Federal Court of Australia

Ullah v OM Security Pty Ltd [2026] FCA 1175

ORDERS

THE COURT ORDERS THAT:

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

2.    The first respondent’s notice of objection to competency dated 5 March 2026 and interlocutory application dated 5 March 2026, insofar as they concern the application for leave to appeal the costs orders, be dismissed.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, Mr Fahad Ullah, has commenced proceedings against OM Security Pty Ltd and three other respondents: Home Security Pty Ltd, Meriton Property Services Pty Ltd and Gallagher Bassett Services Pty Ltd. In those proceedings Mr Ullah, who is not legally represented, claims that the respondents each contravened various provisions of the Fair Work Act 2009 (Cth) (FW Act) during, and at the termination of, his employment as a security officer by or on behalf of one or other of the respondents.

2    At one point during the early case management of the proceeding, Mr Ullah requested that the proceeding be listed for an urgent case management hearing. The primary judge acceded to that request, but ultimately determined that the case management hearing was not justified. On the application of OM Security and Meriton, his Honour ordered Mr Ullah to pay the costs of those respondents of and incidental to the relisting of the matter, ostensibly on the basis that Mr Ullah’s act in having the matter relisted was unreasonable for the purposes of s 570(2)(b) of the FW Act.

3    Mr Ullah has applied for leave to appeal the costs orders made against him. That application must be dismissed for the reasons that follow.

THE CONDUCT OF THE LEAVE APPLICATION

4    Before addressing the merits of the leave application, it is necessary to say something briefly concerning the conduct of the application.

5    The conduct of Mr Ullah’s application for leave to appeal the costs orders made against him was complicated by the fact that it was consolidated and heard together with another application by Mr Ullah for an extension of time and leave to appeal interlocutory orders, and an interlocutory application filed by Mr Ullah in a related proceeding. This judgment only addresses Mr Ullah’s application for leave to appeal in respect of the costs orders.

6    One of the unfortunate byproducts of the consolidation and combined hearing of the various applications was that the Court was presented with, or confronted by, a vast quantity of material which was said to be relevant to the various matters. An electronic court book, which was helpfully compiled by OM Security’s lawyers but only provided to the Court on the eve of the hearing, contained over 5,000 pages of documents. Regrettably, much of that material turned out to be of marginal, if any, relevance or significance to the issues that needed to be determined, particularly with regard to the issues that arose in relation to Mr Ullah’s application for leave to appeal. To make matters worse, despite the surfeit of material, the Court was not given the benefit of a decent chronology of the conduct of the underlying proceeding in which the relevant interlocutory orders were made.

7    The hearing of Mr Ullah’s various applications, including the application for leave to appeal which is the subject of this judgment, was further complicated by the curious and ultimately misconceived approach taken by OM Security in respect of Mr Ullah’s applications. Instead of simply opposing Mr Ullah’s applications, including his application for leave to appeal the costs orders, OM Security filed a notice of objection to competency (dated 5 March 2026) and an interlocutory application (also dated 5 March 2026) in which it sought an order that Mr Ullah’s “appeals” be “determined incompetent”, as well as an order that the “appeals” be dismissed. There were, in fact, no appeals, as such, and no sensible basis for the contention that the applications which had been filed by Mr Ullah, including the application for leave to appeal which is the subject of this judgment, could be said to be incompetent. It is one thing to contend that an application for leave to appeal an interlocutory order should be dismissed because it lacks merit. It is another thing to contend that the leave application, or the proposed appeal, is incompetent. In its interlocutory application, OM Security also sought an order, albeit in the alternative to the dismissal of the appeals, which required Mr Ullah to provide security for costs.

