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Pugliese v Paull [2011] FMCA 95 (25 February 2011)

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Pugliese v Paull [2011] FMCA 95 (25 February 2011)

Last Updated: 28 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PUGLIESE v PAULL

INDUSTRIAL LAW – Alleged unlawful termination – application for non-lawyer to appear for respondent.

PRACTICE AND PROCEDURE – Application for non-lawyer to appear for respondent – respondent an individual – non-lawyer employee of organisation – organisation not a registered organisation – whether non-lawyer employee of unregistered organisation has a right to appear.

WORDS AND PHRASES – “authorises”.


Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889
Jackson v Sterling Industries Ltd (1986) 69 ALR 92
Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612
Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235
P v R [2002] FMCAfam 65
Re Read (2007) 164 FCR 237; [2007] FCA 1985
Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022
Reynolds v The Minister for Health & Anor [2010] FMCA 843
Schueler & Anor v Smith & Ors [2010] FMCA 777
Skipworth v State of Western Australia (No. 2) (2008) 218 FLR 16; [2008] FMCA 544
Temby & Anor v Chambers Investment Planners Pty Ltd & Anor [2010] FMCA 783
VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291; [2005] FCAFC 91

DC Pearce & R Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood: LexisNexis Australia, 2006)
J Tarrant, Amending Final Judgments and Orders (Sydney: Federation Press, 2010)
The Shorter Oxford English Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1984)

Applicant:
ELIGIEO LUCIANO PUGLIESE

Respondent:
DAVID KEVIN PAULL

File Number:
PEG 172 of 2010

Judgment of:
Lucev FM

Hearing date:
14 February 2011

Date of Last Submission:
14 February 2011

Delivered at:
Perth

Delivered on:
25 February 2011

REPRESENTATION

Counsel for the Applicant:
Mr P J Griffin

Solicitors for the Applicant:
Peter J Griffin & Co

For the Respondent:
Mr R Gifford (by leave to argue the application for leave to represent only)

ORDERS

(1) That the respondent’s application in a case filed 20 December 2010 be dismissed.
(2) The matter be adjourned to a directions hearing at 9.00am on 11 March 2011.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 172 of 2010

ELIGIEO LUCIANO PUGLIESE

Applicant


And


DAVID KEVIN PAULL

Respondent


REASONS FOR JUDGMENT

Application in a case

  1. The respondent, who is an individual, seeks to have Rodney Hudson Gifford, a non-lawyer employee of an organisation not registered under the Fair Work (Registered Organisations) Act 2009 (Cth),[1] appear for him in these proceedings.

Issue

  1. The issue to be determined is whether or not the relevant statutory provisions under the Federal Magistrates Act 1999 (Cth)[2] and the Fair Work Act 2009 (Cth)[3] give Mr Gifford a right to appear on behalf of the respondent.

Procedural history

  1. The substantive application in this matter was filed on 21 September 2010, and came before the Court on 25 October 2010 for a first directions hearing. On that date, both parties sought leave to attend by a non-lawyer, and the first directions hearing was adjourned to 22 November 2010. On that date both parties still sought to appear by a non-lawyer and orders were made for the filing of applications in a case, affidavits and outlines of submissions by both parties, with any application in a case filed to be heard on 14 February 2011.
  2. Only the respondent filed, on 20 December 2010, an application in a case to appear by a non-lawyer, which was heard on 14 February 2011. The applicant appeared by a lawyer at the hearing on 14 February 2011.

Relevant facts

  1. Mr Gifford is a person of vast experience in industrial relations generally, having been an officer of various employer organisations, namely the Australian Mines and Metals Association, the Australian Federation of Construction Contractors and the Chamber of Commerce and Industry, for a combined period of 35 years.[4] In 1995-1996 Mr Gifford also served as an Acting Commissioner of the Western Australian Industrial Relations Commission.[5] For the past five years Mr Gifford has been the Industrial Relations Manager of the Motor Trade Association of Western Australia.[6] The MTAWA is not a registered organisation under the FW (Registered Organisations) Act.[7]
  2. By virtue of his experience Mr Gifford has extensive experience in dealing with industrial and termination of employment matters, particularly in an arbitral context,[8] but also before the Western Australian Industrial Magistrates Court, in relation to the enforcement of State industrial awards,[9] where agents have a right of appearance in relation to such matters.[10]
  3. The substantive application in these proceedings alleges unlawful termination of employment of the applicant, Mr Pugliese, by the respondent, Mr Paull, on 1 July 2010. Termination of employment is alleged to be unlawful by reason of termination because of temporary absence from work because of illness or injury of a kind prescribed by the regulations.[11]
  4. The substantive application attached a certificate under s.777 of the FW Act certifying that Fair Work Australia[12] was satisfied that all reasonable attempts to resolve the dispute concerning termination had been, or were likely to be, unsuccessful.[13]

