[2010] FWA 8499

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Ms Susan Keel
v
State of Victoria (Department of Education and Early Childhood Development)
(U2010/9041)

COMMISSIONER SMITH

MELBOURNE, 4 NOVEMBER 2010

Security of costs.

[1] This is an application made pursuant to s.404 of the Fair Work Act 2009 (Cth) for security of costs against Ms S Keel. Ms Keel has made an application for relief in relation to her termination of employment by the State of Victoria (Department of Education and Early Childhood Development) (the Department).

[2] The matter was listed for hearing on 29 October 2010. Ms Keel did not attend although she was aware of the proceedings taking place on that day.

[3] The Department argued that it had expended in excess of $20,000 in the matter to date and that it expected that further hearings would cost in the vicinity of a further $10,000. In the circumstances it sought an order for security of costs of $6000.

[4] In support of its application, the Department traversed the history of the matter both before the Tribunal and the Magistrates Court. The factual background includes:

• A plea of guilty in the Magistrates Court in relation to the matter over which the termination of employment took place;



• A retreat from what was thought to be a settlement of the matter before an officer of Fair Work Australia;



• A failure to comply with Directions of the Tribunal; and



• A failure to attend the hearing of the application for security of Costs.

[5] In support of the application, the Department carefully examined authorities which deal with matters that the Tribunal will take into account [see Merribee Pastoral Industries Pty Ltd v ANZ Banking Group (1998) HCA 41 at paragraph 26 per Kirby J; Polaris Sales Australia v Pettigrew (PR946259) per Whelan C].

[6] Given the non-attendance of Ms Keel any factors she may wish to raise have gone unspoken.

[7] I propose to do three things. Firstly, I will make the order sought. Secondly, the matter will be adjourned until such time that the security of costs are provided and finally, if Ms Keel withdraws the matter within 14 days of this decision the order will be revoked.

COMMISSIONER

Appearances:

J Schluter Solicitor on behalf of the State of Victoria (Department of Education and Early Childhood Development).

Hearing details:

2010.

Melbourne:

October 29.

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