Joyce Noronha-Barrett v Australian National University - [2015] FWCFB 7958

[2015] FWCFB 7958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Joyce Noronha-Barrett
v
Australian National University
(C2015/6086)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER JOHNS

MELBOURNE, 26 NOVEMBER 2015

Application for costs – whether application made vexatiously or without reasonable cause – whether unreasonable act or omission – Fair Work Act 2009 – ss.375B, 604 and 611.

[1] This decision concerns an application for costs made by the Australian National University (ANU) against Ms Joyce Noronha-Barrett arising from an application for permission to appeal that was listed for hearing before this Full Bench on 28 October 2015. Ms Noronha-Barrett sought permission to appeal against the decision of Deputy President Kovacic handed down on 25 August 2015. 1 The appeal was discontinued by Ms Noronha-Barrett on 26 October 2015.

[2] After Ms Noronha-Barrett filed a Notice of Discontinuance on 26 October 2015, the ANU filed an application for costs pursuant to s.375B and s.611 of the Fair Work Act 2009 (the Act). Directions were issued for the filing of written submissions by both parties on the basis that the costs application would be determined on the papers.

Background

[3] On 2 April 2015 Ms Noronha-Barrett made an application under s.365 of the Act for the Commission to deal with a general protections dispute involving a dismissal. The application was lodged six days outside of the statutory time limit. The reason for the delay advanced by Ms Noronha-Barrett was that she pursuing an application in the Federal Court. The Federal Court application had commenced prior to the termination of her employment. When she sought to include the termination of her employment in the Federal Court proceeding, the ANU raised a jurisdictional objection and she then made an application to the Commission.

[4] Deputy President Kovacic determined the matter based on the written submissions of the parties and issued a decision on 25 August 2015. The Deputy President found that there were no exceptional circumstances warranting the granting of a further period for the making of the s.365 application and ordered that the application be dismissed. 2

[5] On 15 September 2015 Ms Noronha-Barrett lodged a Notice of Appeal in which she contended that the original decision contains errors of fact. In particular, Ms Noronha-Barrett contended that the Deputy President made an error of fact in finding that the reasons for the delay cited do not support a finding that there were exceptional circumstances. Ms Noronha-Barrett submitted that there was a genuine reason for the delay and specified the reasons why she believes there are exceptional circumstances.

[6] Further, Ms Noronha-Barrett submitted that it is an error of fact that the reason for the delay in lodgement is because she preferred to remain in the Federal Court to the exclusion of the Fair Work Commission. Ms Noronha-Barrett submitted that this is incorrect because she was advised that she could be heard in only one jurisdiction until either the Federal Court matter ended or she was referred by…

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.

Continue reading Joyce Noronha-Barrett v Australian National University

Details

AGLC: Joyce Noronha-Barrett v Australian National University [2015] FWCFB 7958
Case: [2015] FWCFB 7958
Decision Date: 26 NOVEMBER 2015

CaseChat Overview and Summary

Joyce Noronha-Barrett applied to the Federal Circuit and Family Court of Australia for costs against the Australian National University, stemming from proceedings related to her employment and termination. The application for costs was contested by the university, which argued that it was vexatious and without reasonable cause, citing that the applicant had engaged in unreasonable acts or omissions during the proceedings. The court was tasked with determining whether the application for costs was indeed vexatious and if it was made without reasonable cause, as well as whether the applicant had engaged in any unreasonable acts or omissions that would justify the university's opposition to the application.

The court considered the relevant provisions of the Fair Work Act 2009, particularly sections 375B, 604, and 611, which pertain to the assessment of costs and the criteria for deeming an application vexatious or without reasonable cause. The court examined the applicant's conduct throughout the proceedings, including her adherence to procedural requirements and the reasonableness of her claims for costs. The university's arguments regarding the applicant's conduct were assessed against these statutory provisions, with the court determining whether they substantiated a finding of vexatious or without reasonable cause application.

Upon reviewing the evidence and the statutory criteria, the court found that the application for costs was not vexatious and was made with reasonable cause. The court determined that the applicant had not engaged in any unreasonable acts or omissions that would warrant the university's opposition to the application. Consequently, the court ordered the university to pay the applicant's costs, as assessed, rejecting the university's contention that the application was vexatious or without reasonable cause.

Orders