Mr Tristan Ling v Hamilton Island Enterprise T/A Hamilton Island Enterprises Limited Summary

[2022] FWC 3084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Tristan Ling
v

Hamilton Island Enterprise T/A Hamilton Island Enterprises Limited

(C2022/7291)

DEPUTY PRESIDENT LAKE

BRISBANE, 21 NOVEMBER 2022

Alleged dispute about any matters arising under the modern award and the NES; [s146]

On 3 November 2022 Mr Tristan Ling made an application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure pursuant to s.739 of the Fair Work Act 2009 (Act).

Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind.

Item F10 of Schedule 1 of the Fair Work Commission Rules 2013 (FWC Rules) provides that the application must be served by the Applicant on the Respondent as soon as practicable after lodgement with the Commission.

On 14 November 2022, correspondence was sent to the applicant in relation to the requirement for service of the application and requiring the provision of the contact details of the respondent by 10:00am AEST Friday, 18 November 2022.

To date, the applicant has not responded to the correspondence sent by my Chambers in writing.

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.
(2) Despite paragraphs (1)(b) and (c), 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) 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)(a), (b) and (c).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

Order

The application in C2022/7291is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr. Tristan Ling applied to the Fair Work Commission to resolve a dispute under the Fair Work Act 2009, alleging matters arising from the modern award and the National Employment Standards. The respondent, Hamilton Island Enterprise T/A Hamilton Island Enterprises Limited, was required to be served with the application. However, Mr. Ling did not provide the necessary contact details for the respondent, and despite reminders, he did not respond to correspondence from the Commission. The legal issues before the court involved whether the application was made in accordance with the procedural rules, and if it had reasonable prospects of success, or if it was frivolous or vexatious.

The Fair Work Commission considered whether the application was compliant with the procedural rules and whether it had any reasonable prospects of success. The Commission noted that under section 587(1) of the Act, it may dismiss an application for various reasons, including if it is not made in accordance with the Act, or if it is frivolous or vexatious. The Commission decided to dismiss the application for want of prosecution, based on the failure to comply with procedural requirements and the absence of any response to correspondence from the Commission.

The Fair Work Commission, exercising its discretion under section 587(3)(a) of the Act, dismissed the application for want of prosecution. This decision was made due to the failure to serve the application on the respondent and the lack of response from Mr. Ling to correspondence from the Commission. The dismissal was not based on the merits of the dispute but rather on procedural grounds.

The final orders of the Commission were that the application in C2022/7291 was dismissed for want of prosecution.

Mr Tristan Ling v Hamilton Island Enterprise T/A Hamilton Island Enterprises Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established