Federal Court of Australia

Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd (Leave to Appeal) [2026] FCA 921

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for leave to appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1    The Applicant seeks leave to appeal from orders of the primary judge ordering that she pay the Respondents’ costs of and incidental to the interlocutory application filed on 26 August 2025 as from 14 November 2025, to be assessed on a lump sum basis. The primary judge delivered judgment on 20 February 2026: Grofski v Peabody Energy Australia PCI Mine Management Pty Ltd (No 2) [2026] FCA 124 (PJ).

2    The decision of the primary judge was interlocutory in nature. Accordingly, leave to appeal is required.

Background: the course of the pleading amendment Application and costs dispute

3    The substantive proceeding relates to claims for relief under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) and under the whistleblower protection provisions of Part 9.4AAA of the Corporations Act 2001 (Cth). The Applicant’s claims arise from alleged adverse action by some of the Respondents in relation to her employment at the Coppabella Coal Mine in central Queensland.

4    The factual background to the Applicant’s interlocutory application is not in dispute, and is as follows:

(1)    On 26 August 2025, the Applicant filed an interlocutory application seeking leave to further amend her originating application and statement of claim. The Respondents were served with a copy of the interlocutory application, written submissions of 4 pages, and an affidavit of the Applicant which was 271 pages long, including the proposed Further Amended Statement of Claim (FASOC) which was 248 pages long.

(2)    At a case management hearing on 15 September 2025, the primary judge made orders (September orders) requiring the Applicant to provide her Honour’s chambers and the solicitors for the Respondents with the “final version of the draft further amended statement of claim … which the Applicant seeks leave to file” and to do that by 3 October 2025. The September orders also timetabled the making of submissions in support of the application by the Applicant, and the filing of submissions and any affidavit evidence by the Respondents, as well as reply material by the Applicant. The application was also set down for hearing on 27 November 2025 by those orders.

(3)    On 3 October 2025, the Applicant sent an amended interlocutory application dated 3 October 2025, a second draft FASOC (2DFASOC) which was 252 pages long, an additional affidavit of 24 pages, and 31 pages of written submissions to the Registry and to the solicitors for the Respondents.

(4)    On 31 October 2025, the solicitors for the Respondents filed written submissions based on the 2DFASOC, contending that the 2DFASOC was affected by “fundamental deficiencies” and that the Applicant’s application for leave to amend her statement of claim ought be refused. Those submissions were substantial and detailed the deficiencies in the 2DFASOC at some length (the submissions filed by the First–Fourth and Sixth–Tenth Respondents (the ME Respondents) were 25 pages in length and those filed by the Fifth Respondent were 13 pages in length).

(5)    On 14 November 2025, the Applicant sent the solicitors for the Respondents and the Registry an email attaching another further amended originating application, written submissions in reply to those filed by the Respondents, a third draft FASOC (3DFASOC) which was 267 pages long, and a document described as “Comparison of 2DFASOC and 3DFASOC”, which was 373 pages long (collectively, the 14 November material).

(6)    On 27 November 2025, the primary judge dismissed the interlocutory application. However, following an undertaking by the Applicant to discontinue related proceedings in the Supreme Court of Queensland, the primary judge granted provisional leave for the Applicant to file a further amended originating application and statement of claim, subject to conditions including that the statement of claim be limited to 60 pages.

5    On the hearing of the application for leave to appeal, the Applicant relied on evidence showing that, on 14 November 2025, she sent an email to the Court’s Registry and the parties attaching the 14 November material. Her email said that “due to the significant event of the FW statutory bar being raised by the Respondents”, she was providing the 3DFASOC, and related material. The Applicant relied on an email sent by the Registry on 20 November 2025, which said “[t]he amended documents have been approved by Chambers for filing”.

6    As I will come to, the primary judge observed that the Applicant’s actions in filing the 14 November material were in breach of the September orders (PJ [18]). It was common ground that this was not a contention that any of the Respondents raised, and had not been raised with the Applicant by the Court in the running of the application for leave to amend, or in the costs argument.

