whether the exceptions in s 570(2) of the Fair Work Act 2009 (Cth) are engaged
the exceptions are engaged because the proceedings were instituted without reasonable cause and the applicant’s conduct caused the first respondent to incur costs unreasonably
Quick Take
1Under s 570(2)(a) of the Fair Work Act 2009 (Cth), a proceeding is instituted without reasonable cause where the applicant's grounds of review are bound to fail — including because they raise matters not argued before the Fair Work Commission and therefore incapable of establishing jurisdictional error — even where the applicant is self-represented.
2The indiscriminate use of artificial intelligence in preparing court documents that produces incoherent submissions, apparent hallucinations, and references to non-existent documents may contribute to a finding that proceedings were instituted without reasonable cause and that the applicant's conduct caused the respondent to incur costs unreasonably under s 570(2)(b).
3Where a respondent's costs evidence contains internal inconsistencies and errors, the court may accommodate the unreliability by making a substantial further reduction to the lump sum assessment rather than refusing costs altogether, and may also exclude the costs of the costs application itself as a practical consequence of the evidentiary deficiencies.
