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Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189 (25 March 2011)

Last Updated: 29 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALL v CADILLAC TRANSPORT REPAIRS PTY LTD

INDUSTRIAL LAW – Alleged unlawful termination – application for non-lawyer to appear for respondent – respondent a corporation – non-lawyer an employee of respondent.

PRACTICE AND PROCEDURE – Application for non-lawyer to appear for respondent – respondent a corporation – non-lawyer an employee of respondent – whether employee of respondent may appear.


Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626
Australian Liangwei Enterprises Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 289
BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timber Yards, Sawmills and Woodworkers Union of Australia (Western Australian Branch) [2002] WASCA 172
CEPU v BHP Iron Ore (2000) 81 WAIG 327
CEPU v BHP Iron Ore Pty Ltd [2001] WAIRC 02287
Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889
Greenleaf Fertilizers Ltd v The Corporation Employees Union (1978) AILR 350
Groundwater v Territory Insurance Office (2004) 183 FLR 437; [2004] FMCA 381
Jarret v Westpac Banking Corporation [1999] FCA 425
MEWU v Hamersley Iron Pty Ltd (1993) 73 WAIG 1088
Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68
Pugliese v Paull [2011] FMCA 95
Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022
Reynolds v The Minister for Health & Anor [2010] FMCA 843
Rogers v Millennium Inorganic Chemicals Ltd & Anor (2009) 229 FLR 198; [2009] FMCA 1
Sargant v Lowndes Lambert Australia Pty Ltd (2001) 81 WAIG 1149
Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 2) [2008] FMCA 1582
Walker v Aztec Steel Pty Ltd [2010] FMCA 68

DC Pearce and R Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood: LexisNexis Australia, 2006)
N Rees, et al, Australian Anti-Discrimination Law (Sydney: The Federation Press, 2008) pages 162-212
C Sappideen, et al, Macken’s Law of Employment (6th Edn) (Sydney: Law Book Co, 2009)

Applicant:
JOHN WAYNE HALL

Respondent:
CADILLAC TRANSPORT REPAIRS PTY LTD

File Number:
DNG 12 of 2010

Judgment of:
Lucev FM

Hearing date:
By written submissions

Date of Last Submission:
8 March 2011

Delivered at:
Perth

Delivered on:
25 March 2011

REPRESENTATION

For the Applicant:
No written submissions filed

For the Respondent:
Written submissions filed by Ms Sparnon

ORDERS

(1) That the respondent’s Application in a Case for leave to appear by a non-lawyer be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 12 of 2010

JOHN WAYNE HALL

Applicant


And


CADILLAC TRANSPORT REPAIRS PTY LTD

Respondent


REASONS FOR JUDGMENT

Application in a Case

  1. The respondent, Cadillac Transport Repairs Pty Ltd,[1] a corporation, seeks leave for an employee of Cadillac Transport to appear in these proceedings which relate to an Application by Mr Hall for unlawful termination under the Fair Work Act 2009 (Cth).[2] The employee seeking leave to appear, Casey Lee Sparnon, is not a lawyer.

Issue

  1. The issue to be determined is whether or not the statutory provisions under the Federal Magistrates Act 1999 (Cth),[3] the FW Act and the Fair Work (Registered Organisation) Act 2009 (Cth)[4] allow Ms Sparnon to appear on behalf of Cadillac Transport in this matter.

Procedural history

  1. The substantive Application in this matter was filed on 21 December 2010, and came before the Court on 4 February 2011 for a first directions hearing. At that directions hearing Ms Sparnon was granted leave to file the Response filed on 5 January 2011 and to appear at the directions hearing which was conducted by telephone between Perth and Darwin. At the 4 February 2011 directions hearing Cadillac Transport was granted liberty to apply by 11 February 2011 for leave to appear at any hearing of this matter otherwise than by a lawyer.
  2. At a directions hearing on 24 February 2011 a 10 February 2011 letter from Cadillac Transport was ordered to be taken to be an Application in a Case in accordance with the Court’s order of 4 February 2011. The Application in a Case is for Ms Sparnon, said to be employed in the position of Office Manager, to represent Cadillac Transport in this matter. Further, Cadillac Transport was ordered to file and serve any affidavits and an outline of submissions in support of the Application in a Case by 2 March 2011, and Mr Hall was ordered to do likewise by 7 March 2011, with the Application in a Case to be determined on the papers without cross-examination on any affidavits filed and without a further hearing, with Reasons for Judgment to be delivered and published from Chambers. On 8 March 2011 two letters from Ms Sparnon on behalf of Cadillac Transport addressed to the Court were accepted for filing, being “submissions” and an explanation of certain documents attached to the letter. No sworn evidence, whether in affidavit or any other form, was filed by Cadillac Transport. Mr Hall filed nothing at all.

