University of Sydney v MALEKNIA

[2016] FCCA 1051

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNIVERSITY OF SYDNEY v MALEKNIA [2016] FCCA 1051

Catchwords:
INDUSTRIAL LAW – Application for relief in respect of orders made – applicant did not comply with orders made by the Fair Work Commission – whether the costs order was properly made – application allowed.

Legislation:

Fair Work Act 2009 (Cth), ss.545, 546, 566, 572, 611

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: UNIVERSITY OF SYDNEY

Respondent: SIMIN MALEKNIA

File Number: SYG 3419 of 2015

Judgment of: Judge Street

Hearing date: 4 May 2016

Date of Last Submission: 4 May 2016

Delivered at: Sydney

Delivered on: 4 May 2016

REPRESENTATION

Solicitors for the Applicant: Ms J Wright
University of Sydney

No appearance by or on behalf of the respondent

ORDERS

1. Pursuant to s.545(2) of the Fair Work Act 2009, the respondent pay compensation in the amount of $19,063.00 in respect of the loss suffered by the applicant due to the contravention of s.611 of the Fair Work Act 2009 by the respondent in respect of the orders made on 26 June 2015 and 15 November 2015 and pursuant to s.547(2) of the Fair Work Act 2009, interest be paid by the respondent to the applicant in the amount of $492.07 making a total amount of compensation and interest to be paid by the respondent to the applicant in the amount of $19,555.07.

2. Pursuant to s.570(2)(b) of the Fair Work Act 2009 the respondent pay the costs of the applicant fixed in the amount of $11,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3419 of 2015

UNIVERSITY OF SYDNEY

Applicant

And

SIMIN MALEKNIA

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.566 of the Fair Work Act 2009. The applicant moves for relief in relation to alleged contravention of s.611 of the Fair Work Act 2009. The matter was fixed for hearing today pursuant to orders made on 18 March 2016. The respondent has failed to appear. I am satisfied that the applicant is well aware of the proceedings fixed for today and I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(e) to proceed with the hearing of the application. I have taken into account the application in a case filed in SYG 1331 of 2015 and that this application in a case was not advanced by the applicant. The affidavit material filed in support of that application in a case did not adequately explain the failure of the respondent to attend. I am of the view that no adjournment was justified in the interests of the administration of justice.

2. The applicant relies upon an affidavit of an officer of the University of Sydney who has identified that on 26 June 2015, a full bench of the Fair Work Commission ordered the respondent to pay the applicant $1240 on account of costs in a particular matter.  That matter involved an allegation by the respondent that she had been wrongfully dismissed in respect of a fixed term contract.  The allegation of wrongful dismissal advanced by the respondent was made after the termination of the fixed term contract and after the relevant period of time for seeking to invoke the jurisdiction of the Fair Work Commission, unless granted leave.

3. The Fair Work Commission identified it was an appropriate matter in which to make an order as to costs, notwithstanding, the ordinary rule in relation to this jurisdiction.  The evidence also identifies that on 13 November 2015, Senior Deputy President Drake of the Fair Work Commission ordered the respondent to pay the applicant $17,823 on account of its costs in the matter being the hearing of the leave application that was then taken on appeal to the full bench of the Fair Work Commission.  Senior Deputy President Drake also made a costs order in the circumstances of that case, notwithstanding, the ordinary rule.

4. I am satisfied on material before the Court that the costs orders were properly made within s.611(2) of the Fair Work Act 2009.  I am satisfied on the evidence before the Court that the respondent has failed to pay the respective costs orders.  I take into account the nature of the proceedings and the heavy onus to establish a contravention under the Fair Work Act 2009. I am satisfied on the evidence before the Court that the respondent has contravened the orders made under s.611(2) by the full bench of the Fair Work Commission and by Senior Deputy President Drake of the Fair Work Commission.

5. I am satisfied that the respondent has contravened s.611(3) of the Fair Work Act 2009. This enlivens the Court’s powers under s.545. Whilst it would have been open to the Court to make an order under s.545(1), the nature of the application identified the seeking of an order under s.545(2). I am satisfied that the contravention caused the applicant’s loss in respect of which the appropriate compensation is the amount ordered to be paid by the full bench of the Fair Work Commission and the amount identified by Senior Deputy Drake of the Fair Work Commission.

6. I am satisfied that it is appropriate to make an order that the respondent pay compensation for the loss suffered by the applicant because of the contravention of s.611 by the respondent. I am also satisfied that this is an appropriate matter in which interest should be awarded on the respective amounts from the date of the making of the order in the respective matters.

7. I am not satisfied that this is an appropriate matter in which to exercise the Court’s powers under s.546 of the Fair Work Act 2009. I do, however, accept the submission on behalf of the applicant that this is an appropriate matter in relation to which to exercise the Court’s powers under s.572 of the Fair Work Act 2009. I take into account the ordinary rule that should apply in this jurisdiction and the caution that should be exercised in exercising the power under s.572.

8. I am satisfied that it is the respondent’s unreasonable act or omission in failing to pay the costs orders that has caused the applicant to incur the costs of having to bring these proceedings.  I am satisfied that this is an appropriate matter in which to make an order in respect of that unreasonable act or omission by the respondent.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 May 2016