7    The reference to the “statutory bar” was a reference to the Respondents’ contention, advanced in opposition to the Applicant’s application for leave to file the 2DFASOC, that the Applicant was statute barred from pursuing claims arising from her dismissal under multiple legislative regimes. In particular, the Respondents submitted that, having alleged that her dismissal contravened the FW Act, the Applicant could not also maintain claims arising from the same dismissal under Part 9.4AAA of the Corporations Act and s 275AA of the Coal Mining Safety and Health Act 1999 (Qld). The Respondents submitted that the Applicant’s pursuit of claims on multiple bases was precluded by the operation of certain provisions of the FW Act and, consequently, certain of her claims failed to disclose a reasonable cause of action and leave to amend to pursue them ought not be granted.

8    Following the dismissal of the interlocutory application, the Respondents sought to be heard on the question of costs.

9    As the Applicant’s claims included claims under Part 3-1 of the FW Act and claims under the whistleblower protection provisions of Part 9.4AAA of the Corporations Act, a costs order could only be made against the Applicant pursuant to (relevantly) s 570(2)(b) of the FW Act and s 1317AH(3)(b) of the Corporations Act. A costs order could only be made under the former provision where “the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs”. Section 1317AH(3)(b) of the Corporations Act is in almost identical terms. For brevity, I will refer only to s 570(2).

10    The primary judge said as follows in relation to the making of costs orders in such proceedings (PJ [6]–[7]):

6    The bar to engage s 570 of the FW Act is set relatively high. That is no doubt because the effect of the section is to curtail, in proceedings relating to matters arising under the FW Act, the discretion which the Court would otherwise have with respect to costs: Altintas v O’Dea Lawyers (No 2) [2018] FCAFC 187 at [6] per White, Perry and Charlesworth JJ. Thus, the discretion to award costs under s 570 of the FW Act must be exercised cautiously. As Mortimer J explained in Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64]:

… The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision…

7    The principles that have evolved in relation to s 570 of the FW Act are equally applicable to s 1317AH of the Corporations Act: Mount v Dover Castle Metals Pty Ltd (Costs) [2025] FCA 402 per Katzmann J at [15].

11    The Respondents relied on two unreasonable acts in support of their applications for costs: the first was the filing of the interlocutory application itself at the time it was filed; the second was the extraordinarily large volume of material served by the Applicant in support of the interlocutory application over the course of approximately 11 weeks (PJ [10]). The primary judge set out matters relevant to that second submission (PJ [10]), commencing with the 248 page long proposed FASOC, served on 25 August 2025, and the further extensive documentation served by the Applicant including the 2DFASOC and the 14 November material.

12    The primary judge heard the costs dispute on 13 February 2026. While the primary judge was not satisfied that the first matter relied upon by the Respondents was unreasonable conduct for the purposes of s 570, her Honour was satisfied that the Applicant acted unreasonably in providing the 3DFASOC and the associated materials on 14 November 2025. Her Honour said as follows:

Volume of material

16    The second matter identified as unreasonable was the vast quantity of material served on the respondents from August 2025 onwards. Three versions of a FASOC, each approaching 300 pages, have been served by Ms Grofski since 25 August 2025. The vice is not merely their length; it extends to the amendments not being done in the manner required by the Rules; potentially adding additional causes of action without making that clear; renumbering the respondents; using differing numbering systems within the document; introducing error in cross-referencing; and using schedules or annexures in a confusing manner.

17    Again, I am conscious that Ms Grofski is a self-represented litigant. Despite having told the Court that she is enrolled in a law degree to assist her with this case, that she has access to texts on pleading, and has been assisted by exemplar pleadings from previous cases, it is obvious that she has set herself a very difficult task and that her pleading remains incoherent and incomprehensible. This is in large part because, as she told the Court at the hearing of her interlocutory application (filed on 9 October 2025) on 27 November 2025, she is not merely bringing personal claims for adverse action allegedly taken against her, she is also seeking to have the law under the CMSH Act “clarified” and to “price [the] deterrent” to effectively deter those who do not fulfil their obligations under that Act through “exemplary damages mainly”. Ms Grofski is hoping to expose reprisal action, as to which she understands from the State regulator there is only anecdotal evidence.

