[2010] FWAFB 7124

Download Word Document



Fair Work Act 2009
s.604 - Appeal of decisions

Expanse Pty Limited t/as Expanse Search and Selection
Nathalie Mocsari



Appeal against decision [2010] FWA 3585 of Senior Deputy President Hamberger at Sydney on 17 May 2010 in matter number U2009/13374 - permission to appeal.

[1] Expanse Pty Limited, trading as Expanse Search and Selection (Expanse), has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against Senior Deputy President Hamberger’s decision of 17 May 2010 1 declining an application for costs under s.611 of the Act. The application for costs followed the Senior Deputy President’s decision of 24 March 20102 that Fair Work Australia lacked jurisdiction to deal with Ms Nathalie Mocsari’s application under s.394 of the Act for a remedy in relation to the termination of her employment with Expanse. The grounds of appeal and arguments advanced were various, but the matter on appeal is relatively clear.

[2] Section 611 of the Act relevantly provides:

[3] The jurisdictional question before the Senior Deputy President in the original matter was to be determined by answering the question of when the termination of Ms Mocsari’s employment occurred: before or after 1 July 2009, when the Act commenced operation.

[4] The chronology and facts are set out in the Senior Deputy President’s decision 3 and it is not necessary to restate them here. The Senior Deputy President determined that the termination of employment was before 1 July 2009 and that FWA lacked jurisdiction to deal with Ms Mocsari’s application. Accordingly, the Senior Deputy President dismissed Ms Mocsari’s s.394 application.4

[5] Senior Deputy President Hamberger decided the costs’ application as follows:

[6] Accordingly, his Honour said that “[t]he requirements of s.611 that must be met before a costs order can be made are not satisfied. The application for costs is therefore dismissed.” 6

[7] While his Honour’s decision on the s.611 application involved the exercise of discretion, in our view the Senior Deputy President’s decision was correct and none of the arguments put by Expanse in this case establish error in the exercise of that discretion. Nor in the circumstances, despite Expanse’s genuine sense of grievance, was an order under s.401 of the Act available.

[8] Expanse’s response to Ms Mocsari’s unfair dismissal application and its conduct of the matter confirmed that it was arguable at all relevant times that Ms Mocsari’s employment was terminated after 1 July 2009.

[9] Ms Mocsari sent Expanse a letter of resignation on 20 October 2009 and lodged an unfair dismissal application on 29 October 2009, stating:

[10] On 3 November 2009 Fair Work Australia listed a conciliation conference. Expanse’s solicitor wrote on 10 November 2009 to Ms Mocsari’s solicitor. The letter included:

[11] Expanse filed with Fair Work Australia on 17 November 2009 a written response to Ms Mocsari’s application. It stated as follows:

[12] Conciliation on 18 November 2009 was unsuccessful and on 21 December 2009, Fair Work Australia listed the application for hearing on 1 March 2010 and issued directions for the filing of materials by 15 February 2010. Ms Mocsari filed her materials on 2 February 2010 and Expanse on 23 February 2010, 6 days before the hearing. The covering letter from Expanse’s solicitor raised “a jurisdictional objection to the applicant’s claim” and amended its previous response as follows:

[13] Filing of Expanse’s material on 23 February 2010 followed email correspondence between the respective solicitors on 17 and 18 February 2010, exploring settlement or further conciliation options in view of Expanse’s intention to raise the jurisdictional objection. In an email on the afternoon of 17 February 2010, Expanse’s solicitor stated that, “Your client is obviously entitled to take issue with our client’s jurisdictional argument. That issue will of course be ventilated in due course.”

[14] There was some issue before us as to whether we should consider permission to appeal under s.400 or s.604 of the Act. That issue is of no consequence because considering everything before us in this case and there being no error in the Senior Deputy President’s dismissal of the costs’ application, we see no public interest or other grounds justifying or requiring the Full Bench to grant permission to appeal. We decline to do so.

[15] The appeal is dismissed.



M. Stevens of counsel for Nathalie Mocsari.

J. Iquierdo for Expanse Pty Ltd t/as Expanse Search and Selection.

Hearing details:

August, 24.


 1  [2010] FWA 3585.

 2   [2010] FWA 2138.

 3   Ibid.

 4   Ibid, para 33.

 5   [2010] FWA 3585, para 7.

 6   Ibid, para 8.

Printed by authority of the Commonwealth Government Printer

<Price code A,  PR501620>