C.A. Corling & M.G. Corling T/A Paws a While Boarding Kennels v Shannon Tobin
[2015] FWCFB 7378
•28 OCTOBER 2015
| [2015] FWCFB 7378 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Shannon Tobin
(C2015/2459)
VICE PRESIDENT CATANZARITI | SYDNEY, 28 OCTOBER 2015 |
Appeal against decision [2015] FWC 1925] of Commissioner Bull at Sydney on 23 March 2015 in matter number C2014/6934.
[1] This is an appeal by CA Corling & MG Corling (trading as Paws A While Boarding Kennels) (Corling) against a decision1 (Decision) of Commissioner Bull (as he then was) made on 23 March 2015 in relation to a costs application made by Mr Corling in circumstances where an application had been made made by Ms Shannon Tobin (Tobin) pursuant to s.365 of the Fair Work Act 2009 (Act).
[2] At the hearing, Mr Corling represented himself and attended by telephone. There was no attendance by Ms Tobin.
Background
[3] Ms Tobin filed a General Protections application against Mr Corling.
[4] The application was listed for a conciliation conference in the Fair Work Commission (Commission) on 21 November 2014.
[5] On 21 November 2014 Mr Corling and his solicitor attended the conciliation conference. There was no appearance by Ms Tobin.
[6] On 22 November 2014 Mr Corling wrote to the Commission complaining about Ms Tobin’s failure to attend the conciliation conference and requested that the Commission reimburse associated expenses or otherwise dismiss the matter.
[7] Mr Corling claims that on 22 November 2014 he was told by a representative of the Commission that he was in not entitled to recover costs from Ms Tobin. We first observe that the Commission is not in a position, and does not hold itself out, to provide legal advice. Secondly, we observe that at all relevant times Mr Corling had retained solicitors in respect of the matter.
[8] On or about 4 December 2014 Mr Corling changed his legal representation.
[9] On 19 December 2014 a subsequent conciliation occurred and the application settled.
[10] On 25 February 2015 Mr Corling made application for costs against Ms Tobin. The application was made under s.375B(1)(b) of the Act.
Relevant Legislative Provisions
[11] Section 375B(1)(b) of the Act provides as follows:
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 365; and
(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(emphasis added)
[12] Section 377 provides that:
An application for an order for costs in relation to an application under section 365 … must be made within 14 days after the FWC finishes dealing with the dispute.
(emphasis added)
[13] By contrast, section 366 of the Act provides that, in respect of applications for a claim under s.365 of the Act, an application must be made within 21 days after termination, but that:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances…
[14] By further contrast, section 394 of the Act provides that, in respect of applications for an unfair dismissal remedy, an application must be made within 21 days after termination, but that:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances…
Decision at First Instance
[15] The Commissioner, as he then was, heard the matter and issued the Decision on 23 March 2015. In short the Commissioner decided that:
[14] The Commission effectively finished dealing with the dispute when that matter was resolved during the telephone conciliation conference on 19 December 2014. The application for a costs order was made on 25 February 2015, which is well beyond the specified 14 day time limit described in s.377. The Act makes no provision for the time limit to be extended as occurred in some other sections of the Act.
…
[15] The costs application must fail on the simple jurisdictional issue that it is out of time and there is no discretion under the Act to extend the time period allowed. Accordingly application is dismissed.
The Appeal
[16] The Form F7 – Notice of Appeal asks appellants to set out their grounds for appeal in section 2.1 of the form. In the Form F7 completed by Mr Corling:
a) paragraphs 1 – 13 set out the chronology of events leading up to the Decision;
b) paragraphs 14 – 22 highlight aspects of the Decision and assert that the Commissioner (as he then was) omitted certain material and all made errors of fact; and
c) he concludes in paragraph 23,
“It [was] unreasonable for Commissioner Bull to dismiss my application for a costs order, because the Fair Work Commission is responsible for my delay in lodging it.”
Consideration
[17] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. 1 An appeal may only be made with the permission of the Fair Work Commission (the Commission); there is no right to appeal.
[18] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so.11 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,12 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”13
[19] In the Notice of Appeal Mr Corling advanced the following submission in relation to public interest considerations:
“Insofar as this clause might be applicable to this particular appeal, I believe points 1 through 11 of my outline in question 2.1 show the Fair Work Commission mishandled my queries regarding my option to lodge a costs application and bears the responsibility for my late lodgement. Points 13 through 23 of my outline demonstrate clear errors of fact in Commissioner Bull’s dismissal of my costs claim.
I believe the errors of fact are deliberate and indicate prejudice and bias against me, and are solely aimed at curtailing the involvement of the Fair Work Commission in resolving my legitimate complaint. I believe the examination correction of such unfair treatment on the part of the Fair Work Commission is in the public interest.”
[20] The public interest is not enlivened in this matter. It does not give rise to issues of importance and general application, there is no diversity of decisions at first instance so that guidance from a Full Bench is required and the legal principles applied by the Commissioner were not disharmonious when compared with other recent decisions dealing with similar matters.
[21] Further, the decision at first instance does not manifest an injustice and it is not counter intuitive. In short, the Act provides for a strict time limit and does not provide for a mechanism to extend that time. The Commissioner correctly applied the Act. The Decision was not unreasonable. The Commissioner had no discretion to extend the time for Mr Corling to make his costs application. Neither do we have any power to extend the time for Mr Corling to make his costs application.
[22] The application before the Commissioner and the Full Bench was and is misconceived. Whether or not a member of the Commission staff provided incorrect advice, in these circumstances, no difference could have or did arise.
Conclusion
[23] We find that the Decision was not affected by any appellable error.
[24] We do not consider that the Mr Corling has demonstrated that it is in the public interest to grant permission to appeal.
[25] Permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr C Corling for himself.
Hearing details:
Sydney.
2015.
15 July.
1 Coal and Allied v AIRC (2000) 203 CLR 194 at 203–4 per Gleeson CJ, Gaudron and Hayne JJ.
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