Tewantin Noosa RSL & Citizens Memorial Club, Kevin Graham v Michael Sue See
[2025] FWC 2268
•26 SEPTEMBER 2025
| [2025] FWC 2268 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tewantin Noosa RSL & Citizens Memorial Club, Kevin Graham
v
Michael Sue See
(C2024/8776)
| DEPUTY PRESIDENT LAKE | BRISBANE, 26 SEPTEMBER 2025 |
Application to deal with contraventions involving dismissal – costs application – application dismissed
On 13 March 2025, the Tewantin Noosa RSL & Citizens Memorial Club (the RSL) and Kevin Graham applied for costs against Mr Michael Sue See under ss 377 and 611 of the Fair Work Act 2009 (the Act) in respect of legal fees incurred in defending a general protections application brought by Mr Sue See. For clarity’s sake, the parties are referred to by their names in this decision, rather than their title in the proceedings.
The background to the matter is set out in my decision of 24 February 2025[1] in which I declined to order a stay of proceedings. Subsequent to that decision, Mr Sue See discontinued his general protections application prior to the jurisdictional hearing. In short summary, Mr Sue See had lodged his general protections application of his own volition. He initiated proceedings in the Supreme Court of Queensland for breach of his employment contract by the Costs Applicant.
The RSL and Mr Graham contend that Mr Sue See acted unreasonably within the meaning of s.375B of the Act by initiating and continuing his general protections application, and in doing so, caused the RSL and Mr Graham to incur costs in preparing for the jurisdictional hearing. Alternatively, the RSL and Mr Graham contend that the Costs Respondent acted vexatiously within the meaning of s.611 of the Act.
The RSL and Mr Graham seek costs at 60% of those set out in the itemised schedule of costs. The itemised schedule of costs notes a total of $31,379.35 in legal costs.
The parties both filed submissions. The parties consented to the costs application being determined on the papers.
Relevant law
Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. Sections 375B and 611(2) of the Act are two such exceptions.
Section 375B of the Act provides as follows:
“375B Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under s.365; and
(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(3) This section does not limit the FWC’s power to order costs under section 611.”
Section 375B of the Act is expressed in nearly identical terms to s.400A, which applies to unfair dismissal applications. In Matthew Gugiatti v SolarisCare Foundation Ltd [2016] FWCFB 2478, the Full Bench stated that s.400A ‘is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place.”[2] A warning provided to a party about the prospects of their case may be relevant to the assessment of whether the continuation of a matter was reasonable.[3]
The Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) states, at [56] to [61], as follows in relation to s.375B:
“New section 375B allows the FWC to order costs against a party to a general protections dismissal dispute (the first party) if it is satisfied that the first party caused the other party to the dispute to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the dispute. New section 375B is similar to the costs orders that are available against parties in relation to unfair dismissal matters (see section 400A).
This power to award costs is in relation to the dispute before the FWC and does not include costs associated with a general protections court application.
The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
The FWC’s power to award costs under subsection 375B(1) is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission.
However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.
New subsection 375B(2) provides that the power to award costs against one party in these circumstances is only exercisable if the other party to the dispute makes an application in accordance with section 377. New subsection 375B(3) makes it clear that the new power to award costs under subsection 375B(1) operates in addition to subsection 611(2), which enables the FWC to make costs orders against a person in certain circumstances, such as where an application is made vexatiously or without reasonable cause.”
Section 611(2) of the Act provides as follows:
“(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a)the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b)the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.”
In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (‘Church’),[4] the Full Bench stated that ‘without reasonable cause’ within the meaning of s.611(2)(a) does not apply solely on the basis that an application is unsuccessful.[5] It takes into account the facts known to the party at the time of instituting the proceeding that there was no substantial prospect of success.[6] The application must have been ‘so obviously untenable that it cannot possibly succeed’.[7]
In Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10], the Full Bench noted the following:
“The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
·‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
·a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.[8]
In The Trustee for the Delmont Hospital Unit Trust v Barbara Wielechowska [2025] FWC 498 (‘Delmont Hospital Unit Trust’), Deputy President Colman stated:
“In my opinion, when contemplating the exercise of the Commission’s discretion to award costs, it is relevant to consider the extent to which the services that are the subject of the claimed costs were reasonably required in order for the party concerned to advance its case effectively. A simple unmeritorious claim can in principle be given short shrift.
…
Paradoxically, while a weak case is more likely to engage the Commission’s discretion to award costs, it may also mean that the extent to which the other party will reasonably require lawyers to defeat it is limited, and that any costs order that the Commission might make in the exercise of its discretion will be correspondingly confined. A weak case does not ordinarily require the other party to obtain extensive legal advice and support. It may be different where the costs defendant was legally represented; where the conclusion that the case was weak was ascertainable only after complex legal or factual analysis; or where the conduct of the costs defendant imposed excessive time requirements on the costs applicant, such as in cases brought by vexatious or querulant litigants, the management of which might reasonably need to be outsourced to lawyers.”[9]
Consideration
I am concerned that this is a matter in which the legal representation for both parties has created additional complexity, rather than alleviating it. The parties’ representatives both sent what were, in my view, unnecessary emails to my Chambers about the alleged inappropriate or unethical behaviour of the other representative. This does not assist in achieving the Commission’s objectives of resolving matters quickly and informally.