8    Despite those procedural oddities, once prompted by the Court, OM Security and Mr Ullah agreed to proceed on the basis that the issue to be determined at the hearing was, relevantly in the case of Mr Ullah’s application for leave to appeal the costs orders, whether Mr Ullah should be granted leave to appeal those orders. The hearing was conducted on that basis. While OM Security appeared to maintain that that there was some utility in its interlocutory application and did not formally abandon it, it was plainly misconceived and should be dismissed, at least insofar as it concerns the application for leave to appeal which is the subject of this judgment.

RELEVANT FACTS

9    While the Court was not provided with a useful chronology of the proceedings prior to the impugned case management hearing that led to the costs orders, the following can be gleaned from the material in the court book.

10    The underlying substantive proceeding was commenced by Mr Ullah in April 2025 by the filing of an originating application and statement of claim. As has already been noted, Mr Ullah was not legally represented. It would not be unfair to say that the documents filed by Mr Ullah were not ideal in terms of articulating the factual and legal bases of his case against the respondents. Fortunately, it is unnecessary to delve into the specifics of Mr Ullah’s pleaded claims for the purpose of determining this application.

11    There was a first case management hearing before the primary judge on 23 May 2025. His Honour made orders granting leave to Mr Ullah to file an amended originating application and statement of claim. The transcript of that hearing was not tendered or relied on by Mr Ullah or OM Security in respect of this leave application. As will be seen, however, the exchanges between Mr Ullah and the primary judge during that hearing would appear to have some relevance to Mr Ullah’s claims that the primary judge erred in making the later costs order.

12    On 23 June 2025, OM Security filed an interlocutory application in which it sought orders summarily dismissing some of Mr Ullah’s claims against it and striking out the statement of claim, or parts of it, in respect of those claims. OM Security also filed very lengthy and detailed written submissions in support of the interlocutory application. The third and fourth respondents also filed similar interlocutory applications in June 2025. Mr Ullah also filed two interlocutory applications.

13    On 10 July 2025, Mr Ullah filed even lengthier written submissions which, while not specifically addressing the respondents’ interlocutory applications, dealt at considerable length with the factual and legal bases of his claims against the respondents. The content of the submissions tends to indicate that, while not legally represented and not legally trained, Mr Ullah was not only intelligent and articulate, but was readily able to conduct detailed research into the statutory provisions and legal principles that he contended applied to his claims against the respondents. Mr Ullah also filed an extremely lengthy document said to be a statement of “Background Facts” which included a series of annexures. For reasons that will become apparent, it is also relevant to note that Mr Ullah’s submissions, along with the other material filed by him, also addressed, albeit somewhat obliquely, the position of, or situation concerning, iCare – which was said to be Gallagher Bassett’s workers compensation insurer.

14    On 18 July 2025, about a week after Mr Ullah filed his detailed written submissions, there was a further case management hearing before the primary judge. The transcript of that case management hearing was not tendered by the parties, though it may be inferred that there was some discussion between the primary judge and the parties concerning the various interlocutory applications and how they would be dealt with. The matter was listed for a further case management hearing on 15 August 2025.

15    The transcript of the case management hearing which took place on 15 August 2025 was again not tendered by either Mr Ullah or OM Security, despite the apparent relevance of what transpired at that hearing to the issues that arise in respect of Mr Ullah’s application for leave to appeal the costs orders. It is, however, readily apparent from the surrounding circumstances that one of the issues that was again addressed at the hearing was the hearing of the various interlocutory applications that had been filed by the parties. The orders made by the primary judge included an order listing the interlocutory applications for hearing on 9 October 2025, and an order that each of the respondents file and serve any further evidence and submissions in respect of the interlocutory applications by 29 August 2025.

16    What occurred next is of particular importance to the issues that arise in respect of Mr Ullah’s contention that the primary judge erred in making the costs orders against him at the case management hearing on 12 September 2025.

17    On 8 September 2025, Mr Ullah sent an email to the Court’s registry requesting that the matter be urgently listed for a case management hearing. The stated reason for that request was:

Three respondents (First, Second & Fourth) have failed to comply with the Court’s orders dated 15 August 2025, which required the filing of amended submissions by 29 August 2025. As of today, no such documents have been served or filed. This non-compliance significantly undermines the procedural integrity of the proceedings.

