Al Jorany v AHG Services (WA) Pty Ltd
[2019] FCCA 2598
•16 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AL JORANY v AHG SERVICES (WA) PTY LTD | [2019] FCCA 2598 |
| Catchwords: PRACTICE AND PROCEDURE – Small Claim jurisdiction – whether leave to be represented by a lawyer should be granted – factors to be considered – leave granted. |
| Legislation: Fair Work Act 2009 (Cth), ss.548, 570 Federal Circuit Court Rules 2001 (Cth), r.45.13 |
| Cases cited: Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/a Western Diagnostic Pathology [2014] FCCA 187 Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025 Renouf v RAC Finance Limited [2017] FCCA 142 |
| Applicant: | ABDUL-KHALIQ AL JORANY |
| Respondent: | AHG SERVICES (WA) PTY LTD |
| File Number: | PEG 92 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the papers |
| Date of Last Submission: | 12 September 2019 |
| Delivered at: | Perth |
| Delivered on: | 16 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | HLS Legal |
ORDERS
Pursuant to s.548(5) of the Fair Work Act 2009 (Cth), the parties have leave to be represented by a lawyer until further order of the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 92 of 2019
| ABDUL-KHALIQ AL JORANY |
Applicant
And
| AHG SERVICES (WA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 13 March 2019 the applicant filed an application in the Court’s Fair Work Small Claims division.
In summary, the applicant claims that the respondent, his employer, breached a term of the relevant award, the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the “Award”). The applicant is claiming that he is owed $10,109. The respondent denies that the applicant is owed this amount or that there has been a contravention of the award.
The applicant commenced his application in the Fair Work Small Claims division. Hence, by virtue of s.548(5) of the Fair Work Act 2009 (Cth) (the “FW Act”) and r.45.13(1) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”), a party can only be represented by a lawyer with leave of the Court. The respondent seeks leave to do so.
It is not necessary to set out in depth any factual background relevant to this matter or the respective positions. The purpose of this judgment is simply to determine whether the respondent ought to have leave to appear by a lawyer.
The Court made orders on 15 August 2019 in the following terms:
1. The respondent file an outline of submissions by 29 August 2019.
2. The applicant file any affidavit or outline of submissions outlining why he opposes the respondent being represented by a lawyer by 12 September 2019.
3. The matter be determined on the papers and judgment be delivered from Chambers at a later date.
4. Liberty to apply.
These reasons relate to order 3.
Legislative Provisions
Section 548(5)-(6) of the FW Act is in the following terms:
Legal representation
…
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
Rule 45.13(1)-(2) of the Rules is in similar terms.
There are no mandatory considerations when determining whether leave to be represented should be granted pursuant to s.548(5). Having canvassed the authorities the respondent has referred to, the following factors for consideration are relevant (though not definitive):
a)the objects and purposes of the Small Claims Division and also of this Court to provide quick, informal and just resolutions of disputes without undue technicality;
b)the complexity of the matters that arise on the face of the application, be it factual or legal, and whether a lawyer by reason of their training and expertise, might be of assistance to the Court;
c)whether the other party (here the applicant) is represented by a lawyer and any prejudice or unfairness the other party may suffer if leave is granted;
d)the familiarity, and competence, of the proposed legal representatives to provide assistance to the Court on the complexities or technicalities that arise; and
e)whether the party seeking leave to be represented has an in-house lawyer or employee capable of conducting the matter satisfactorily.
(Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/a Western Diagnostic Pathology [2014] FCCA 187 (“Cangemi”); Renouf v RAC Finance Limited [2017] FCCA 142; Corcoran v Bansley Pty Ltd [2011] FMCA 440)
Section 548(5) of the FW Act is an “exception” to the norm. Leave for a lawyer to appear in the Small Claims division in most cases will not be necessary and will be assumed not to be required.
These provisions are designed to enable self-represented litigants greater access to the legal system and to provide more accessible procedures that operates informally and without regard to legal forms and technicalities: FW Act, s.548(3).
Overall, the respondent must satisfy the Court that it is necessary for the Court to exercise the discretion to grant leave in circumstances where the intention of the small claims procedure appears to be that legal representation is normally not necessary.
Respondent’s case
The respondent seeks an order that leave be granted to be represented by a lawyer in:
(a) the mediation listed on 24 July 2019;
(b) all subsequent mediations;
(c) all interlocutory proceedings; and
(d) the hearing of the matter.
In effect, the respondent seeks unconditional leave to be represented by a lawyer for the duration of the proceedings.
The respondent filed two affidavits in support of this application:
a)the affidavit of Taisha Marie Cusack sworn 5 July 2019; and
b)the affidavit of Megan Joanna Flower affirmed 5 July 2019.
Ms Cusack is the Human Resources Manager who oversees the respondent’s operations. Ms Cusack’s evidence was as follows:
a)she has no formal qualifications (specifically, she is not a lawyer and does not hold any legal qualification); however, her practical work experience in Human Resources has been recognised by the Australian Human Resources Institute;
b)the respondent does not employ an in-house lawyer and the human resources personnel are not experienced in legal advocacy. All legal advice and representation is obtained from law firms when a “complex issue arises or a dispute progresses to legal proceedings.”;
c)she formed the view (after receiving the applicant’s application) that the matter was complex in terms of the interaction between the applicant’s contract of employment and the Award. As such, she sought legal advice as she usually would do in such circumstances; and
d)if leave is not granted for the respondent to be legally represented, Ms Cusack would represent the respondent in the proceedings and she has not done so previously. On occasions she has attended mediations but she did so with the benefit of legal counsel.
