David Fraser v John Wilson, BAL Lawyers
[2022] FWC 3183
•1 DECEMBER 2022
| [2022] FWC 3183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.401 - Application for costs orders against lawyers and paid agents
David Fraser
v
John Wilson, BAL Lawyers
(U2022/4067)
| DEPUTY PRESIDENT DEAN | CANBERRA, 1 DECEMBER 2022 |
Application for costs pursuant to s.401 – whether costs application made within time.
Mr David Fraser has made an application for an order for costs (the Costs application) against Mr John Wilson and BAL Lawyers (together, the Respondents) pursuant to s.401 of the Fair Work Act 2009.
Mr Fraser sought costs incurred in relation to his application for an unfair dismissal remedy under s.394 of the Act (the Unfair Dismissal application) arising from his dismissal by Capital Maintenance Solutions (CMS).
The Respondents were at all relevant times the lawyers representing CMS in the proceedings concerning the Unfair Dismissal application which was subsequently discontinued following a settlement reached between the parties.
The Respondents opposed the Costs application on the basis that it was filed out of time and the Commission therefore has no jurisdiction to determine it. Relevant to this is s.402 of the Act which sets out the requirements of when a cost application must be made. It provides:
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 400A or 401, must be made within 14 days after:
(a) the FWC determines the matter; or
(b) the matter is discontinued.
Also relevant is Rule 10 of the Fair Work Commission Rules 2013 (Rules) which provides:
10. Discontinuance
(1)An applicant in an application before the Commission may discontinue the application at any time.
(2)To discontinue the application, the applicant must notify the Commission by:
(a) lodging a notice of discontinuance; or
(b) advising the Commission, or a member of the staff of the Commission, by letter, email, fax or telephone, or orally in person, that the applicant:
(i) wishes to discontinue the application; or
(ii) has settled the application; or
(iii) wishes to withdraw the application; or
(iv) no longer needs the Commission to deal with the application; or(c) advising the Commission of the discontinuance during the course of a conference or hearing.
Specifically, the Respondents contend that:
a.Mr Fraser’s discontinuance of the Unfair Dismissal Application occurred at 11:35pm AEDT on 23 March 2022, “being the time at which his Notice of Discontinuance was capable of being retrieved by the Commission at the designated email address to which it was sent”.
b.The Costs application was required to be filed by 11:59pm on 6 April 2022 to be made within time. Mr Fraser’s Cost Application filed on 7 April 2022 was therefore not made within 14 days after his matter was discontinued.
Mr Fraser does not accept that the Cost Application was brought out of time. His position is that the discontinuance occurred on 24 March 2022, being the date when the email containing the Notice of Discontinuance (the discontinuance) was read by the Commission. Consequently, his Costs applicant filed on 7 April 2022 was made within the 14 day period as required by s.402 of the Act.
There is no dispute, based on the Commission records, that the discontinuance was received in a Commission email account on 23 March 2022 at 11:35pm.
On 24 March 2022, the discontinuance was entered into the Commission’s system and the file was closed.
Critical to the consideration of the present application is that the Act confers no power on the Commission to extend time for such applications be made outside the statutory timeframe. If the Costs application was not made in accordance with s.402, it must be dismissed for want of jurisdiction.
The Case for Fraser
Mr Fraser contended that his counsel confirmed the date of the discontinuance with the Commission and relied on this representation which confirmed their own understanding of the date of discontinuance. But for this representation, they argued, the application would have been lodged a day earlier.
It was put that the proper interpretation of Rule 10 is that an applicant must notify the Commission by lodging a notice or advising the Commission. The emphasised words, being “notify”, “notice” and “advise”, have a different meaning to “receipt”. The mere receipt of an email is not sufficient for a discontinuance to have effect, the Commission must be notified, and notification requires more than just receipt.
For the discontinuance to take effect, Mr Fraser contended that there must be some knowledge on the part of the Commission, or at least that the discontinuance has been brought to the Commission’s attention. On this basis, the date of the discontinuance was 24 March 2022 because this is when the Commission was ‘notified’ of the discontinuance.
Mr Fraser relied on a decision in County Laboratories v J Mindle Ltd[1] where Harman J, in relation to a commercial matter, stated: “Notice in my opinion means knowledge”.
Given the email was not received by the Commission until 11.35pm on 23 March 2022, it could not be regarded as having be brought to the Commission’s attention at that time, and the email was not in fact seen until the morning of 24 March 2022.
Similarly, “advising” implies communication more than just sending and receiving an unread email in the middle of the night.
It was argued that the notification of the discontinuance was not an automatic function of receipt of an email to a server in an office, but rather required that the email be brought to the Commission’s attention, and this could only occur when someone from the Commission opened the email on the morning of 24 March 2022.
In reliance of s14A of the Electronic Transactions Act 1999 (Cth), Mr Fraser contended that an electronic communication becomes capable of being received when it is capable of being retrieved, unless otherwise agreed by the parties. It was Mr Fraser’s submission that the effect of Rule 10 and/or the Commission’s communication with his counsel on 4 April about the discontinuance being filed on 24 March amounted to such an agreement. Further, the email containing the discontinuance was retrieved on 24 March 2022. To this end, he contended it was up to the Commission to determine when the Commission was “capable of retrieving” an email.
Mr Fraser also relied on decisions of the Commission in relation to unfair dismissal claims where it was found that the mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal.