18    It should be noted that this statement mischaracterised the order in fact made by the primary judge on 15 August 2025, because that order only required the respondents to file any further evidence and submissions by 29 August 2025. The fact that the first, second and fourth respondents had not filed any further evidence or submissions by that date indicated no more than that they did not wish to rely on any further evidence or submissions beyond what had already been filed. If Mr Ullah had any doubts about that, he should have corresponded with the respondents and asked them to clarify or confirm whether they intended to file any further evidence or submissions.

19    On 8 September 2025, the Court’s registry advised the parties that the primary judge had listed the matter for a case management hearing on 12 September 2025.

20    On 9 September 2025, Meriton’s solicitor sent an email to Mr Ullah which requested him to consent to the vacation of the case management hearing on 12 September 2025. The email correctly pointed out to Mr Ullah, in clear and unequivocal terms, that he had sought to have the matter relisted on the basis of a misunderstanding of the primary judge’s order concerning the filing of further submissions. The email concluded with a cautionary warning that, if Mr Ullah maintained that the case management hearing should proceed, Meriton would seek a costs order against him and would rely on the email in that regard.

21    Mr Ullah promptly responded to the email sent by Meriton’s solicitor and advised that he did not consent to the vacation of the case management hearing. Mr Ullah noted that, while he accepted the solicitor’s interpretation of the relevant order, the “absence of any communication” from the other respondents had “created uncertainty” and that the purposes of a case management hearing included ensuring “procedural clarity”, addressing “interlocutory concerns”, and safeguarding fairness to all parties. Mr Ullah also indicated that he intended to file an interlocutory application which concerned, among other things: the propriety of OM Security’s submissions, which he believed “targeted” a self-represented litigant; issues of estoppel and res judicata; the “procedural involvement of iCare” and a “request to make a supplementary submission”. It should perhaps be noted that Mr Ullah’s email to the Court requesting a case management hearing made no reference to any such interlocutory application. Nor had Mr Ullah in fact filed any such interlocutory application.

22    In respect of costs, Mr Ullah’s email stated that he did not consider it appropriate for Meriton to seek costs in respect of the case management hearing and suggested that the indication that Meriton would seek costs “raises concerns of unsatisfactory professional conduct”. He went on to state that if there was an application for costs he would “welcome the opportunity to educate [the solicitor] on this issue”.

23    On 10 September 2025, OM Security’s solicitor sent an email to Mr Ullah in which she confirmed that OM Security intended to rely only on the material that had already been filed and that, having regard to the terms of the order made by the primary judge in respect of the filing of any further evidence or submissions, OM Security therefore was not in breach of that order. The solicitor stated that in those circumstances the case management hearing had no utility and requested Mr Ullah to consent to an order vacating the hearing. The solicitor also foreshadowed that OM Security would seek costs against Mr Ullah if he did not consent to the vacation of the hearing date. On the same day, OM Security’s solicitor sent an email to the primary judge’s associate requesting that the case management hearing be vacated because Mr Ullah’s reasons for requesting the hearing were “misinformed”.

24    Later that day, a registry officer sent the parties an email on behalf of the primary judge in response to the request by OM Security to have the case management hearing vacated. The email stated that in “circumstances where the applicant appears to be seeking further orders, including for leave to file supplementary submissions to be granted and for an additional respondent to be added to the proceeding, his Honour is minded to proceed with the case management hearing”.

THE case management hearing and the PRIMARY JUDGE’S DECISION IN RESPECT OF COSTS

25    The case management hearing on 12 September 2025 proceeded before the primary judge. It did not go well insofar as Mr Ullah was concerned. The transcript of this case management hearing was in evidence. Following is a short summary of what relevantly transpired at the case management hearing based on the transcript.