The respondent’s argument

  1. The respondent argues that s.44(c) of the FM Act gives recognition to representation by persons other than lawyers in this Court.
  2. Section 44 of the FM Act provides as follows:
  3. The respondent argues that “another law of the Commonwealth” is capable of including the FW Act.
  4. The respondent also relies upon s.596(1) and (4) of the FW Act which provides as follows:
  5. The respondent says that because MTAWA is an association of employers not registered under the FW (Registered Organisations) Act Mr Gifford, as an employee of MTAWA, has an unfettered right of representation for a party before FWA by reason of s.596(4)(b)(ii) of the FW Act which provides that a person is not a lawyer or paid agent if the lawyer or paid agent is an employee or officer of an association of employers that is not registered under the FW (Registered Organisations) Act, read together with s.596(1) of the FW Act.
  6. Mr Gifford’s unfettered right of appearance for a party before FWA is said to give rise to the same right, or, as it is put in the submissions, “that same right is recognised”, so as to allow Mr Gifford to appear before this Court by reason of s.44(c) of the FM Act. The respondent says that it is open for the Court to conclude that a right of appearance for the respondent by a non-lawyer is allowed in the circumstances of this matter.
  7. For the purposes of s.44(c) of the FM Act there is no question that:
    1. the respondent is a “party to a proceeding before the ... Court”; and
    2. the FW Act is “another law of the Commonwealth”.
  8. The real question in this case is whether another law of the Commonwealth “authorises” Mr Gifford to represent the respondent.
  9. In this case “authorises” is used in that sense of the meaning of the word “authorise” which is:
  10. 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),[15] which provides that a party to proceedings under the AHRC Act:
  11. Another example is r.9.04 of the Federal Magistrates Court Rules 2001 (Cth) which provides that:
  12. In P v R[18] this Court considered an application for a non-lawyer to appear in family law proceedings, and having referred to s.44(c) of the FM Act, observed that the “only other relevant legislation”, being the Family Law Act 1975 (Cth), “does not authorise a non-lawyer to represent a party”.[19]
  13. The question is therefore whether or not s.596(1) and (4) of the FW Act “authorises” Mr Gifford to appear for the respondent in these proceedings in this Court.
  14. Section 596 of the FW Act provides that a person may be represented by a lawyer or paid agent with the permission of FWA, and that FWA may grant permission for such an appearance,[20] subject to certain conditions which are set out.[21] Circumstances where a person is not taken to be represented by a lawyer or paid agent, even if the person is a lawyer or paid agent, are also set out.[22] In the Workplace Relations Act 1996 (Cth)[23] “counsel, solicitor or agent” were entitled to appear by leave of the then Australian Industrial Relations Commission,[24] which, in determining whether or not to grant leave, had to have regard to certain matters.[25] Conceptually, s.596 of the FW Act and s.100 of the WR Act do not differ: they enable a lawyer or paid agent to be granted leave to appear before the arbitral authority (now the FWA, previously the AIRC) subject to certain conditions and the discretion of the arbitral authority.
  15. On a plain reading of s.596(1) of the FW Act it does not authorise a person to appear in proceedings in this Court. Rather, it is concerned with a person’s right of appearance before FWA.
  16. The fact that Mr Gifford has an unfettered right of appearance before FWA does not give him the same right before this Court. Section 44(c) of the FM Act makes that clear.
  17. That Mr Gifford does not have a right of appearance is also made clear by other provisions of the FW Act and the former WR Act.
  18. It is significant that the FW Act is silent as to representation in this Court. That silence results in a party’s right of appearance being subject to s.44 of the FM Act. Prior to the introduction of the FW Act the WR Act expressly set out rights of appearance in workplace relations proceedings in this Court. Thus, for example, in relation to termination of employment actions, s.684 of the WR Act provided as follows:
  19. Section 854 of the WR Act dealt even more specifically with representation of parties before both the Federal Court and this Court. Section 854 provided as follows:
  20. Under the WR Act in proceedings before this Court an employee of an organisation of which the party was a member could appear by leave of the Court.[26] An “organisation” for the purposes of the WR Act meant an organisation registered under Schedule 1 of the WR Act.[27] Thus, under the WR Act Mr Gifford would not have had a right of appearance before this Court as a non-lawyer employee of an unregistered organisation of which a party was a member.
  21. Representation in proceedings in the Fair Work Division of this Court is now governed by the provisions of s.353A of the FW (Registered Organisations) Act, which provides as follows:
  22. The FW (Registered Organisations) Act is “another law of the Commonwealth” for the purposes of s.44(c) of the FM Act. It specifically authorises certain persons to appear in proceedings in the Fair Work Division (which these proceedings are) of this Court. But, like s.854 of the WR Act, it does not include a non-lawyer employee of an unregistered organisation of which the party is a member.[28]
  23. An “organisation” for the purposes of s.353A means an organisation registered under the FW (Registered Organisations) Act.[29] The MTAWA is not an organisation as defined, and therefore not an organisation for the purposes of s.353A. Mr Gifford therefore has no right of appearance before this Court in his capacity as an employee of MTAWA.
  24. Mr Gifford therefore does not have a right to represent the respondent on the argument put by the respondent, for the reasons set out above, he also does not have a right to appear under the specific provision of the FW (Registered Organisations) Act dealing with rights of appearance in Fair Work Division proceedings in this Court, nor under the previously applicable provisions of the WR Act. The fact that s.353A(3)(a) of the FW (Registered Organisations) Act (and before it, s.854(10)(a) of the WR Act) specifically grants a right of appearance to an employee of a registered organisation of which the party is a member, ought to be read as precluding an employee of an unregistered organisation of which the party (in this case the respondent) is a member, from having a right of appearance.
  25. 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 some respects from those enacted in the former WR Act. The FW (Registered Organisations) Act has expressly maintained the right of appearance for an employee of a registered organisation in this Court, whilst failing to include a right of appearance for an employee of an unregistered organisation in this Court. The FW Act expressly allows for an employee of an unregistered organisation to appear before FWA. Further, such an interpretation is bolstered by the presumption that an express reference to the right of an employee of a registered organisation to appear for a party in this Court, and the right of an employee of an unregistered organisation to appear for a party in FWA, indicates that other matters are excluded, namely the capacity of a non-lawyer employee of an unregistered organisation to appear for a party in this Court.[30]