Ms Flower is the respondent’s solicitor. She has day-to-day conduct of the matter. Ms Flower’s evidence was as follows:
a)the dispute between the parties centres on whether the applicant has been compensated for all hours worked;
b)this dispute involves questions of legal complexity arising from the applicant’s employment contract and the Award;
c)issues arising from the interpretation of and the interaction between the contract and the Award will need to be resolved in this matter;
d)there is also a factual dispute between the parties in respect of whether the applicant was at the premises before and after his rostered hours performing work for which he has not been paid as alleged in the application dated 13 March 2019. Resolving this dispute is likely to require witness evidence and involve questions of credibility; and
e)HLS Legal specialises in employment law and has experience and expertise in representing parties in employment disputes, including at mediation, and it will be of assistance to the Court to have this experience available if the matter proceeds to a hearing.
In accordance with the Court’s orders, the respondent filed written submissions. Those submissions referred to a number of decisions of this Court that consider s.548(5) of the FW Act.
The respondent submitted that the circumstances of this case warrant leave being granted as:
a)the parties would benefit from having appropriate and logical arguments put forward in relation to the issues arising from the interpretation and interaction of the Award and the contract;
b)in Cangemi the Court granted leave for the parties to be represented by lawyers because the matter involved complex interpretation issues in respect of a collective agreement and the interaction between the collective agreement and the employment contract and a factual issue arose in respect of whether an employee resigned or was made redundant. The circumstances that arose there are analogous to those that arise here;
c)the issues in this case require a degree of legal training to effectively canvass and convey the legal issues and the factual issue would benefit from the assistance of a lawyer in respect of evidence at any hearing given the period of time involved;
d)the applicant indicated an intention to seek legal representation and if the Court was to grant leave for the applicant to be represented by a lawyer it would be appropriate to grant leave for the respondent to also be represented by a lawyer;
e)HLS is experienced in this Court in matters of this nature (i.e., alleged underpayment of wages);
f)the respondent does not have an in-house lawyer or employee capable of conducting the matter and to date has relied upon representation and assistance from HLS Legal.
Applicant’s case
The applicant filed an affidavit which relevantly provides:
1.I am the applicant in these proceedings and I swear this affidavit in objection to the respondents application to be allowed to be legally represented in this matter
2.This is a small claims application the amount claimed is less than $11000. I am not legally represented. I cant afford a lawyer.
3.English is my second language and while I don't need an interpreter I am not legally trained and it would be very unfair if I had to argue and communicate with a lawyer. I would feel intimidated and I think it would be unfair for the respondent to be legally represented.
4.This is a simple claim for underpayment of wages. I was employed and my employer didn't pay me overtime as the award said they should. I do not think this is a complicated area of law it seems very simple to me. I do not think the court will need help from a lawyer to understand this application and to conduct the hearing.
Consideration
The Court is satisfied that the circumstances of this case warrant leave being granted for the respondent to be represented.
The issues that are in dispute in this case are both legal and factual. While the factual issue is not necessarily complex, the legal issues are.
The legal issues are:
a)the interpretation of particular clauses of the Award and the applicant’s contract;
b)the operation and application of particular clauses of the Award and the applicant’s contract;
c)the interaction of the Award and the applicant’s contract.
Two authorities of this Court, Cangemi and Transport Workers’ Union of Australia v Transit Systems WA Pty Ltd (2012) 224 IR 436, are analogous to the issues in dispute here. In both of these cases the Court granted leave for the party to be represented. The issues there were said to be of some complexity and it was determined that legal analysis would assist the Court.
The apparent legal complexity here weighs in favour of leave being granted. The Court is also of the view that the legal representatives that are seeking to appear on behalf of the respondent would greatly assist the Court in resolving these issues.
Were both the applicant and the respondent to remain unrepresented, the Court is not satisfied that the matter would proceed as efficiently and expeditiously as the objects of the Court envisage. The legal issues are complex. Without some legal analysis to assist the Court, the Court may be required to expend more time than usual to ensure that the findings the Court makes are legally sound. This also weighs in favour of leave being granted.
The Court is mindful that the applicant may feel he is prejudiced because he does not have legal representation. He refers to being unable to afford a lawyer and stresses that English is not his first language. He says that he will feel intimidated.
While the Court is sympathetic to the concerns raised by the applicant, the Court is not satisfied that the fact that the applicant is not represented (while the respondent will be) will result in unfairness. The Court is well-versed in providing assistance to self-represented litigants. This includes ensuring that an unrepresented litigant is not disadvantaged or intimidated. Any prejudice the applicant believes he may suffer can be mitigated by the Court’s duty to assist self-represented litigants.
Further, to the extent that the applicant is suggesting there are language difficulties, or that he would be more comfortable speaking in his first language, the Court can arrange for an interpreter to be provided to assist in this regard.
The Court also note that s.570(2) of the FW Act precludes any costs being awarded, save in specific circumstances. On a preliminary view the ability to recover costs would be restricted to the circumstances in s.570(2)(b). Section 570 sets a high bar. Hence, any costs implications for the applicant are not of significance here.
In line with Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025 the Court will order that both parties have leave to appear by a lawyer. As the applicant had previously indicated that he was considering obtaining legal assistance he can now do so if he wishes, or do so if he finds that he is able to retain a lawyer in due course.
For the reasons outlined above, the Court will grant leave to the parties to appear by lawyer until further order of the Court.
Conclusion
There will be an order that the parties have leave to appear by a lawyer until further order of the Court.
The matter can now proceed to mediation. With the assistance of a Registrar of this Court, it is hoped that a negotiated outcome can be reached.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 16 September 2019
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