Substantive Application

  1. The substantive Application in this matter alleges unlawful termination of employment of Mr Hall by Cadillac Transport. The last day worked by Mr Hall for Cadillac Transport was 20 September 2010.
  2. The grounds of the claim of unlawful termination[5] are:
    1. temporary absence from work because of illness or injury of a kind prescribed by the regulations;[6] and
    2. race.[7]
  3. The remedies sought are compensation and the imposition of a pecuniary penalty.[8]
  4. In explanation of the grounds of the claim of unlawful termination Mr Hall says as follows:
  5. The total amount claimed by Mr Hall is $250,000, said to be for “loss of wages, psychological injury, damage to reputation and damage to dignity.”[10]
  6. The substantive Application attached a certificate under s.777 of the FW Act certifying that Fair Work Australia was satisfied that all reasonable attempts to resolve the dispute concerning termination had been, or were likely to be, unsuccessful.[11]
  7. In a Response filed on 5 January 2011 Cadillac Transport opposes the making of the orders sought by Mr Hall, and alleges that he was terminated on 20 September 2010 for misconduct, constituted by swearing at and intimidating office staff over the telephone.

Grounds for the application for leave to appear

  1. The grounds upon which Cadillac Transport seeks leave for Ms Sparnon to appear at the hearing are set out in one of the letters addressed to the Court which was accepted for filing on 8 March 2011. The letter is essentially an outline of submissions.

