Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 (16 November 2010)

Last Updated: 17 November 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v FINETUNE HOLDINGS PTY LTD & ANOR

[2010] FMCA 889

PRACTICE AND PROCEDURE – Application by director of respondent corporation seeking leave to appear for corporation – principles relevant to grant of leave – whether proceedings complex – objects and purposes of legislative provisions concerning representation – effectiveness of representation by director – ability to obtain legal representation – financial position of corporation – whether leave to appear is opposed.

Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth), ss.12, 14, 15, 535, 539(2), 712 Fair Work Regulations 2009 (Cth), regs.3.33, 3.40 Federal Court Rules (Cth), O.4 r.14(2), O.9 r.1(3) Federal Magistrates Act 1999 (Cth), s.44 Federal Magistrates Court Rules 2001 (Cth), r.9.04 Trade Practices Act 1974 (Cth), s.52

Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 Caves v Chan & Ors [2010] FMCA 706 Caves v Chan & Ors (No. 2) [2010] FMCA 817 Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569 Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 VN International Video Pty Ltd v West End HK TVB Video & Others (1996) 14 ACLC 1308

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

FINETUNE HOLDINGS PTY LTD

Second Respondent:

ANTONINO RECHICHI

File Number:

PEG 142 of 2010

Judgment of:

Lucev FM

Hearing date:

11 November 2010

Date of Last Submission:

11 November 2010

Delivered at:

Perth

Delivered on:

16 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr S Ellis

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

For the First Respondent:

Mr A Rechichi (by leave to argue the application in a case only)

For the Second Respondent:

In person

ORDERS

(1) The second respondent’s application for leave to appear as a non-lawyer on behalf of the first respondent be dismissed.
(2) The matter be adjourned to a further directions hearing at 9:00am on 29 November 2010.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 142 of 2010

FAIR WORK OMBUDSMAN

Applicant

And

FINETUNE HOLDINGS PTY LTD

First Respondent

ANTONINO RECHICHI

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The substantive application in this matter is an application for orders under the Fair Work Act 2009 (Cth)[1] which alleges contravention of a requirement to produce employee records to the applicant, the Fair Work Ombudsman.[2]
2. These Reasons for Judgment concern an application in a case by a director of the first respondent, a corporation, Finetune Holdings Pty Ltd,[3] Mr Antonino Rechichi,[4] to be granted leave to appear for Finetune Holdings. The application in a case for Mr Rechichi to be granted leave to appear for Finetune Holdings is opposed by the FWO. Mr Rechichi was necessarily granted leave to appear for Finetune Holdings for the purpose of arguing the application in a case.