26    The primary judge asked Mr Ullah to explain what the urgency was in having the matter listed for case management. Mr Ullah’s initial response was to the effect that he wanted to join iCare to the proceeding. The primary judge responded by noting that, at the case management hearing on 18 July 2025, he had “discussed in some detail” with Mr Ullah that if he wanted to join another party, he was required to file an interlocutory application and supporting affidavit explaining why he wanted to join that party. His Honour observed that, in response, Mr Ullah had advised that he had decided not to proceed against iCare. The primary judge asked Mr Ullah to explain why he had changed his mind and now wanted to join iCare.

27    Mr Ullah did not dispute what the primary judge said about what had occurred at the earlier case management hearings in respect of the joinder of iCare. Rather, he simply responded by saying he was “a bit confused” because Gallagher Bassett had not responded to an email Mr Ullah had sent concerning the joinder of iCare. He also said, somewhat confusingly, that he would leave it up to the primary judge, but that he was happy to file an application and affidavit if the primary judge would allow him to do so. The primary judge made it clear that he did not consider Mr Ullah’s position in respect of joining iCare justified the urgent relisting of the matter and reiterated that he had previously explained to Mr Ullah that, if he wanted to join iCare, he would have to file an interlocutory application and supporting affidavit.

28    The second reason for having the matter urgently relisted that Mr Ullah raised with the primary judge at the case management hearing was that he wanted to seek leave to file supplementary submissions because he wanted to respond to a “key point” in OM Security’s submissions. When pressed by his Honour about what paragraph he wanted to respond to, Mr Ullah referred to a paragraph of the submissions about the responsibility of self-represented litigants to familiarise themselves with the Court’s procedures and present their evidence in the same way as represented litigants. The primary judge pointed out to Mr Ullah, however, that it was unnecessary for him to have the matter relisted urgently to seek leave to respond to another party’s submissions because he could always respond to the submission orally at the hearing.

29    A third reason put forward by Mr Ullah for having the matter urgently relisted appeared to involve various evidentiary issues about which he said he was concerned. Those evidentiary issues included, on Mr Ullah’s account, that one of the respondents was relying on hearsay evidence, that the respondents were not calling evidence from a particular witness, and that the respondents, or one of them, was making submissions which had no evidentiary foundation. The primary judge told Mr Ullah that it was unnecessary for him to have the matter urgently relisted to raise those evidentiary issues because it was open to him to make submissions at the hearing about them. His Honour noted that he was confident that Mr Ullah understood the difference between evidence and submissions and that he was “well-equipped” to deal with such issues at the hearing. His Honour also noted that Mr Ullah could not force an opposing party to call a particular witness, but that he could subpoena the witness himself if he wanted to.

30    An important point which emerges from the transcript that should also be emphasised is that throughout the case management hearing, Mr Ullah protested that he was self-represented and was unfamiliar with the proper procedures that he should follow in Court. The primary judge noted, however, that he had explained aspects of the Court’s procedures to Mr Ullah at the earlier case management hearings and that, despite the fact that Mr Ullah was not legally trained, his written submissions demonstrated “a very sophisticated knowledge of legal issues” and that Mr Ullah was “not someone who is struggling” to “put an argument together”.

31    The primary judge observed that the original reason Mr Ullah had advanced for having the matter urgently relisted was a concern that the parties had not complied with the order concerning the filing of further evidence and submissions. Mr Ullah confirmed that he now appreciated that there was no requirement that the respondents file further evidence or submissions.

32    Counsel for OM Security and Meriton both sought an order that Mr Ullah pay the costs of the case management hearing on the basis that his relisting of the matter met the “threshold of unreasonable conduct that has caused costs to be incurred by a party” in s 570(2)(b) of the FW Act. The primary judge asked Mr Ullah if there was anything he had to say against the making of a costs order against him. In response, Mr Ullah maintained that he was “not familiar with the procedure” and that the reasons he had given for having the matter relisted were “legitimate issues”. He also contended that the conduct of counsel in seeking a costs order against a self-represented party constituted professional misconduct.