Representation in proceedings

  1. Section 44 of the FM Act provides as follows:
  2. Ms Sparnon does not fall within s.44(a) or (b) of the FM Act.
  3. Rule 9.04 of the Federal Magistrates Court Rules 2001 (Cth)[12] provides that:
  4. For the purposes of s.44(c) of the FM Act there is no question that:
    1. Cadillac Transport is a “party to a proceeding before the ... Court”; and
    2. the FW Act and the FMCA Rules are “another law of the Commonwealth”.[14]
  5. It is significant that the FW Act is silent as to representation in this Court. Prior to the introduction of the FW Act the Workplace Relations Act 1996 (Cth)[15] expressly set out rights of appearance in workplace relations proceedings in this Court. Section 854 of the WR Act dealt specifically and comprehensively with representation of parties before both the Federal Court and this Court. Section 854 provided as follows:
  6. Thus, an employee of a party to proceedings in this Court under the WR Act was entitled to be represented by an employee of the party,[16] but only with the leave of this Court.[17] It is clear from the use of the word “may” in s.854(10) of the WR Act, and the fact that leave was required, that the decision as to whether a party was able to be represented by an employee of that party was a discretionary decision for this Court.[18]
  7. Representation in proceedings in the Fair Work Division of this Court is now dealt with by the provisions of s.353A of the FW (Registered Organisations) Act, which provides as follows:
  8. The FW (Registered Organisations) Act is “another law of the Commonwealth” for the purposes of s.44(c) of the FM Act. It specifically allows for certain persons to be able to appear in proceedings in the Fair Work Division (which these proceedings are) of this Court. But, unlike s.854(10)(a) of the WR Act, s.353A of the FW Act does not include a non-lawyer employee of a party as a person who is authorised to represent a party, and no longer requires leave of the Court for those persons authorised to appear for a party that is an organisation, or a party that is not an organisation, to be able to appear.
  9. Ms Sparnon does not have a right to be allowed to represent Cadillac Transport in the exercise of the Court’s discretion under the provisions of the FW (Registered Organisations) Act dealing with rights of appearance in Fair Work Division proceedings in this Court, whereas, under the previously applicable provisions of the WR Act, she would have had such a right of appearance in the exercise of the Court’s discretion.
  10. The fact that a discretionary right of appearance which previously existed under s.854(10)(a) of the WR Act has been repealed might be read as precluding an employee of a party, in this case Cadillac Transport, from having a right of appearance. Such an interpretation is bolstered by the fact that the FW Act and the FW (Registered Organisations) Act are recently enacted statutes, and that the FW (Registered Organisations) Act has enacted specific and detailed provisions concerning various types of representation, which differ in material respects from those enacted under the former WR Act. Specifically, no discretionary right of appearance for an employee of a party has been maintained under the FW (Registered Organisations) Act, nor under the FW Act. Further, such an interpretation might be bolstered by the presumption that an express reference to the discretionary right of some persons to appear for a party in this Court indicates that the discretionary right of other persons to appear for a party might be excluded.[19] So, for example, in Pugliese v Paull[20] where a non-lawyer employee of an organisation not registered under the FW (Registered Organisations) Act sought leave to appear for a party before this Court, the Court applied the statutory presumptions to preclude that person from appearing.[21] However, in Pugliese the Court was dealing with an appearance by an employee of an unregistered organisation which was not itself a party to the proceedings. Nor, in Pugliese, was the party a corporation. In that regard Pugliese is distinguishable from the present circumstances.
  11. Section 353A of the FW (Registered Organisations) Act does not however, in its terms, constitute a code with respect to who may appear before this Court in Fair Work Division proceedings. Rather, it deals with appearances on behalf of registered organisations[22] and appearances on behalf of a party that is not a registered organisation, but which may be represented by a member, officer or employee of a registered organisation of which it is a member, or of a peak council to which an organisation of which the party is a member is affiliated.[23] That the provisions of s.353A are not intended to be a code, is made clear by s.353A(4) of the FW (Registered Organisations) Act which provides that in a particular kind of proceedings, namely, where a question of law is referred to the Federal Court under s.608 of the FW Act, a party may only be represented as permitted by s.353A(2) and (3). That clearly leaves open the possibility that a party to proceedings in the Fair Work Division of this Court may be represented otherwise in proceedings, other than those under s.608 of the FW Act. By whom a party may be represented is, in the case of a corporation, then dealt with by r.9.04 of the FMCA Rules which provides for a corporation to appear only by a lawyer, except as provided by or under another Act or regulations made under an Act, or with the leave of the Court. Thus, a corporation to which s.353A(2) and (3) of the FW (Registered Organisations) Act does not apply, can nevertheless seek leave to appear other than by a lawyer by reason of r.9.04 of the FMC Rules. And in these proceedings, Cadillac Transport seeks that leave, which then requires consideration by the Court of the factors relevant to a grant of leave to appear for a corporation by a non-lawyer.

