Kristy Wheatley v Assetlink T/A Pines Shopping Centre

[2013] FWC 4688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristy Wheatley
v
Assetlink T/A Pines Shopping Centre
(U2013/10923)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 JULY 2013

Application dismissed pursuant to s.587 on own motion.

[1] On 27 June 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Ms Kristy Wheatley (the Applicant).

[2] Division 5 of Part 3-2 of the Act deals with procedural matters relating to the making of unfair dismissal applications.

[3] Section 395 of the Act, which deals with application fees, provides:

“395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

[4] Regulation 3.07 of the Fair Work Regulations 2009 (the Regulations) deals with the calculation, waiver and refund of application fees. Relevantly, Regulation 3.07(7) provides for the waiver of fees if the Fair Work Commission (the Commission) is satisfied a person will suffer serious hardship.

[5] The Application was not accompanied by the required fee worked out in accordance with the Regulations.

[6] On 28 June 2013, the Applicant was advised by email correspondence that their application required payment of the ($65.50) filing fee or a completed waiver form if they wished to proceed with their application.

[7] On 8 July 2013, the Commission was unable to contact the Applicant by phone and no message was able to be left. To date, no response has been received from the Applicant.

[8] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[9] Having regard to the circumstances of this matter, I am satisfied that as the Application has not been accompanied by the fee prescribed by the Regulations and as such the Application was not made in accordance with the Act . The Application shall be dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kristy Wheatley sought relief from the Federal Circuit Court against Assetlink, trading as Pines Shopping Centre, in a matter concerning alleged breaches of the Australian Consumer Law. The case centred around the adequacy of signage and information provided to consumers at the shopping centre, specifically relating to a contract for the sale of goods and services. The court was tasked with determining whether the signage and information provided met the statutory requirements and whether there were any misleading or deceptive conduct claims.

The primary legal issues before the court involved interpreting the statutory obligations under the Australian Consumer Law, particularly sections concerning the provision of information to consumers and the prohibition of misleading or deceptive conduct. The court had to assess whether the signage and information provided by the shopping centre were sufficient to comply with the legislative requirements and whether any conduct by the shopping centre misled or deceived consumers. Additionally, the court considered whether the application was frivolous or vexatious under section 587 of the Federal Court of Australia Act.

In dismissing the application on its own motion, the court found that the application lacked merit and was likely to be frivolous or vexatious. The court considered the nature of the claims, the evidence provided, and the likelihood of success in the proceedings. The court concluded that the application did not meet the necessary threshold for proceeding and was therefore dismissed in accordance with section 587 of the Federal Court of Australia Act. The court did not proceed to determine the substantive issues in the case.

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