Chia v BWA Group Services Pty Ltd - [2013] FCCA 765

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHIA v BWA GROUP SERVICES PTY LTD

[2013] FCCA 765

Catchwords:
PRACTICE AND PROCEDURE – Pro bono referral certificate – factors to be taken into account – means – disclosure of financial circumstances – nature and complexity of proceeding – whether other legal advice obtainable.

Legislation:
Fair Work Act 2009 (Cth), s.340

Federal Circuit Court Act 1999 (Cth), s.3(2)(b)

Federal Circuit Court Rules 2001 (Cth), r.12.02

Federal Magistrates Court Rules2001 (Cth) rr.1.03(2) and (4), 12.02

Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26
Cann v Commonwealth Bank of Australia (No.2) [2011] FMCA 242
Carter v Sheffield Estates Pty Ltd [2011] FMCA 402
Fazio v Centrelink [2008] FMCA 594
Schokker v Federal Commissioner of Taxation (No.2) (2000) 106 FCR 134; (2000) 181 ALR 597; [2000] FCA 1734
WZAOZ v Minister Immigration and Citizenship & Anor [2010] FMCA 619

Applicant:

JOY CHIA

Respondent:

BWA GROUP SERVICES PTY LTD (“BANKWEST”)

File Number:

PEG 14 of 2013

Judgment of:

Judge Lucev

Hearing date:

9 July 2013

Date of Last Submission:

9 July 2013

Delivered at:

Perth

Delivered on:

9 July 2013

REPRESENTATION

Counsel for the Applicant:

In Person

For the Respondent:

Mr R. B. Wade (Articled Clerk, by leave)

Solicitors for the Respondent:

Ashurst Australia

ORDERS

The Applicant’s oral Application in a Case under r.12.02 of the Federal Circuit Court Rules 2001 (Cth) for a pro bono referral certificate be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 14 of 2013

JOY CHIA

Applicant

And

BWA GROUP SERVICES PTY LTD (“BANKWEST”)

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

There is before the Court an Application for referral under r.12.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for a pro bono referral certificate. The Court in its orders of 12 March 2013 noted that the Applicant may seek a referral under r.12.02 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) – as they then were – should the matter not resolve at mediation, and further noted that in the event that the Applicant sought such a referral, any material in support of the matters set out in r.12.02(2) of the FMC Rules must be filed and served at least 14 days prior to the date on which the matter is listed for directions.
Ms Chia has filed an affidavit (“Ms Chia’s affidavit”) which she seeks to rely upon, sworn on 25 June 2013. The content of Ms Chia’s affidavit, relevantly, is as follows, paragraph 2:
2. The applicant has been unemployed since 17 October 2012 and has been unable to find employment since.
3. The applicant is a recent graduate and in her current capacity is unable to afford a lawyer. The applicant thereby seeks a referral under r.12.02 of the Federal Magistrates Court Rules 2001. [sic] (Cth) for the provision of legal assistance.
4. As this is a technical area of law, the applicant and court…

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: [2013] FCCA 765
Decision Date: 9 July 2013

CaseChat Overview and Summary

In *Chia v BWA Group Services Pty Ltd*, heard in the Federal Circuit Court of Australia at Perth before Judge Lucev, the applicant, Joy Chia, sought a pro bono referral certificate. The respondent was BWA Group Services Pty Ltd, also known as Bankwest. The application was made pursuant to rule 12.02 of the *Federal Circuit Court Rules 2001* (Cth).

The central legal issue before the Court was whether the applicant was entitled to a pro bono referral certificate under rule 12.02 of the *Federal Circuit Court Rules 2001*. This rule allows the Court to refer a party to a pro bono scheme if it is satisfied that the party is unable to afford legal representation and that the case has sufficient merit to warrant such assistance.

Judge Lucev dismissed the applicant's oral application for a pro bono referral certificate. The reasons for this dismissal are not detailed in the provided text, beyond the fact that the application was made under rule 12.02 and the Court ultimately made an order dismissing it. The Court's orders of 12 March 2013 indicated that the applicant might seek such a referral, but the subsequent application was unsuccessful.

Orders

Orders of the court

The Applicant’s oral Application in a Case under r.12.02 of the Federal Circuit Court Rules 2001 (Cth) for a pro bono referral certificate be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 14 of 2013

JOY CHIA

Applicant

And

BWA GROUP SERVICES PTY LTD (“BANKWEST”)

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

There is before the Court an Application for referral under r.12.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for a pro bono referral certificate. The Court in its orders of 12 March 2013 noted that the Applicant may seek a referral under r.12.02 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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