Mr James Green v Toll Holdings Ltd

[2016] FWC 1675

[2016] FWC 1675

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
ss.400A, 611 - Application for costs

Mr James Green
v
Toll Holdings Ltd
(U2015/8793)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 17 MARCH 2016

Application for relief from unfair dismissal; application for costs.

[1] This is an edited version of my decision given ex tempore and recorded in transcript on 15 March 2016. James Green (Costs Respondent) was employed as a Yard Truck Driver by Toll Holdings Ltd (Toll Holdings) (Costs Applicant) until his dismissal on 4 June 2015.On 24 June 2015 the Costs Respondent applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). On 29 October 2015, the Costs Respondent discontinued his application following the giving of certain medical evidence in those proceedings.  At the conclusion of those proceedings Counsel for the Costs Applicant indicated that he did not then have instructions to pursue a costs application, but anticipated receiving those instructions.

[2] On 12 November 2015, a document was lodged by the Costs Applicant with the Commission pursuant to the electronic filing mechanism available, which purported to be an application for a costs order.  That document was lodged within the time prescribed for the filing of such an application in relation to an unfair dismissal matter set out in s.402 of the Act.

[3] Upon the lodgement of that document the Costs Applicant was notified by the registry of the Commission that the documents had been received and that, amongst other things, the Costs Applicant would be subsequently advised whether the documents had been filed; that is, after they were checked for any incorrect or incomplete materials.

[4] As events transpired, subsequent inquiries made by the Costs Applicant disclosed that the application for a costs order was not the document attached to the electronic filing notice, but rather, statements which had been earlier lodged in the unfair dismissal matter application were attached in error.

[5] The circumstances of filing of the erroneous documents are set out in the statement of Rebecca Mifsud in Exhibit 1 1. Ms Mifsud was not subjected to cross-examination because the Costs Respondent has failed now on two occasions to attend the hearing of this application.  I accept the evidence given by Ms Mifsud in relation to the circumstances of the lodgement of the application or the attempted lodgement of the application.

[6] In particular her evidence is that instructions to file a costs application were given before 11 November 2015, and that she signed an application for a costs order on 11 November 2015 and attempted to lodge that document on 12 November 2015, but in error attached other documents which had earlier been lodged in the Commission.  A copy of the application for a costs order was subsequently served on the Costs Respondent.

[7] Counsel for the Costs Applicant submitted that I should exercise my discretion under s.586(a) or (b) to allow a correction or amendment of an application or to waive an irregularity in the form or manner in which the application has been made.  It seems to me that the power in s.586 of the Act is a broad power which is designed to enable the substance of a desired application to be dealt with even though the form required for a particular application has not been complied with or there has been some irregularity in the attempt to file an application.

[8] It seems to me that this is a provision which is designed to enable the Commission to deal with the substance of an application without requiring adherence to technical filing requirements.  I am satisfied that I have power under s.586(b) to waive an irregularity, and I regard that which occurred on 12 November 2015 as an irregularity in the form or manner in which the application for costs had been made.

[9] The question then arises as to whether I should exercise my discretion to waive the irregularity.  It seems to me clear that the Costs Applicant had, at all material times, an intention to apply for costs and believed on 12 November 2015 that that is what had occurred.  I note that the application was executed by Ms Mifsud on the day before the application was lodged.

[10] I also note that Ms Mifsud was advised by the registry that she would be notified of any irregularity in the form if any were identified.  I also note that Costs Respondent was served with a copy of the actual application for costs.

[11] These are all matters which weigh in favour of the exercise of my discretion because they highlight that the Costs Applicant has, at all relevant times, wanted to pursue a costs application, and believed that that is what it was doing when it lodged the documents on 12 November 2015.

[12] Those matters also demonstrate that the Costs Respondent was promptly notified of the Cost Applicant's application by service of the application, which sets out the nature of the application and the grounds upon which the Costs Applicant relies in support of the application.  So to that extent there does not appear to me to be any particular prejudice that would be suffered by the Costs Respondent if I were to waive the irregularity.

[13] I have also taken into account the circumstances of discontinuance and the merits of the costs application.  It seems to me, at the very least, the Costs Applicant has a reasonably sound basis for pursuing its costs application.  For those reasons I am satisfied that it is appropriate that I should exercise my discretion to waive the irregularity, and I do so.

[14] I take the application for costs, which is annexure A to the statement of Ms Mifsud, as having been lodged in the Commission on 12 November 2015 2. I propose to deal with that application in due course. 

[15] An order giving effect to my decision is issued separately in PR578082.

DEPUTY PRESIDENT

Appearances:

Mr D O’Sullivan of Counselon behalf of the Costs Applicant.

Hearing details:

Perth.

2016.

March 15.

 1   Witness statement of Rebecca Mifsud dated 24/11/2015 with annexures.

 2   Ibid.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578074>