33    The transcript does not record or reproduce any distinct reasons given by the primary judge for ordering Mr Ullah to pay the costs of OM Security and Meriton in respect of the case management hearing. The transcript suggests that the primary judge may have given some oral reasons that were to be later revised and reproduced into a written judgment, however no written judgment has been published. Inquiries made by the solicitors for OM Security with the primary judge’s associate suggested that there were no separate reasons or oral judgment in respect of the costs order. The parties agreed to proceed on that basis for the purposes of Mr Ullah’s application for leave to appeal.

34    Despite the fact that the transcript indicates that the primary judge did not give any detailed or distinct reasons for awarding costs against Mr Ullah, it is readily apparent from what transpired during the case management hearing that the primary judge did not accept that Mr Ullah had provided any proper or adequate justification for requesting that the matter be relisted for an urgent case management hearing. It is equally apparent that his Honour accepted the submissions advanced on behalf of OM Security and Meriton that Mr Ullah’s conduct in having the matter relisted in those circumstances constituted an “unreasonable act” which caused OM Security and Meriton to incur costs and that an award of costs pursuant to s 570(2)(b) of the FW Act was therefore appropriate.

APPLICABLE PRINCIPLES

35    It is necessary to briefly address the principles that apply both in respect of the grant of leave to appeal interlocutory judgments and in respect of the award of costs under s 570(2)(b) of the FW Act.

Leave to appeal interlocutory judgments

36    The principles that apply in considering applications for leave to appeal are settled and well known.

37    The starting point is that, in exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [2].

38    In the frequently cited and applied decision of the Full Court in Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, it was said that the principal criteria that must be addressed in considering any application for leave to appeal are: first, whether in all the circumstances the decision or order of the primary judge was attended with sufficient doubt to warrant it being reconsidered by the appellate court; and second, whether substantial injustice would result if leave were refused, supposing that the decision made by the primary judge was wrong. The two criteria are cumulative, and both must ordinarily be made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [4]-[5]; Ah-Chee v Stuart [2019] FCAFC 165 at [12].

39    Where the decision which is the subject of the application for leave to appeal involves a discretionary decision, in order to establish that the decision is attended with sufficient doubt to warrant appellant intervention, it is generally necessary to establish that the primary judge acted either upon a “wrong principle”, allowed “extraneous or irrelevant matters to guide or affect him” [or her], had mistaken the facts, or had failed to take into account some “material consideration”: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.

40    Moreover, where the decision of the primary judge involves a matter of practice and procedure and no questions of general principle are at stake, appellant intervention requires the “exercise of particular caution”: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [34]. Similarly, regard must be had to the principle which emerges from the warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, that if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”. To proceed otherwise would be inconsistent with the overarching purpose: cf Rush at [4].

The award of costs under s 570(2) of the FW Act

41    Section 570 of the FW Act provides as follows:

570 Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note:    The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before the FWC;

(ii)    the matter arose from the same facts as the proceedings.

42    As noted earlier, it is readily apparent that the primary judge made the costs order against Mr Ullah pursuant to s 570(2)(b) of the FW Act. In BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347 at [26], Halley J provided the following useful summary of the principles that emerge from the authorities in respect of the award of costs under s 570(2)(b) of the FW Act:

The following principles emerge from the authorities with respect to the application of s 570(2)(b) of the FW Act:

(a)    the occasions on which costs will be awarded under s 570 of the FW Act are likely to be exceptional: Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 (Mutch) at [8] (Bromberg J);

(b)    the touchstone for the exercise of the power is unreasonableness, not negligence or inefficiency: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 (Grouped Property Services) at [26] (Katzmann J); Tucker v State of Victoria [No 2] [2021] VSCA 182 (Tucker) at [32(h)] (Kyrou, McLeish and Sifris JJA);

