Federal Court of Australia

Rindeklev v Commonwealth of Australia (No 3) [2026] FCA 1112

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay 50% of the respondent's costs for solicitors and counsel to attend and appear at the hearing held on 15 to 25 September 2025 and of counsel in (a) preparing for that hearing, including considering the written opening submissions of Ms Rindeklev; and (b) preparing written opening submissions and short outlines for closing submissions.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Gunilla Rindeklev brought two proceedings against the Commonwealth of Australia as her former employer. After a final hearing, both applications were dismissed: Rindeklev v Commonwealth of Australia (No 2) [2026] FCA 764. Provision was made for any application as to costs. Subject to further order, any such application was to be dealt with on the papers. Ms Rindeklev made submissions to the effect that there should be no costs order. The Commonwealth sought an order that Ms Rindeklev pay the Commonwealth's costs of both proceedings.

2    Although some of the claims advanced by Ms Rindeklev alleged contraventions of the Work Health and Safety Act 2011 (Cth), by the submissions of both parties as to costs were advanced on the basis that the claims made by Ms Rindeklev were claims to which s 570 of the Fair Work Act 2009 (Cth) applied. I will deal with them on that basis (which accords with the decision in Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at [157] (Tracey, Gilmour, Jagot and Beach JJ, White J agreeing at [173])).

Relevant principles

3    Section 570(2) of the Fair Work Act provides that a party to proceedings 'in relation to a matter arising' under the Act may be ordered to pay costs only if the Court is satisfied (relevantly for present purposes) that the proceedings were instituted 'vexatiously or without reasonable cause' or 'the party's unreasonable act or omission caused the other party to incur the costs'. The general discretion as to costs is thereby considerably constrained.

4    It has been said that the policy choice made by the provision is to confer power on the Court to order costs against a party 'who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court': Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272 (Northrop J), approved in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115; (2003) 129 FCR 271 at [10] (Black CJ, Tamberlin and Sundberg JJ). The statutory constraint upon the circumstances in which an unsuccessful party may be liable for the costs of proceedings in relation to matters arising under the Fair Work Act ensures that those with a genuine grievance and an arguable basis for bringing proceedings are not put off by the spectre of a costs order: Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ).

5    A failure to accept an offer to compromise the proceedings may be an unreasonable act or omission for the purposes of s 570(2): Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at [166] (Tracey, Gilmour, Jagot and Beach JJ). However, the general law as to the cost consequences of such offers does not apply. It is the statutory language that must be applied in the circumstances of the particular case.

6    Nevertheless, certain general principles have emerged from the cases. They were recently summarised by Dowling J in Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Kwinana Bulk Jetty Case) (Costs) [2026] FCA 126 at [6], in terms that I gratefully adopt. Omitting case references, his Honour's summary was as follows:

(1)     the discretion conferred by s 570(2) should be exercised cautiously, and the case for its exercise should be clear;

(2)     the reason for caution in the exercise of the discretion conferred by s 570(2) is the potential for discouraging parties to pursue, in a complete and robust way, the claims they seek to make under the Act, or the defence to those claims, and to ensure that the spectre of costs does not loom so large as to discourage parties from commencing, continuing or responding to claims:

(3)     unreasonableness is to be determined objectively and is to be assessed by reference to the particular circumstances of the case:

(4)     the word 'unreasonable' in s 570(2)(b) is not capable of precise definition and is inherently sensitive to context. It is appropriate for a court to examine the context or circumstances of the relevant conduct to ascertain whether that conduct could be characterised as unreasonable:

(5)     inefficient conduct of the case or a misguided approach may be relevant to, but will not be conclusive of, unreasonableness:

(6)     a failure to accept a reasonable offer of compromise, including an offer expressed in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333, is capable of constituting an unreasonable act or omission for the purposes of s 570(2)(b) of the Act.

