Federal Court of Australia

Raghib v Stantec Australia (Costs) [2026] FCA 1415

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $45,000.

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

REASONS FOR JUDGMENT

Ex tempore, revised

WHEELAHAN J:

1    On 15 September 2026, I dismissed an application for judicial review brought by the applicant in relation to two decisions of the Fair Work Commission: Raghib v Stantec Australia Pty Ltd (Final hearing) [2026] FCA 1354 (J).

2    Upon delivery of judgment, the first respondent (Stantec) made an application for costs. I made orders providing for the parties to file submissions on the question of costs and listed the matter for a further hearing. Stantec sought an order for costs on an indemnity basis assessed in a lump sum of $84,345, excluding GST. Alternatively, Stantec sought an order for party-party costs assessed in the lump sum of $56,230, excluding GST.

3    In support of its application for costs, Stantec sought to establish the exceptions in ss 570(2)(a) and (b) of the Fair Work Act 2009 (Cth) (FW Act), which delimit the Court’s power to award costs in matters brought under the Act.

4    The quantification of Stantec’s costs was supported by an affidavit of Mr Andrew Cardell-Ree affirmed 17 September 2026. This affidavit purported to address the requirements of Annexure A to the Costs Practice Note (GPN-COSTS). The contents of this affidavit were the subject of submissions made by the applicant who identified anomalies in the calculations.

5    Stantec sought to read a second affidavit of Mr Cardell-Ree affirmed 24 September 2026 which purported to address the anomalies in the calculations. The applicant objected to this affidavit on the ground that it was served on the morning of the hearing and that it materially revised Stantec’s evidence as to hourly rates to which the applicant had not had a fair opportunity to test or respond.

6    I accepted the applicant’s submissions and did not allow the second affidavit to be read. There was no application by either party for an adjournment of the hearing.

Legal principles

7    Section 570 of the FW Act provides –

(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.

(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.

8    Section 570 is a limitation on the Court’s power to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth). The principles relevant to determining whether the circumstances in s 570(2) exist were identified by the Full Court in Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; 232 FCR 428 (Leighton) at [7] (Dowsett, McKerracher and Katzmann JJ) –

(1)    The purpose or policy of the section is to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause.

(2)    It follows from the protection offered by s 570(2) that a person will rarely be ordered to pay the costs of a proceeding. But it is not necessary to prove that there are exceptional circumstances warranting the making of an order: Spotless Services Australia Ltd v Senior Deputy President Marsh [2004] FCAFC 155 (Spotless) at [12]-[13] (to the extent that the Full Court in Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 (Kangan) held otherwise, we would respectfully disagree).

(3)    The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J; Kangan at [60]. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264-265 (approved in Kangan) Wilcox J said:

If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.

9    As the Full Court emphasised, these principles relate only to the question of whether the Court’s jurisdiction to award costs is enlivened. The Court retains its discretion to decide whether to exercise the power where it has arisen: Leighton at [8].

10    The word “unreasonable” in s 570(2)(b) is not capable of precise definition and is “inherently sensitive to context”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36 at [18] (Flick, Reeves and O’Callaghan JJ), citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [59] (Gageler J). Whether an act or omission is properly to be characterised as “unreasonable” therefore depends on the particular circumstances of the case.

Stantec’s submissions

11    Stantec submitted that the Court should be satisfied for the purposes of s 570(2)(a) of the FW Act that the applicant instituted the proceedings vexatiously or without reasonable cause. Stantec submitted that the applicant raised no tenable ground of review or arguable case of jurisdictional error in either his original or amended originating application and his claim was therefore bound to fail. Alternatively, Stantec submitted that the Court should be satisfied for the purposes of s 570(2)(b) of the FW Act that the applicant caused Stantec to incur costs by his unreasonable acts or omissions.