18    By the time of the 27 November 2025 hearing, Ms Grofski was already in breach of my orders of 15 September 2025. Although she provided a FASOC on 3 October 2025, as required by order 2 of those orders, it was not the final version on which she intended to rely. She provided her third FASOC to the Registry and to the solicitors for the respondents on 14 November 2025. In the meantime, all respondents had filed written submissions in relation to the second FASOC.

19    Ms Grofski has been granted numerous indulgences in relation to the five iterations of her pleadings to date. A sixth version was in fact also before the Court in the hope that the provisional leave I had granted on 27 November 2025 might be made unqualified. Even a self-represented litigant cannot continue indefinitely to put their opponents to unnecessary costs, even where those opponents are well-resourced corporate litigants. The respondents have incurred 15-months of costs without being given a statement of claim in any sort of form to which they could reasonably be expected to plead.

13    Under the hearing “Disposition”, the primary judge said as follows (PJ [20]):

Having weighed all of the matters, I am satisfied that Ms Grofski has acted unreasonably in providing the third FASOC and the associated materials on 14 November 2025. It is appropriate therefore that she be ordered to pay the respondents’ costs of and incidental to the interlocutory application filed on 26 August 2025 as from 14 November 2025, to be assessed on a lump sum basis.

14    On 5 March 2026, the Applicant filed an application for leave to appeal this decision. The application was subsequently amended and refiled on 3 June 2026. The grounds the Applicant seeks to advance, if leave were granted, are as follows:

Grounds of appeal

Ground 1: The primary judge erred by failing to afford the Appellant procedural fairness, in that the costs order rested upon adverse findings of fact that no party had advanced and on which the Appellant was not given an opportunity to be heard.

Ground 2: The primary judge erred in law in failing to apply, or alternatively applied incorrectly, the second precondition in s 570(2)(b) of the Fair Work Act 2009 (Cth) — that the unreasonable act caused the Respondents to incur costs.

Ground 3: The primary judge erred by applying an incorrect standard of unreasonableness rather than the single, objective standard that s 570(2)(b) requires; or, alternatively, by misapplying the standard.

Ground 4: The primary judge erred in law in taking into account, in applying s 570(2)(b) of the Fair Work Act 2009 (Cth), considerations irrelevant to that provision.

Ground 5: The primary judge erred in law in failing to take into account a mandatory relevant consideration, namely s 37N(4) of the Federal Court of Australia Act 1976 (Cth), in exercising the discretion to award costs.

Legal principles

15    A costs order made in relation to an application for leave to file a further amended statement of claim is interlocutory in nature and therefore, leave is required to appeal against the decision of the primary judge: Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; (2023) 299 FCR 224 at [13] (Colvin, Stewart and Feutrill JJ); Federal Court of Australia Act 1976 (Cth) (the FC Act) s 24(1A).

16    Leave to appeal from an interlocutory judgment will ordinarily only be granted where the decision is attended with sufficient doubt to warrant reconsideration and would result in substantial injustice if leave were refused, supposing the decision to be wrong: Décor Corporation Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor) at 398–9 (Sheppard, Burchett and Heerey JJ). That test is “cumulative” and is not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at [5] (Ryan, Stone and Jagot JJ). The assessment of “sufficient doubt” is conducted at a reasonably impressionistic level so as to avoid turning a leave application into a premature merits appeal: EBT17 v Minister for Home Affairs [2019] FCA 200, [4].

17    Further, where the impugned order or orders involve the exercise of a discretion, the Court must be satisfied that the primary judge made an error of the kind set out by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499. That is the Applicant must show that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the exercise of her discretion, mistook the facts, or failed to take into account a material consideration.

18    The reasons of a primary judge are to be read fairly and are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Catlin v Draper [2023] NSWCA 49; (2023) 103 MVR 442 (Draper) at [94] (Adamson JA, Meagher and Mitchelmore JJA agreeing), citing Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; 115 ALR 1 at 9 (Neaves, French and Cooper JJ).

