They are going to make “application for costs”
(2) However, FWA may order a person (the first person ) to bear some or all of the costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
I wonder which part they believe is applicable?
Court has to issue the order for costs and you have to agree to them. Costs have to be reasonable and can’t be punitive.
“bear some or all of the costs”
They are relying on this:
FAIR WORK ACT 2009 (NO. 28, 2009) – SECT 570
Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction 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.
Note: The Commonwealth might be ordered to pay costs under section 569.
(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 FWA;
(ii) the matter arose from the same facts as the proceedings.
So given that they have signalled their attack you would prepare your objections. why you claim is not vexatious. Why it is not without reasonable cause e.g. your injury or your standing.
Why you did not commit an unreasonable act or you omitted to do or say something? <- this might conceivably be claimed by them, that because you did not withdraw your action/claim in the given time you’re omission to do so cause them an injury/cost. That is kind of the feeling I get from their letter.. .because they say… we will rely on this correspondence in our application for costs.
you would prepare this ahead of time, in writing, simple and to the point so that you can hand it over – copy of and you can easily read it out without stumbling or fumbling when under pressure in the moment. Being prepared will enable you to stay calm and on topic and express yourself clearly which will help alot. Check if there is a form for objections and such. I don’t know if there is.
We should look to see if there are any case law outcomes that demonstrate why a court have previously not granted such orders which may be similar to your situation which you can raise as well.