7    As to whether it is unreasonable for a settlement offer to be rejected, his Honour referred to the reasoning of Lee J in Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 5) [2021] FCA 1645 at [6(4)] as identifying the matters that should ordinarily be considered. They are:

(1)     the stage of the proceeding when the offer was made;

(2)     the time afforded to the offeree to consider the offer;

(3)     the extent of compromise involved;

(4)     the offeree’s prospects of success, assessed as at the date of the offer;

(5)     the clarity with which the terms of the offer were expressed; and

(6)     whether the offer foreshadowed an application for indemnity costs in the event of refusal.

8    I would add that care should be taken not to apply hindsight (informed by the ultimate outcome in the proceeding and the detailed reasoning supporting that outcome) in determining whether the refusal of an offer at the time it was made was unreasonable.

9    In addition to these principles, I would add a further aspect that ought to be considered when reaching a conclusion as to whether the conduct of an applicant in bringing and continuing a claim is an unreasonable act for the purposes of s 570(2). Every litigant has an obligation to be clear and concise in the allegations that are made and also to focus their case on matters that are recognisable as an arguable basis for a valid legal claim. I dealt with these matters in Azad v Avant Insurance Limited (No 2) [2025] FCA 853 at [1]-[9]. There is also an obligation upon an applicant to confine the case to matters of substance that are sufficiently serious to justify both the imposition of the considerable burden of court proceedings on the respondent parties and the use of public resources to resolve the dispute. Many grievances, including grievances that may be appropriate to raise in the workplace, lack the seriousness to justify being raised by way of Court proceedings. The intensity with which a particular applicant may feel aggrieved is not a sufficient basis to justify Court proceedings, even proceedings which might be formulated in accordance with legal principle. Viewed objectively, the nature of the claim and its alleged consequences for the applicant must have a degree of seriousness or importance that makes it reasonable to seek a determination by way of court proceedings. Claims which lack these characteristics will be an abuse of process and, consequently, their advancement as Fair Work Act claims is likely to be unreasonable. This is because of the absence of a controversy sufficient to justify the proceedings.

10    Finally, in a case like the present, where the proceedings have been conducted by a litigant in person, the same principles apply. Individuals are entitled to conduct proceedings in their own name. In doing so, they are subject to the same procedural obligations as parties who are legally represented. Which is not to say that they are expected to perform the professional obligations owed by lawyers. However, fairness as between the parties to litigation conducted within the adversarial system for administration of justice that applies in this Court requires that all parties are subject to the same procedural requirements (which includes the statutory terms of s 570 of the Fair Work Act). As was explained in AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [96] (Wigney, Lee and Raper JJ):

A judge is not required to consider some special status of a person as a 'self-represented litigant' but to ensure, generally through procedure, that the proceedings are conducted in a procedurally fair manner for all parties.

11    The following oft-quoted statement by Samuels JA in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, 16 June 1986) at 27 (as approved in Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ)) pertains:

the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

12    The assistance to be provided to a litigant in person in explaining the procedure of the Court should not extend to placing a litigant in person at a position of privilege or advantage over a represented opponent: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 at [54] (Markovic, Derrington and Anastassiou JJ).

The position of Ms Rindeklev as to costs

13    In effect, Ms Rindeklev's position is that she advanced a claim that had a proper basis and she acted appropriately in the conduct of the proceedings, particularly by narrowing the issues and conducting the proceedings on affidavit. Ms Rindeklev described the conduct in issue in the proceedings as having 'started in earnest with a pivotal event', which she claimed involved characterising her as a vexatious complainant. Ms Rindeklev indicated that she did not feel that there was conduct by the Commonwealth that would justify a costs order in her favour.

14    Ms Rindeklev advanced matters in response to the Commonwealth's submissions by email dated 4 July 2026. Although not formally filed, I have considered those matters raised that bear upon the cost order. They emphasise the cooperation of Ms Rindeklev in the process for identifying the issues and in narrowing the affidavit evidence to be referred to at trial.

The position of the Commonwealth as to costs

15    The Commonwealth advances three matters as the basis for the making of a costs order against Ms Rindeklev, namely:

(1)    the proceedings are said to have been initiated without reasonable cause because the claims were legally misconceived or deficient;

(2)    Ms Rindeklev acted unreasonably by pursuing a significant number of claims in a manner that was confusing and prolix;

(3)    Ms Rindeklev acted unreasonably by refusing 'multiple settlement offers'.

