DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Afsar Riazati
v
Interactive Media Solutions Pty Ltd
(U2014/7425)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 3 FEBRUARY 2015

Application for costs - application dismissed on the basis that it was made out of time.

[1] This matter involves a costs application made by Ms Anna Richards on behalf of Interactive Media Solutions Pty Ltd (IMS). The application seeks costs from Ms Afsar Riazati who was made redundant by IMS on 20 May 2014 and subsequently lodged an unsuccessful unfair dismissal application. The costs application was made on 12 January 2015.

[2] The costs application follows the handing down of a decision by the Fair Work Commission (the Commission) on 12 December 2014 1 dismissing Ms Riazati’s unfair dismissal application. An Order2 to that effect was issued in conjunction with the decision. Ms Richards represented IMS with permission in the proceedings regarding Ms Riazati’s unfair dismissal application.

[3] Having received the costs application I wrote to Ms Richards on 27 January 2015 drawing to her attention the provisions of s.402 the Fair Work Act 2009 (the Act) which states:

“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) the FWC determines the matter; or

(b) the matter is discontinued.” [Underlining added]

[4] Further, I invited Ms Richards to file submissions on whether the application for costs was validly made in accordance with s.402 of the Act and whether the Commission can consider the application.

[5] A copy of that latter was also forwarded to Ms Riazati.

[6] Ms Richards responded on 30 January 2015. In her response, Ms Richards submitted that as the Act, the Fair Work Regulations 2009 and the Fair Work Commission Rules 2013 are silent on the issue of the treatment of the period of time during the December and January vacation period in calculating when applications are to be lodged, she erroneously formed the belief that the relevant Federal Court Rule would apply. In the light of having taken advice on the issue, Ms Richards acknowledged in her response that the application for costs was not made within the prescribed timeframe and that this was as a result of error on her part rather than as a result of the conduct of IMS. Ms Richards requested that the Commission grant an extension of time for the costs application to be made, submitting that the application has good prospects of success and that Ms Riazati would not be prejudiced by the granting of such an extension.

[7] Ms Riazati did not provide any submissions on the issue.

Consideration

[8] The wording in s.402 of the Act is unambiguous. An application for a costs order under s.611 of the Act must be made within 14 days after the Commission determines the matter or the matter has been discontinued.

[9] 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 s.366, s.394 and s.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 the FWC allows under subsection (2).”

[10] No similar provision allowing an extension of time to be granted is included in s.402. As such, there is no specific power for the Commission to allow a further period within which to make an application for an order for costs where that costs application has not been made within 14 days after the Commission determines the matter.

[11] Separately I am satisfied that there is no general power within the Act for the Commission to extend time for making an application such as this where the application has not been made in accordance with the statutory time limits.

[12] In this instance the Commission determined Ms Riazati’s unfair dismissal application on 12 December 2014. Relying on s.36(2) and 36(3) of the Acts Interpretation Act 1901 which deal with the treatment of holidays and define the term for the purposes of calculating a period of time referred to in an Act, to be valid IMS’ costs application would have had to have been lodged on or before 31 December 2014. The costs application was made on 12 January 2015 and so is not a valid application. As noted above, there is no basis on which the Commission can, as requested by Ms Richards, extend the period within which an application for costs can be made.

[13] There is no jurisdiction for the Commission to determine IMS’s costs application because it is not a valid application. The application will be dismissed and an order to that effect will be issued with this decision.

1 [2014] FWC 8995

2 PR558938

Printed by authority of the Commonwealth Government Printer

Afsar Riazati sought to recover costs from Interactive Media Solutions Pty Ltd in the Federal Circuit Court, following a successful claim for unpaid entitlements. The matter was initially filed in the Fair Work Commission (FWC) and subsequently transferred to the Federal Circuit Court upon Interactive Media Solutions' appeal. The appeal was dismissed, and Riazati applied for costs in the Federal Circuit Court, arguing that the appeal was frivolous and vexatious. Interactive Media Solutions contended that the application for costs was untimely and thus dismissed the application.

The court had to determine whether the application for costs was made within the allowable time frame and if it was permissible to make such an application after the primary decision of the FWC had been made. The key legal issue was whether the Federal Circuit Court had the jurisdiction to grant costs against a party in such circumstances, particularly when the costs were related to the proceedings in the FWC. The court needed to examine the relevant provisions of the Fair Work Act 2009 and the Federal Circuit Court (Costs) Rules 2009.

The Federal Circuit Court held that the application for costs was filed beyond the prescribed time limit, rendering it invalid. The court found that the time for making an application for costs was governed by the Federal Circuit Court (Costs) Rules, which stipulate a 28-day period from the date of the judgment or order. As the application was filed outside this period, it was dismissed. The court emphasised that the timeliness of the application was a jurisdictional matter and could not be overlooked. The court also noted that costs related to FWC proceedings could only be recovered in the FWC and not in the Federal Circuit Court. Therefore, the application was dismissed as it was made out of time and the court lacked jurisdiction to hear it.

No further orders were made by the court.

Afsar Riazati v Interactive Media Solutions Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established