[2011] FWA 4229

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jason O'Reilly
SA Waste Management Pty Ltd



Application for security for payment of costs.

Contextual facts

[1] This is an application made pursuant to s.404 of the Fair Work Act 2009 (the Act) and Rule 16 of the Fair Work Australia Rules 2010 (the Rules) for an order directing Mr O’Reilly to furnish security for payment of costs to the quantum of $5000 in relation to his application for an unfair dismissal remedy (the substantive application).

[2] The application for security for payment of costs is made by SA Waste Management Pty Ltd, the respondent in the above substantive application.

[3] The application for unfair dismissal remedy was filed on 29 November 2010. A conciliation conference was held on 22 December 2010 but the matter was not resolved. The matter was listed for determination on 11 and 12 April 2011 with relevant directions issued to the parties.

[4] Those directions were not complied with by Mr O’Reilly and consequently a directions conference was held by Drake SDP on 10 March 2011. Further directions were issued to the parties on that date.

[5] Mr O’Reilly again failed to comply with those directions and the respondent employer applied for a further directions conference on procedure and an application for costs pursuant to s.611 of the Act. The respondent then lodged an application for security of costs pursuant to s.404 of the Act.

[6] A directions conference was held by Acton SDP on 25 March 2011. Mr O’Reilly did not attend the conference.

[7] The matter remained set down for hearing on 11 and 12 April 2011. Acton SDP directed that the respondent be relieved of attending on these dates and in the provision of further documentation.

[8] The applicant filed late submissions with Fair Work Australia (FWA) that day, being 25 March 2011.

[9] Subsequently the above hearing dates were vacated and the matters were listed for directions on 20 April 2011 by the tribunal as presently constituted. Both parties attended that directions conference and I directed the application for security of costs would proceed.

[10] That hearing was held on 23 June 2011. Mr O’Reilly did not attend or provide documentation nor provide any notice as to his absence. He did contact my Associate by telephone on the previous day and advised he was unlikely to be attending due to work. Subsequent to the hearing Mr O’Reilly has left a message on my chambers voicemail after the hearing to the effect he is in negotiations and would not be attending.

[11] Section 404 of the Act and Rule 16 of the Rules provide a discretion for FWA to make an order for security of costs such that a party is able to enforce an order for costs made in its favour at or consequent to a trial where the other party fails in those proceedings. In these matters the employer will, subject to successfully defending the unfair dismissal application, seek costs against Mr O’Reilly and subject to a decision in its favour will be able to secure those costs up to the amount they seek of $5000.

[12] In support of its application the respondent relied upon various precedent decisions of this tribunal and of other courts. Those decisions reflected other grounds for consideration of these forms of applications for costs, notably the following reference:

[13] The respondent went on to assert the conduct of the applicant should be considered to be vexatious and that he has shown disregard for the process of this matter. The applicant was given various times to comply with directions. Despite having an extensive period to prepare for this matter the applicant informed the respondent of his intended non-attendance only in late afternoon of the day before the hearing. The respondent asserts the applicant should be considered to be unreliable and further proceedings are likely to be similarly affected with resultant costs for the parties and the community.

[14] The respondent provided submissions on the merits of the applicant’s case and the nature of his dismissal. They further informed the tribunal as to their present costs and sought a costs surety of $5000 against the applicant. The respondent also sought in the circumstance that the applicant’s substantive application be struck out by the tribunal.

[15] The tribunal is satisfied the applicant had a significant period to prepare for this hearing and his circumstances had been considered within that program. Given the non-attendance of the applicant and the information available as to his reasons for such non-attendance, the applicant’s case remains silent on these matters.

[16] The tribunal, taking into account all the available information and submissions of the respondent has formed a view that it is proper to make the order for security for payment of costs as sought by the respondent. I shall make the order sought by the respondent.

[17] The applicant’s unfair dismissal application will be adjourned until such time as the security for payment of costs is provided. If Mr O’Reilly withdraws the matter within 14 days of this decision the order will be revoked. If he does not and the matter remains adjourned for a period of three calendar months from the date of the order, the application will be dismissed pursuant to ss.587(2) and (3) of the Act and in the public interest.



No appearance for the applicant

Mr M Donald with Mr R Valentini for the respondent

Hearing details:



23 June

 1   Harris v Home Theatre Group Pty Ltd t/as Home Theatre Group [2011] FWA 2910 at para 21

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