ANNESE v General Crane Services Pty Ltd
[2019] FCCA 2661
•23 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANNESE v GENERAL CRANE SERVICES PTY LTD | [2019] FCCA 2661 |
| 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: Federal Circuit Court Rules 2001 (Cth), r.45.13 Fair Work Act 2009 (Cth), s.548 |
| Cases cited: Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598 Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025 |
| Applicant: | LUKE ANNESE |
| Respondent: | GENERAL CRANE SERVICES PTY LTD |
| File Number: | PEG 208 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the papers |
| Date of Last Submission: | 16 September 2019 |
| Delivered at: | Perth |
| Delivered on: | 23 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Minter Ellison |
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.
The matter be referred to mediation before a Registrar of this Court on a date to be fixed.
If the matter does not resolve at the mediation referred to in order 2, the matter be listed for further directions before the Court on a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 208 of 2019
| LUKE ANNESE |
Applicant
And
| GENERAL CRANE SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 June 2019 the applicant filed an application in the Court’s Fair Work Small Claims Division.
It is uncontroversial that matters in the Small Claims Division preclude the parties being represented by a lawyer unless the Court gives leave to do so. This is so by virtue 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”).
At a directions hearing on 15 August 2019 the respondent foreshadowed that it would be seeking leave to be represented by a lawyer in these proceedings. The applicant opposed any leave being granted. The Court made orders in the following terms:
1. Any application in a case for leave to appear by lawyer be made by 29 August 2019.
2. The respondent file any affidavits and an outline of submissions in support of the application in order 1 by 29 August 2019.
3. The applicant file any affidavits and an outline of submissions opposing the application by 19 September 2019.
4. The application referred to in order 1 be determined on the papers.
5. Costs, if any, reserved.
On 29 August 2019 the respondent filed an application in a case seeking leave to be represented in these proceedings. An affidavit of Nick Bucciarelli affirmed 28 August 2019 was also filed, as was an outline of submissions.
The applicant filed an affidavit affirmed 16 September 2019 and an outline of submissions dated 16 September 2019.
These reasons reflect the Court’s determination of whether leave should be granted under s.548 of the FW Act.
Background
For the purposes of the present application, it is not necessary to set out in depth any factual background relevant to this matter or the parties’ respective positions. The purpose of this judgment is simply to determine whether the respondent ought to have leave to appear by a lawyer.
To provide some context, however, the applicant claims that the respondent, his employer, owes him compensation as:
a)he was underpaid in relation to a period whereby he worked in Karratha on an assignment;
b)he was entitled to an additional two weeks redundancy pay as his period of continuous service was over two years;
c)legal costs were incurred by the applicant as a result of him seeking restitution for the “unreasonable acts or omissions” that the respondent has caused to occur;
d)he is entitled to, and was not provided, a travel allowance as specified in the relevant enterprise agreement, the General Crane Service (WA) Enterprise Agreement 2012 (the “Agreement”); and
e)he was also underpaid in May 2014.
In total, the applicant seeks an amount of $18,648.63. In addition to the application filed on 10 June 2019, the applicant also filed an affidavit he affirmed/swore (it is not indicated which) on 31 May 2019.
The respondent denies the applicant is entitled to the compensation he seeks and says that the application should be dismissed. A defence and response has been filed.
As noted, the Court made orders in the terms indicated at [3] above at a directions hearing.
Legal Principles
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).
In Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598 (“Al Jorany”), this Court summarised the factors that a Court would ordinarily look at in determining of leave ought to be granted. These factors are not exhaustive, but relevantly include:
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)the familiarity, and competence, of the proposed legal representatives to provide assistance to the Court on the complexities or technicalities that arise;
d)whether the party seeking leave to be represented has an in-house lawyer or employee capable of conducting the matter satisfactorily; and
e)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;
The onus is on the moving party (here, the respondent) to satisfy the Court that it is necessary for the Court to exercise the discretion to grant leave for a lawyer to appear on behalf of a party. This onus arises in a context where the intention of the small claims procedure appears to be that legal representation is normally not necessary and assumed not to be required.