Factors relevant to a grant of leave to appear for a corporation by a non-lawyer

  1. In Alcantara this Court observed as follows:
  2. The grounds for the application for leave to appear for Ms Sparnon do not fall neatly within the factors listed above, and it is more convenient at the outset to deal with those grounds individually.
  3. Doing the best it can it appears to the Court that the grounds for leave for Ms Sparnon to appear are as follows:
    1. that the “type of person we are dealing with”, clearly a reference to Mr Hall, is “one that threatens court and lawyers at every instance he and his wife can”;
    2. that the court system is very busy and that this case is a waste of time and money that could be spent on a more legitimate case;
    1. that the only reason that Mr Hall was dismissed was because he abused and spoke with disrespect to Ms Sparnon;
    1. that Mr Hall still receives workers compensation covered by Cadillac Transport’s insurance and has suffered no loss of income;
    2. that Mr Hall has had employment sourced elsewhere by the insurer, which employment he has since lost;
    3. that Mr Hall’s receipt of income from Cadillac Transport’s insurer means that Cadillac Transport’s premiums will rise and that this will impact on its business financially “in more than one way”;
    4. Cadillac Transport is a registered company with a sole director and sole shareholder;
    5. that the business is a small one employing nine staff;
    6. that Cadillac Transport wishes to spend and budget its income in areas that it considers important, namely wages, superannuation and Workcover, not on a lawyer to defend Cadillac Transport “when we have done nothing wrong”;
    7. if Cadillac Transport “is found guilty” it will impact on the provision of a service in a remote region of Australia and also on the staff and families in the community;
    8. that lawyers “cost a lot of money” and will not be able to provide any more information than that which has already been supplied by Cadillac Transport in support of its decision to terminate Mr Hall for misconduct; and
    1. the case comes down to Mr Hall’s word against Ms Sparnon’s.
  4. In relation to the information supplied concerning Mr Hall’s alleged misconduct,[33] that appears to be a reference to the documents which were filed on 8 March 2011.
  5. As to paragraph 26(a) above this assertion is entirely subjective. The only “material” before the Court in relation to it is in correspondence, by way of an email dated 10 January 2011 from Ms Sparnon to Ms Gwyther at GIO, who appears to be Cadillac Transport’s workers compensation insurer. In that correspondence Ms Sparnon says:
  6. Ms Gwyther responded on 12 January 2011 advising that:
  7. Assuming that the Court can even have regard to this correspondence, there is nothing in it, other than Ms Sparnon’s self-serving assumption, which would suggest that an indication from Mr Hall that he has legal representation is, or was capable of constituting, a “threat”.
  8. The only reference to Mr Hall’s wife is in the context that she has been accepted to law school and that they, as a couple presumably, are moving to Perth. That passage is nothing more than an indication to Ms Gwyther that Mr Hall and his wife are moving to Perth because she has been accepted to law school.
  9. In any event, if Mr Hall has legal representation, that is a good reason for Cadillac Transport to have legal representation. It will:
    1. ensure a more even contest;
    2. ensure that Cadillac Transport is properly represented; and
    1. facilitate proper case management of the hearing on the day of the hearing
  10. As to paragraph 26(b) above there is no doubt that this Court, like most first instance hearing courts, is busy. However, that is not a reason for a party to not be represented by a lawyer. If anything, the converse is the case, as a lawyer is more likely to ensure that Cadillac Transport’s rights are dealt with in a proper and timely fashion by the Court, and that the disadvantages which accrue from a lack of legal representation do not affect Cadillac Transport’s presentation of its case.
  11. The assertion that the case is a waste of time and money that could be spent on a more legitimate case is a subjective response to the substantive Application, and is a demonstration that Ms Sparnon may not be sufficiently objective to properly consider and evaluate issues and present Cadillac Transport’s case accordingly.
  12. As to paragraph 26(c) above the reason for Mr Hall’s dismissal, and whether it was because he abused and spoke with disrespect to Ms Sparnon, is part of the factual matrix for the Court to determine, and the Court is unlikely to be assisted by declaratory statements of this type from Ms Sparnon. Perhaps more critically, the assertion demonstrates a good reason why Ms Sparnon ought not appear as an advocate for Cadillac Transport in these proceedings. That is because she is the central witness for Cadillac Transport, and, as will already be evident from what has been said above, appears to have a subjective view of the matter which is likely to prevent her from being an effective advocate on behalf of Cadillac Transport where the facts are in dispute.
  13. As to paragraph 26(d) above the remuneration that Mr Hall has received since his termination by Cadillac Transport is a relevant matter in relation to the determination of the compensation sought by Mr Hall, but is irrelevant to the issue of whether Cadillac Transport ought to be granted leave not to appear by a lawyer.