Facts alleged in the Statement of Claim

3. Relevantly, the Statement of Claim alleges that:
   1. Finetune Holdings:
      1. was a constitutional corporation under s.12 of the FW Act;
      2. was a company incorporated under the provisions of the Corporations Act 2001 (Cth);
      3. was an employer under ss.14 and 15 of the FW Act;
      4. carried on business under the trading name of “Rechichi Architects”; and
      5. at relevant times engaged employees;[5]
   2. Mr Rechichi, who is the second respondent, is the sole director and secretary of Finetune Holdings and the person effectively in control of and responsible for the direction, management and control of employees at Finetune Holdings;[6]
   100. Mr King Cheong was employed as a graduate architect by Finetune Holdings from 22 September 2008 until 21 August 2009;[7]
   4. on or about 21 September 2009 the FWO received a complaint from Mr Cheong alleging non-payment for hours worked;[8] and
   5. on 23 November 2009 a Fair Work Inspector issued a notice to produce records or documents[9] under s.712 of the FW Act.
4. The Notice sought the following records from Finetune Holdings in relation to Mr Cheong:
   1. pay advice, in the form of payslips, from 1 September 2008 to 31 August 2009;
   2. time records, in the form of rosters, from 1 September 2008 to 31 August 2009;
   100. Tax File Declaration Form;
   4. job description detailing duties; and
   5. records indicating termination date (for example; resignation letter or letter of termination);[10]
5. The FWO alleges that as at the time of the filing of the Application and Statement of Claim on 19 August 2010 the Cheong Records had not been produced in accordance with the Notice,[11] and that there was therefore a contravention by Finetune Holdings of s.712(3) of the FW Act.[12] It is pleaded further, or in the alternative, that Finetune Holdings has contravened s.535 of the FW Act by failing to make, and keep for seven years, employee records of the kind prescribed by regs.3.33 and 3.40 of the Fair Work Regulations 2009 (Cth)[13] in relation to Mr Cheong.[14]
6. The Statement of Claim alleges that Mr Rechichi was involved and responsible for the alleged contraventions, because he:
   1. was the sole director and secretary of Finetune Holdings and was the holder of all current shares in Finetune Holdings;
   2. was aware of the day-to-day activities of Finetune Holdings;
   100. was in effective control of the business operations of Finetune Holdings;
   4. was the person chiefly responsible for the direction, management and control of any employees of Finetune Holdings, including the payment of wages;
   5. had actual knowledge of the Notice’s existence as a consequence of accepting service in person on behalf of Finetune Holdings; and
   6. knew, determined and directed the extent to which Finetune Holdings complied or failed to comply with the Notice.[15]
7. The FWO therefore alleges that Mr Rechichi was involved in both of the alleged contraventions by Finetune Holdings in that he:
   1. aided, abetted, counselled or procured those contraventions; or
   2. was by his acts or omissions directly or indirectly knowingly concerned in or party to the contraventions.[16]
8. The relief sought includes:
   1. orders that Finetune Holdings produce the Cheong Records;
   2. declarations of contravention with respect to the various contraventions alleged; and
   100. pecuniary penalty orders under s.539(2) of the FW Act in respect of the alleged contraventions, against both Finetune Holdings and Mr Rechichi.[17]

Affidavit evidence

9. An affidavit sworn by Mr Rechichi on 2 November 2010 was tendered in support of the application in a case.[18] Mr Rechichi’s Affidavit attests to the following:
   1. that he is a director of Finetune Holdings;[19]
   2. that Finetune Holdings ceased trading in or around November 2009;[20]
   100. that in proceedings in the Magistrates Court of Western Australia (Civil Jurisdiction)[21] Mr Cheong took action against Finetune Holdings “no doubt in substitution to any compliant [sic – complaint] he took to the FWO”;[22]
   4. the State Magistrates Court Proceedings were resolved by an agreed Minute of Consent Order dated 2 June 2010 under which Finetune Holdings consented to pay Mr Cheong $5,500 on or before 2 September 2010;[23]
   5. that “in keeping with the orders made ... Mr King Cheong received the sum of $5,000”,[24] and the Westpac Banking Corporation electronic receipt for a payer named as “Mr Antonino Rech” (which presumably is Mr Rechichi) confirms payment to Mr King Cheong of $5,000,[25] not $5,500 as was ordered to be paid in the State Magistrates Court Proceedings;
   6. Finetune Holdings ceased trading in or around November 2009, has no funds, has closed its bank account, and has no assets other than an unregistered Honda scooter;[26] and
   7. Mr Rechichi personally advanced to Finetune Holdings the required funds in order to make payment to Mr Cheong.[27]
10. A copy of a bank statement for a business cheque account at the National Australia Bank Limited “outlet” at 129 James Street, Northbridge for Finetune Holdings Pty Ltd t/as Rechichi Architects is attached to Mr Rechichi’s Affidavit.[28] The Bank Statement indicates that on 1 April 2010 the account had a debit balance of $248.02, and that on 28 April 2010, the account was closed following a bad debt write-off of $251.48.
11. Mr Rechichi’s Affidavit is said to be filed and relied upon as Mr Rechichi’s submission in support of the application in a case.[29] In Mr Rechichi’s Affidavit, he submits that it is not appropriate nor economically feasible or responsible for Finetune Holdings to incur additional costs it cannot meet with regard to legal representation.[30]

Legislative provisions concerning representation

12. Section 44 of the Federal Magistrates Act 1999 (Cth)[31] provides as follows:
    • A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
      • (a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
      • (b) under the regulations, the other person is taken to be an authorised representative; or
      • (c) another law of the Commonwealth authorises the other person to represent the party.
13. Rule 9.04 of the Federal Magistrates Court Rules 2001 (Cth)[32] provides as follows:
    • Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.