Respondent’s case
In support of the application for leave to be represented, the respondent relies on the affidavit of Nick Bucciarelli affirmed 28 August 2019. That affidavit is short, spanning only three paragraphs. The affidavit states that Mr Bucciarelli is the managing director of the respondent, the respondent has not employed human resources specialists, does not currently employ human resources specialists and notes that Minter Ellison has been instructed “in this matter” since 5 December 2018.
The written submissions filed in support of the application provide as follows:
a)it is appropriate for leave to be granted in this matter;
b)this is not a simple underpayment claim. Rather, it involves complex questions of law regarding the proper interpretation of provisions of the FW Act, including determinations as to amounts that can be sought in small claims proceedings, and the proper interpretation of the Agreement which applied to the applicant’s employment and the applicant’s employment contract;
c)the Court will be aided in this matter by legal representatives who are familiar with the relevant facts, law and legal principles;
d)the applicant has filed extensive materials in this matter and legal representatives would assist the Court in identifying the relevant documentation;
e)Minter Ellison (the firm seeking leave to appear) has been advising the respondent regarding this matter for a number of months;
f)the applicant will not be unfairly disadvantaged if the respondent is legally represented as the applicant has demonstrated that he is capable of competent self-representation in preparing the relevant documents in these proceedings;
g)at all material times relevant to this matter, the respondent has not employed human resources specialists and does not currently employ human resources specialists.
Applicant’s case
The applicant’s affidavit reads as follows:
1. Nick Bucciarelli does not serve as any capacity of an Officeholder of General Crane Services (WA) Pty Ltd as per the Company records provided by the Australian Securities Investment Commission (ASIC).
2. As per Nick Bucciarelli’s Linkedln profile, he has stated that he has 14 years in the crane industry in various roles. He was a crane operator for Anten Cranes Pty Ltd for 3 years and 8 months.
3. Tony Bucciarelli is the Sole Director of General Crane Services (WA) Pty Ltd and was a Director of Anten Cranes Pty Ltd as per the Company records provided by ASIC. Anten Cranes Pty Ltd inception date was June 1998. Nick Bucciarelli is the son to Tony Bucciarelli.
4. As claimed above, the management involved with the Respondent has more than 30 years relevant business experience and acumen in the crane industry and would be privy to the responsibilities of an Employer and the issues and interpretation of the Fair Work Act 2009 Cth (FW Act), collective agreements and employment contracts.
5. The Respondent has engaged MinterEllison, an international top tier legal firm, and appears to have the balance of power and advantage in their favour due to their legal expertise.
6. I do not have the resources or time as MinterEllison and I do not have any previous experience in litigation.
7. I believe that this is a straight forward matter and does not carry the weight of complexity as it is a simple underpayment claim.
The applicant’s outline of submissions provides as follows:
1. As per point 7 of the Respondent’s submission they are claiming that the matter is too complex however, as per point 9 they are claiming that I have demonstrated that I am “capable of competent self-representation”. Nick Bucciarelli and myself share the commonality that we both do not have legal expertise.
2. The matter is a simple underpayment claim. It involves an Employee’s pay rate being below the prescribed pay rate, an allowance that wasn’t fully paid as per the collective agreement signed by Nick Bucciarelli and redundancy pay that wasn’t fully paid as per the National Employment Standards.
3.Small claims court is designed to be an informal, fast and cost effective court proceeding to recover amounts owed.
4. The Respondent submits that “At all material times relating to this matter, the Respondent has not employed human resources specialists and does not currently employ human resource specialists.” However, it should be questioned whether if the current matter is too complex for Nick Bucciarelli, why hasn’t a human resource specialist been engaged earlier, or during material times, to mitigate the risk of this matter being present in the future?
5. The Applicant submits that it is appropriate to object the Respondent’s application to grant leave in this matter
Consideration
As the applicant submits, the object of the Small Claims Division is to provide an informal, fast and cost effective court proceeding.
Prior to the first court date of this matter the applicant filed his originating application and an affidavit. The application (which accompanies the Form 5) contained 21 pages, including 3 attachments. The affidavit filed in support numbers 89 pages and has 11 annexures.
Clearly, the volume of material already filed (without any order from the Court requesting it) is large. It is unclear to the Court whether the materials are relevant. The Court does note that the application and the affidavit make references to “misrepresentations”, “breach of trust” and to the respondent’s legal representatives purporting to “convolute the facts” (a serious allegation).
