[2011] FWA 5070

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Fair Work Act 2009
s.611 - Application for costs

Craig Keogh
P & R Mitchell Contractors (Vic) Pty Ltd



Application for costs.

[1] This is an application made pursuant to section 611 of the Fair Work Act 2009 (FW Act) by Mr Craig Keogh (the Applicant) for costs against P&R Mitchell Contractors (Vic) Pty Ltd (the Respondent) in relation to an extension of time hearing held on 15 July 2011.

[2] On 31 March 2011 the Applicant made an application for an unfair dismissal remedy pursuant to section 394 of the FW Act.

[3] In its response filed with the Tribunal, the Respondent advised that the date of the Applicant’s dismissal was 1 February 2011 and that the dismissal took effect on 10 February 2011.

[4] The application was referred for conciliation on 5 May 2011 and it was not able to be resolved.

[5] The application was listed for an extension of time hearing on 8 July 2011. This hearing was subsequently adjourned at the employer’s request to 15 July 2011.

[6] At the hearing Mr Raoul Wainwright from the Construction Forestry Mining and Energy Union (CFMEU) appeared for the Applicant and Mr Bronius Zumeris, a legal practitioner, was granted permission to appear for the Respondent.

[7] The Applicant gave evidence on his own behalf and was cross examined. No witnesses were called by the Respondent.

[8] The factual dispute between the parties was whether the Applicant was given written notice of the termination of his employment on 1 February 2011 or if notice of the termination of his employment was given to an organiser from the CFMEU on 11 February 2011. The Applicant contended that he was notified of the termination of his employment on 30 March 2011 when the Respondent’s solicitors advised Mr Wainwright that the Applicant had been made redundant on 10 February 2011.

[9] On 15 July 2011, after hearing from the parties, I made the following decision in transcript:

[10] I further determined, that had it been necessary, I would have granted an extension of time for the lodgement of the Applicant’s application.

The extension of time application

[11] In the F3 form filed by the Respondent in response to the Applicant’s application, no jurisdictional objection to the application was raised by the Respondent.

[12] It appears that the question of whether the application was made out of time was raised by a member of the unfair dismissals team in May 2011. On 23 May 2011 an email was forwarded by a member of the unfair dismissals team to the Respondent’s solicitor and the Respondent was asked to confirm the correct date of dismissal and asked, if the application was out of time, whether the Respondent consented to an extension of time being granted. No response was received from the Respondent and the matter was set down for an extension of time hearing.

[13] On 15 June 2011 the Applicant filed submissions and a witness statement in which he contended that no extension of time was necessary, but in the event that an extension of time was deemed to be necessary, he submitted that there were exceptional circumstances warranting the granting of an extension of time.

[14] The Respondent did not file any material in this matter. On 11 July 2011 contact was made by my associate with the solicitor for the Respondent advising that the Respondent had not complied with the directions made by Fair Work Australia. That correspondence advised the Respondent that if they did not file material by close of business on 11 July 2011 they would need leave to adduce any evidence at the hearing. Further contact was made on 12 July 2011. At no stage was Fair Work Australia advised that the submissions of the Applicant had not been received by the Respondent.

[15] At the hearing the Respondent submitted that the Applicant’s submissions and witness statement had not been provided to the Respondent or its solicitors. The Respondent submitted that the email address used by Mr Wainwright to serve the submissions and a witness statement was not the email address provided by the Respondent to Fair Work Australia.

[16] Mr Wainwright advised that he had sent the material to the email address of the Respondent provided in the notice of listing sent by Fair Work Australia. He further submitted that he properly served the material directly on the Respondent as the solicitors for the Respondent had not filed a notice of representation in accordance with the Fair Work Australia Rules.

[17] No-one from the Respondent attended the hearing apart from its solicitor. The Respondent sought an adjournment of the proceedings but that was refused. I did not consider that the Respondent was prejudiced by that refusal. The decision not to comply with the directions in circumstances where it had not received the Applicant’s material was made by the Respondent. While the Respondent had been advised by my associate that it would need leave to adduce evidence at the hearing, this advice put the Respondent on notice that it could call oral evidence at the hearing.

[18] At the hearing, a short adjournment was offered to enable a representative of the Respondent to attend the hearing but the Respondent did not avail itself of this opportunity. Mr Zumeris asked if his client could give evidence by conference call 1 and Mr Wainwright expressed a preference that the Respondent’s witnesses give evidence in person. He agreed that if the only way evidence could be given by the Respondent was by telephone, then he would not object.2 Despite this, no evidence was called by the Respondent.3

[19] At the conclusion of the hearing Mr Wainwright applied for costs. Submissions were filed on the question of costs by the Applicant and the Respondent in accordance with the directions given at the hearing. The parties agreed that this application could be dealt with on the papers.

