s.375B - Application for costs orders against parties

The Trustee For Pacific Waters Trust, Ausflow Pty Ltd

Application under Part 3-1 of the Fair Work Act 2009 - jurisdictional objections - objectors failing to file material in response to Commission directions - objections dismissed - application for costs under s.375B - whether unreasonable act or omission on the part of objectors

• [1] This decision concerns an application for an order for costs under s.375B of the Fair Work Act 2009 (Cth)(Act). The application has been made by the lawyers for an applicant, Mr. Andras Torocsik, in a matter arising under s.365 of the Act in which Mr. Torocsik alleged he had been dismissed in contravention of the general protections provisions in Part 3-1 of the Act. The respondents to that application and the present application for costs, were the Trustee for Pacific Waters Trust and Ausflow Pty Ltd (together, the Respondents).

• [2] The background to the application is straightforward. In response to Mr. Torocsik's application under s.365 of the Act, the Respondents made two objections. The first was that the application was out of time. The second was that Mr Torocsik had not been dismissed for the purposes of s.365.[1] These were matters that had to be determined before the Commission could deal with the dispute under s.368 of the Act.

• [3] Directions were made for the parties to file material to allow the objections to be determined. The Respondents were required to put on material first. Nothing was received from the Respondents by the designated date, 14 February 2025. The Respondents were then asked to provide material by 17 February 2025. Again, nothing was received from the Respondents. Thereafter the parties were asked to confirm whether the application and the objections were pressed and each of them confirmed that they pressed their respective positions.

• [4] On 24 February 2025 the Applicant filed his material in response to the objections. The Respondents were given a further opportunity to file the outstanding material but did not do so. At the request of the Applicant and without objection from the Respondents or any material from them in response to the directions, I determined that the matter could be dealt with on the papers. On 7 March 2025 I issued a decision[2] dismissing the Respondents' objections.

• [5] On 15 April 2025 the Respondents' new lawyer filed a notice advising that he now appeared for the Respondents. A conference was conducted on 16 April 2025. The matter did not settle, and a certificate was issued under s.368 of the Act on that day.

• [6] The Applicant contended that a costs order was now warranted in circumstances where the Respondents had raised jurisdictional objections and on four occasions, had unreasonably failed to engage with and respond to Commission correspondence. It was put that the Respondents had failed to file any submissions in support of their objections in response to directions even though they had confirmed that they wanted to press these objections. The Applicant said this conduct resulted in him unreasonably incurring costs in having to deal with the jurisdictional objections which were ultimately found to be without foundation.

• [7] The objections to the originating application set out in the responses filed by both Ausflow Pty Ltd and the Trustee for Pacific Waters Trust were, respectively, in the following terms:

Mr Andras Torocsik was provided 4 weeks notice from 4th November 2024. An email was received on Friday 8th November from Andras Torocsik confirming and acknowledging that he was given 4 weeks notice. The application is out of time as per clause 1.2 [a reference to the numbered paragraph of the F8A form] where the applicant lodged more than 21 days after dismissal took place. Andras was provided his 4 weeks notice as per fair works (sic) requirements.

There was a new restructure of the company. Andras Torocsik was provided with 4 weeks notice from the 4 November 2024. Attached email trails confirming this. Emails from Andras & emails from Paul. The person was not dismissed within the meaning of s.386 of the Fair Work Act 2009.

• [8] The Respondents contended that it was clear from the objections that the Respondents believed the date the termination "took effect" for the purposes of the form was the date the Applicant was notified of the termination, namely, 4 November 2024. Since the application was made more than 21 days from that date, it was put that the Respondents believed, incorrectly, that the application was out of time. The Respondents said that this was a common misconception in dismissal matters and that it was unsurprising that self-represented employers without the benefit of professional advice, would maintain that view.

• [9] As to the second objection, the Respondents said the objection was the result of misunderstanding on their part as to how employment ends. The Respondents submitted that they had erroneously believed "that because the applicant was given, and worked throughout, his 4 week notice period, the employment ended "naturally", in the sense that the employment comes to a planned or timed end, as opposed to having his employment end prematurely (that is to say, by summary or immediate dismissal)."

