The Court synthesised the principles governing the special costs regime under s 570 of the Fair Work Act 2009 (Cth), confirming that a relatively strict standard of unreasonableness applies under s 570(2)(b) and that the discretion is to be exercised cautiously. Contesting novel and difficult legal issues, even unsuccessfully, does not constitute unreasonable conduct. However, bringing interlocutory applications that are irrelevant to the issues on appeal or have no conceivable basis will constitute unreasonable acts. Even where the discretion is enlivened, the court may decline to make a costs order where the overall 'no costs' environment of s 570 has already operated in favour of the party seeking costs.
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