(c)    the fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness: Mutch at [8] (Bromberg J) citing Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143 (Clarke) at [29] (Tamberlin, Gyles and Gilmour JJ) and Hutchinson v Comcare (No 2) [2017] FCA 370 (Comcare (No 2)) at [8] (Bromberg J); Tucker at [32(h)];

(d)    the term “unreasonableness” is not conducive to precise definition, rather it is to be understood as controlling the extent of the limitation on the making of a costs order pursuant to s 570 of the FW Act and it takes much of its meaning from the underlying reason for that limitation: Mutch at [7];

(e)    unreasonableness is to be determined objectively, it is a question of impression and degree and is to be assessed by reference to the particular circumstances of a given case: Tucker at [32(g)] citing PIA Mortgage Services Pty Ltd v King [No 2] [2020] FCAFC 53 at [15] (Rangiah, Charlesworth and Snaden JJ);

(f)    it is well settled that the limitation imposed by s 570 of the FW Act seeks to provide access to justice by ensuring that the fear of an adverse costs order does not discourage litigants from pursuing good claims: Mutch at [7] citing Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ); Ryan v Primesafe [2015] FCA 8 at [64] (Mortimer J); Comcare (No 2) at [8] (Bromberg J);

(g)    if the power to make an order pursuant to s 570 of the FW Act is enlivened then in determining whether to exercise its discretion to make an order, the Court is bound by s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to exercise that discretion in the way that best promotes the overarching purpose of any statutory provision on a matter of practice and procedure referred to in s 37M of the FCA Act: Grouped Property Services at [26] (Katzmann J).

APPELLANT INTERVENTION IS NOT WARRANTED

43    I am not persuaded that appellant intervention is warranted in respect of the decision of the primary judge to award costs against Mr Ullah at the case management hearing on 12 September 2025. I am not satisfied that his Honour’s decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court. Nor am I satisfied that substantial injustice would result if leave were refused, supposing that decision made by the primary judge was wrong.

44    As for whether the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, while the primary judge’s reasoning in the transcript is sparse, it is readily apparent that his Honour found that Mr Ullah’s act in requesting the matter to be urgently listed for a case management hearing was unreasonable and caused OM Security and Meriton to incur the costs of preparing for and appearing at the case management hearing. It is equally apparent that his Honour’s exercise of the discretion to award costs was based in large part on that finding. I am not persuaded that the primary judge made any error of principle, or any House v The King type error, in the exercise of his Honour’s discretion to award costs against Mr Ullah.

45    It was open to the primary judge to find that Mr Ullah acted unreasonably in having the matter listed for an urgent case management hearing. The reason initially given by Mr Ullah for requesting the urgent case management hearing in his email to the Court – that some of the respondents had failed to comply with the primary judge’s order in respect of the filing of further evidence and submissions – was misconceived. That was pointed out to Mr Ullah in communications he received from two of the respondents and, while he appeared to accept that his interpretation of the relevant order was incorrect, he nevertheless refused to consent to the vacation of the case management hearing. He did not seek to advance that as being a reasonable basis or reason for calling the case management hearing when pressed by the primary judge at the hearing to explain why he had requested the relisting of the matter.

46    It was equally open to the primary judge to find that the explanations given by Mr Ullah at the case management hearing for why he required the matter to be urgently relisted had no merit and that the relisting was unnecessary and unjustified. Mr Ullah did not dispute that the issue concerning the joinder of iCare had been ventilated at the earlier case management hearings, that he had previously decided not to join iCare and that he had not made any attempt to file the necessary documents to pursue any application for the joinder of iCare. The other reasons given by Mr Ullah for having the matter relisted – his desire to file supplementary submissions and to raise some evidentiary issues – were also exposed as being unmeritorious during the primary judge’s exchange with Mr Ullah during the hearing. The case management hearing was plainly unnecessary in all the circumstances.

