Federal Court of Australia

Bilal v Ampol Australia Petroleum Pty Ltd (No 2) [2026] FCA 1704

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application lodged on 5 November 2026 is dismissed.

2.    No further document lodged by a party in this proceeding is to be accepted for filing other than at the direction of the Court.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant has filed an interlocutory application to set aside an order of the Court made on 29 October 2026 and entered on 30 October 2026 (Costs Order), together with ancillary and consequential relief.

2    The Costs Order (as amended) was as follows:

2.    The applicant is to pay:

(a)    $1,728 in respect of costs arising from and related to the case management hearing on 11 August 2026, from and including 5 August 2026; and

(b)    $3,000 in respect of costs orders for the respondent’s application for the order in paragraph 2(a) of these orders.

3    Oral reasons for the Costs Order were delivered and the parties have been provided with a written record of the reasons by the provision of transcript.

4    The applicant relied on the following materials in support of the present interlocutory application:

(1)    a letter to the District Registrar;

(2)    an affidavit affirmed on 5 November 2026;

(3)    written submissions; and

(4)    a list of authorities.

5    The Court has the power to grant the relief sought: Federal Court Rules 2011 (Cth), r 39.04(2). The application is made within the time specified in that rule. See also r 39.05(c).

6    At the applicant’s request, the application is now determined on the papers.

7    The Costs Order was made on the respondent’s application, supported by an affidavit. There is no suggestion that those documents were not promptly served. The costs application was heard on 29 October 2026, more than two months after it was filed.

8    Annexed to the respondent’s supporting affidavit is a letter from the respondent to the applicant dated 17 August 2026 notifying him of the respondent’s proposed reliance on s 570 of the Fair Work Act 2009 (Cth) (FW Act) and providing a detailed explanation of the factual matters upon which it would rely. Prior to the hearing, the applicant had sufficient time to read the affidavit and to consider his position not only in respect of the imposition of the liability to pay costs and the basis for such an order under s 570 of the FW Act, but also as to quantum.

9    In advance of the hearing of the costs application, the parties were advised that the Court would hear oral submissions from the applicant in opposition to it. In addition, the applicant had the opportunity to put on written submissions in opposition to the application but did not do so.

10    Against that background, I decline to exercise the discretion to reconsider the Costs Order.

11    The applicant seeks to raise arguments that were either raised at the hearing of the costs application or that could have been raised at that time. Among other things, he complains that the respondent was invited to make oral submissions in support of the costs application in circumstances where the Court’s email correspondence indicated that oral submissions would only be invited from him. The applicant suffered no material disadvantage by the Court’s process in hearing from the respondent for two reasons. First, the respondent’s oral submissions in large part constituted an exchange with the Court in which I indicated my unwillingness to grant some of the relief sought and invited the respondent to persuade me in relation to those matters. The respondent’s oral submissions were otherwise directed to the same issues that had been foreshadowed in the affidavit and in the correspondence provided to the applicant well in advance of the hearing.

12    The applicant also complains that the Court decided an application different to the application made or foreshadowed by the respondent, principally because the respondent’s costs application did not on its face refer to s 570 of the FW Act but rather referred to the Court’s general power to award costs. Given the content of the respondent’s supporting affidavit, I do not consider the applicant could have reasonably apprehended that s 570 would not be relied upon. The applicant in fact advanced submissions relating to s 570 of the FW Act at some length at the hearing.

13    The applicant also submits that he was disadvantaged by the Court’s finding that his conduct at a prior hearing was inappropriate and wasteful of the respondent’s resources because he was not on notice that such a finding may be made. I do not accept that submission. The respondent’s correspondence sent to the applicant in advance of the hearing (and annexed to its supporting affidavit) set out in detail the aspects of the applicant’s behaviour in this proceeding relied upon in support of the Costs Order. Similar issues arose on an application that the applicant himself had made to set aside an order dismissing this proceeding because of his non-attendance at a hearing relating to an appeal: see Bilal v Ampol Australia Petroleum Pty Ltd [2026] FCA 1382. The applicant was given an opportunity to explain his behaviour and the Court did not accept that explanation. There is no basis to revisit those questions now.

14    The Court exercised its discretion to order costs quantified in a lump sum. The Court should not now entertain new submissions complaining of components of the sum as if on a taxation. The total lump sum remains an appropriate outcome of the Court’s discretion, howsoever it is reached.

15    As to [2(b)] of the Costs Order, as previously explained to the applicant, that sum was awarded because to deny the respondent its costs of bringing the costs application and attending at the hearing would render the order in [2(a)] inutile. The discretion to avoid that result is an incident of the power conferred under s 570 of the FW Act. To conclude otherwise would be to denude s 570 of its compensatory purpose.

16    The judicial and administrative resources of the Court should not be diverted to the reconsideration of issues following a hearing at which the parties were afforded an opportunity to be heard, irrespective of the possibility that a different outcome might be reached based on the same or additional materials.

17    Prior to determining the present interlocutory application, I made an order that it not be served on the respondent other than with the leave of the Court. The respondent has not been heard as its interests will not be affected by the outcome. I do not consider it to be in the interests of justice to have the respondent incur yet further costs in this proceeding defending a further unmeritorious application.

18    As I have previously mentioned in prior judgments, this proceeding was an application for leave to appeal from an interlocutory order of the primary judge related to matters of practice and procedure, specifically discovery. This appellate proceeding should not become a vehicle for further delay in the final resolution of the substantive controversy. Accordingly, in the interests of finality, there will now be an order directing the Registrar not to accept any further document for filing in this action by either party, other than in accordance with a direction of the Court.

Associate:

Dated:    11 November 2026