Representation – principles

Federal Court cases

14. The Federal Court has considered the issue of whether a corporation ought to be represented other than by a lawyer under the Federal Court Rules,[33] which are, for practical purposes, in essentially the same terms as the relevant rules in the FMCA Rules.
15. In Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd[34] the Court said that:
    1. there was a clear policy behind the rule that ordinarily a corporation is required to be represented by a lawyer;[35]
    2. there is no threshold requirement of special or exceptional circumstances, but a discretion to be exercised by reference to all relevant considerations;[36]
    100. relevant factors in determining whether or not to dispense with the requirement that a corporation be represented by a lawyer included:
         1. “the financial capacity or lack of capacity of the corporation and those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company’s undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders”;[37]
         2. “The factual complexities of the case”;[38] and
         3. “the capacity of the proposed representative to conduct [the proceedings] effectively”;[39] and
    4. a more liberal approach to the grant of leave may be warranted where the corporation in question is a respondent, not an applicant.[40]
16. In Termi-Mesh leave was not granted having regard to:
    1. the potential factual complexity of the case;
    2. the failure of the director seeking leave to represent the corporation to provide any detailed financial information about the corporation, or those who stood behind it, and their ability to engage legal representation; and
    100. the obvious difficulty that the director would have in dealing efficiently with the legal and factual issues involved,[41] where the matter involved written representations said to:
         1. be untrue; and
         2. constitute misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act 1974 (Cth), and, in the alternative, the tort of injurious falsehood,

where the written representations related to statements concerning:

3. the Termi-Mesh product;
4. installation of the Termi-Mesh product,
5. comparative pricing of the Termi-Mesh product;
6. the validity of a patent in relation to the Termi-Mesh product;
7. the patent’s vulnerability to challenge; and
8. the alleged desire of the Commissioner of Patents to see the patent revoked.[42]

17. VN International Video was a case involving a wide-ranging factual inquiry alleging breach of copyright in video films, passing off and contraventions of State fair trading legislation.[43] Although the legal issues raised were “not unduly complex”,[44] they did “involve a wide-ranging factual inquiry”,[45] as demonstrated by the filing of 32 affidavits from 20 deponents in the proceedings in which a hearing was imminent at the time the solicitor for the applicant corporation withdrew, and the application was made for a director of the corporation to appear and represent the corporation. In refusing leave the Federal Court had regard to:
    1. the complexity of the case and the ability of the applicant director to conduct the proceedings;[46]
    2. whether the proposed representative had authority to act on behalf of the corporation;[47] and
    100. whether the applicant corporation was in a financial position to conduct the litigation.[48]
18. In determining the issue of whether the applicant corporation was in a position to conduct the litigation, the Federal Court had regard to whether the corporation could meet the costs of the litigation from its own resources, or from assistance it could obtain from the director (and his wife, who stood to benefit from the litigation if successful).[49]
19. In Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd[50] the Federal Court, in refusing leave for a non-lawyer to appear on behalf of a corporation, had regard to the following factors:
    1. that the proceedings were factually, technically and legally complex, with trial estimates ranging between seven weeks and three months in respect of which there was “no doubt” that the non-lawyer seeking to represent the corporation “could not adequately present a case for the corporate respondents, even though ... he is an intelligent man”;[51]
    2. the position of the person seeking to represent the corporation in the action, in circumstances where it was sought to make him liable as an accessory or as being knowingly concerned in the contraventions, and in respect of which the Federal Court observed that:
       • “It could hardly be a satisfactory state of affairs to have him as a witness in his own defence and also making submissions and presenting evidence for the companies.”[52]
    100. that a corporation’s impecuniosity does not automatically permit or require non-legal representation;[53] and
    4. that as an individual respondent, the non-lawyer seeking to represent the corporation was in a position to tender evidence, and to challenge evidence and make submissions relevant to the corporation’s liability, insofar as it affected him.[54]