Inherent power to permit unqualified persons to appear

  1. Although not raised in argument it is necessary to deal with an issue raised in P v R in which this Court said that the Family Court “has an inherent jurisdiction to govern its practice and procedure”[31] and that “this Court is in the same position as the Family Court. This Court enjoys an inherent power to permit unqualified persons to appear notwithstanding s 44 of the Federal Magistrates Act.”[32] In P v R the Court went on to consider whether or not an unqualified person should be granted leave to appear, using traditional tests where that discretion is exercised, and determined that leave would not be granted to an unqualified person to appear in those proceedings.[33] However, this is not a case where the question of the discretion to appear arises to be determined. That is because this Court does not have inherent jurisdiction. In Skipworth v Western Australia (No. 2)[34] this Court, having reviewed relevant authorities,[35] concluded that:
  2. In DJL, the High Court, speaking of the Family Court said:
  3. In Parsons the Full Court of the Federal Court observed that:
  4. In Jackson v Sterling Industries Ltd[39] a single Justice of the High Court quoted with approval a statement by the Chief Justice of the Federal Court in the judgment of the Full Court of the Federal Court under appeal where it was said:
  5. The Court’s view expressed in Skipworth (No. 2) was followed in Temby & Anor v Chambers Investment Planners Pty Ltd & Anor,[41] and subsequently relied upon by the Court in Schueler & Anor v Smith & Ors.[42]
  6. In the circumstances this Court ought not follow the view expressed in P v R concerning inherent jurisdiction. In any event, accepting that this Court has an implied incidental power to make orders necessarily incidental to express powers, there is no express power in this Court to allow the appearance of a non-lawyer employee of an unregistered organisation in these proceedings, for the reasons set out above.[43]