47    In his submissions in support of his application for leave to appeal, Mr Ullah contended that he did not act unreasonably in requesting the case management hearing, though he did not seek to demonstrate that the reasons he had given for requesting the case management hearing were in fact meritorious, or that he had some other reasonable basis or justification for having the matter relisted. Rather he relied on the fact that he was a self-represented litigant who was unfamiliar with the Court’s practice and procedure. He submitted that, while his conduct “may have been procedurally imperfect and at times inefficient”, because he was a self-represented litigant those imperfections did not amount to unreasonableness for the purposes of s 570(2)(b) of the FW Act. Indeed, he went further and submitted, in effect, that the primary judge had failed to give him the assistance that he was obliged to give him as a self-represented litigant, that the primary judge was denying him procedural fairness and that the circumstances indicated apprehended bias on the part of the primary judge.

48    Those submissions cannot be accepted in the circumstances of this case. It may of course be accepted, as a general proposition, that a judge must provide a self-represented litigant with such assistance concerning matters of practice and procedure as may be required to ensure that he or she receives a fair hearing. The nature and extent of that assistance will depend, among other things, on the nature of the hearing and the capacities of the self-represented litigant in question. In Mr Ullah’s case, it is readily apparent from the exchanges that occurred between the primary judge and Mr Ullah at the case management hearing on 12 September 2025 that the primary judge had already given Mr Ullah considerable assistance and several explanations concerning relevant aspects of the Court’s practice and procedure during the earlier case management hearings. While the transcripts of those earlier case management hearings were not tendered on this application, Mr Ullah did contend or seek to prove that the primary judge’s description of what had occurred at the earlier case management hearings was in any way inaccurate.

49    Moreover, it is clear that the primary judge had formed the view, based on his exchanges with Mr Ullah and the content of the documents that he had filed, that Mr Ullah was an intelligent and articulate man who had the capacity to, and had demonstrated the ability to, research and acquire knowledge of legal issues relevant to his case. That would include matters of practice and procedure. When regard is had to the correspondence and the documents filed by Mr Ullah, it was clearly open to the primary judge to form that view of Mr Ullah’s capacities. It is relevant to have regard to Mr Ullah’s capacities in determining the nature and extent of the assistance that the primary judge was required to give Mr Ullah as a self-represented litigant.

50    Mr Ullah’s reliance on the fact that he was a self-represented litigant went further than the contention that the primary judge failed to provide him with adequate assistance. He submitted that the primary judge “erred in treating [his, Mr Ullah’s] lack of procedural knowledge and imperfect advocacy as grounds for a punitive costs order”. That submission can be dealt with shortly. There is no basis whatsoever for the contention that the primary judge ordered Mr Ullah to pay costs to punish him for any lack of procedural knowledge or imperfect advocacy he may have demonstrated. It is, rather, readily apparent that his Honour imposed the costs order to compensate OM Security and Meriton for having to attend the unnecessary and unjustified case management hearing.

51    As noted earlier, unreasonableness in the context of s 570(2)(b) of the FW Act is to be determined objectively and involves questions of impression and degree that must be assessed by reference to the particular circumstances of the case. It might perhaps be accepted that the primary judge’s finding that Mr Ullah had acted unreasonably in having the matter urgently relisted for case management was somewhat harsh and uncompromising, particularly given that Mr Ullah was not legally represented. Another judge may not have made that finding. It does not follow, however, that the finding was not open to the primary judge or that his Honour otherwise erred in making that finding, let alone erred in principle in a House v The King sense.

52    There is equally no basis for finding that, having found that Mr Ullah acted unreasonably for the purposes of s 570(2)(b) of the FW Act, the primary judge erred in a House v The King sense in the exercise of the discretion to award costs against Mr Ullah. The Court’s discretionary power to award costs under s 43 of the FCA Act is a broad and unfettered power. A finding that a party had acted unreasonably and thereby caused another party to unnecessarily incur costs would ordinarily provide an ample basis for a costs order, at least in the absence of any countervailing considerations. Unjustifiably requesting and causing the Court to convene a case management hearing which turned out to be unnecessary and a waste of time would ordinarily be considered to be contrary to the overarching purposes of the Court’s civil practice and procedure. The failure of a party, even a self-represented litigant, to comply with the overarching purpose would ordinarily be a relevant, if not compelling, consideration in the exercise of the discretion to make an adverse costs order: LFDB v SM (No 2) [2017] FCAFC 207 at [7].