12    Stantec’s application was supported by an affidavit of Mr Cardell-Ree which, as I have mentioned, provided a lump sum estimate of Stantec’s costs, and an affidavit of Mr Thomas Cockburn affirmed 17 September 2026, which set out some of the procedural history of the matter and annexed some of the correspondence between Stantec’s solicitors and the applicant. The correspondence included a letter dated Friday 20 June 2025 inviting the applicant to withdraw his claim before the Commission with no order as to costs on the basis that it was without merit. The applicant responded refusing the offer on the following Monday. The correspondence also demonstrates that Stantec’s solicitors were put to considerable time and effort in bringing the matter to a hearing, including responding to numerous emails seeking, for example, to include duplicate copies of documents already contained in the court book.

The applicant’s submissions

13    The applicant submitted that the Court should not be satisfied that either of the circumstances in ss 570(2)(a) and (b) exist.

14    In relation to s 570(2)(a), the applicant cited authorities which warn against “outcome-based costs reasoning” and submitted that the Court should not find that the proceedings were instituted vexatiously or without reasonable cause merely because of adverse findings made against him.

15    In relation to s 570(2)(b), the applicant addressed the conduct alleged by Stantec to be unreasonable. First, the applicant submitted that his amendments to his originating application were required to regularise the proceeding because he had filed his originating application in the wrong form. Secondly, the applicant submitted that he made only six attempts to correct or supplement the court book between 19 May and 25 June 2026, all of which were reasonable corrections. Thirdly, the applicant submitted that he did not act unreasonably in causing the subpoena to be issued. He submitted that the Australian Government Solicitor had referred him to the subpoena process after informing him that the Commission would not release the audio unless required to do so by the Court, that he had narrowed the request before the subpoena issued, and that the subpoena was set aside only for want of a legitimate forensic purpose and not on any finding that the material was privileged.

16    The applicant made further submissions directed to Stantec’s estimate of its costs. First, the applicant submitted that the cost estimate double counted the costs associated with counsel preparing for the substantive hearing because those preparations were only required after Stantec’s first choice of counsel became unavailable. Secondly, and as I have mentioned, the applicant identified defects in Stantec’s calculations, including that the costs claimed could not be reconciled with the Court’s scale of costs in Sch 3 of the Federal Court Rules 2011 (Cth).

17    Finally, the applicant submitted that an award of costs against him would cause financial hardship and had a punitive element.

Consideration

Power to award costs

18    I am satisfied that the exceptions relied on by Stantec in s 570(2)(a) and (b) of the FW Act are engaged and the Court therefore has power to award costs.

19    As I observed at J [41], the applicant’s case was incoherent in many respects. There was a lack of correspondence between the matters raised before the Full Bench of the Commission and in this Court. This had the consequence that in many instances the applicant’s grounds were bound to fail because they raised matters that were not put before the Commission and therefore could not be said to give rise to a jurisdictional error: see, eg, J [48], [69]. There was also a lack of correspondence between the applicant’s grounds of review, his affidavits, and his written and oral submissions both in this Court and in the proceeding before the Commission which had the consequence that the Court had to discern the applicant’s case from multiple conflicting documents.

20    In some respects, this was an exercise in futility as there were many components of the applicant’s claims that were difficult to follow. They contained apparent hallucinations, including occasions where the applicant made reference to written submissions that did not exist (see, eg, J [47]) and confused fundamental aspects of his grounds of review (see, eg, J [46] and J [91]). The applicant stated at the hearing of the matter that he had used artificial intelligence, but only to check the grammar and spelling of documents he otherwise prepared. In my view, there is a likelihood that some of the anomalies in the applicant’s filed documents were the product of the indiscriminate use of artificial intelligence. To the extent that they were coherently articulated, the applicant’s grounds of review lacked merit. As I have said above, in many instances they were bound to fail because they raised matters not argued in the proceedings in the Commission. In some instances, they encountered insurmountable and foreseeable obstacles to their success. An example of this is the objective evidence undermining the applicant’s challenge to the authenticity of one of the complaints levelled against him by a former colleague on the basis of a screenshot of the file properties of a document summarising the complaint, which had been clearly considered by the Commission: J [74]–[76].

