Ms Ly Tran v Millair Climate Control and Electrical Northern Territory Pty Ltd T/A Johnny Cool Darwin

[2025] FWC 3084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Ms Ly Tran
v

Millair Climate Control and Electrical Northern Territory Pty Ltd T/A Johnny Cool Darwin

(C2025/9488)

COMMISSIONER RIORDAN

SYDNEY, 21 OCTOBER 2025

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

On 26 September 2025, Ms Ly Tran (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (FW Act), being an application to deal with a dispute pursuant to the Clerks – Private Sector Award 2020 (the Award). The Respondent to the Application is Millair Climate Control and Electrical Northern Territory Pty Ltd T/A Johnny Cool Darwin (the Respondent).

The matter was listed for a Telephone Conference on 8 October 2025. The Notice of Listing asked that the parties write to my Chambers ahead of the Conference date to confirm their appearances.

The Respondent wrote to my Chambers on 7 October 2025 to confirm their appearances.

The Applicant failed to write to my Chambers to confirm her appearance.

Ahead of the commencement of the 8 October 2025 Conference, my Associate attempted to contact the Applicant by phone, however, the Applicant did not answer. My Associate also sent an email to the Applicant asking that she urgently make herself available to be connected to the Conference line.

Three further attempts were made to contact the Applicant by phone, however, the Applicant did not answer these calls and did not dial into the Conference line as required on the Notice of Listing. Accordingly, the Conference was vacated.

On that same date, a ‘Non-Attendance Letter’ was issued to the Applicant, requiring that she write to my Chambers within 7 days to provide an explanation for her non-attendance and reasons why her application should not be dismissed.

No communication, by telephone or email, has been received from the Applicant in response to the Non-Attendance Letter.

Relevant Legislation

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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)       Despite paragraphs (1)(b) and (c), the 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)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.[2]

The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact her in relation to the Conference of 8 October 2025, and has failed to respond to the Non-Attendance Letter issued on that same date. The Applicant has shown no willingness to prosecute her case and has taken no steps to do so.

In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Ms Tran’s application for failure to prosecute her case.

Accordingly, the application is dismissed pursuant to section 587 of the FW Act.

I so Order.

COMMISSIONER

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

Printed by authority of the Commonwealth Government Printer

In the matter of Ms Ly Tran versus Millair Climate Control and Electrical Northern Territory Pty Ltd T/A Johnny Cool Darwin, the Fair Work Commission was tasked with addressing an application filed by Ms Tran under section 739 of the Fair Work Act 2009. The application pertained to a dispute arising under the Clerks – Private Sector Award 2020. The Respondent, Johnny Cool Darwin, contested the claims brought forth by Ms Tran. The Commission needed to determine whether Ms Tran's application should be dismissed due to her failure to prosecute her case.

The legal issues before the Commission were centered around the criteria for dismissing an application under section 587 of the Fair Work Act 2009. Specifically, the Commission had to consider whether Ms Tran's application was frivolous or vexatious, had no reasonable prospects of success, or whether she had failed to prosecute her case without examining the merits. The Commission also needed to assess whether Ms Tran's non-compliance with the procedural requirements of the Fair Work Commission, such as failing to attend the scheduled conference and provide an explanation for her absence, warranted dismissal of her application.

Commissioner Riordan found that Ms Tran's repeated failure to attend the scheduled conference and respond to communications from the Commission's Chambers demonstrated a lack of willingness to prosecute her case. The Commissioner noted that despite multiple attempts to contact Ms Tran and a non-attendance letter, there had been no response from Ms Tran. This non-compliance with procedural requirements, coupled with the absence of any steps taken by Ms Tran to pursue her application, led the Commissioner to conclude that the application should be dismissed. The decision was made in accordance with the precedent set by L. Sayer v Melsteel Pty Ltd, where the Full Bench held that section 587(1) allows for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

The Commission dismissed Ms Tran's application pursuant to section 587 of the Fair Work Act 2009. The dismissal was due to Ms Tran's failure to prosecute her case and her non-compliance with the procedural requirements of the Commission. The Commissioner's decision was grounded in the principle that the power to dismiss an application should be exercised cautiously, but in this instance, the lack of effort by Ms Tran to engage with the process justified the dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established