Fair Work Act 2009_

s.394 - Unfair dismissal

Visy Primary Packing T/A Visy Industries Australia Pty Ltd

[1] This is a decision arising from an application for the payment of the costs incurred by Visy Packaging Pty Ltd (Visy) in defence of an application lodged by Mr Gary Hathaway pursuant to s.394 of the Fair Work Act 2009 (the Act). The application seeks costs pursuant to s.400A and s.611 of the Act be paid by Mr Hathaway and his representative Mr Alkan.

[2] At the conclusion of these proceedings before the Fair Work Commission (the Commission) Mr Hathaway had not lodged any materials on his own behalf nor had his representative lodged any materials.

[3] Applications for extensions of time had been made and agreed to by the Panel Head for unfair dismissals. No documents were supplied in compliance with the extensions granted and, when the application was discontinued, no material had been supplied.

[4] There is no material before me on which I could determine with any satisfaction that the application of Mr Hathaway was lodged vexatiously or without reasonable cause. Nor is there any material on which I could be satisfied, that it would have been reasonably apparent to Mr Hathaway, that his application had no reasonable prospects of success. I am not prepared to draw an inference from the failure of Mr Hathaway or his representative to provide materials. The application for costs pursuant to s.611 of the Act must therefore fail.

[5] In relation to the application for costs pursuant to s.400 I am satisfied that Mr Hathaway, and his representative Mr Alkan, caused costs to be incurred by Visy by their omissions. The solicitors for Visy were not obliged to prepare documents until after the applicant did so. However, since undertakings to provide documents were provided to the Commission by Mr Hathaway and his representative, it was reasonable, and in fact best practice, for Visy to do what work could be done in preparation for what it was entitled to assume would be a hearing on the substantive merits. That work was thrown away by the discontinuance of this application without any attempt to produce documents and prepare for an arbitration.

[6] For these reasons I order that Mr Hathaway, and his representative, pay the party/ party costs incurred by Visy in relation to this application. Those costs will be paid as to 25% by Mr Hathaway and 75% by Mr Alkan. The respondent shall provide an assessment of those costs for the consideration of Mr Hathaway and Mr Alkan. If the assessment of costs is not agreed upon it shall be provided to me for consideration and decision as to quantum.

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