21    A further example is the applicant’s claim that he was not afforded procedural fairness in relation to certain phone records mentioned by counsel for Stantec at the original hearing before the Deputy President. Notwithstanding that this evidence was never tendered, the applicant maintained a claim that he ought to have been given an opportunity to challenge it, and in particular to counter the claim that a certain phone number was his personal number and not a work number. But the applicant accepted that the Deputy President never received the phone records and that his reasons correctly distinguished the applicant’s personal and work phone numbers. More importantly, this ground of review was directed towards resisting findings based upon objective evidence of the applicant’s “cynical fabrication” of a text message designed to undermine one of the complainants which was also informed by the Commission’s assessment of witness credibility: J [14], [70]. This ground of review was therefore bound to fail.

22    Notwithstanding these fundamental defects, the applicant caused a subpoena to be issued to the transcript provider to obtain the audio of the adjournment which followed Stantec’s indication that it would seek to tender this evidence. I directed the Registry not to accept the applicant’s first draft subpoena because it was on its face an abuse of process: Raghib v Stantec Australia Pty Ltd (Return of subpoena) [2026] FCA 1322 at [12] (SJ). I subsequently granted leave for a more constrained version of the subpoena to issue. Upon the return of subpoena, I held that the subpoena had no legitimate forensic purpose in circumstances where the applicant no longer alleged that the Deputy President had returned to the bench in his absence: SJ [25]. The fact that the Australian Government Solicitor had referred the applicant to the subpoena process did not make reasonable the applicant’s attempts to call on a subpoena which sought documents with no legitimate forensic purpose, against the background of a draft subpoena in much broader terms that was rejected as an abuse of process.

23    For the above reasons, which are to be read together with my reasons for dismissing the proceeding, this proceeding was always doomed to fail because it lacked merit, and I am comfortably satisfied that the applicant instituted the proceeding without reasonable cause.

24    As to the discretion to award costs, while the applicant is self-represented, this is not a privilege which immunises him from the consequences of his actions. In Gallo v Dawson (1990) 93 ALR 479 at 481 McHugh J observed that “[l]ack of legal knowledge is a misfortune, not a privilege”. The applicant was employed by Stantec in a professional human resources position and presented at the hearings as articulate and capable of understanding the Court’s processes. I have taken this into account in exercising the Court’s discretion to make a costs order. It fortifies my conclusion that in the exercise of the Court’s discretion costs should follow the event.

25    Further, the claimed financial hardship on which the applicant relied is not a reason to refrain from ordering costs. Apart from anything else, there is no reliable evidence of the applicant’s financial position before the Court. Moreover, costs ordinarily follow the event. The purposes of a costs order include indemnifying the successful party. A successful litigant should not ordinarily be deprived of costs absent some proper basis for doing so, and the mere impecuniosity or limited means of the unsuccessful party is generally not such a basis: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164.

Quantum of costs

26    Stantec sought costs fixed in a lump sum on an indemnity basis. The principles which apply to the discretion to award costs on an indemnity basis under s 43(3)(g) of the Federal Court of Australia Act were summarised in Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 156–157 (Cooper and Merkel JJ) –

(a)     the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course;

(b)     the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the Court in departing from the usual course;

(c)     whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis.

27    I am not satisfied that the justice of this case requires a departure from the usual course of awarding costs on a party and party basis. Notwithstanding the criticisms that I have made of the applicant’s conduct of the case, he agreed to and generally complied with the timetable for the conduct of this litigation, and the limitations that I set for his evidence and submissions such that the matter could be brought on for hearing and be heard. In coming to this view, I have also had regard to the object of s 570 of the FW Act in facilitating access to justice: Leighton at [7].

28    The Costs Practice Note (GPN-COSTS) at [3.1] provides that determining the quantum of costs for a party successful at a final hearing should not be delayed and should be as inexpensive and efficient as possible. I will give effect to the overarching purpose under s 37M of the Federal Court of Australia Act and the principle in [3.1] of GPN-COSTS by fixing the first respondent’s costs on a party and party basis in a lump sum. Fixing costs will avoid further disputation and the consumption of Court time and will have the effect of bringing the proceeding to an end. I will take a similar course to that which I took in Thomas v University of Melbourne (No 5) [2020] FCA 534 at [43] which is to take a broad-brush but conservative approach to fixing the first respondent’s costs having regard to my familiarity with the proceeding.

