Minhaj Mansoor v Coles Supermarkets T/A Coles Northland

[2012] FWA 9829

[2012] FWA 9829

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Minhaj Mansoor
v
Coles Supermarkets T/A Coles Northland
(C2012/4062)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 20 NOVEMBER 2012

Appeal against Senior Deputy President Kaufman at Melbourne on 9 May 2012 in matter number C2012/3516.

Introduction

[1] On 13 November 2012 a Full Bench handed down a decision in relation to an application by Coles Supermarkets under s.611 of the Fair Work Act 2009 (‘the Act’) for an order of costs against Mr.Minhaj Mansoor 1. This followed the dismissal by the same Bench of an appeal lodged by Mr.Mansoor2.

[2] In the decision of 13 November the Bench said:

“We have considered the submissions put to us. In the circumstances of the present matter we consider that it would be appropriate to make an order pursuant to s.611 that Mr.Mansoor bear some of the costs of Coles Supermarket in relation to the appeal.

Kaufman SDP made no decision which could be the subject of an appeal. This should have been apparent to Mr.Mansoor from a reading of the legislation and/or upon making appropriate inquiries. Mr.Mansoor chose to persist with his appeal despite repeated attempts by Fair Work Australia and Coles to raise with him the difficulties with his application, or to point out that his application was misconceived and could not succeed.

We are satisfied that the requirements in s.611(2) for the making of an order for costs are met. We are satisfied that Mr.Mansoor made the application to appeal ‘without reasonable cause’ and that he pursued the appeal in circumstances where it should have been reasonably apparent to him that it had no reasonable prospect of success.

Accordingly we consider that the grounds have been made out for the making of an order for payment of part of the costs of Coles Supermarket in the appeal.

However, we do not think that Mr.Mansoor should bear all of the costs of the matter. He was given an opportunity to put a submission on 3 October 2012, having regard to the submissions already put by Coles Supermarket. He should at that stage have realised that his application had no reasonable prospect of success. Coles had explained the nature of the matter and the fundamental difficulty that his application had. In writing his submission he should have had regard to that explanation and acted accordingly. However, he chose instead to pursue the appeal notwithstanding that explanation. He should bear the costs incurred by Coles from that time, which consist of a further written submission and the costs of further written submissions relating to this matter.

This application will be dealt with by Deputy President Hamilton having regard to this decision. The order to be made and amount of costs awarded will be determined by Deputy President Hamilton after providing an opportunity for the parties to make further submissions on this issue.”

Submissions

[3] Coles Supermarkets submitted a statement of costs arising after 3 October, consistent with the Full Bench decision 3.

[4] Mr.Mansoor submitted that he had not obtained legal advice before appealing, that he was not aware that Coles would hire a lawyer and that the cost would be that amount, he was not advised about costs in lodging his appeal, and that he had the right to stand for his rights. He said that he made mistakes 4.

Decision

[5] I have had regard to the submissions put by the parties. In the circumstances Coles Supermarkets are entitled to an order under s.611 of the Act that Mr.Mansoor pay them an amount consistent with their statement of costs. This order is consistent with the Full Bench decision of 13 November. An order is contained in PR531523.

DEPUTY PRESIDENT

Final written submissions:

2012

14 November

16 November

 1   [2012] FWAFB 9415

 2   [2012] FWAFB 8081

 3   14 November 2012 Submission

 4   16 November 2012 Submission

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