19    The decision of the primary judge to award costs involved the exercise of discretion, albeit that the enlivening of the discretion was contingent on satisfaction of the conditions specified by s 570: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at 252, [140] (Tracey, Gilmour, Jagot and Beach JJ). Under s 570(2)(b) of the FW Act, the discretion may, relevantly, only be exercised where “the court is satisfied that the party’s unreasonable act or omission caused the other party to incur costs”.

20    Thus, the court must be satisfied that the person in question acted unreasonably and that the unreasonable act or omission caused the other party to incur costs.

21    In addressing the application for leave, submissions were made regarding the standard to be applied on appeal to the primary judge’s determination that s 570(2) was enlivened (there being no dispute that the determination to exercise the enlivened power would attract consideration on appeal subject to the House v The King standard). The Applicant’s argument in chief, as I understood it, was that whether or not she acted unreasonably, and whether or not her unreasonable conduct caused the Respondents to incur costs, were matters in respect of which there is only one correct answer (although the Applicant’s submissions in reply appeared to retreat from this position). The ME Respondents submitted that a deferential standard applies to all aspects of the costs determination, notwithstanding that the discretion is only enlivened where the court is satisfied as to unreasonable acts or omissions causing the other party or parties to incur costs. They relied on the Full Court’s reasons in Tredders Investments Pty Ltd ATF Warren Tredrea Trust v Channel 9 South Australia Pty Ltd [2024] FCAFC 164 (Tredders). In Tredders, the Full Court was considering an analogue costs provision in the Independent Contractors Act 2006 (Cth) (the IC Act). Their Honours concluded that it was not correct that the question of whether s 17(2) of the IC Act was engaged was one capable of only one uniquely right answer or one legally permissible answer. Their Honours stated (at [46]) that (emphasis added):

46 …    The language of s 17(2) of the IC Act requires the court hearing a proceeding under Part 3 of the IC Act to be satisfied that there has been an unreasonable act or omission by a party causing another party to incur costs in connection with the proceeding before an order could be made with respect to the payment of some or all of those costs. The relevant question, then, is whether the primary judge erred in not being satisfied that there had been an unreasonable act or omission.

47     We accept the Tredrea parties’ submission that the finding of the primary judge that it was not unreasonable for them not to have accepted the 7 and 21 July 2023 offers was a finding which it was open to his Honour to make and which he was uniquely placed to make. As Charlesworth J observed in Celand (at [171]), the question of whether there had been an unreasonable act in not accepting the offers of settlement required an evaluative assessment of all of the circumstances, turning on matters of judgment and degree.

22    Of course, to characterise the determination of whether an action (or omission) is unreasonable as involving an evaluative assessment that the docket judge is uniquely placed to make, is not to say that the House v The King standard applies in determining error in respect of those statutory preconditions to exercise of the discretion to award costs. Nevertheless, as the proposed appeal grounds that the Applicant has identified do not have sufficient ostensible merit to satisfy the Décor test, nothing turns on this point.

Disposition

23    The decision of the primary judge is not attended with sufficient doubt to warrant the grant of leave to appeal. Accordingly, leave to appeal will be refused.

24    The Applicant’s arguments proceeded by finely parsing the wording of the primary judge’s reasons looking for error. The Applicant’s application for leave rather lost sight of the fact that the decision in question is one of practice and procedure, albeit the exercise of a power that is conditioned on the primary judge being satisfied that the Applicant acted unreasonably and that her unreasonable actions caused the Respondents to incur costs. The Applicant’s approach was also inconsistent with the authorities referred to above (see paragraph 18) which make it clear that a primary judge’s reasons are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Draper at [94]. This overarching problem with the Applicant’s approach was particularly evident in relation to grounds 1, 3 and 4.

