[2015] FWC 4390


Fair Work Act 2009

s.401 - Application for costs orders against lawyers and paid agents

Tamer Selcuk
Maddison & Associates Pty Ltd



Costs application against lawyer.

[1] This matter involves an application for a costs order arising from an appeal against the decision of Ryan C in U2014/8741 1.

[2] The Applicant in this matter, who was also the applicant in the initial unfair dismissal matter, has applied for two costs orders, one against the Respondent in the unfair dismissal matter and the other against the respondent’s legal representative, Maddison and Associates P/L. The Applicant has sought two separate costs orders: firstly, an order that the Respondent pay the costs of the Applicant with respect to the application for permission to appeal, and secondly, that Maddison and Associates P/L pay a portion or all of the costs of the Applicant with respect to the application for permission to appeal.

[3] This application only deals with the costs order sought by the Applicant against Maddison and Associates P/L.

[4] The parties filed written submissions and witness statements in support of their respective positions and all parties agreed that the Commission determine the costs applications on the papers.

Relevant Statutory provision

The Fair Work Act 2009 deals with the issue of costs orders against a party’s representative in s.401 and s.402 which are as follows:

Applicant’s reliance on s.401

[5] The Applicant has sought to rely on s.401 as enabling the Applicant to apply for a costs order under that section. The relationship between the various costs provisions in the Fair Work Act has been commented on by the Commission in other matters. In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing a Full Bench said:

[6] In the present matter the costs applications relate to appeal proceedings and therefore s.401 has no application to such proceedings. Appeal proceedings arise under Part 5-1 of the Act and even though the appeal may be about a decision issued under Part 3-2 of the Act (the Unfair Dismissal provisions) the appeal is not a matter arising under Part 3-2 and s.401 only relates to a matter arising under Part 3-2. To the extent that the Applicant relies on s.401 such reliance is misplaced and the Applicant cannot seek a costs order against Maddison and Associates P/L pursuant to s.401.

[7] The application is dismissed.

The seal of the Fair Work Commission and the Member's signature


 1   [2015] FWC 437.

 2   [2014] FWCFB 810 at paras 16 to 19.

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