I note both parties engaged counsel to assist with their submissions. While the Commission benefits from the skills and experience of barristers appearing before it, I must question whether engaging counsel was strictly necessary for a matter such as this. I adopt the view of Deputy President in Delmont Hospital Unit Trust that when deciding whether to award costs under s.611 of Act, it is relevant to consider whether the costs were reasonably required. The substantive application involved a question of whether Mr Sue See was terminated. As part of that, there was a question of whether a board resolution to terminate Mr Sue See was validly passed. The matter was not, in my view, so legally complex that engaging counsel for submissions was required. I decline to exercise my discretion to order costs for the barrister’s fees.
Whether commencing the application against the RSL was vexatious – s.611
The RSL and Mr Graham argue that costs should be ordered for the RSL on the basis that the matter was commenced vexatiously.
I note there was argument about whether Mr Sue See was legally represented at the time he lodged his Form F8 application. Mr Sue See noted in his Form F8 application that he was legally represented. It would, however, be obvious to anyone reading the form and annexures that the application was prepared without the assistance of a lawyer. I accept Mr Sue See’s statement that he lodged the application form on his own behalf, without legal advice.[10]
I note that applicants are not barred from making applications arising from the same facts and issues in different jurisdictions and doing so does not, on its own, give rise to a vexatious claim. That the two matters have a common core is not the test, both applications have different remedies and seek to address different aspects of the same underlying actions. A general protections claim under the Fair Work Act is a very different claim to a breach of contract argument in the Supreme Court. Mr Sue See is perfectly entitled to pursue different remedies under different jurisdictions. That the RSL had to argue the matter of whether a dismissal had occurred in both matters does not meet the threshold of vexatious. The underlying claim was that Mr Sue See had been dismissed and had employment rights which were protected. He initiated the claim as a self-represented applicant based upon his understanding of general protections matters. That a legally trained person might bring greater understanding to the matter and therefore prosecute in a different manner is not in argument. A reasonable lay person may bring an argument that may prove ultimately without merit. However, a cautious approach needs to be adopted when evaluating whether an application was brought vexatiously, particularly in a tribunal where self-representation is encouraged.
Whether continuing the application against the RSL was unreasonable – s.377
The RSL and Mr Graham submitted that continuing the application against the RSL after a jurisdictional objection was raised was unreasonable. The RSL and Mr Graham say that it can be inferred that Mr Sue See never intended to prosecute the substantive proceedings. The RSL and Mr Graham argue this inference is supported by the fact that Mr Sue See discontinued the substantive application following the decision on the stay application.
Mr Sue See argues his impecuniosity influenced his decision not to prosecute the general protections application and to continue in the Supreme Court. This was a choice open to Mr Sue See. The decision to choose one over the other may have been the result of legal advice and or may have been a financial imperative.
The material does not support an inference that continuing the claim against the RSL was unreasonable. I decline to order costs on this basis.
Whether commencing the application against the Mr Graham was vexatious and without reasonable cause or an unreasonable act or omission
For the Second Costs Applicant, Mr Graham, it is argued that the matter was commenced vexatiously and without reasonable cause. Mr Graham was not on the Board at the time Mr Sue See was purportedly terminated, so he could not have been involved in the dismissal.
Counsel for Mr Sue See conceded this during the stay proceeding and I expressed the view in my decision on the stay application that it may be appropriate to amend the Form F8 application if the matter proceeded further.
Mr Sue See stated that he believed he was doing the right thing by naming Mr Graham in his application, based on the information he read on the Fair Work website. Mr Graham was the Chairman of the club at the time of the application. Mr Sue See also stated that he named Mr Graham because Mr Graham had “actively participated in ongoing harassment I had encountered while employed by the first respondent”.
There is a lack of material to support that the claim Mr Graham had been put to specific legal costs for defending his actions, separate to those required to defend the claim against the RSL. Without this evidence, I am unable to consider the application for costs for Mr Graham. Even if that was forthcoming, I would not be minded to grant costs on this ground. Mr Sue See was navigating the initial application form as a lay person and was not doing so in an unreasonable manner. Counsel for Mr Sue See conceded during the hearing on the Stay application that the Mr Graham should not have been included in the application. I decline to order costs for Mr Graham.
Failure to comply with directions
Mr Sue See did not comply with directions to file submissions and evidence for the jurisdictional hearing. Mr Sue See was granted three extensions and failed to comply with the directions to file material twice.
Directions issued from my Chambers are not an optional requirement. However, a costs application is not the vehicle for either the Respondent or the Commission to penalise the Applicant. The Fair Work Commission is a tribunal and operates in a manner that “is quick, informal and avoids unnecessary technicalities”.[11] The Commission nowadays is a venue for mostly self-represented applicants to have matters dealt with in a more informal way. A consequence of this informality and efficiency is that directions from Members are not always treated with the same reverence and compliance as in other jurisdictions. I understand the RSL’s frustration. However, this is not a ground for supporting a costs application.
Conclusion
For the reasons I outline above, I decline to exercise my discretion to award costs in favour of the RSL and Mr Graham in this matter. The costs application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Determined on the papers
[1] [2025] FWC 492
[2] Matthew Gugiatti v SolarisCare Foundation Ltd[2016] FWCFB 2478 at [61].
[3] Roy Morgan Research Ltd v Baker [2014] FWCFB 1175, [21] – [23].
[4] Church at [23]-[33].
[5] Ibid at [30].
[6] see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, cited with approval in Church at [30]
[7] Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956 at [17].
[8] Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10].
[9] The Trustee for the Delmont Hospital Unit Trust v Barbara Wielechowska [2025] FWC 498 at [8] and [13].
[10] Michael Sue See Statement [7].
[11] Section 577(1)(b)
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