Mr Fraser noted that there was mention on the Commission’s website that a discontinuance is a “self-executing” order, however this was based on the 1995 (pre–Fair Work Act) case of Tomlinson v Levada Inc[2] which contains no analysis of either s.402 or Rule 10.
Reference was also made to a decision in Narayan v MW Engineers Pty Ltd (Narayan)[3] which Mr Fraser sough to distinguish from this application.
Given the representation made by the Commission registry staff as to the date the discontinuance was filed (that being 24 March), Mr Fraser submitted that it was only fair and just that the Commission now make an order confirming the discontinuance was effective from 24 March and not before that date.
Mr Fraser relied on Rule 6 of the Commission’s Rules in support of this submission, which provides:
6 Dispensing with rules and orders inconsistent with rules
(1) The Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliance arises.
(2) The Commission may make an order that is inconsistent with these Rules and if it does so, the order will prevail.
Note: An order of the Commission may be given in the form of a direction.
On this basis, he sought a finding that the Commission was formally notified of the discontinuance on 24 March, submitting that it was up to the Commission to determine when a matter is discontinued.
The case for the Respondents
The Respondents contended that the Costs application was filed out of time and therefore the Commission had no jurisdiction to determine it. In written submission, their case was summarised as follows:
- Mr Fraser was required to file the Costs application within 14 days after the discontinuance of his Unfair Dismissal application;
- his discontinuance of the Unfair Dismissal application occurred at 11:35pm AEDT on 23 June 2022, being the time at which the discontinuance was capable of being retrieved by the Commission at the designated email address to which it was sent;
- Mr Fraser was therefore required to file the Costs application within 14 days of that date, that is by 11:59pm on 6 April 2022;
- the Applicant in fact filed the Costs application on 7 April 2022, which is not within 14 days of the discontinuance being effected; and
- the Costs application has been filed out of time and there is no power for the Commission to extend time.
It followed, said the Respondents, that the discontinuance was capable of being retrieved by the Commission from the Commissions email account at the time it was sent, that being 11:35pm on 23 March 2022, pursuant to s.14A of the Electronic Communications Act and s.37 of the Acts Interpretation Act 1901 (Cth).
Consideration
There is no doubt that the email attaching the discontinuance entered an email account of the Commission at 11:35pm on 23 March 2022 and that the Costs application was filed on 7 April 2022.
The position that once filed, a notice of discontinuance is self-executing and brings the application to an end, was confirmed in the decision of a Full Bench in Narayan. This decision concluded that the Commission did not have the power under s.586 of the Act to determine an application to set aside a notice of discontinuance. While a different context to the current application, it is relevant to the extent it makes clear that a discontinuance is self-executing.
Mr Fraser sought to rely on the words “once filed” to contend that the mere receipt of an email overnight is not “filing” the discontinuance. He highlighted Federal Court Rules which provide that a document sent by electronic communication is taken to be filed if received by 4:30pm on a business day, and if after that time on the next business day of the registry. He submitted that the Commission should be able to obtain guidance from the Federal Court Rules and use Rule 6 to make a ruling about when a document is “filed”.
For something to be self-executing, it is effective immediately, without further action required. I am satisfied that the act of emailing the discontinuance to the Commission constituted ‘lodging’ the discontinuance, and based on the decision in Narayan, the discontinuance is a self-executing document. Because it is self-executing, I agree with the submissions of the Respondent that there is no element of knowledge or engagement by the Commission that is required. I further agree that this is consistent with the structure of the Act, as discontinuing proceedings is not an exercise of power by the Commission. Rather, it is an applicant exercising their right under s.588 of the Act to discontinue an application before the Commission. There is no requirement that the Commission accept the discontinuance in the way it accepts an application for filing, nor is there any power to reject or vary a discontinuance. I am not satisfied this position is altered in any way by the language of Rule 10, in that what is required is that the discontinuance is lodged with the Commission.
I am also satisfied that the email was capable of being retrieved when it was received at 11:35pm. That it was not retrieved until the following morning does not change the fact that it was capable of being retrieved at this time.
I am not satisfied that I have the power to modify Rule 10, which Mr Fraser invited the Commission to do, through the use of Rule 6, to something akin to the Federal Court Rules. The Commission is to have regard to its own Rules and there is no ability to substitute the rules of the Federal Court.
I consider that while Rule 6 allows the Commission to dispense with compliance of the provisions of the Commission’s Rules, it does not allow the Commission to reverse an action taken by a party that was done in compliance with the Rules.
While I am sympathetic to Mr Fraser’s arguments to the effect that he relied on a representation from the Commission as to the date the discontinuance was filed, the time and date the discontinuance was sent by email was a matter which was within the knowledge of his lawyers, given they performed the act of emailing the discontinuance. Certainly, if there was any doubt as to the time and date the discontinuance was filed, one would expect that a party would err on the side of caution and file the Costs application well within time.
I do not accept Mr Frasers contention that a Commission registry staff member could not have entered into an agreement of the kind required by the Electronic Transactions Act and I reject this submission. They are simply not authorised to do so.
As a result, I am satisfied the Costs application was made outside the required timeframe. Given the findings above, and there being no ability to extend time, the application must be dismissed.
DEPUTY PRESIDENT
[1] [1957] 1 Ch 295.
[2] (1996) 65 IR 178.
[3] [2013] FWCFB 2530 at [6].
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