Where a proceeding challenges an order of a superior court rather than underlying Fair Work Act rights, it is arguable that s 570 of the Fair Work Act 2009 (Cth) does not apply to restrict costs orders. The question of whether proceedings were instituted vexatiously or without reasonable cause under s 570 is best determined at the conclusion of the proceeding rather than at an interlocutory stage. Where each party has a measure of success on appeal, no order as to costs may be appropriate.
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