Cases in this Court

20. This Court has recently dealt with the principles in relation to non-lawyers seeking to represent corporations in industrial law and human rights proceedings.[55]
21. In Alcantara the Court observed as follows:
    • 10. The purpose underlying legislative provisions that restrict appearances in federal courts, generally to legal practitioners, is to ensure that, in the interests of justice and the administration of justice, the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts. Legal practitioners may also be of considerable assistance to the Court in the proper assessment of fact.
    • 11. In determining whether to grant leave under r.9.04 of the FMCA Rules, this Court has previously considered the applicability of a number of factors, including the following:
    • a) the relative complexity or simplicity of a matter;
    • b) whether a non-lawyer appears, or has previously appeared, for any of the parties;
    • c) the objects and purposes of the FM Act and FMC Rules, including the impact of those objects and purposes on case management considerations;
    • d) whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party; and
    • e) whether there has been appropriate opportunity to arrange legal representation.
    • Obviously, the above is not a closed list of factors.
    • 12. A discretion of the kind contained in r.9.04 of the FMC Rules must be exercised judicially and having regard to all relevant considerations.[56]
22. Alcantara was, like this case, a case where a director of a corporation no longer trading sought leave to appear in a case alleging contravention of a requirement to produce employee records. In Alcantara the Court found that:
    1. the nature of the matter was sufficiently simple and straightforward not to require a lawyer to appear for the corporation;[57]
    2. although a lawyer had not previously appeared for the corporation it was not a factor which told for or against a lawyer appearing for the corporation;[58]
    100. to insist upon a lawyer appearing for the corporation might entail significant delay and protraction of proceedings contrary to the objects of the FM Act and FMC Rules;[59]
    4. because the facts were within a very limited compass there was unlikely to be any significant difficulties caused by the director of the corporation being both advocate and witness;[60]
    5. because the director of the corporation knew and understood the facts, comprehended the competing contentions, and was able to articulate them sufficiently, he was in a position to effectively represent the corporation, and in the circumstances, the denial of a right to the director to appear would have been a greater prejudice to the corporation than allowing him to appear would have been;[61]
    6. even though the corporation had the opportunity to arrange legal representation, and had not been able to do so, there was no reason to consider that more extensive efforts would have afforded a different outcome;[62] and
    7. the grant of leave to appear to the director to represent the corporation was not opposed, and such a course was not seemingly motivated by the opportunity to obtain any forensic advantage.[63]
23. In Caves (No 1) and Caves (No 2) leave to a non-lawyer member of an incorporated association respondent to human rights proceedings was denied. The non-lawyer member was not allowed leave to appear because:
    1. he was not a legal practitioner;
    2. he was not a person who regularly appears in the courts, and in particular the federal courts;
    100. he was not a person with professional expertise in relation to discrimination matters; and
    4. of the general rule that a court will not allow an appearance by a person not admitted to practice before it, save for self-represented litigants.[64]

Consideration

Nature of the matter

24. The alleged contraventions involve two primary questions:
    1. have the Cheong Records been produced? and
    2. have the Employee Records been made and kept?
25. Were the above two issues the only issues, then any difficulty occasioned by Mr Rechichi appearing for Finetune Holdings would not necessarily be of concern to the Court.[65]
26. There is, however, in this matter, the added complexity that the FWO seeks to attach liability to Mr Rechichi personally on the basis that he was knowingly concerned or involved in the matters.[66] There is, or at the very least may be, a conflict of interest between Mr Rechichi appearing as a witness in his own defence and also making submissions and presenting evidence for the corporation.[67]
27. Because the matter involves Mr Rechichi as an individual respondent also sought to be made liable for the contraventions, the nature of the matter is such that it is inappropriate for Mr Rechichi to appear as a representative of the corporation.[68]

Appearance or previous appearance of a non-lawyer for any party

28. Mr Rechichi was not granted leave to represent Finetune Holdings at the first directions hearing on 13 September 2010. At the second directions hearing on 25 October 2010 – a directions hearing necessary because Mr Rechichi by then sought to represent Finetune Holdings – he was granted leave to represent Finetune Holdings for the purposes of the application in a case. Given that the directions hearing was merely procedural, and it was necessary to grant Mr Rechichi leave to represent Finetune Holdings for the purposes of the application in a case being argued, the significance of his representing Finetune Holdings is, in that context, slight. This is not therefore a factor which tells for or against Mr Rechichi appearing for Finetune Holdings in these proceedings.

