Fair Work Act 2009

s.604 - Appeal of decision

Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology

Appeal against a decision [2017] FWC 1117 and order [PR592084] of Deputy President Binet at Perth on 24 April 2017 and 14 June 2017 respectively in matter U2016/5307 - Appellant's failure to attend proceedings or comply with the Commission's directions - appeal dismissed.

[1] This decision concerns an application, filed by Ms Natalie Raschilla (the 'Appellant') on 14 August 2017, for permission to appeal and appeal of a Decision: Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017] FWC 1117 of Deputy President Binet issued on 24 April 2017 with a consequential Order [PR592084] which took effect on 14 June 2017. The Deputy President's order required the Appellant to pay Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology (the 'Respondent') the sum of $2,304.50 for costs in respect to findings of the Deputy President that the Appellant unreasonably failed to discontinue her unfair dismissal application after the settlement of her claim and her failure to comply with the Commission's directions.

[2] For the purposes of this decision, it is unnecessary for the Full Bench to determine the question of whether permission to appeal should be granted, pursuant to s 604(2) of the Fair Work Act 2009 (Cth) (the 'Act'). This is so because we have decided to dismiss the appeal for want of prosecution, in that there was a failure of the Appellant to comply with the directions of the Full Bench and a failure by the Appellant to attend the hearing of her appeal on 1 November 2017, without any explanation. These are our reasons.

[3] It is useful to set out a short narrative of the background to the hearing of this appeal. The application for permission to appeal and appeal was lodged on 14 August 2017; some 61 days after the Deputy President's costs order was to take effect. Consequently, the appeal was lodged 40 days outside of the 21 day time period for the filing of an appeal, as required by sub rule 56(2) of the Fair Work Commission Rules 2013.

[4] In her originating appeal application, the Appellant sought a stay of the costs order, pursuant to s 606 of the Act. The stay application was listed before Deputy President Gostencnik on 1 September and the Deputy President granted the stay, by consent, that day. Obviously, in view of the Respondent's consent to the stay order, Deputy President Gostencnik was not required to make findings as to the balance of convenience or the Appellant's prospects of success.

[5] In accordance with the Commission's appeal protocols, the appeal was listed for permission to appeal, in the Full Bench list for November 2017. The Presiding Member issued directions for the preparation of the hearing, which required, inter alia, the Appellant to file with the Commission and serve on the Respondent, three copies of the appeal book seven days after the lodging of the appeal and an outline of submissions by 6 October 2017. No appeal books or submissions were filed by the requisite deadlines, or at all.

[6] The Vice President's Associate attempted twice to contact the Appellant by phone on 10 October 2017 and twice again on 11 October 2017, without success. No voicemail was able to be left. His Honour's Chambers emailed the Appellant on 11 October 2017 to the following effect:

'We note that your submissions were due on Friday, 6 October. However, we have not yet received any submissions.

We attempted to contact you multiple times by phone on 10 October and 11 October to ascertain whether you are filing submissions, however, we were not able to contact you.

The Vice President notes that, ultimately, it is a matter for you if you wish to file submissions. The Vice President further notes that, whether you file submissions or not, the hearing will proceed on 1 November in accordance with the Notice of Listing and Directions.'

[7] As there has been no communications received from the Appellant - let alone any request for an extension of time to file her submissions - the appeal proceeded to hearing before the Full Bench on 1 November 2017 in Melbourne. There was no appearance, by or on behalf of the Appellant. Ms A. Williams appeared for the Respondent. Prior to the hearing, the Vice President's Associate made three further attempts to contact the Appellant. In light of these circumstances, the Full Bench convened at 10:15am, and determined to dismiss the appeal.

[8] The Commission's powers to dismiss an application are set out generally in s 587 of the Act and specifically, in respect to unfair dismissal applications, under Part 3-2 at s 399A. We set out these provisions below:

(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.

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

• (a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

• (b) failed to comply with a direction or order of the FWC relating to the application; or

• (c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

[9] The Commission's powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an applicant's right to have their substantive application heard and determined by the Commission (assuming no other jurisdictional impediment arises preventing such determination). In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Barwick CJ said at paragraph 8:

'The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated.'

[10] We note that s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, there have been numerous unsuccessful attempts to contact the Appellant. She has been advised of the Full Bench's directions and the implications of her failure to comply with directions. We have no reason to doubt the Appellant was aware of both the directions and the hearing of her appeal. There has been no contact from the Appellant seeking to amend directions or providing any explanation for her failure to attend the hearing of her appeal. To this date, that remains the position.

[11] The Commission's approach to circumstances of this kind was considered in Peter Viavattene v Health Care Australia [2013] FWCFB 2532 where the Full Bench said at paragraphs [36]-[37]:

'[36] The Commissioner provided the Appellant with an opportunity to present his case, she was not required to ensure that the Appellant took advantage of the opportunity presented. As Deane J said in Sullivan v Department of Transport:

"... it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."

[37] Kirby J made an observation to similar effect in Allesch v Maunez:

"It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made ...

... it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require. Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests.

Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment".' (Footnotes omitted)

[12] Given the circumstances, the Full Bench concludes that the Appellant's conduct is such as to satisfy the grounds for dismissing her appeal under s 399A(a) and (b) of the Act. In addition, given the statutory command in s 381(2) of the Act 'to ensure that a "fair go all round" is accorded to both the employer and employee concerned', we consider it would be unfair for the Respondent to incur further and likely wasted costs and time by adjourning the appeal to a future date.

[13] We are satisfied that as the Appellant has:

• (a) Failed to attend a hearing held by the Commission, in relation to her application; and

• (b) Failed to comply with a direction of the Commission relating to her application.

[14] Therefore, in all the circumstances, it is appropriate that the appeal be dismissed. We confirm our orders as follows:

1. The stay order made by Deputy President Gostencnik on 4 September 2017 is revoked; and

2. The appeal is dismissed, pursuant to s 399A and s 587 of the Act.

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