Proposed ground 1: procedural fairness

25    The Applicant’s first proposed ground of appeal asserts a failure to accord procedural fairness. The Applicant submits that the primary judge erred in making and relying upon adverse findings that had not been advanced by any Respondent and therefore failed to afford the Applicant procedural fairness. In support of this ground, the Applicant points to two specific “adverse findings” she says were made by the primary judge: (a) that the Applicant was in breach of earlier programming orders (PJ [18], the Breach Finding) and (b) that the 30 January 2026 version of her pleading was “incoherent and incomprehensible” (PJ [17], the Incomprehensible Finding). The Applicant contends that these findings underpinned the conclusion reached by the primary judge at [20].

26    I do not consider that ground 1 has sufficient prospects of success to support the grant of leave. The so-called Incomprehensible Finding was part of a passage of the primary judge’s reasons where her Honour considered whether the Applicant’s difficulty in pleading could be attributed to her status as a self-represented litigant, or whether there were other factors involved. The primary judge considered that the Applicant’s desire to advance a case beyond her private interests contributed to her difficulties. It was relevant for the primary judge to consider the Applicant’s status as a self-represented litigant in evaluating the quality of her actions — whether they were unreasonable — and in considering whether to exercise the discretion to award costs against her. The primary judge’s conclusion as to the action that was unreasonable was precise; it was the provision of the 14 November material. The primary judge’s observation that the Applicant’s later, 60 page pleading remained incomprehensible was, as noted, part of her consideration of whether the Applicant’s difficulty in pleading could be attributed to her self-represented status.

27    It was common ground that in stating that the Applicant’s pleading “remains incoherent”, the primary judge was referring to the 60 page version that the Applicant had prepared after she was refused leave to file the 3DFASOC. While the Applicant observed that that pleading was permitted to be filed, the Respondents observed that it was only permitted as the Respondents consented to the grant of leave on the basis that they were immediately going to file an application to strike it out, which they have done. Accordingly, nothing arises from the fact that a pleading criticised in those terms was subsequently the subject of a grant of leave.

28    While, as noted above, it was accepted that the Respondents had not raised the Applicant being in breach of the September orders, and the matter had not otherwise been raised with the Applicant, the primary judge’s observation on that matter must be read in context. The point that the primary judge was moving towards, as the balance of PJ [18] read in the context of PJ [19] makes clear, was that the Applicant’s action in filing another version of her very long proposed pleadings occurred after the Respondents had engaged with the 2DFASOC and filed extensive submissions about that pleading. In this regard, it must be remembered that the September orders set out a scheme by which the Applicant was required to nail her colours to the mast and commit to a pleading, before the Respondents would be put to the trouble and expense of addressing it. The Applicant’s actions in submitting the 14 November material upset that scheme.

29    While the Applicant’s sense of grievance at being the subject of the Breach Finding is understandable as it was not raised with her, given the role of that observation in the context of the primary judge’s reasons, I am not satisfied that the procedural fairness complaint arising from that background evidences a sufficient prospect of success to warrant the grant of leave.

Proposed ground 2: causation

30    By this ground, the Applicant intends to establish that the primary judge failed to apply, or alternatively applied incorrectly, the causation requirement in s 570(2)(b) of the FW Act. In submissions, the Applicant says that the primary judge erred in law in three respects regarding causation: (a) that the reasoning of the PJ “collapses unreasonableness and causation”, (b) by capturing the Respondents’ costs of preparing for and attending the hearing on 27 November 2025 despite finding that the filing of the interlocutory application was not “unreasonable” within the meaning of s 570 of the FW Act and (c) by extending the order to “associated materials” without specifying which materials caused the Respondents to incur costs.

31    Conversely, the Respondents submit that the PJ plainly sets out the applicable test and demonstrates why the primary judge considered that s 570(2)(b) was satisfied. In response to the Applicant’s position that the costs of the hearing would have been incurred regardless of the filing of the 3DFASOC, the unreasonable conduct, the ME Respondents submit that costs were in fact incurred as a consequence of the filing of the 3DFASOC, particularly given it was filed after submissions directed to the 2DFASOC had already been prepared and filed with the Court.