Objects of the FM Act, FMC Rules and case management considerations

29. This Court has previously observed that the Court’s objects and purposes reflect much of the modern approach to case management, and especially the need to take into account the paramount consideration of doing justice between the parties whilst observing that a just resolution must have regard to any relevant legislative purpose or object.[69]
30. If Mr Rechichi is allowed to appear for Finetune Holdings in these proceedings the Court considers that the interests of justice and a just resolution of these proceedings may be affected because Mr Rechichi will have to appear as a witness in his own defence and also make submissions and present evidence for Finetune Holdings. That runs the risk that he will place his personal interests ahead of those of Finetune Holdings, and thereby adversely affect the interests of justice and the just resolution of the proceedings as it relates to Finetune Holdings.
31. Denying Mr Rechichi the right to appear for Finetune Holdings would not delay this matter any further. The matter has already been delayed by reason of this application. If programming orders are now made listing the matter through to a hearing in the first quarter of 2011 there will be sufficient time for Finetune Holdings to obtain legal representation.

Effectiveness of representation and prejudice

32. The Court is concerned that Mr Rechichi does not understand the nature of the issues involved in these proceedings.
33. The proceedings relate to requirements to produce, maintain and keep employee records, not simply whether Mr Cheong has been paid his entitlements. The latter is the focus of Mr Rechichi’s Affidavit, and was the focus of his oral submissions at hearing.
34. The State Magistrates Court Proceedings Minute of Consent Order, which is in evidence, does no more than indicate that a civil action was settled by consent upon the ordering of payment of a sum of money. There is no indication in the evidence as to what that litigation was actually about (the application and pleadings were not put into evidence), or whether, if it was about Mr Cheong’s entitlements, the sum of money ordered to be paid (which has not been paid in full in any event) related to entitlements which were due to Mr Cheong. Whilst issues related to an employee’s entitlements might arise from a request to produce records, there is nothing in the evidence led in these proceedings which indicates that any employee, including Mr Cheong, has settled, compromised or waived rights with respect to any employee entitlements owing to him from Finetune Holdings.
35. In any event, the FWO takes the matter further by alleging that Finetune Holdings may not have made and kept the Employee Records as required under the FW Act.
36. In light of the above, the claim is one which it appears Mr Rechichi has not necessarily understood. In those circumstances, it would be contrary to the interests of justice to allow him to represent Finetune Holdings.
37. Mr Rechichi is not prejudiced by Finetune Holdings being legally represented. In the event that Finetune Holdings is not legally represented, Mr Rechichi is not prejudiced either because he is able, as the second respondent, to tender and challenge evidence, and make submissions in relation to the evidence, so far as that evidence affects him.[70]
38. For the above reasons Finetune Holdings ought not be represented by Mr Rechichi in these proceedings.

Opportunity to arrange legal representation

39. Finetune Holdings has clearly had the opportunity to obtain legal representation. At the first directions hearing on 13 September 2010 Mr Rechichi indicated that a lawyer had been engaged but had not been able to attend that morning. It is not clear whether the lawyer was engaged on behalf of the first respondent, the second respondent, or both, but it is evident that there was an opportunity for Finetune Holdings to be represented by a lawyer. In any event, there is no evidence before the Court to indicate what, if any, other steps have been taken to obtain legal representation for Finetune Holdings in these proceedings.
40. Given that the first directions hearing was on 13 September 2010, the second directions hearing, caused by the making of this application, was on 25 October 2010, and having regard to the fact that the application has been on foot since 19 August 2010, it is clear that there has been sufficient opportunity for Finetune Holdings to arrange legal representation.