The Applicant’s submissions

[20] Mr Wainwright submitted that the Respondent’s contention that the application was out of time was “vexatious and/or without reasonable cause and/or that it should have been reasonably apparent to the company that they had no reasonable prospects of success.” 4

[21] Mr Wainwright submitted that “it should have been reasonably apparent to the employer that there was no reasonable prospect of success in seeking to have the Application ruled to be out of time.” 5 It was submitted that “the point of time when that should have been apparent was on receipt of the Submissions on behalf of the Applicant on 16 June 2011.”6

[22] Mr Wainwright submitted that the statements made from the bar table on 15 July 2011 that the Applicant’s material had not been received should not be accepted and that the Tribunal should find that the Respondent did in fact receive the material and that “the employer made an informed decision to proceed with the out of time application and that they made a further decision to proceed whilst neglecting to provide submissions or evidence in the matter.” 7

[23] The Applicant seeks $833 costs.

The Respondent’s submissions

[24] The Respondent submitted that it was the failure of Mr Wainwright to serve the documents at the email address provided by the Respondent on the F3 or to serve them on the Respondent’s solicitors that prevented the Respondent from “making an informed decision regarding the application until the matter was heard.” 8 Further, the Respondent submitted that “in order to enliven the discretion of the Tribunal to award costs it is necessary for the Applicant to point to some form of improper conduct by the Respondent at the time of making the application.”9

[25] Section 611 of the FW Act provides Fair Work Australia with the power to award costs in certain circumstances:

[26] I am unable to agree with Mr Wainwright’s submissions that I should find that the Respondent did receive the material filed by Mr Wainwright.

[27] Mr Wainwright did not serve the material to the email address provided by the Respondent and did not provide a copy to the Respondent’s legal representative. The Respondent’s legal representative did not contact Mr Wainwright or Fair Work Australia when they did not receive the Applicant’s material nor did the Respondent’s legal representative advise my chambers, when enquiries were made by my chambers, about the Respondent’s failure to comply with the directions, that the Applicant had not provided any material. Given the failure of the Respondent to provide sworn evidence of the non receipt of the material a conclusion that the material was received by the Respondent is possible. However I am not prepared to find, without more, that the Respondent received the submissions and witness statement.

[28] Accepting that the Respondent did not receive the witness statement and the submissions of the Applicant, the failure of the Applicant to serve material in this case did not absolve the Respondent of its obligation to comply with the directions issued by Fair Work Australia.

[29] This is not a situation where the Respondent was not able to provide any evidence or submissions until it had seen the case put by the Applicant. The Respondent had, in its F3 form filed with Fair Work Australia, stated that the Applicant was notified of his dismissal on 1 February 2011. 10 It was this information that caused the extension of time hearing to be listed. This allegation was made by the Respondent and could have been deposed to even if the Applicant had not filed any material. Further it was put to the Applicant in cross examination that Mr Pitt, an organiser from the CFMEU, had attended the workplace on the Applicant’s behalf on 11 February 2011 and had been told that the Applicant had been made redundant in early February.11 Despite this, no evidence was filed with Fair Work Australia to that effect and no witnesses were called to put that evidence orally.

[30] It can only be inferred that the Respondent had no evidence to support its contention that the Applicant was notified of his termination on 1 February 2011 or knew about the termination of his employment on 11 February 2011. In those circumstances I find that it should have been reasonably apparent to the Respondent that its response to the Applicant’s application had no reasonable prospects of success. It should have known that if it did not put forward any evidence to support its allegation about the termination date that the Tribunal would find that the application was not out of time.

[31] The decision to award costs against a party is discretionary. I have decided that in the circumstances where a respondent alleges a date of dismissal, which if correct would mean that the unfair dismissal application was not lodged within 14 days, and then fails to provide Fair Work Australia with any evidence to support the allegation, an order that the Respondent pay the Applicant’s costs is warranted.

[32] However despite Mr Wainwright providing a schedule of costs there is insufficient evidence before me that established that the Applicant incurred any of the costs set out in schedule. Mr Wainwright has claimed for his time at $100 per hour. Mr Wainwright did not appear for the Applicant as a paid agent, he represented him in his capacity as a CFMEU representative. There is no evidence before me that the CFMEU charges their members for their time in these matters.

[33] Further even if the CFMEU is “another person” within the meaning of section 611(2) it is not clear to me that the CFMEU incurred costs as Mr Wainwright would have been paid in any event.

[34] The Fair Work Regulations 2009 at Schedule 3.1 sets the schedule of costs.

[35] In addition to the costs of the conferences, correspondence and attendance at the hearing the Applicant has claimed parking costs. The schedule of costs does not make provision for the payment of parking costs.

[36] If my conclusions about the costs able to be claimed is correct then while I have found that an order for costs should be made in these circumstances no order for costs would be made.

[37] Given this conclusion I will provide the Applicant with one week, from the date of this decision, to provide evidence of any enforceable agreement between himself and the CFMEU that requires the Applicant to make payments to the CFMEU for the amounts claimed in the schedule of costs. If no such evidence is provided, the application for costs will be dismissed.


 1   Ibid PN 55

 2   Ibid PN 70

 3   Ibid at PN 287

 4   Applicant’s submissions at [4]

 5   Ibid at [8]

 6   Ibid at [9]

 7   Ibid at [10]

 8   Respondent’s submissions at [14]

 9   Ibid at [16]

 10   Transcript PN 44-45

 11   Transcript PN 174 and 196

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