Matthew Southurst v The Trustee for Paterson Bros Unit Trust Summary

[2024] FWC 3130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Southurst
v

The Trustee for Paterson Bros Unit Trust

(U2024/9897)

DEPUTY PRESIDENT EASTON

SYDNEY, 13 NOVEMBER 2024

Application for an unfair dismissal remedy – Lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 24 August 2024, Mr Matthew Southurst filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation conference was scheduled on 3 October 2024 however Mr Southurst did not attend.

On 3 October 2024, correspondence was sent to Mr Southurst in relation to his non-attendance and was asked to email any request to proceed with a further conciliation within 2 working days.

To date, Mr Southurst has not responded to any of the Commission’s attempts to contact him.

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
(c)       the application has no reasonable prospects of success.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1).

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Mr Southurst has been on notice of the likely consequences of his application if he does not respond.

In the circumstances I have decided to dismiss Mr Southurst’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR781210).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Matthew Southurst filed an application for an unfair dismissal remedy under the Fair Work Act 2009. His application was scheduled for a conciliation conference on 3 October 2024, but he did not attend. Despite multiple attempts to contact him, including correspondence on the same day and requests to proceed with a further conciliation, Mr Southurst did not respond. Section 587 of the Act empowers the Fair Work Commission to dismiss an application if it lacks reasonable prospects of success or if the applicant has stopped pursuing or participating in the proceedings.

The legal issue in this case was whether the Fair Work Commission could dismiss Mr Southurst’s application for unfair dismissal due to his lack of prosecution. The court examined the provisions of section 587(1)(c) of the Act, which allow for the dismissal of an application that has no reasonable prospects of success. The court noted that the Act’s language, “Without limiting when the FWC may dismiss an application,” indicates that the Commission’s power to dismiss an application is not confined to the specific circumstances listed in section 587(1). The court found that Mr Southurst's non-participation and lack of response to attempts to contact him suggested that his application had no reasonable prospects of success.

Based on the lack of prosecution and Mr Southurst’s failure to respond to the Commission's attempts to contact him, Deputy President Easton dismissed the application on his own initiative. This decision was made under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative if the application has no reasonable prospects of success. The Deputy President noted that Mr Southurst was aware of the potential consequences of his inaction. Consequently, the application was dismissed, and an order to this effect was issued.

Matthew Southurst v The Trustee for Paterson Bros Unit Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established