[2011] FWAFB 6984

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Fair Work Act 2009
s.604—Appeal of decision

Adrian G Cremona (formerly trading as Frooty Fresh)
James Lane



Application for costs.

[1] This decision deals with an application for costs made by Mr Lane who seeks costs against his former employer, Mr Cremona, arising from an action commenced by Mr Lane on 13 October 2010 pursuant to s.394 of the Fair Work Act 2009 (the Act), and from a subsequent appeal made by Mr Cremona. The application has been referred to us for determination.


[2] Mr Lane’s application for an unfair dismissal remedy was made against Mr Cremona, trading as Frooty Fresh, The Heights Grocer. It was unable to be settled through conciliation and was referred to Commissioner Cambridge for arbitration. Mr Cremona, in his written response to the application for relief, asserted that the application was frivolous and vexatious and lacking in jurisdiction, and should be dismissed accordingly.

[3] From 3 November 2010 Mr Lane has been represented by Mr Moore of Brazel Moore Lawyers.

[4] The matter was listed for hearing on 21 January 2011. Mr Cremona failed to attend at that hearing. He did not provide an acceptable explanation for this non-attendance. The matter was relisted for 12 May 2011. Again, Mr Cremona did not attend that hearing. The hearing proceeded ex-parte and evidence in support of the application was provided to the Commissioner. At the conclusion of the hearing the Commissioner determined that the termination of Mr Lane’s employment was unfair. He reserved judgement on the quantum of compensation. At the conclusion of the hearing, Mr Moore raised the issue of costs to which the Commissioner responded:

[5] Commissioner Cambridge published his decision 2 on 24 May 2011. In that decision he summarised the background and confirmed his earlier finding that the termination of Mr Lane’s employment was harsh, unjust or unreasonable. Having considered the criteria in s.392 of the Act the Commissioner awarded 26 weeks’ pay as compensation. We note that the Order reflecting this decision was issued against The Heights Grocer trading as Frooty Fresh ABN 54824384378 rather than Mr Cremona. However, no appeal or complaint has been made to us in that respect. The Commissioner concluded his decision on the basis that:

[6] On 7 June 2011 Mr Cremona filed an appeal against the decision of Commissioner Cambridge and sought a stay against the order issued by the Commissioner. A stay was granted. The appeal was heard on 27 July 2011. On the appeal, Mr Cremona asserted that the Commissioner erred in not accepting that his reasons for not attending the hearing on 12 May 2011 were valid. He asserted that he was at that time, affected by a medical condition for which he had to be hospitalised. Whilst Mr Cremona provided to us various documents, they did not support his contentions.

[7] Mr Cremona also argued that his appeal should be upheld on the basis that he could not afford to pay the amount of compensation awarded to Mr Lane.

[8] At the conclusion of the appeal hearing on 26 July 2011 we provided oral reasons to the effect that we were not satisfied that Mr Cremona had demonstrated that there was error in the Commissioner’s approach or that it was in the public interest that permission to appeal should be granted. The appeal was dismissed.

[9] Mr Lane’s costs application was lodged on 1 August 2011. Costs are sought against Mr Cremona. The grounds for this application are:

[10] Clearly Mr Lane seeks costs with respect to both the determination of the matter at first instance and the appeal. Whilst the application does not indicate which section of the Act is relied upon, we have noted that Mr Cremona is, and has been, self represented in this matter from the outset and have concluded that s.611 provides the only basis upon which this application can be founded. This section states:

[11] Section 611 states:

[12] Section 402 imposes a timeframe within which an application for costs must be made. Section 402 states:

[13] On 15 August 2011 by written directions both parties were invited to provide us with written submissions. The directions made it clear that either party could object to this approach within a specified time.

[14] No objection was received. Written submissions have been received on behalf of Mr Lane but nothing has been received from Mr Cremona.

[15] Accordingly, we have considered the costs’ application on the basis of the information before us.

Costs with respect to the initial proceedings

[16] The Commissioner, in finding that Mr Lane had been unfairly dismissed and that he would afford a remedy, determined:

[17] Mr Lane asserts that the issue of costs was addressed in the course of the hearing before Cambridge C. Mr Lane’s submission is that:

[18] It is apparent that Mr Lane did not contend that an application for costs had been made within the time period allowed by s.402 of the Act.

[19] We do not accept his submission that the proceedings at first instance were not concluded until “such time as the appeal rights are finalised.” In the final paragraph of the Commissioner’s decision of 24 May 2011 we think he did no more than indicate his thinking should Mr Lane pursue a costs’ application. No further proceedings were foreshadowed and the onus was clearly on Mr Lane to make a costs’ application if he wished to do so. No such application was made until 1 August 2011, some substantial time after the Commissioner determined the matter at first instance.

[20] Had Mr Lane sought to pursue costs against Mr Cremona with respect to the initial proceedings, an application to do so should have been made within the 14 days prescribed by s.402. We doubt that discretion exists to extend that time limit but, in any event, we are not satisfied that any basis for doing so has been made out.

Costs on the Appeal

[21] The costs application is made on the basis that both of the criteria in s.611(2)(a) and (b) of the Act had been established. It was submitted that Mr Cremona had not provided evidence to support his various assertions, including his general assertion that the Commissioner’s decision contained significant errors of fact, and his allegations that his medical condition explained his non-attendance at the 12 May 2011 hearing.

[22] It appears to us that Mr Cremona sought to pursue his appeal because he felt that he had been denied procedural fairness when the matter proceeded on 12 May 2011 in his absence. Secondly, he simply wanted the Commissioner’s Order to be set aside because he cannot pay that amount. Thirdly, he sought to use the appeal as an opportunity to, for the first time, address the merits of the initial application for relief.

[23] As to the first issue, Mr Cremona did not provide us with evidence that a medical condition affected either his ability to accurately record the hearing date or to attend that hearing. The medical advice that he provided to us did not correspond with his assertions.

[24] As to the second and third issues, Mr Cremona did not establish a basis upon which we could even begin to interfere with the Commissioner’s decision. He did not identify any substantive error.

[25] In summary terms, Mr Cremona simply sought that the matter be reheard.

[26] We have taken into account that Mr Cremona is self represented. Nevertheless, we are satisfied that it should have been reasonably apparent to him that his appeal had no reasonable prospect of success. His position on the appeal was so manifestly untenable and so lacking in merit or substance as to be unarguable.

[27] Accordingly, we are satisfied that costs with respect to the appeal proceedings should be awarded against Mr Cremona.

[28] Mr Moore is directed to provide to us, and to Mr Cremona, an itemised schedule of costs by 21 October 2011.

[29] Mr Cremona may provide to us and to Mr Lane, his position with respect to that schedule by 4 November 2011.

[30] A costs order will be issued subsequent to our consideration of this material.


 1   Transcript PN169, 12 May 2011

 2   [2011] FWA 3214

 3   Transcript PN168, 12 May 2011

 4   Lane Submissions dated 22 August 2011

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