Conclusion

  1. The Court has concluded that a non-lawyer employee of an organisation not registered under the FW (Registered Organisations) Act has no right of appearance before this Court in proceedings alleging unlawful termination under the FW Act.
  2. The respondent’s application in a case must therefore be dismissed.
  3. The Court will hear the parties as to costs, if any.

I certify that the preceding 42Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-twoforty-two (42) paragraphs are a true copy of the reasons for judgment of Lucev FM


Date: 25 February 2011

[1] “FW (Registered Organisations) Act”.
[2] “FM Act”.
[3] “FW Act”.
[4] Affidavit of Rodney Hudson Gifford, sworn 20 December 2010, para.9 (“Mr Gifford’s Affidavit”).
[5] Mr Gifford’s Affidavit, para.10.
[6] “MTAWA”; Mr Gifford’s Affidavit, para.1.
[7] Mr Gifford’s Affidavit, para.2.
[8] Mr Gifford’s Affidavit, paras.4-6.
[9] Mr Gifford’s Affidavit, para.7.
[10] Industrial Relations Act 1979 (WA), s.81E (“WA IR Act”).
[11] Form 3 – claim under the FW Act alleging unlawful termination of employment, Part G-24; FW Act, s.352. The regulations referred to are the Fair Work Regulations 2009 (Cth) (“FW Regulations”), and see FW Regulations, reg.3.01.
[12] “FWA”.
[13] 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.
[14] The Shorter Oxford English Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1984) page 134.
[15] “AHRC Act”.
[16] 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 WA IR Act 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).
[17] See Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626 (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).
[18] [2002] FMCAfam 65 (“P v R”).
[19] P v R at para.5 per Driver FM.
[20] FW Act, s.596(1).
[21] FW Act, s.596(2).
[22] FW Act, s.596(4), as set out in para.12 above.
[23] “WR Act”.
[24] “AIRC”.
[25] WR Act, s.100.
[26] WR Act, s.854(10)(b) and (12).
[27] See definition of “organisation” in Chapter 1, cl.6 of Schedule 1 – Registration and Accountability of Organisations to the WR Act.
[28] FW (Registered Organisations) Act, s.353A(3)(a).
[29] FW (Registered Organisations) Act, s.6, definition of “organisation”.
[30] DC Pearce & R Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood: LexisNexis Australia, 2006) p.139-144 where the relevant general interpretation principles (including qualifications) are set out.
[31] P v R at para.6 per Driver FM.
[32] P v R at para.7 per Driver FM.
[33] P v R at paras.8-11 per Driver FM.
[34] (2008) 218 FLR 16; [2008] FMCA 544 (“Skipworth (No.2)”).
[35] In Skipworth (No. 2) FLR at 24-27 per Lucev FM; FMCA at paras.29-33 per Lucev FM the Court cited DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 (“DJL”); Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 (“Parsons”); VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291; [2005] FCAFC 91 and Re Read (2007) 164 FCR 237; [2007] FCA 1985.
[36] Skipworth (No. 2) FLR at 28 per Lucev FM; FMCA at para.34 per Lucev FM.
[37] DJL CLR at 241 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; HCA at para.25 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
[38] Parsons at 241 per Bowen CJ, Northrop and Toohey JJ.
[39] [1987] HCA 23; (1987) 162 CLR 612 (“Sterling Industries”).
[40] Sterling Industries at 623-624 per Deane J quoting Jackson v Sterling Industries Ltd (1986) 69 ALR 92 at 97 per Bowen CJ. Se also J Tarrant, Amending Final Judgments and Orders (Sydney: Federation Press, 2010) pages 6-7.
[41] [2010] FMCA 783 at para.18 per Lucev FM.
[42] [2010] FMCA 777 at paras.10-11 per Driver FM.
[43] See paras.33-34 above.

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