16    Emphasis was also placed by the Commonwealth upon the overarching obligation imposed upon all litigants by s 37N(1) of the Federal Court of Australia Act 1976 (Cth) to conduct proceedings in a way that is consistent with the overarching purpose of the 'just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible'. Reliance was also placed upon s 37N(4) which provides that in exercising the discretion to award costs in a civil proceeding, the Court must take into account any failure to comply with what is described as the duty imposed by s 37N(1). Of course, the discretion to award costs in the present case is to be exercised subject to the terms of s 570 of the Fair Work Act (to which reference has already been made).

17    As to (1), the Commonwealth submitted that Ms Rindeklev was on notice as to fundamental obstacles to her claim by reason of the Commonwealth's explanations provided alongside the settlement offers that had been made. Reliance was also placed upon certain findings ultimately made as to aspects of Ms Rindeklev's claims that were difficult to follow.

18    As to (2), the Commonwealth relied upon the extent to which irrelevant material was presented to the Court by way of affidavit and submissions. It was also submitted that the opening submissions of Ms Rindeklev were discursive and difficult to follow. These matters were said to complicate and elongate the hearing.

19    As to (3), the Commonwealth relied upon the refusal by Ms Rindeklev of formal settlement offers.

20    I accept that considerable costs would have been incurred by the Commonwealth in considering the detailed materials filed by Ms Rindeklev by way of affidavits and submissions. With due allowance for Ms Rindeklev conducting the proceedings as a litigant in person, I would describe those materials as generally difficult to follow, repetitive and (to a considerable extent) dealing with matters at the periphery. I would also describe the complaints that were raised at the outset as including matters that were small or insignificant and, for a time, there was a need to press Ms Rindeklev to focus upon the main things the subject of complaint: as to these matters, see my reasons in James v Commonwealth of Australia [2023] FCA 1241 at [32]-[33].

21    Otherwise, I generally accept Ms Rindeklev's submission that she conducted the proceedings in a cooperative manner. After some initial disputation, Ms Rindeklev actively participated in a process for the identification of the issues for determination and in simplifying what had been, in their initial formulation, claims that were difficult to understand, particularly as to the precise nature of the legal basis for the alleged claims. She also reduced the scope of the factual issues that were required to be addressed and, consequently, the extent of cross-examination. Nevertheless, her case in its formulation and presentation was very discursive and, with due respect, in many respects was difficult to follow as to its legal basis. However, that characterisation could not be applied to the whole of her case.

22    Otherwise, as to unreasonableness, in substance, the Commonwealth relied upon the pursuit of the proceedings, despite being informed of the matters that were communicated at the time of the offers to resolve the proceedings. The terms of the offers were in evidence on the question of costs.

23    The two proceedings were commenced in July 2022 (156/2022) and August 2022 (165/2022). Settlement offers were made in January 2023 (both proceedings), December 2023 (156/2022 only) and August 2025 (both proceedings). On each occasion, the offer made was for the proceedings to be resolved on the basis that there be no payment made to Ms Rindeklev (or other relief) and the proposal was for the proceedings to come to an end with each party bearing its own costs.

24    Having regard to the matters presented in the letters and the nature of the claims that continued to be pursued by Ms Rindeklev, I regard the pursuit of the following aspects of the proceedings to a final hearing as involving unreasonable conduct by Ms Rindeklev (referring to the seven claims as described in my reasons for dismissing Ms Rindeklev's claims). I rely upon the descriptions of those claims that I provided when dealing with those claims.

25    Claim 1 was pursued in circumstances where there was no possible basis to claim that there had been conduct taken for the substantial reason that Ms Rindeklev had raised a concern about her own work health and safety. In addition, the claim that there had been omissions of the kind alleged was extremely weak as to its factual basis. These matters were made clear by the terms of the offer in December 2023. They were matters that were repeated in the offer made in August 2025. It was unreasonable to continue to advance the claim thereafter and certainly unreasonable to press the claim at the final hearing.