29    Stantec quantified its solicitor and own client costs in the sum of $112,460.37 exclusive of GST. In response, the applicant did not claim that that sum was overstated but identified several internal inconsistencies in Mr Cardell-Ree’s calculations. The applicant submitted that the hours and hourly rates deposed to by Mr Cardell-Ree, when multiplied out, produced a figure materially greater than the sum stated in the same affidavit for Stantec’s solicitors’ fees, and that the discrepancy was not reconciled. He submitted that Stantec had also acknowledged that the amounts claimed fell outside the Court’s scale of costs and submitted that a single lawyer’s rate could not simply be applied across work of a kind for which the scale provided a lower allowance where the attendance is capable of performance by a law graduate or articled clerk, absent identification of the relevant task classification. The applicant submitted that the discrepancy and the absence of any task-level reconciliation undermined the total that was asserted.

30    It is an unfortunate state of affairs that there are errors in Mr Cardell-Ree’s calculations. If I were assessing costs on an indemnity basis, then the errors in Mr Cardell-Ree’s affidavit might be significant to the reliability of Stantec’s claim for costs. However, they are of less moment to an assessment of costs on a party and party basis, although I will take account of them.

31    I accept that Stantec incurred substantial costs in corresponding with the applicant, preparing the court book, preparing affidavit material, preparing for and appearing at the return of the applicant’s interlocutory application on 23 July 2026, preparing initial submissions which became redundant upon the applicant filing an amended originating application, preparing for and appearing at the interlocutory hearing on 4 September 2026 upon the return of the subpoena, and in preparing for and appearing at the final hearing of the proceeding together with other sundry work that was reasonable to undertake. Those costs were likely on the higher side as a result of the way in which the applicant’s case was presented and the volume of correspondence that took place.

32    However, even taking into account the burden imposed by the way in which the applicant’s case was presented, I consider that the costs quantified on behalf of Stantec on a solicitor and own client basis are on the high side if they are measured against the criteria for party and party costs. For example, Stantec claims on a solicitor and own client basis $6,500 in solicitor costs in relation to the subpoena that was set aside. This comprises 5.4 hours of partner time and 13.6 hours of lawyer time. On its face, this is a large amount of time spent on a relatively discrete issue. In relation to the final hearing, Stantec was represented by experienced counsel. A question arises as to whether on a party and party basis it was reasonable to have two instructing solicitors, except to the extent that Mr Cockburn was required to attend at least part of the hearing in case he was required for cross-examination.

33    The applicant advanced submissions in relation to the quantum of counsel’s fees which appear to have some degree of merit. It is no criticism of counsel who appeared at the hearing that he had to read into the brief and that this might have resulted in the duplication of preparation already undertaken by counsel originally retained who became unavailable. However, on a party and party assessment of costs, the additional cost of new counsel reading into the brief would usually be regarded as a solicitor-client cost.

34    In addition, on a taxation, costs on a party and party basis would be assessed by reference to the Court’s scale of costs. This might result in reductions in some allowances, but on the other hand it might result in an additional allowance for skill, care and responsibility.

35    All the above contingencies are addressed by the fact that Stantec claims party and party costs in the sum of $56,230, which is a 50% reduction of its solicitor and own client costs. This reduction accommodates the lower level of costs that would be allowed if they were the subject of a party and party taxation and is a starting point for my own broad-brush lump sum assessment.

36    Owing to the errors in the affidavit of Mr Cardell-Ree, I will make a further and substantial reduction to accommodate the risk that there are aspects of his evidence that are not reliable. Doing the best I can, I will assess Stantec’s costs of the proceeding in the lump sum of $45,000 exclusive of GST. This sum is intended to be a modest assessment of Stantec’s party and party costs which reflects the unreliable aspects of the evidence that Stantec adduced. In addition, in the applicant’s favour my assessment of costs does not include the costs of and incidental to Stantec’s application for costs which did not form part of Stantec’s costs calculations. This has the practical effect that Stantec bears its own costs of that component of the proceeding to reflect the fact that there were errors in Stantec’s evidence that had to be corrected. The applicant should not be liable for the costs in relation to that evidence.

Associate:

Dated:    24 September 2026