The financial position of Finetune Holdings

41. A corporation which is impecunious is not automatically entitled to non-legal representation.[71]
42. The evidence before the Court as to Finetune Holdings’ financial position amounts to little more than assertions by Mr Rechichi that Finetune Holdings has no money and no longer trades. There is little corporate documentation to prove either of these assertions, save for:
    1. one page of the Bank Statement, which indicates that an account in the name of Finetune Holdings was closed;
    2. the payer’s receipt indicating that Mr Rechichi has paid Mr Cheong $5,000; and
    100. a notice of expired vehicle licence for a 2006 Honda Moped apparently licensed in the name of Finetune Holdings.
43. The Bank Statement proves only that an account has been closed, and closed in circumstances where there was a small bad debt write-off. The period covered by the account is 28 days in April 2010. Although the Bank Statement is “Statement No. 54”, none of the prior 53 statements have been put into evidence. Thus, the Court is not in a position to determine whether Finetune Holdings:
    1. was permanently impecunious;
    2. had been impecunious for an extended period; or
    100. became impecunious because of the withdrawal of funds, and, if so, where and how those funds were disbursed, and for whose benefit.
44. There are no accounts or profit and loss statements for Finetune Holdings in evidence, and no evidence as to whether Finetune Holdings previously had assets which were disposed of, and, if so, what happened to the proceeds of any disposition.
45. Apart from evidence that Mr Rechichi has paid Finetune Holdings’ judgment debt to the extent of $5,000 of the $5,500 owing, there is no evidence that those associated with Finetune Holdings, and specifically Mr Rechichi, are not in a position to fund the litigation. The failure of Mr Rechichi to provide detailed financial information about Finetune Holdings, or about those who stand behind it, and their ability to engage legal representation on its behalf, is a factor which goes against the grant of leave for a non-lawyer to represent Finetune Holdings.
46. The Court also notes that, given the nature of the proceedings, any hearing is likely to take a half day or less, and therefore only a modest amount of funds would be necessary to enable Finetune Holdings to be represented.

Whether leave to appear is opposed

47. Representation of Finetune Holdings by a non-lawyer is opposed by the FWO. Whether leave to appear by a non-lawyer is opposed is a relevant consideration for the Court in determining whether to grant leave to a non-lawyer to appear in a matter.[72]
48. There is nothing which indicates that the FWO’s position is based on anything other than a proper assessment of the usual factors relevant to the issue of whether a corporation ought to be represented by a non-lawyer. There is nothing to indicate that the FWO’s position has been adopted for reasons of forensic advantage.

Conclusion and orders

49. In the circumstances of this matter, the Court has concluded, primarily because:
    1. Mr Rechichi is alleged to have been knowingly concerned and involved in the same contraventions as Finetune Holdings, for whom he seeks to appear, and the complexities and conflicts that arise therefrom;
    2. it being evident that Mr Rechichi does not necessarily understand the precise nature of the proceedings, and the import of the Notice to produce the Cheong Records and the alleged contravention of failing to make and keep the Employee Records; and
    100. the failure of Mr Rechichi to provide relevant financial information in relation to Finetune Holdings, and those who stand behind it, and the modest funds necessary for Finetune Holdings to be represented,

that the Court will not exercise its discretion to grant leave to Mr Rechichi to appear for Finetune Holdings at the hearing of the application. It follows that the application in a case must be dismissed. The Court will order accordingly.

50. The Court will hear the parties as to costs.
51. The matter will otherwise be adjourned to a directions hearing on 29 November 2010 at 9.00am.

I certify that the preceding 51Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-onefifty-one (51) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:

