1. Mainrange Corporation filed a response on 23 September 2009 objecting to this Court's jurisdiction to hear the application. In its submissions filed on 14 October 2009, it objected to this Court's jurisdiction to hear the application under ss.323 and 539 of the FW Act where the termination had occurred on 12 March 2009, more than three months before the relevant provisions of the FW Act took effect on 1 July 2009.
2. In relation to the s.659(2)(e) claim under the WR Act Mainrange Corporation conceded that the Court had jurisdiction to hear s.659(2)(e) claims but not in circumstances where:

1. the application had not been made within time to the Australian Industrial Relations Commission[6] or Fair Work Australia,[7] and where an extension of time was therefore required in which to file the application;[8] 2. there had been no conciliation and no issuance of a certificate indicating that the AIRC or FWA had been unable to resolve the application;[9] and

1. no election to proceed in this Court had been filed.[10]
2. Mainrange Corporation made some other submissions in relation to jurisdiction, but it is only necessary to deal with those outlined above.

1. Counsel for Ms Hughes appeared at the hearing of the jurisdictional objection, and, quite properly, conceded that:
   1. the Court did not have jurisdiction with respect to the ss.323 and 539 claim because the relevant provisions of the FW Act did not apply before 1 July 2009; and
   2. in order for there to be a valid s.659(2)(e) claim under the WR Act Ms Hughes would have needed to have applied to the AIRC or FWA for an extension of time in which to file that application, and that had not been done.
2. Thus, the absence of jurisdiction was effectively conceded, and Ms Hughes (through Counsel) sought only to argue costs.[11]

1. Statutes, whether original or amending, do not have retrospective effect, unless there is express provision in the statute to the contrary.[12]
2. In this case the provisions of s.323 of the FW Act did not make unlawful, under the FW Act, the conduct complained of, prior to 1 July 2009. It follows therefore that an application alleging contravention of a civil penalty provision under s.539 of the FW Act likewise cannot apply before 1 July 2009 in respect of an alleged contravention of s.323. There is, therefore, no jurisdiction in this Court to hear the application as originally filed.

1. On the evidence, there is no application filed by Ms Hughes under s.659(2)(e) of the WR Act. In the absence of such an application, the Court has no jurisdiction to hear any application under that provision. Furthermore, and in any event, the Court either has no jurisdiction, alternatively power, to hear such an application in circumstances where:

1. there has been no application for an extension of time in which to file the application; 2. no certificate under s.650 of the WR Act has been issued by the AIRC or FWA; and

1. consequently, there has been no election as to whether to proceed before the AIRC or FWA, or in this Court or the Federal Court.[13]
2. In the circumstances, this Court does not therefore have jurisdiction to hear the applicant's claim under s.659(2)(e) of the WR Act, because no application has been made, and even if it had been made, the Court would not have had jurisdiction, alternatively power, to hear it until such time as the various procedural requirements under the provisions of the WR Act had been complied with.

1. Had the Court had jurisdiction with respect to an unlawful termination claim under s.659(2)(e) of the WR Act it may also have had jurisdiction with respect to the s.323 FW Act claim, not as a s.323 claim, but rather as a contractual claim in the Court's associated jurisdiction.[14] However, where, as here, there is no matter within the primary jurisdiction of the Court, associated jurisdiction under s.18 of the Federal Magistrates Act 1999 (Cth)[15] cannot be invoked.[16]

1. The Court has concluded, consistent with the concession made by Counsel for Ms Hughes, that it has no jurisdiction to hear the application.

1. A party may be ordered to pay the costs of proceedings where the Court exercises jurisdiction under the FW Act in limited circumstances prescribed by s.570(1), which include, under s.570(2)(b), the Court being satisfied that the party's unreasonable act or omission caused the other party to incur costs.
2. For the purposes of s.570(2)(b) two criteria must be fulfilled. They are:
   1. that a party must have engaged in an unreasonable act or omission; and
   2. that the unreasonable act or omission must have caused another party to incur costs in connection with the proceeding.[17]
3. Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case.[18]
4. The exercise of the discretion in s.570(2)(b) is not necessarily engaged because:

1. a party does not conduct litigation efficiently;[19] 2. a concession is made late;[20]

1. a party may have acted in a different or timelier fashion;[21]