  14. As to paragraph 26(f) above whether or not Cadillac Transport’s premiums will rise and will impact on the business financially as a consequence of these proceedings are also issues which are irrelevant to the issue of whether or not Cadillac Transport ought to be granted leave not to appear by a lawyer. In any event, there is no, or no sufficient, evidence before the Court to make any sort of objective assessment as to the quality and quantity of any such financial impact on the business of Cadillac Transport. That demonstrates another reason why Ms Sparnon ought not be granted leave to appear for Cadillac Transport, and that is that she has in fact put no evidence before the Court in proper form, that is by way of affidavit, or even a sworn witness statement. It is clear both from the form of what has been filed with the Court, and its substance, that Ms Sparnon does not appreciate the need for there to be proper evidence, in a proper form, before the Court. Writing and filing a letter addressed personally to the presiding judicial officer of the Court in the proceedings, and making submissions in the letter, and then in another letter referring to and attaching documents, does not mean that there is evidence before the Court in support of the Application in a Case, or indeed, the substantive Application itself. In any event, the fact that Mr Hall, if indeed it be a fact, still receives workers compensation covered by Cadillac Transport’s insurance, and whether he has suffered any loss of income, are not matters which go to whether or not Cadillac Transport ought to have leave not to appear by a lawyer in these proceedings.
  15. As to paragraph 26(e) above Mr Hall’s employment history, and whether he has obtained or lost employment since his termination by Cadillac Transport, whilst a matter relevant to compensation at final hearing, is not a matter which is relevant to whether or not Cadillac Transport ought to be granted leave to appear otherwise than by a lawyer.
  16. As to paragraph 26(g) above the fact that Cadillac Transport is a registered company with a sole director and sole shareholder does no more than make the point that it is a corporation, and goes no further than that. Thus, on the face of it, it must be represented by a lawyer unless the Court gives leave otherwise.[34] The fact that it is a registered company with a sole director and sole shareholder, without more, is insufficient reason for the Court to grant leave to appear otherwise than by a lawyer. Leave under r.9.04 of the FMC Rules is an exception, and to grant leave on this basis would be to risk creating a precedent for a significant secondary norm in terms of a right of representation.
  17. As to paragraphs 26(h), (i) and (j) above the fact that Cadillac Transport is a small business employing only nine staff and that it wishes to spend its income on areas that it considers more important, namely, wages, superannuation and Workcover, on the basis that Cadillac Transport has “done nothing wrong”, and that if “found guilty” it will impact on the provision of a service in a remote region of Australia and on the staff and families in the community, again suffers from the vice that there is no evidence as to the number of staff, or of Cadillac Transport’s financial position, or of the nature or extent of its services in remote regional Australia, which would allow the Court to make any determination on the facts, assuming them to be relevant to the issue of legal representation, which is, at least in part, probably doubtful. Again, that demonstrates a good reason why Ms Sparnon ought not be granted leave to appear at the final hearing where the evidence to be led, the evidence to be cross-examined on, and the marshalling and organisation of that evidence, will be critical. Both the form and substance of the material presently before the Court in support of the Application in a Case does no more than reinforce the fact that Ms Sparnon ought not be granted leave to appear, and that a lawyer, whose professional expertise includes the garnering, marshalling and presentation of factual material, in an admissible form, in order to persuade a court to a conclusion, ought to appear for Cadillac Transport. The submission again suffers because it is subjective, and prejudges an issue which it is for the Court to determine. Furthermore, the submission reveals a misapprehension as to the nature of civil penalty proceedings, in which people are not found “guilty”, but are held to have contravened a particular provision of legislation.
  18. As to paragraph 26(k) above, the fact that “lawyers cost a lot of money” might have been of some relevance had Cadillac Transport, and its director, tendered evidence of their financial position amounting to incapacity to pay. However, they have not, and the mere fact that lawyers cost a lot of money is immaterial when Cadillac Transport has not tendered any such evidence. Moreover, there is no indication that lawyers have been approached, or that quotes have been obtained for the conduct of the matter.
  19. As to paragraph 26(l) above, for reasons set out above, the fact that the case comes down to Mr Hall’s word against Ms Sparnon’s is a critical reason why Ms Sparnon ought not be allowed to appear, because the necessary objectivity of an advocate in the presentation of a case on behalf of a corporation is likely to be compromised.
  20. In terms of the relative complexity or simplicity of the matter it has the potential to be relatively complex because of the nature of the alleged grounds for termination, namely:
    1. temporary absence from work because of illness or injury of a kind prescribed by the regulations;[35] and
    2. race.
