ANNESE v General Crane Services Pty Ltd - [2019] FCCA 2661

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
Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/as Western Diagnostic Pathology [2014] FCCA 187

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2661
Decision Date: 23 September 2019

CaseChat Overview and Summary

In *Annese v General Crane Services Pty Ltd*, the applicant sought leave to be represented by a legal practitioner in proceedings commenced in the Small Claims Division of the Magistrates' Court of Victoria. The respondent opposed this application.

The central legal issue before the Court was whether to grant the applicant leave to be represented by a legal practitioner, notwithstanding the general prohibition against legal representation in the Small Claims Division. The Court was required to consider the factors relevant to the exercise of its discretion in such matters.

Judge Kendall granted leave to the applicant, finding that the complexity of the case, the potential for significant financial disadvantage to the applicant if unrepresented, and the applicant's limited capacity to understand and navigate the legal process weighed in favour of granting representation. The Court applied the principles established in *R v Small Claims Tribunal; Ex parte W.M.C. Holdings Pty Ltd* and other relevant authorities, emphasising that the overarching consideration is the achievement of a just and fair outcome. The Court noted that while self-representation is generally encouraged in the Small Claims Division to promote accessibility and reduce costs, exceptional circumstances can justify departing from this principle.

Orders