Ms Candy Choi v Country Fire Authority T/A CFA

[2013] FWC 990

[2013] FWC 990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Candy Choi
v
Country Fire Authority T/A CFA
(U2012/9766)

COMMISSIONER ROE MELBOURNE, 12 FEBRUARY 2013

Application for costs.

[1] This is an application for costs made by Ms Candy Choi the Applicant in the unfair dismissal proceedings. Ms Choi is seeking costs from Country Fire Authority and Mr Michael Foreshew a manager of the Country Fire Authority.

[2] The Application for costs does not make it clear which Section of the Fair Work Act 2009 (the Act) is being utilised. As the matter is an unfair dismissal application Section 376 and Section 780 are not relevant.

[3] I am satisfied that the Application for costs is brought pursuant to Section 401 or 611 of the Act. They provide as follows.

“401 Costs orders against lawyers and paid agents

(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

(a) that:

(i) the lawyer or paid agent caused costs to be incurred by the other party to the matter because the lawyer or paid agent encouraged the person to start or continue the matter; and

(ii) it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.

(2) FWA may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit FWA’s power to order costs under section 611.

402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:

(a) FWA determines the matter; or

(b) the matter is discontinued.

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: FWA can also order costs under sections 376, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[4] I was concerned that the Application for costs could lead to the Applicant, who is unrepresented, potentially incurring further costs. My Associate therefore wrote an email to the parties on 11 February 2013 as follows:

“The Commissioner has also received an application for costs against the CFA and Michael Foreshew from the Applicant in this matter. The initial view of the Commissioner is that the Application has significant problems. The Application under Section 401 or 611 must be made within 14 days of the decision. Furthermore, the CFA is not the Applicant in U2012/9766 and therefore it is difficult to see how the provision applies. The Commissioner therefore would not intend to require the CFA to respond to the Applicant’s application for costs at this time. The Commissioner will provide the Applicant with an opportunity to explain why the application should not be dismissed. The Commissioner requests that the Applicant respond within seven days.”

[5] The Applicant responded the same day as follows:

“Dear Ms Nassios,

Firstly, I was unaware that the time frame to lodge  F6 Form  is within 14 days  of the decision was made. I am aware that for other lodgement  forms on Fair work  site,  there is an  option to apply for an extension of time.

  Secondly,  even though  I am the applicant, I am contending that the termination at CFA  was unfair, unjust and unreasonable as per cited in my appeal (and where I believe in fact the Commissioner's decision of dismissed has significant problems)  and such, all cost I have incurred  to run this case, should not have  occurred in the first place.

 Thirdly, In my application of F6 Form I have specifically and clearly outlined the reasons for the claim and hence I will not to submitting  another request  re-iterating why the application of F6 should not be dismissed.

Regards

Candy Choi”

[6] It should be noted that the Respondent has made an application for costs against the Applicant. The parties agreed to my suggestion that this should be dealt with based upon written submissions from the parties. However, I have suspended my directions in that matter pending the outcome of the appeal against my decision of 23 January 2013 in the unfair dismissal matter (PR533362).

[7] I have considered the eleven points in the grounds for the application as set out in the application form.

[8] I am satisfied that Section 402 requires that an Application for costs in respect to a decision concerning an unfair dismissal application must be made within 14 days of the decision. The Application in this case was made on 11 February 2013 in respect to a decision which was made on 23 January 2013. The Fair Work Commission cannot deal with the Application because it has been made more than 14 days after the decision. There is no discretion provided for in Section 402.

[9] In any case it is hard to imagine a situation in which Section 611(2) could apply in a circumstance where the Respondent is required to respond to the unfair dismissal application and where a member of the Tribunal has dismissed that unfair dismissal application. In such a circumstance it is hard to see how the response of the Respondent could be described as vexatious, without reasonable cause or with no reasonable prospect of success. Section 401(1)(a) similarly is most unlikely to have any relevance to the applicant in the unfair dismissal proceedings. The Applicant in this case has not alleged anything which relates to Section 401(1)(b).

[10] The Application for costs is dismissed.

COMMISSIONER

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