• [10] The Respondents accepted that they misunderstood the bases upon which they advanced their objections. They said that had they had the benefit of legal representation, the objections would not have been made. They said that although the objections were misconceived and could not have been upheld, they were nonetheless put forward in good faith and that they should not be penalised for their incorrect view of the law, unaided by legal advice.

• [11] The Respondents also submitted that to the extent the failure by them to file material in support of their objections was an omission for the purpose of s.375B, it was not an unreasonable omission. They submitted that although the objections proceeded from an uneducated view of the law, once raised, the Commission was required to satisfy itself that it had jurisdiction to deal with the matter and the existence of jurisdiction was not dependent on the active participation of a contradictor. It was put that the Applicant's material was directed towards whether the Commission did or did not have jurisdiction and to that extent, the Applicant's costs of preparing submissions directed to that issue were not "wasted".

• [12] Section 375B relevantly provides:

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

(a) an application for the FWC to deal with the dispute has been made under section 365; and

(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.

• [13] Section 377 requires that any application for costs in relation to an application under s.365 be made within 14 days after the Commission finishes dealing with the dispute. The Commission finished dealing with the dispute when the certificate was issued on 16 April 2025. The costs application was made on 29 April 2025 and is therefore within time.

• [14] It is readily apparent from the terms of s.375B that the power to award costs is discretionary and involves a two-stage process. The Commission must first determine whether there is a power to award costs on the basis that an application of the kind referred to in s.375B(1)(a) has been made and the Commission is satisfied that a party caused costs to be incurred because of an unreasonable act or omission. If such power does exist, the next step is for the Commission to then consider whether it is appropriate in the circumstances to exercise the power to award costs.[3]

• [15] What amounts to an unreasonable act or omission will depend on the circumstances of the case. The Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 said that the power to award costs under section 375B was "not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct."[4]

• [16] The unreasonable act or omission of the Respondents that the Applicant relies on in support of the costs application is the Respondents' "failure to engage with and or respond to the FWC correspondence" and the failure to file evidence and submissions in support of the jurisdictional objections that the Respondents had raised "even after confirming they acknowledge receipt of the FWCs' correspondence by emailing that they press their jurisdictional objections." In my view these matters do not, in the circumstances, constitute an unreasonable act or omission for the purposes of s.375B.

• [17] The Respondents were until recently, self-represented. That is not unusual in this jurisdiction. The Act provides that parties seeking to be represented by lawyers or paid agents must seek permission for that to occur.[5] In that sense the "default position" embodied in the legislation is that parties will generally represent themselves and therefore make their own assessments as to how the matter should be conducted in their own interest. I accept, as the Respondent put it, that the Act's provisions relating to representation carries with it an expectation that litigants in this jurisdiction will not always be well versed in industrial law or the processes and procedures of the Commission. This is one such case.

• [18] The question of when a dismissal with notice ultimately takes effect is a matter that can involve some complexity and has been the subject of extensive litigation[6] over a long period. There was sufficient, albeit misplaced, uncertainty as to the date the dismissal took effect, for an unassisted litigant such as the Respondents to raise the out of time objection. I think there is less to be said for the 'not dismissed' objection in that it is likely to have been reasonably apparent to the Respondents that the employment had been brought to an end as a consequence of a decision and act on the part of the employer, even in circumstances of an unexplained 'company restructure'. Nonetheless there was nothing to suggest that the objections were not raised in good faith or for any reason other than a misconception of the law.

• [19] Having advanced objections to the application it was to be expected that the Respondents would be asked to put on material and submissions in support of those objections. Their failure to do so meant that the Applicant presented unopposed evidence that allowed the Commission to determine that it had the jurisdiction to proceed. Whilst it would have been appropriate for the Respondents to confirm that they did not intend to file material in support of their objection and to engage with Commission correspondence about the matter, their failure to do so after putting the matters in issue was not, in the present context, an unreasonable act or omission. I am therefore not satisfied that the power to award costs under s.375B is enlivened. I would add that even if I am wrong about that I do not regard this as a case where the discretion to exercise such a power should be exercised.

[2] [2025] FWC 679.

[3] McKenzie v Meran Rise Pty Ltd (unreported, AIRCFB, Giudice J, Watson SDP, Whelan C, 7 April 2000) Print S4692 [7].

[6] See for example Siagan v. Sanel [1994] IRCA 2.

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