32    I am not satisfied that the primary judge’s decision is attended with sufficient doubt to warrant the grant of leave on the basis of proposed ground 2. While s 570(2) is conditioned on the Court being satisfied as to the unreasonable act or omission, and that it caused the other party to incur costs, there is no requirement that the Court’s reasons be structured or expressed in a way that deals discretely with each integer. While the Applicant’s submissions sought to construct a methodological “cascade” for determining such costs applications, the legislation does not support her approach. The action that the primary judge concluded was unreasonable — providing the 3DFASOC and associated materials on 14 November 2025 — was clearly identified, and was part of the series of actions the primary judge described at PJ [19] as having resulted in costs being incurred by the Respondents.

33    The Applicant suggests that an issue arises on the basis that the primary judge’s reference to “associated materials” was unclear. There is no substance to that complaint. It is plain that her Honour was referring to the material provided alongside the 3DFASOC on 14 November 2025, ie, the 14 November material.

34    There is also, contrary to the Applicant’s submission, no obvious contradiction between the primary judge’s conclusion that the very filing of the interlocutory application seeking leave to amend was not unreasonable, and her Honour’s conclusion that the filing of the 14 November material was unreasonable.

Proposed ground 3: standard of unreasonableness

35    The Applicant submits that the primary judge applied an incorrect standard of unreasonableness and further submits that the conduct identified did not meet the statutory threshold. In setting out the test for unreasonableness, the Applicant cites a considerable number of authorities — many of which the ME Respondents note are concerned primarily with the concept of legal unreasonableness in the context of judicial review applications — and submits that those authorities demonstrate that the standard applied by the primary judge was incorrect.

36    The Applicant submits that the primary judge’s reasoning “proceeds by reference to cumulative volume across iterations of the pleading, “numerous indulgences”, and the proposition that the Applicant “cannot continue indefinitely to put [the Respondents] to unnecessary costs””. The Applicant submits that those “indicia” are “irrelevant” and not “drawn from the scope, subject or purpose of s 570 read with ss 37M and 37N” — which she contends is required by the methodology set out in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [48] (Allsop CJ, Robertson and Mortimer JJ) — or are “evaluative additions to the statutory standard”. The Applicant then seeks to construct a question of broader significance, submitting that “[w]hether such evaluative additions are consistent with the s 570(2) threshold is a question on which there is sufficient doubt for the first limb of Décor”.

37    The Fifth Respondent submits that the matters addressed by the primary judge at PJ [16]–[19] are consistent with the observation of Mortimer J in Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 at [66], that the application of s 570(2) requires “…a focus on the reasonableness of the parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put”. In both written and oral submissions, the ME Respondents referred to observations of Bromberg J in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [163]–[165], noting his Honour’s observation that all relevant circumstances need to be taken into account in considering whether a particular act may be characterised as unreasonable within the meaning of s 570(2)(b). Regardless of the precise formulation of the test for unreasonableness, the Respondents submit it was correctly applied by the primary judge.

38    The Applicant’s argument in developing the manner in which sufficient doubt was said to arise was elaborate and hard to follow. As best I can understand it, the point seems to be that, as the Applicant would argue, the primary judge was in some way impermissibly injecting a “higher standard” gloss into the unreasonable conduct aspect of s 570(2) and also doing so in a manner that in fact operates as a “softer standard”, which allowed reference to the primary judge’s overall view of the litigant or the proceeding.

39    I do not consider that the Applicant’s argument establishes sufficient doubt as to the primary judge’s decision. The primary judge’s observation that “the bar to engage s 570 of the FW Act is set relatively high”, and her Honour’s citation of applicable case law (PJ [6]) were entirely orthodox. The Applicant’s argument seeking to suggest that the primary judge somehow converted that high bar to a “softer standard” which allowed reference to matters that should have no place in the analysis was strained and convoluted.

40    Nor does the Applicant’s argument that the primary judge impermissibly relied on matters other than the provision of the 14 November material in determining that provision of the 14 November material was unreasonable have ostensible merit sufficient to suggest that the primary judge’s decision is attended with sufficient doubt to warrant the grant of leave to appeal. The primary judge’s analysis addressed the Respondents’ broader complaint about the excessive volume of material relied on by the Applicant. The specific action that the primary judge ultimately concluded was unreasonable for the purposes of the application of s 570(2) had to be considered in context. The fact that the primary judge was critical of the Applicant’s conduct in other respects does not obviously expose any error in the conclusion that the Applicant’s action in providing the 14 November material was unreasonable.