In the particular circumstances as they stand, the volume of the material already filed inhibits the ability of the Court to deal with these matters quickly. The Court considers that the objects of this Court and the Small Claims procedure weigh in favour of leave being granted as, with the assistance of legal representatives, the Court’s attention and focus can be more readily focussed on the issues in dispute.
In relation to the issue of complexity, the Court does not accept that this is a “simple underpayment claim”. Indeed, the applicant’s own evidence and documents suggest that the issues are not simple.
There are both legal and factual issues that appear to be in dispute. In respect of the legal issues, what arises on the face of the material is:
a)the interpretation of the Agreement and, in particular, the clauses that pertain to travel entitlements, overtime and wages;
b)the interaction of the Agreement with any employment contract (which appears to be referred to in the attachments to the application filed 10 June 2019);
c)whether the text message the applicant relies upon as the basis for the underpayment referred to in [8(a)] is a binding agreement or can be considered to have varied the terms of employment; and
d)whether the text message the applicant relies on is within the ambit of s.548 of the FW Act.
There are also mixed questions of law and fact including whether the applicant was employed on a regular and systematic basis so as to be entitled to the additional redundancy pay as he claims.
It is not clear to the Court whether the legal issues identified above are, in fact, all in issue. Nonetheless, on the face of the extensive materials already filed it appears the issues are complex. This weighs in favour of leave being granted as the training and expertise of a lawyer to refine the issues would be of assistance to the Court: Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025; Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/as Western Diagnostic Pathology [2014] FCCA 187.
The affidavit of Mr Bucciarelli states that Minter Ellison has been instructed in this matter since December 2018.
In Al Jorany, there was evidence before the Court that the legal firm in question was particularly experienced in relation to employment law and claims of the nature arising in that case. Here, there is no such evidence. Rather, the respondent simply refers to the law firms’ familiarity with the case. While not critical, the absence of this evidence weighs against leave being provided.
Mr Bucciarelli also states that the respondent has no Human Resources staff.
The applicant’s evidence suggests that Mr Bucciarelli has been the General Manager of the respondent for over 8 years. In many small claims matters that come before the Court the dispute involves a small business which, by its nature, does not have a human resources department or manager. In those matters, individuals (sometimes owners, directors or managers without any legal background or human resources training) appear competently and ably. The Court has taken this into consideration.
In relation to the issue of prejudice to the applicant if leave is granted, it appears that this is what the applicant is referring to at [5]-[6] of his affidavit. The applicant’s materials evidence that he is familiar with legal resources and has a diligent approach to presenting his claim. It appears to the Court that he is “capable of competent self-representation” as the respondent submits.
The applicant submits that the balance of power and legal expertise will weigh in favour of the respondent if leave is granted. The Court understands the applicant’s concerns. Nonetheless, the Court is not satisfied that the applicant will be prejudiced or that the balance of power will favour the respondent if leave was granted. With the assistance of the Court where necessary, the applicant will be able to represent himself confidently and articulate his case clearly while also understanding what is put against him.
Further, the applicant need not worry about experience in litigation. The Small Claims procedure is informal and the Court is not bound by rules and technicalities of evidence. Often, therefore, litigation experience is of little significance.
Overall, while the Court accepts that the applicant may feel as though the respondent would have the upper hand if it were represented, the Court is satisfied that no prejudice would result to the applicant if leave were granted. Rather, the assistance of a legal representative will allow the applicant to benefit from any legal analysis undertaken and thus present his case appropriately.
While not all factors weigh in favour of leave being granted, in the absence of the Court finding any significant prejudice to the applicant and given the Court’s concerns with the complexity of the issues that arise, leave will be granted.
Conclusion
The Court is satisfied that the complexity of the legal issues that may arise in this case warrant leave being granted for the respondent to be represented.
The appropriate course is for the matter to now be referred to a Registrar for mediation.
If the matter does not settle at mediation, the Court may, if it feels necessary, consider whether leave should be revoked.
On the basis of the above the Court will allow the application in a case filed 29 August 2019. The respondent will have leave pursuant to s.548(5) of the FW Act until further order of the Court.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 23 September 2019
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