Date: 16 November 2010

---

[1] “FW Act”.
[2] “FWO”.
[3] “Finetune Holdings”.
[4] “Mr Rechichi”.
[5] Statement of Claim, paras.3-4.
[6] Statement of Claim, para.5.
[7] Statement of Claim, para.7.
[8] Statement of Claim, para.8.
[9] “the Notice”.
[10] Statement of Claim, para.10; collectively “the Cheong Records”.
[11] Statement of Claim, para.17.
[12] Statement of Claim, para.18.
[13] “FW Regulations”.
[14] Statement of Claim, para.19; “the Employee Records”.
[15] Statement of Claim, paras.20 and 22.
[16] Statement of Claim, paras.21 and 23.
[17] Statement of Claim, paras.24-26.
[18] “Mr Rechichi’s Affidavit”.
[19] Mr Rechichi’s Affidavit, para.1.
[20] Mr Rechichi’s Affidavit, para.1.
[21] “State Magistrates Court Proceedings”.
[22] Mr Rechichi’s Affidavit, para.2.
[23] Mr Rechichi’s Affidavit, paras.2-3 and Annexure A.
[24] Mr Rechichi’s Affidavit, para.4.
[25] Mr Rechichi’s Affidavit, Annexure B.
[26] Mr Rechichi’s Affidavit, paras.5-6 and Annexures C and D.
[27] Mr Rechichi’s Affidavit, para.5.
[28] Mr Rechichi’s Affidavit, Annexure C; “Bank Statement”.
[29] Mr Rechichi’s Affidavit, para.8.
[30] Mr Rechichi’s Affidavit, para.7.
[31] “FM Act”.
[32] “FMC Rules”
[33] O.4 r.14(2) and O.9 r.1(3).
[34] [1999] FCA 1241 (“Termi-Mesh”).
[35] Termi-Mesh at para.13 per French J.
[36] Termi-Mesh at para.12 per French J; see also Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68 at 73 per Smithers J.
[37] Termi-Mesh at para.13 per French J.
[38] Termi-Mesh at para.13 per French J; VN International Video Pty Ltd v West End HK TVB Video & Others (1996) 14 ACLC 1308 (“VN International Video”).
[39] Termi-Mesh at para.13 per French J; VN International Video.
[40] Termi-Mesh at para.14 per French J.
[41] Termi-Mesh at para.14 per French J.
[42] Termi-Mesh at para.2 per French J.
[43] VN International Video at 1309 per Drummond J.
[44] VN International Video at 1309 per Drummond J.
[45] VN International Video at 1309 per Drummond J.
[46] VN International Video at 1311 per Drummond J.
[47] VN International Video at 1310 per Drummond J.
[48] VN International Video at 1310 per Drummond J.
[49] VN International Video at 1310-1311 per Drummond J.
[50] [2004] FCA 1361 (“Dataline”).
[51] Dataline at para.2 per Kiefel J.
[52] Dataline at para.3 per Kiefel J.
[53] Dataline at para.4 per Kiefel J.
[54] Dataline at para.4 per Kiefel J.
[55] Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626 (“Alcantara”); Caves v Chan & Ors [2010] FMCA 706 (“Caves (No 1”); Caves v Chan & Ors (No. 2) [2010] FMCA 817 (“Caves (No 2)”).
[56] Alcantara at paras.10-12 per Lucev FM (footnotes omitted).
[57] Alcantara at paras.13-14 per Lucev FM.
[58] Alcantara at paras.15-17 per Lucev FM.
[59] Alcantara at paras.18-24 per Lucev FM.
[60] Alcantara at para.23 per Lucev FM.
[61] Alcantara at paras.25-27 per Lucev FM.
[62] Alcantara at para.28 per Lucev FM.
[63] Alcantara at paras.29-30 per Lucev FM.
[64] Caves (No 1) at para.7 per Lucev FM; Caves (No 2) at para.33 per Lucev FM.
[65] See Alcantara at para.13 per Lucev FM.
[66] By comparison, in Alcantara, where leave was granted to a director to appear, only the corporation was respondent to the proceedings and sought to be made liable.
[67] Dataline at para.3 per Kiefel J.
[68] In Termi-Mesh, French J at para.14 reflected as follows: “[T]here is no doubt that those who chose to carry on their businesses through corporate structures enjoy advantages that those carrying on business on their own account do not enjoy. They also acquire disabilities and obligations. One of the disabilities is that which is imposed by the Rules of Court under consideration in this case...”, being O.4 r.14(2) and O.9 r.1(3) of the Federal Court Rules in relation to solicitors being required to carry on proceedings on behalf of corporations.
[69] Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor [2010] FMCA 569 at para.21 per Lucev FM. See too AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-98 per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[70] Dataline at para.4 per Kiefel J.
[71] Dataline at para.4 per Kiefel J.
[72] Alcantara at para.30 per Lucev FM.