41    In support of the Applicant’s position that her conduct did not meet the standard of unreasonableness, the Applicant lists a number of decisions of this Court. The Applicant submits that those authorities demonstrate conduct that is “comparable to, or worse than, the 14 November act”, yet in those cases no comparable costs order was made, which she contends demonstrates a “departure from the correct standard and correct indicia”. There is nothing in that submission. Each case turns on its facts. The fact that the Applicant has identified some specific cases in which represented applicants have not been subject to costs orders or a conclusion that they acted unreasonably in relation to their pleadings is of no real relevance and certainly not suggestive of the primary judge’s analysis having gone awry.

Proposed ground 4: irrelevant considerations

42    The Applicant submits that the primary judge took into account irrelevant considerations including earlier iterations of the pleading, observations concerning the Applicant’s litigation conduct generally, and the state of the later pleadings. In support of this ground, the Applicant submits that the primary judge’s considerations were improperly directed to the Applicant and her procedural history rather than the act itself. Further, the Applicant submits that the primary judge improperly considered, and incorrectly characterised, the Applicant’s lack of engagement with the advice offered by the Respondents’ counsel in respect of her pleadings and finally, submits that the primary judge considered the “numerous indulgences” granted to the Applicant, noting this “finding” was not available to the Court and is unconnected with the unreasonable act.

43    To the extent that this ground concerns the primary judge’s reference to the Applicant being a self-represented litigant, to the procedural history, and to the indulgences granted to the Applicant and the impact of her conduct on the Respondents, it overlaps with parts of grounds 1 and 3 addressed above. The Applicant’s submissions otherwise descend into somewhat convoluted parsing of the primary judge’s reasons and seek to suggest that a conclusion reached (PJ [13]) in relation to the aspect of the Respondents’ costs argument that the primary judge rejected — the filing of the interlocutory application — somehow shows an irrelevant matter was taken into account in relation to the other aspect of their application, and involved the imposition of a reverse onus.

44    I am not persuaded that the Applicant has shown that the primary judge’s decision is attended by sufficient doubt so as to warrant the grant of leave.

Proposed ground 5: s 37N(4) of the Federal Court of Australia Act 1976

45    The Applicant submits that the primary judge ought to have considered the Respondents’ alleged delay in raising the statutory bar, which she contends was conduct undertaken for a “forensic advantage” and amounted to a failure to comply with s 37N(1). Section 37N(4) of the FC Act provides:

(4)     In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).

46    While conceding that she had not raised s 37N in connection with the costs arguments, the Applicant submits that it was incumbent on the primary judge to consider it on the basis that s 37N imposes a mandatory obligation on the judge.

47    The Applicant’s argument overlooks that s 37N(4) refers to there being “any” failure to comply with the overarching purpose. In the absence of a submission that there has been such a failing and that it bore on the costs issue, it was not incumbent on the primary judge to apply s 37N as the Applicant contends her Honour should have. Further, the Applicant’s argument that the Respondents had breached the overarching purpose appeared to rest heavily on a contention, which is serious but speculative, that they intentionally refrained from mentioning the statutory bar at an earlier point in time.

Substantial injustice

48    In view of my conclusions that the Applicant has not established that the decision in question is subject to sufficient doubt, it is not necessary to address the arguments on substantial injustice. I would, however, not refuse leave on substantial injustice grounds as the Applicant is a self-represented litigant and being obliged to pay the costs of well-resourced respondents in litigation that would otherwise be conducted on a “no costs” basis, would constitute a substantial injustice if the decision were wrong.

Conclusion

49    The application for leave to appeal will be dismissed. The Respondents made it clear that they do not seek any costs order in respect of the application for leave to appeal.

Associate:

Dated:    15 July 2026

SCHEDULE OF PARTIES