Australia, Nov. 12 -- The Federal Court of Australia issued the following judgement on Nov. 7:

1 Dr Judith Virag (appellant) was employed by the respondent (EVGPT) as a part-time medical educator on a fixed term contract that expired on 31 December 2018.

2 On 27 February 2019, the appellant filed a general protections application alleging breaches of the Fair Work Act 2009 (Cth) (FW Act) against EVGPT (application).

3 The application was listed for hearing before the primary judge on 24-26 May 2021. However, on the third day of the hearing (during which the appellant was self-represented), the appellant requested an adjournment. The matter was adjourned part-heard to 25 October 2021. The appellant subsequently requested a further adjournment, with the matter then being listed for hearing on 8 April 2022. However, following a further case management hearing on 4 February 2022, the appellant ultimately filed a notice of discontinuance on 28 February 2022.

4 On 30 March 2022, EVGPT applied for a costs order under s 570 of the FW Act, seeking for indemnity costs or alternatively party and party costs against the appellant.

5 On 31 August 2023, the primary judge determined that the appellant instituted the proceedings vexatiously and without reasonable cause, and that her unreasonable acts caused the respondent to incur costs. The primary judge ordered that the respondent's costs be paid on an indemnity basis (the costs judgment).

6 The appellant appeals from the entirety of the costs judgment. The appellant's appeal relies upon five grounds of appeal which are summarised below:

(1) The primary judge erred in finding that the appellant instituted the proceedings vexatiously or without reasonable cause;

(2) The primary judge erred in finding that the appellant's continuation of the proceedings was an unreasonable act or omission. Alternatively, the primary judge erred by failing to consider that:

(a) had the appellant's claims succeeded, the appellant would have likely received a monetary remedy above the highest offer made to her by EVGPT ($20,000) and the Court would likely have imposed civil penalties entailing the public denunciation of EVGPT's conduct; and

(b) EVGPT's offers to settle for $20,000 were each made before the appellant had received EVGPT's written submissions filed on 8 February 2021 and which set out the basis of EVGPT's case;

(3) The primary judge erred in finding that the appellant wilfully disregarded the legal advice provided to her, or alternatively, the primary judge erred in finding that this constituted an unreasonable act or that the appellant's continuation of the proceeding in light of the legal advice she received was "highly unreasonable". The appellant also claims that this was not a matter raised by EVGPT, and therefore, the appellant was not provided a fair hearing due to the primary judge making an adverse finding on the matter without it being raised with the appellant;

(4) The primary judge erred in finding that the appellant expanded her case "throughout the proceedings" by her amended statements of claim and outlines, and this caused "considerable work" to be undertaken by EVGPT. Alternatively, it is argued that given the appellant was self-represented, the primary judge erred in concluding it might also be an unreasonable act for the purposes of s 570 of the FW Act. The appellant also raises the same procedural fairness issue in respect of this finding as raised in relation to ground three above;

(5) The primary judge erred in finding that it was appropriate to order that the appellant pay the respondent's costs at all, or, in the alternative, on an indemnity basis rather than on a party/party basis.

*Rest of the document and Footnotes can be viewed at: (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca1283)

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