Brendan Davies v Drewmaster Pty. Ltd
[2023] FWC 3166
•4 DECEMBER 2023
| [2023] FWC 3166 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Brendan Davies
v
Drewmaster Pty. Ltd.
(U2023/8184)
| COMMISSIONER RIORDAN | SYDNEY, 4 DECEMBER 2023 |
Application for an unfair dismissal remedy
On 29 August 2023, Mr Brendan Davies (the Applicant) lodged an application pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act), being an application for an unfair dismissal remedy against Drewmaster Pty. Ltd. (the Respondent). The Applicant’s application was lodged with the Commission by the Applicant’s representative, Ms Nicole Thompson of Australian Dismissal Services.
The matter was listed for a Conciliation Conference before me on 29 September 2023, along with a number of other applications involving the Respondent. A settlement was unable to be discussed regarding the Applicant’s application as he was unavailable to attend.
On 31 October 2023, the Applicant’s representative wrote to Chambers advising that no agreement could be made in this matter:
“I can confirm there has been no agreement made in this matter, please proceed with issuing directions.”
Directions were issued to the parties on 1 November 2023, with the Applicant’s materials due to be filed by 4pm on 22 November 2023.
On 22 November 2023, the Applicant’s representative wrote to Chambers advising:
“Given our clients submissions are due this afternoon, we regret to advise we have been unable to take instruction from our client and therefore please see attached Form F54 Notice that lawyer or paid agent has ceased to act for a person.”
On 22 November 2023, my Chambers sent reply correspondence confirming that the Applicant’s representative would now be removed from the file, and asking the Applicant to urgently provide an update to Chambers as to whether he intended to file his materials as directed.
No response was received from the Applicant.
On 27 November 2023, my Chambers sent follow-up correspondence to the Applicant, advising as follows:
“Good morning Mr Davies,
Chambers notes that you are yet to provide any response or update as to filing of your materials.
The Commissioner advises that if you have not provided an update and filing of your materials by 4pm this Wednesday, 29 November 2023, your application will be dismissed.”
(Original emphasis)
No response was received from the Applicant.
On 30 November 2023, at 2:40pm AEST, my Associate attempted to contact the Applicant on his mobile phone. The line did not ring and went straight to a voice messaging service. My Associate left a message for the Applicant, seeking a return call to Chambers.
To date, no written response or return phone call has been received from the Applicant.
Relevant Legislation
Section 587 of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact him and has not filed any material in accordance with the published Directions. In failing to respond to correspondence and a voice message left by my Chambers, the Applicant has shown no willingness to prosecute his case and taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.
After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Mr Davies’s application for failure to prosecute his case.
Accordingly, the application is dismissed pursuant to section 587 of the Act.
I so Order.
COMMISSIONER
[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
[3] [2011] FWAFB 7498 at [19].
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