Jeremy Snyder v Helena College Council, Inc. T/A Helena College
[2019] FWCFB 8340
•9 DECEMBER 2019
| [2019] FWCFB 8340 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.602 - Application to correct obvious errors etc. in relation to FWC’s decisions
Jeremy Snyder
v
Helena College Council, Inc. T/A Helena College
(ADM2019/10)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 9 DECEMBER 2019 |
Section 602 of the Fair Work Act 2009 (Cth) – Application to amend ‘obvious error’ – application dismissed.
[1] In our decision published on 25 October 2019 1 (Second Revocation Decision), we determined the application of Mr Jeremy Snyder (Snyder) filed on 13 June 2019 pursuant to s.603(2)(b)(i) of the Fair Work Act 2009 (the Act) and declined to exercise the discretionary power to revoke four previous decisions of the Commission that have emanated from the application of Mr Snyder for an extension of time within which to lodge his application for an unfair dismissal remedy.
[2] The four previous decisions were:
• The first instance decision published on 27 July 2018 by Commissioner Gregory 2 (the Decision) refusing to grant Mr Snyder an extension of time;
• Our decision 3 (First Appeal Decision) refusing permission for Mr Snyder to appeal the Decision;
• The decision 4 of a separately constituted Full Bench (Second Appeal Decision) to refuse Mr Snyder’s application for an extension of time to lodge a second Notice of Appeal against the Decision; and
• Our decision 5 (Revocation Decision) declining to exercise the discretionary power in s.603(2)(b)(i) of the Act to vary or revoke the First Appeal Decision.
[3] On 28 October 2019, Mr Snyder filed a Form F1 – Application form, making application pursuant to s.602 of the Act seeking that we amend paragraphs [18], [20], [21] and [25] of the Second Revocation Decision by adding certain references because our omission of the facts contained in these references were obvious errors.
[4] We gave Helena College Council, Inc. T/A Helena College (the Respondent) the opportunity to provide submissions in response to the matters raised in the Form F1 – Application form by 4.00pm on 18 November 2019 and in the event it did so, Mr Snyder the opportunity to make any submissions in reply within a further week. As things transpired:
• Mr Snyder decided to file further submissions in a document dated 14 November 2019 and entitled “Applicant’s Statement of Evidence”;
• The Respondent filed submissions dated 18 November 2019; and
• Mr Snyder filed reply submissions in a document dated 25 November 2019.
Relevant Principles
[5] Section 602 of the Act provides:
“602 Correcting obvious errors etc. in relation to the FWC’s decisions
602(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this subsection (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
602(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.”
[6] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the intention of s.602 of the Act, at paragraph 2316:
“Clause 602 - Correcting obvious errors etc. in relation to FWA’s decisions
2316. In order to avoid unnecessary technicality, clause 602 allows FWA, on its own initiative or on application by a person, to correct or amend any obvious error, defect or irregularity in relation to a decision of FWA (including an instrument made by FWA). This clause is intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders (see Re Timber and Allied Industries Award 1999[2003] AIRC 1137 at [29]-[30]). This clause does not apply, however, to a modern award or a national minimum wage order. (Clauses 160 and 296 deal with corrections to modern awards and national minimum wage orders.)”
[7] In Re Timber and Allied Industries Award 1999, 6 Justice Munro of the Australian Industrial Relations Commission dealt with the equivalent provision to s.602 in the Workplace Relations Act 1996 and stated:
“[29] This matter effectively turns upon the application of the colloquially known, “slip and error rule”. The “slip and error rule” enables a Court to make amendments where unintentional errors have occurred. Neither the applicant or respondent parties directed my attention to this rule, although with paragraph 111(1)(q) it is the foundation of the Commission’s power to issue a Correction Order. The merits of the matter may properly be confined to application or non-application of the rule to the exercise of determinative power called for in this Commission proceeding.