  21. Proper consideration of the question as to whether or not the claim of unlawful termination is because of temporary absence from work because of illness or injury may require expert evidence, and the consideration of complex medical issues. Indeed, Cadillac Transport has already put this matter in issue by suggesting that any injury which might have given rise to the termination occurred some months before the termination itself.[36] The obtaining of expert medical evidence, the putting of that evidence before the Court, and the cross-examination of medical experts, is normally a function performed by a lawyer (and more often than not a lawyer who is a barrister), and not, with respect, the office manager of a small transport repair company in remote regional Australia who has tendered no evidence of relevant experience or qualifications which might assist her to perform this function. Furthermore, the concept of termination on the basis of race, which carries with it the notion that the person terminated has been terminated on the grounds of race, can involve complex conceptual and evidentiary matters.[37] Corporations accused of discrimination on the basis of race, whether it be human rights discrimination or discrimination in relation to termination of employment, are in the Court’s experience, because of the relative complexity of the issues, very rarely not represented by lawyers. The nature of the issues in these proceedings is such that a non-lawyer ought not represent Cadillac Transport.
  22. To date lawyers have not appeared in these proceedings for either of the parties, but that is not a particularly critical consideration given that there have only been two short directions hearing by telephone of the matter. Whether or not Mr Hall is represented by a lawyer might be relevant, but there is no evidence before the Court, at this stage, as to whether he is to be represented by a lawyer or not. Ultimately, in light of the issues discussed with respect to the grounds of the Application in a Case above, and the other factors discussed, this is not a factor which weighs heavily in the present matter.
  23. Whilst the objects of the FM Act and the FMC Rules are such as to require the Court to resolve matters justly, efficiently and economically, without undue formality and avoiding undue delay, expense and technicality,[38] the nature of this case, involving allegations of termination on the basis of temporary absence from work because of illness or injury, and race discrimination, is such that having a non-lawyer appear for Cadillac Transport will not assist the Court to resolve the matter in the manner required by the FM Act and FMC Rules. Indeed, if the form and substance of the materials which have presently been put before the Court by Ms Sparnon are any indication, it is likely to make the Court’s task more difficult, particularly in relation to the proper admission of evidence and the receipt of appropriate submissions based upon the evidence. For similar reasons, the Court is of the view that Cadillac Transport cannot be effectively represented by Ms Sparnon, and that if Ms Sparnon has the conduct of the matter, Cadillac Transport is likely to be significantly prejudiced in relation to the presentation of its case, and in particular the putting before the Court of evidence and submissions which are admissible, relevant and of assistance to the Court in the resolution of the issues. Furthermore, the consequences of a lack of proper representation for Cadillac Transport may be serious. Compensation of a not insignificant sum ($250,000) is, perhaps somewhat optimistically, sought. Perhaps more critically, penalties for contravention of a civil penalty provision of the FW Act are also sought. Those penalties can be significant, and a civil penalty contravention record can impact upon penalties for a corporate respondent in future cases.
  24. Given that the application was filed on 21 December 2010, has been to two directions hearings, and has been listed for hearing, there has been adequate opportunity for all parties to obtain legal representation. This is therefore a consideration which does not weigh in favour of a non-lawyer appearing for Cadillac Transport.
  25. The Court has also considered the nature of the case for Cadillac Transport. Its case is a simple one: Mr Hall abused Ms Sparnon and was dismissed as a consequence. Cadillac Transport presents that case on the Application in a Case as almost a fait accompli: there was abuse and it therefore follows that there must be a dismissal which cannot be anything other than justified. That simplistic approach ignores a legion of cases which grapple with the concept of whether or not abuse of this type is misconduct, and, if it is misconduct, whether it warrants termination, and whether if it would ordinarily warrant termination, there is something in the circumstances of the case which means that the employee concerned ought not to have been terminated.[39] Whilst such considerations might relate more to the concept of whether a dismissal is unfair rather than whether a termination is unlawful, the factual context in which the events occurred, and the consequences of those events, may nevertheless impact upon the alleged grounds of unlawful termination. It is unnecessary to speculate on what those issues might be in this case, and particularly given the present state of the evidence, it merely suffices to observe that unlawful termination cases are often not as simple as they might seem.
  26. On a consideration of the issues set out above relating to the grounds for the Application in a Case, and consideration of the factors relating to whether to grant leave to a non-lawyer to appear for a corporation under r.9.04 of the FMC Rules, the Court has come to the view that it is not appropriate for Ms Sparnon to be granted leave to appear for Cadillac Transport in these proceedings.

