient, and that it could not recover costs in the Court unless the matter was dismissed as an abuse of process.
153 The Court put the following to the claimant’s agent:
But simply put, it is difficult to tease out the exact damaging action that the claimant is alleging and who that is referable to and why that is referable to the respondent. That’s what would be expected so that the respondent can then properly answer to the claim. And throwing your hands in the air and saying, ‘it’s all too hard. I’m going to stop doing this one because I don’t and can’t or won’t comply with the Court orders’, and then start a new one, hoping that it’s better, is not an appropriate way to deal with it. Strike Out Application Transcript, 8.

154 In response, the claimant’s agent posited that the claimant had a lack of understanding of the system and that there was a period of a few months where she could not find help with her matter. Then, the following exchange occurred between the Court and the claimant’s agent:
SCADDAN IM: But she brought the claim.
ALVAREZ, MS: Yes, that’s true, as - - -
SCADDAN IM: She brought the claim and - - -
ALVAREZ, MS: - - - the best that she could, your Honour.
SCADDAN IM: - - - in bringing the claim, she is now subject to the same rules in Court that everybody is subject to.
…
It is not personal, but there is a process. And that process applies to her, the respondent and anyone else. Strike Out Application Transcript, 9.

155 The Court subsequently observed:
I 100% agree with you, or the Department, that bringing a second claim following noncompliance with orders was totally inappropriate, and that there were other things that could have been done, a request for an extension of time in order to comply with the orders or a further application by the claimant to perhaps – I’m hesitant to say this – but request clarification of what was required. That may or may not have yielded what the respondent’s original grievance was with respect to the first claim. Simply put, I don’t know.
What I am, however, left with is at a very early juncture because of a misstep by the claimant, effectively, an application to strike out the whole of the claim. I don’t see that currying any favour anywhere, particularly when, whilst I accept the respondent cannot - or unlikely to recover costs as a result, the respondent is part of the group identified as the model litigant. The claimant is not. And whilst there could have been other ways to go about it, in reality, I don’t consider that the respondent has suffered a prejudice beyond the inconvenience of having to deal with the second claim and the incurrence of some modest costs at this point in time.
That, in my view, would perhaps be a bridge too far to strike out the second claim based on this early juncture. It may well be that there’s another application down the road if things don’t go as I’d like them or plan them to go. That’s a matter for the parties. But at this point, notwithstanding the claimant’s inappropriate discontinuance and lodgement of a new claim, I’m not minded to strike out the whole of the second claim where I’m fundamentally dealing with somebody who was perhaps at a disadvantage in understand the Court process, but who, one hopes, understands it better now. Strike Out Application Transcript, 13.

156 The Court determined as follows:
I’m going to dismiss – ultimately, I’m going to dismiss the respondent’s application to strike out the second claim. I’m putting you and your client on notice though. You cannot choose your judicial [officer]. You cannot discontinue this claim and bring a new claim thinking you are going to get somebody else. If that happens again, I anticipate the respondent will bring a second application to strike out the claim and I would have to suggest that would likely – or there would increased possibility that they would be successful.
These are Court orders. They are not choices. You comply with the Court order or you make an application, and you tell the Court why you cannot comply with the Court order, and the Court decides what happens. Not the individual. This is your claim. You can remain seated. You are to advance your claim. You have brought the claim into the arena. It will not progress at your speed. We are a public resource. We have a responsibility to ensure that the resource is used efficiently and economically. That is in the Act.
Furthermore, I am going to order – the respondent has graciously offered to write and identify the issues that, from the respondent’s perspective, that if clarified, the respondent is likely to be able to answer to those issues. That will then result in the claimant lodging and serving further and better particulars of claim with the Form 29. So Ms Alvarez, by next week, you are going to get a document from Mr Carroll or his colleagues. And that is going to set out, effectively, what they say is defects. And I would strongly recommend that if you clarify or address those defects and you do so in a document entitled, ‘Further and better particulars of claim’.
I don’t want to see another recitation of all of the things that Ms Gavril complains about. That might be evidence at a later date. What I want to see is what the claim is and addressing what damaging action she says occurred. And that is a term that’s defined in section 97. And addressing the element that she is required to prove under 97A. That’s what the further and better particulars ought to address. I’m not going to accept the document you’ve currently lodged or attempted to lodge downstairs, because I want you to another document of a similar type, but once you’ve had a chance to look at what the respondent identifies as being the issues, which may provide you with some guidance. Strike Out Application Transcript, 15  16.

3 July 2025 Transcript
157 The Court observed the following while delivering oral reasons for decision regarding an interlocutory application lodged by the claimant on 20 June 2025:
So to that extent, the Court has already done what may have been anticipated at a pretrial conference, notwithstanding a pretrial conference has not occurred in this matter. And I should note for completeness’ sake is that there has been a very sound reason why a pretrial conference has not occurred in this matter. It’s simply because the claim commenced its first iteration back in 2023. The claimant discontinued her claim following Court orders made to clarify the claim, and then restarted the claim again. That was subject to a determination by the Court that notwithstanding that is irregular and may constitute an abuse of process, given the claimant is selfrepresented, the Court allowed the claim to continue because there may have been a misunderstanding.
But it should not ever be seen as a way to circumvent Court orders either in that case or in any other case. Thereafter, there have been many attempts to have a statement of claim that would conform to something that the Court could understand what the claim was, and that could be answerable by the respondent in a reasonable manner, particularly given there is a reverse onus provision under 97A, and it may result in a civil penalty. Therefore, it is proper that the respondent have a reasonable opportunity to answer to the claim. Transcript, Gavril v State of Western Australia, Industrial Magistrates Court, 3 July 2025, 27.