David Fraser v John Wilson, BAL Lawyers - [2022] FWC 3183

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3183
Decision Date: 1 DECEMBER 2022

CaseChat Overview and Summary

The Fair Work Commission was asked to determine whether an application for costs made by Mr David Fraser against Mr John Wilson and BAL Lawyers was within the required timeframe. Mr Fraser sought costs incurred in relation to his application for unfair dismissal remedy, which was discontinued following a settlement. The Respondents argued that the Costs application was filed out of time and therefore the Commission had no jurisdiction to determine it. The central issue was when the discontinuance of the Unfair Dismissal application took effect and whether the Costs application was made within 14 days of the discontinuance. The Court found that the act of emailing the discontinuance to the Commission constituted lodging the discontinuance, and it was self-executing. The email was capable of being retrieved when it was received, and it was not necessary for the Commission to be notified or have knowledge of the discontinuance. The Court rejected Mr Fraser's submission that the notification of the discontinuance required more than just receipt of an email. The Court held that the Costs application was made outside the required timeframe and dismissed the application for want of jurisdiction.

The Deputy President concluded that the email containing the Notice of Discontinuance entered the Commission's email account at 11:35pm on 23 March 2022, and the file was closed on 24 March 2022. The Court found that the discontinuance was self-executing and there was no requirement for the Commission to be notified or have knowledge of the discontinuance. The Court rejected Mr Fraser's submission that the notification of the discontinuance required more than just receipt of an email. The Court held that the Costs application was made outside the required timeframe and dismissed the application for want of jurisdiction. This decision highlights the importance of ensuring that applications for costs are made within the required timeframe and that parties are aware of the self-executing nature of a notice of discontinuance.

Orders