1. a party has adopted a genuine but misguided approach.[22]
2. Counsel for Ms Hughes argued that as a previously self-represented litigant costs ought not be awarded against her in respect of this matter.
3. In these proceeding, Ms Hughes initiated an application, to which a jurisdictional objection was taken in the response filed by Mainrange Corporation on 23 September 2009. That jurisdictional objection was reiterated at the directions hearing on 9 October 2009. Ultimately, the jurisdictional objection in respect of the original application was conceded at the jurisdictional hearing. Whilst it might be understandable that Ms Hughes might file an application in respect of which the Court had no jurisdiction, because the FW Act did not operate retrospectively, there is no evidence that Ms Hughes made any enquiries as to the validity of that jurisdictional objection prior to the first directions hearing on 9 October 2009, nor prior to the filing of Mainrange Corporation's submissions on 14 October 2009. Indeed, it is not until the jurisdictional hearing on 26 October 2009, and not until Mainrange Corporation had filed submissions in reply, that the concession was made with respect to jurisdiction. Both the failure to apparently make any enquiries, and the failure to concede the jurisdictional objection until a hearing on 26 October 2009, are in the Court's view unreasonable acts which have necessitated Mainrange Corporation incurring costs that they ought not otherwise have incurred. The jurisdictional objection in relation to the original application is so fundamental that a simple enquiry with any competent lawyer, or any of the many available free legal advice services, would have put Ms Hughes in a position to concede the jurisdictional objection with respect to the original application much earlier than she did, including before the first directions hearing.
4. In the Court's view the actions of Ms Hughes in this regard constitute an unreasonable act which has caused the respondent Mainrange Corporation to incur costs in connection with the proceedings. For similar reasons, the Court considers that the proceedings were instituted without reasonable cause. Therefore, in respect of the original application, the Court would award costs to Mainrange Corporation under s.570(2)(a) and (b) of the FW Act.
5. The inclusion in Ms Hughes' submissions of a claim under s.659(2)(e) does not attract costs because, by reason of the exclusion of applications under s.663 of the WR Act (which the s.659(2)(e) claim is by reason of s.663(1) of the WR Act), the without reasonable cause and unreasonable act discretionary provisions in s.824 of the WR Act allowing the Court to award costs do not apply to Ms Hughes' s.659(2)(e) claim.
6. The respondent is therefore entitled to costs, in relation to Ms Hughes' FW Act claim, under Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth) at the rate prescribed for:
   1. stage 1, namely initiating or opposing an application up to the completion of the first court date, that being a sum of $2,350, plus a daily hearing fee of $240 for a short mention on 9 October 2009 (being the directions hearing); and
   2. stage 2, namely an interim hearing, that being a sum of $1,465 plus a daily hearing fee of $240 (the Court in the exercise of its broad discretion as to costs[23] categorising the jurisdictional hearing, because of its length, as a short mention rather than a half-day hearing).
7. Costs in the total sum of $4,295 are therefore payable by Ms Hughes to Mainrange Corporation, with one month to pay.

I certify that the preceding 27Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-seventwenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lucev FM

[3] Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025 ("Mainrange (No. 1)").

[5] As to what constitutes recourse to a competent administrative authority, see Weerasinghe v Prism Grafix Pty Ltd [2009] FMCA 728.

[11] As to which see paras.19-27 below.

[12] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon CJ; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194 per Fullagar J; The State of Western Australia v Wallam [2008] WASCA 117 at para.31 per McLure JA.

[13] See Rentuza v Westside Auto Wholesale [2009] FMCA 1022 where this Court held that it had no jurisdiction to hear an alleged unlawful termination claim under the FW Act where the mandatory requirement for a s.777 certificate under the FW Act to be filed with the unlawful termination court application had not been met.

[14] See Crowe v Comcare Australia (No. 1) [2002] FMCA 146; Windross v Transact Communications Pty Ltd [2002] FMCA 145; W & W [2003] FMCAfam 150; Skipworth v State of Western Australia (No. 2) [2008] FMCA 544; (2008) 218 FLR 16 at 27-28 per Lucev FM; [2008] FMCA 544 at para.37 per Lucev FM. Generally, as to associated jurisdiction, see Justice Allsop, "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Aust Bar Review 25, and Justice Allsop "An Introduction to the Jurisdiction of the Federal Court of Australia", www.fedcourt.gov.au/aboutct/judges papers/speeches _allsop8.html (October 2007).

[16] Taylor v CGU Insurance Ltd (2005) FMCA 1073; Fernando v Minister for Immigration [2007] FMCA 724 at para.41 per Lucev FM.

[17] Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582 per Tamberlin, Gyles and Gilmour JJ; [2008] FCAFC 143 at para.28 per Tamberlin, Gyles and Gilmour JJ ("Clarke").

[18] Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879; (2007) 162 FCR 392 at 402 per Tracey J; [2007] FCA 879 at para. 32 per Tracey J ("Qantas (No.3)"); McAleer v University of Western Australia (No.2) (2007) 161 IR 151; [2007] FCA 247.

[19] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.29 per Tamberlin, Gyles and Gilmour JJ.

[20] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.29 per Tamberlin, Gyles and Gilmour JJ.

[21] Clarke FCR at 582-583 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.30 per Tamberlin, Gyles and Gilmour JJ.

[22] See, for example, the approach in Qantas (No.3) FCR at 403 per Tracey J; FCA at para.39 per Tracey J.