Conclusion

  1. The Court has concluded that Ms Sparnon will not be granted leave to appear for Cadillac Transport under the provisions of r.9.04 of the FMC Rules.
  2. The respondent’s Application in a Case must therefore be dismissed.
  3. As to costs, bearing in mind the provisions of s.570(2) of the FW Act and that both parties were not legally represented, there will be no order as to costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lucev FM


Date: 25 March 2011

[1] “Cadillac Transport”.
[2] “FW Act’.
[3] “FM Act”.
[4] “FW (Registered Organisations) Act”.
[5] Set out in a Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment, Part
G-24 (“Form 3”).
[6] FW Act, s.772(1)(a). The regulations referred to are the Fair Work Regulations 2009 (Cth) (“FW Regulations”), and reg.3.01 is the relevant regulation.
[7] FW Act, s.772(1)(f).
[8] Form 3 – Part H-25 and Part H, Attachment.
[9] Form 3 – Part G, Attachment.
[10] Form 3 – Part H, Attachment.
[11] The certificate under s.777 of the FW Act is a jurisdictional requirement without which this Court does not have jurisdiction to hear the application: Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231 at 237 per Lucev FM; [2009] FMCA 1022 at paras.21-23 per Lucev FM.
[12] “FMC Rules”.
[13] Examples of recently decided cases in relation to FW Act applications include Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626 (“Alcantara”) (director of corporation granted leave to appear in civil penalty proceedings under the FW Act); contrast Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 (director of corporation refused leave to appear in civil penalty proceedings under the FW Act).
[14] An example of “another law of the Commonwealth” which authorises another person to represent a party in proceedings in this Court, albeit with qualifications, is s.46PQ(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), which provides that a party to proceedings under the AHRC Act: “may be represented by another person who is not a barrister or a solicitor, unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear.” In Reynolds v The Minister for Health & Anor [2010] FMCA 843 this Court dismissed an application in a case by a person registered as an industrial agent under the Industrial Relations Act 1979 (WA) who was seeking leave under s.46PQ(1)(c) of the AHRC Act to appear on behalf of an applicant in proceedings alleging unlawful disability discrimination under the Disability Discrimination Act 1992 (Cth).
[15] “WR Act”.
[16] WR Act, s.854(10)(a).
[17] WR Act, s.854(12).
[18] DC Pearce and R Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood: LexisNexis Australia, 2006) pages 333 (“Statutory Interpretation in Australia”).
[19] Statutory Interpretation in Australia, pages 139-144 where the relevant general interpretation principles (including qualifications) are set out.
[20] [2011] FMCA 95 (“Pugliese”).
[21] Pugliese at paras.32-33 and 40 per Lucev FM.
[22] FW (Registered Organisations) Act, s.353A(2).
[23] FW (Registered Organisations) Act, s.353A(3).
[24] Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 at 445 per Brown FM; [2004] FMCA 381 at para.40 per Brown FM.
[25] Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68 at 74 per Smithers J (“Molnar Engineering”).
[26] Walker v Aztec Steel Pty Ltd [2010] FMCA 68 at para.9 per Lucev FM (“Aztec Steel”).
[27] Aztec Steel at para.9 per Lucev FM.
[28] Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 2) [2008] FMCA 1582 at paras.64-65 per Lucev FM (“Swevenings (No. 2)”); Aztec Steel at para.9 per Lucev FM.
[29] Swevenings (No. 2) at para.48 per Lucev FM, citing Jarret v Westpac Banking Corporation [1999] FCA 425 at para.26 per Carr J.
[30] Australian Liangwei Enterprises Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 289 at para.2 per Nicholls FM.
[31] Molnar Engineering at 73 per Smithers J.
[32] Alcantara IR at 76-77 per Lucev FM; FMCA at paras.10-12 per Lucev FM (footnotes 21-28 are the footnotes to the original quote from Alcantara).
[33] See para.13(k) above.
[34] FMC Rules, r.9.04.
[35] See, for example, Rogers v Millennium Inorganic Chemicals Ltd & Anor (2009) 229 FLR 198; [2009] FMCA 1.
[36] Response – Attachment headed “Response to part G John Hall”.
[37] See generally N Rees, et al, Australian Anti-Discrimination Law (Sydney: The Federation Press, 2008) pages 162-212.
[38] FM Act, ss.3 and 43; FMC Rules, r.1.03.
[39] See, for example: Greenleaf Fertilizers Ltd v The Corporation Employees Union (1978) AILR 350; MEWU v Hamersley Iron Pty Ltd (1993) 73 WAIG 1088; CEPU v BHP Iron Ore (2000) 81 WAIG 327 and on appeal CEPU v BHP Iron Ore Pty Ltd [2001] WAIRC 02287, cases concerning the use of the term “scab” between employees, usually in the context of an industrial dispute; BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timber Yards, Sawmills and Woodworkers Union of Australia (Western Australian Branch) [2002] WASCA 172; Sargant v Lowndes Lambert Australia Pty Ltd (2001) 81 WAIG 1149 in relation to the use of coarse language and angry spontaneous isolated acts; and as to insulting or objectionable language generally see C Sappideen et al, Macken’s Law of Employment (6th Edn) (Sydney: Law Book Co, 2009) at page 311 and cases there cited.

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