[2011] FWA 6115 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sharlene Lindsay
v
Department of Finance and Deregulation
(U2010/13120)
COMMISSIONER WILLIAMS |
PERTH, 9 SEPTEMBER 2011 |
Application for costs.
[1] This matter involves an application made by Ms Sharlene Lindsay and is an application for costs. The Respondent is the Commonwealth of Australia represented by the Department of Finance and Deregulation. This costs application was made on 29 July 2011.
[2] The application follows the handing down of a decision of Fair Work Australia on 14 July 2011 1 whereby Ms Lindsay was successful in an application for an unfair dismissal remedy and the Respondent was ordered to pay her compensation.
[3] Having received this application for costs I wrote to the parties explaining that the application appears to have been made under section 402 the Fair Work Act 2009 (the Act) for an order to be issued under section 611 of the Act.
[4] These sections of the legislation are set out below:
402 Applications for costs orders
An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:
(a) FWA determines the matter; or
(b) the matter is discontinued.
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(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.
Note: FWA can also order costs under sections 376, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).
[5] In my correspondence to the parties I noted that section 402 says that an application for an order for costs must be made within 14 days after Fair Work Australia determines the matter. The decision and order that determined the matter was issued on 14 July 2011 and therefore to comply with section 402 a costs application must have been made on or before 28 July 2011.
[6] The parties were directed to provide written submissions on the question of whether or not the costs application was validly made and whether it can be considered further by Fair Work Australia or not.
[7] Both parties have provided submissions in response to these directions.
[8] The Applicant has not provided any submissions as to whether the application was validly made; rather she has provided an explanation as to why the costs application was made one day late.
[9] The Respondent objects to the application and submits that the costs application is not validly made because it is out of time and therefore Fair Work Australia does not have jurisdiction to determine the application.
Consideration
[10] The wording in section 402 is unambiguous. An application for a costs order under section 611 must be made within 14 days after Fair Work Australia determines the matter or the matter has been discontinued.
[11] Section 402 can be contrasted with other sections of the Act which also require applicants to make particular applications within specified time frames such as section 366, section 394 and section 774. Each of these provisions states that an application under that section must be made within a specified number of days; or
“(b) within such further period as FWA allows under subsection (2).”
[12] No similar provision allowing from extension of time to be granted is included in section 402. There is no specific power for Fair Work Australia to allow a further period within which to make an application for an order for costs under section 611 where that costs application has not been made within 14 days after Fair Work Australia determined the matter.
[13] Separately I am satisfied that there is no general power within the Act for Fair Work Australia to extend time for making an application such as this where the application has not been made in accordance with the statutory time limits.
[14] In this instance Fair Work Australia determined the matter between the parties, being Ms Lindsay's application for an unfair dismissal remedy, on 14 July 2011. Consequently making a valid application for an order for costs under section 611 is conditional 2 upon that application being made on or before 28 July 2011. This application was made on 29 July 2011 and so is not a valid application.
[15] There is no jurisdiction to determine Ms Lindsay's application for costs because it is not a valid application. This application will be dismissed and an order to that effect will issue in conjunction with this decision.
COMMISSIONER
2 see SDP Richards in Dean v Sybecca Pty Ltd at para 31
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