53    While the primary judge’s reasons for ordering costs against Mr Ullah were sparse, as noted earlier, it is readily apparent that the order was primarily based on his finding that Mr Ullah had acted unreasonably in causing the Court to urgently relist the matter and had thereby caused the other respondents to unnecessarily incur costs. I am not persuaded that his Honour erred in principle in exercising his discretion on that basis.

54    As noted earlier, Mr Ullah argued that the primary judge denied him procedural fairness and did not afford him a reasonable opportunity to contest the cost orders before it was made. He also in effect submitted that those circumstances revealed apprehended bias on the part of the primary judge. Those submissions have no merit whatsoever and are rejected. The primary judge gave Mr Ullah ample opportunity to explain why he had requested the urgent relisting of the matter for case management and gave him a further opportunity to make any submission he wanted to make as to why cost orders against him. Mr Ullah took advantage of that opportunity and made submissions. While the primary judge was firm with Mr Ullah, the circumstances warranted firmness and overall, his Honour dealt with Mr Ullah with scrupulous fairness.

55    Mr Ullah submitted that the conduct of the solicitors and counsel for OM Security and Meriton in applying for costs orders against him amounted to unsatisfactory professional behaviour because he was a self-represented litigant. That submission can also be dealt with shortly. While it may ultimately turn out to have been imprudent to seek costs orders against Mr Ullah as it has resulted in further litigation and further costs, there is no basis whatsoever for contending that it was unreasonable, or constituted unsatisfactory professional behaviour, for the solicitors, no doubt based on instructions from their clients, to seek costs orders against Mr Ullah in the circumstances of this case. A similar submission was advanced before the primary judge and summarily rejected.

56    It should finally be noted that, even if there was some basis for finding that the primary judge’s exercise of the discretion to award costs against Mr Ullah somehow miscarried, I am far from persuaded that it could be said that Mr Ullah would suffer a substantial injustice if leave to appeal was to be refused. As noted earlier, the Court must exercise caution and keep a tight rein upon the interference with orders of judges at first instance in the exercise of discretion, including in respect of the exercise of the discretion in respect of costs. If leave to appeal is refused, Mr Ullah will have to pay the costs orders which total $1,500. It may perhaps be accepted that $1,500 may be a significant sum of money for Mr Ullah. I entertain serious doubts, however, as to whether costs orders totalling $1,500 would warrant appellant intervention unless the primary judge’s exercise of discretion miscarried in such a serious way, or involved such a serious error of principle, that appellant intervention was warrant to set a precedent in relation to the relevant principles. That, on just about any view, is not this case.

CONCLUSION AND DISPOSITION

57    Mr Ullah’s application for leave to appeal the costs orders made by the primary judge must be dismissed. So too must OM Security’s notice of objection to competency and interlocutory application insofar as it concerns the application for leave to appeal the costs orders.

58    In its written submission, OM Security sought an order for costs pursuant to s 570 of the FW Act in respect of its notice of objection to competency and interlocutory application. That submission wisely was not pressed orally. For the reasons given earlier, the notice of objection to competency and interlocutory application were misconceived and the hearing proceeded on the basis that the issue was whether leave to appeal should be granted. While I have determined that leave to appeal should not be granted, I am not persuaded that s 570 of the FW Act is engaged and, in any event, the misconceived approach taken by OM Security would provide an ample basis for refusing to make a costs order in its favour in any event.

Associate:

Dated:    20 August 2026

SCHEDULE OF PARTIES