26    Claim 2 required Ms Rindeklev to demonstrate that there was knowing or reckless making of a false or misleading representation about workplace rights. I regard the claim to have been technical and informed by a fundamental misunderstanding of the nature of the role of Mr Richards in undertaking a preliminary investigation. Ms Rindeklev did not complain about the adverse terms of the 2016 Outcome Letter when it came to her own conduct. Rather, the focus of her case was upon whether views expressed by Mr Richards in his report were accurately presented in the 2016 Outcomes Letter.

27    Claim 3 was based upon a hopeless contention as to matters that were said to have been represented by a response to inquiries from Comcare concerning Ms Rindeklev. This would have been apparent to any reasonable reader considering the matters set out in the December 2023 offer. It was unreasonable to continue with the claim.

28    However, I do not consider it to have been unreasonable for Ms Rindeklev to pursue Claim 4. It concerned whether there was a proper basis to reduce her shifts. It was a claim that did not occupy much of the hearing.

29    The opening submissions presented by Ms Rindeklev as to Claim 5 made the claim very difficult to follow. They placed reliance upon matters that were not concerned with the key issue raised by Claim 5, namely the procedure and outcome of the investigation that culminated in the 2019 Report. I regard the way in which the case was presented to have been unfocussed and to canvass much that was not relevant to the claim. I would accept that, at its heart, it dealt with an allegation of adverse action based upon the way in which Ms Rindeklev's conduct was investigated. Therefore, I do not regard the bringing of the claim as identified in the List of Issues to be unreasonable. However, it was so burdened with a lack of clarity and a concern with Ms Rindeklev's wider grievances about what occurred in her workplace as to be unreasonable in the manner in which it was pursued.

30    Claim 6 alleged some form of incitement. The claim was obscure and difficult to follow. At its heart was a serious allegation to the effect that Ms Harwood and Mr Proll somehow influenced Ms Caudwell as to the outcome of the preliminary investigation that she conducted. There was no basis for a claim of that kind. In substance, Ms Rindeklev complained about the materials that were collected by those who were required to deal with serious allegations that she had made about their managerial competence and were invited to respond as part of the investigation. It was unreasonable to continue that claim to final hearing.

31    As to Claim 7, I regard the bringing of that claim to be reasonable. It complained of conduct that would have amounted to adverse action if established. In the result, it failed based on factual findings that I made. However, it was a confined aspect of the case and the claim was focussed.

32    Bringing these matters together and having regard to the need for caution and the statements in the cases to the effect that the required unreasonableness must be clear, I do not accept the Commonwealth's submission that there was unreasonableness of a kind that affected the whole of both proceedings or the whole of those proceedings after the offers were made. However, I accept that unreasonableness has been established as to a significant part of the conduct of the proceedings, particularly the persistence with considerable parts of the case to a final hearing and the discursive and obscure way in which the claims were articulated and presented at the final hearing.

33    I am of the view that, as to at least half the costs associated with the conduct of the trial of the final hearing in the proceedings, relevant unreasonable acts have been demonstrated. Beyond that, it is difficult to reach conclusions, particularly given the genuine participation by Ms Rindeklev in efforts to confine the issues for determination and the cooperative manner in which she presented her case at the final hearing.

34    For those reasons, the appropriate order as to costs is that Ms Rindeklev bear 50% of the Commonwealth's costs for solicitors and counsel attending at the hearing held on 15 to 25 September 2025 and the costs of counsel (a) in preparing for the final hearing, including considering the written opening submissions of Ms Rindeklev; and (b) in preparing written opening and short closing submissions.

35    Finally, I have considered whether an oral hearing should be convened before determining the question of costs. No party requested an oral hearing. As the case involved no issue of principle, the parties had been afforded an opportunity to provide written submissions on the issue of costs and the factual matters that I considered to be of significance for determining the question of costs could not be said to be contentious, I was satisfied that the question may be dealt with without an oral hearing and that it was appropriate to do so: see s 20A of the Federal Court of Australia Act 1976 (Cth).

Associate:

Dated:    11 August 2026