[30] As stated by Einstein J. in a recent judgement:
“A Court possesses an inherent power to correct mistakes in its orders arising from inadvertence: Milson v Carter [1893] AC 638 at 640 per Lord Hobhouse, approved in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594. A power to a like effect is to be found in Part 20, Rule 10(1) of the Supreme Court Rules, which reads -
Where there is a clerical mistake or an error arising from an accidental slip or omission in a minute of a judgment or order or in a certificate, the Court on the application or any party or of its own motion, may, at any time, correct the mistake or omission.” 7
Paragraph 111(1)(q) of the Act may be taken to be the counterpart of that power in the Commission.” 8
Consideration
[8] It can be discerned from its terms and the Explanatory Memorandum to the Fair Work Bill 2008, that s.602 of the Act “is intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders.” Further, while not an exhaustive list, examples of when the ‘slip rule’ might be employed were said in Re Timber and Allied Industries Award 1999 9 and Currabubula & Paola v State Bank NSW. Currabubula v State Bank NSW10 to include the amendment of unintentional errors, mistakes arising from inadvertence, clerical mistakes or errors arising from accidental slips or omissions.
[9] We decline to make the amendments sought by Mr Snyder for the following reasons:
a) The content Mr Snyder seeks to have inserted into paragraphs [18], [20], [21] and [25] of the Second Revocation Decision is not of a nature that fits within any of the scenarios outlined in [8] above;
b) In any event, it is evident from the submissions of the parties that the content Mr Snyder seeks to have inserted comprises matters about which there is disagreement; 11 and
c) We do not consider the Second Revocation Decision to be affected by any obvious errors, defects or irregularities amenable to amendment under s.602 of the Act.
Further Application
[10] On 2 December 2019, Mr Snyder filed a Form F1 – Application form, making application pursuant to s.603 of the Act that we vary the Second Revocation Decision on the basis that it contained no reasons for the rejection of his application that we revoke the Revocation Decision.
[11] In the Second Revocation Decision, we relevantly stated in relation to the discretionary power under s.603:
“[26] Esso establishes that our discretionary power under s.603is broad and, apart from the decisions that are excluded by s.603(3), not subject to any other express limitations. It is said that the power in s.603(1) should have a broad, flexible operation. This goes to the availability of power, not the circumstances in which it should, as a matter of discretion, be exercised.
…
[28] Further, we consider the Second Revocation Application amounts to an attempt by Mr Snyder to appeal three Full Bench Decisions with re-casted arguments. The Act does not provide for appeal of a decision of a Full Bench of the Commission to another Full Bench. Instead, a person aggrieved by a decision of a Full Bench of the Commission may seek judicial review of the decision in the Federal Court of Australia, pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.562 and 563 of the Act. We also point out that the Full Court in Esso identified overlap between ss.603 and 604 of the Act but did not in any way suggest that separate proceedings should lie under each provision to prosecute the same arguments.
[29] We decline to exercise the discretionary power under s.603 of the Act in circumstances where this Full Bench and another Full Bench of the Commission have found no error in the Commissioner’s approach to the consideration of the merits of Mr Snyder’s unfair dismissal application in either the two appeal proceedings or the First Revocation Application and in circumstances where we have found the Commissioner has not erred in concluding Mr Snyder failed to provide an acceptable explanation for his delay in making the unfair dismissal application. We consider the proper course for Mr Snyder, if he remains aggrieved by the Full Bench decisions, is to seek judicial review in the Federal Court of Australia.”
[12] For the reasons previously stated, we have declined to exercise the discretionary power under s.603 of the Act to revoke the Revocation Decision. We therefore decline to vary the Second Revocation Decision in the manner now sought.
Additional Matter
[13] We observe the Respondent submitted that in relation to the Form F1 – Application filed on 28 October 2019, costs should be awarded against Mr Snyder pursuant to s.611 of the Act on the basis that it was frivolous and had no reasonable prospects of success, being untenable and manifestly groundless.
[14] As s.402 of the Act makes clear, an application for an order for costs under s.611 in relation to a matter arising under Part 3-2 of Chapter 3 of the Act must be made within 14 days after the Commission determines a matter.
Conclusion
[15] The Applications filed by Mr Snyder on 28 October 2019 and 2 December 2019 are dismissed.
DEPUTY PRESIDENT
Determined on the papers.
Printed by authority of the Commonwealth Government Printer
<PR715001>
1 [2019] FWCFB 7398.
2 [2018] FWC 4432.
3 [2018] FWCFB 4734.
4 [2019] FWCFB 815.
5 [2019] FWCFB 3992.
6 [2003] AIRC 1137.
7 Currabubula & Paola v State Bank NSW. Currabubula v State Bank NSW [2000] NSWSC 232 (31 March 2000) at paragraph 38.
8 [2003] AIRC 1137 at [29]-[30].
9 Ibid.
10 [2002] NSWSC 232 (31 March 2000).
11 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 390-391.
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