Chia v BWA Group Services Pty Ltd
[2013] FCCA 765
•9 July 2013
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: 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 will benefit from referral for legal assistance.
The Application has been formally made orally today for that referral. Rule 12.02(2) of the FCC Rules provides as follows:
When making a referral under subrule (1) the Court may take the following matters into account:
(a) the means of the party;
(b) the capacity of the party to otherwise obtain legal advice;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.It is apparent from the manner in which the Application was made this morning with specific reference to r.12.02(2) of the FCC Rules that the Applicant is aware of those conditions. Those factors and similar factors have been the subject of relatively recent consideration in a number of instances by this Court in cases including Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26 (“Bartucciotto”), Carter v Sheffield Estates Pty Ltd [2011] FMCA 402 (“Carter”), WZAOZ v Minister Immigration and Citizenship & Anor [2010] FMCA 619 (“WZAOZ”) and Cann v Commonwealth Bank of Australia (No. 2) [2011] FMCA 242 (“Cann (No 2)”).
When one looks at the factors, in terms of the means, the affidavit simply says that the Applicant has been unemployed since October 2012, is a recent graduate and is unable to afford a lawyer. There is no evidence in the affidavit of what, if any, social welfare assistance might or has been applied for by the Applicant or obtained by the Applicant. There is no evidence as to how recently the Applicant graduated and the precise relevance of that to a person’s financial position is ambiguous without evidence as to employment and earnings whilst, or since being, a student. There is no evidence of the Applicant’s means per se: there is no statement of assets or liabilities, no evidence of any assistance given, or savings or assets, such as a car or other saleable assets including furniture or shares, or of the Applicant’s liabilities such as a mortgage or a loan, or of a capacity to borrow against any assets to fund a lawyer for the purposes of these proceedings. That might be compared to WZAOZ at paragraph 14 where the applicants for a protection visa gave detailed information as to their financial position, and as in Carter at paragraph 11 where, again, detailed information of the type set out or referred to above was given by the applicant in those proceedings. There is simply not sufficient evidence for the Court to safely conclude that the Applicant could not afford a lawyer, and in that regard this is a factor which, in terms of means, does not presently favour the grant of a pro bono referral certificate.
In terms of capacity to obtain legal assistance otherwise, there is no evidence that other pro bono avenues have been explored or legal aid opportunities explored with the Legal Aid Commission of Western Australia, or pro bono opportunities with the Law Society, the Bar Association, any local community legal centre, any of the universities’ legal referral and assistance centres or any union of which the Applicant might have been a member. That can be compared to the situation in Carter at paragraph 12, where those opportunities had been explored, and at Cann (No. 2) at paragraph 48 where they had not been explored, resulting in different outcomes in each of those cases. There is no basis on which to conclude that the Applicant has properly pursued, or pursued at all, any legal assistance or otherwise in terms of the evidence presently before the Court and, in that regard, that factor also does not favour the grant of a pro bono referral certificate.
In terms of the nature and complexity of the proceeding, the Amended Application alleges adverse action in terms of employment was taken against the Applicant in contravention of general protection provisions of the Fair Work Act2009 (Cth) (“FW Act”) and by reference to s.340 of the FW Act in relation to workplace rights and, in particular, certain entitlements said to have triggered the termination of employment: in that regard the Court refers to part G, paragraph 17 of the Amended Form 2. There is a factual dispute with respect to those matters having regard to the Respondent’s Amended Response and those matters are within a relatively short compass relating to issues of performance in and about the Applicant’s probationary period and the outcome of performance meetings and reviews and, it would seem, entitlement to take leave and to have a supporting person at relevant meetings and the applicant’s right to file a complaint against the Respondent. Those events relate to a relatively short time span from August to October 2012.
There is nothing in the manner in which the claim is formulated which would indicate that the Applicant would have difficulty in putting her claim before the Court. Indeed, the manner in which the written claim has been formulated by a self-represented litigant is arguably better than some which have been prepared by solicitors for submission to this Court. There is, in any event, nothing which would indicate that the matter is overly complex. The Applicant says that the area of law is technical but does not elaborate. This Application is no more technical than many other similar applications in this Court where self-represented litigants have run perfectly competently, and sometimes successfully, litigation of this type.
With regard to lack of complexity, it might be contrasted with cases like Bartucciotto and Fazio v Centrelink [2008] FMCA 594 where there were indeed complex issues of law involved in relation to which the Court might have benefited from the assistance of counsel for the otherwise self-represented litigant. The Court has already observed that the case is not one which is complex factually, so there is nothing in this case which takes the case outside the ordinary run of FW Act cases in this Court in which self-represented litigants often appear, and there is nothing about the circumstances of the case in terms of its complexity which, in isolation, would warrant the granting of a pro bono referral certificate.
The Court observes that without the involvement of a solicitor for the Applicant the matter from a case-management point of view might be able to be programmed today in terms of affidavits, Outlines of Submissions and listing for hearing. The involvement of a solicitor by way of pro bono referral might well mean that that is not appropriate that that be the case. Certainly it is desirable, given the amount of time which this matter has already been before the Court since January of this year, that those litigation events now be put in place. That type of outcome is consistent with the objects of the Federal Circuit Court Act 1999 (Cth) (“FCC Act”) and FCC Rules, in particular s.3(2)(b) of the FCC Act and r.1.03(2) and (4) of the FCC Rules. That, of course, does not preclude the Applicant from either obtaining legal assistance, either by way of paid legal assistance or by way of seeking pro bono legal assistance from any of those avenues that the Court has otherwise referred to earlier in these Reasons for Judgment. Nor is this case one in which there is an issue of imperilment of liberty as there was, for example, in WZAOZ. Nor, given the manner in which the claim has been formulated and upon the Court’s brief observation of the Applicant this morning, is there any issue of the Applicant’s language skills impairing her ability to present the case as there was in WZAOZ: see WZAOZ at paragraph 24.
There are no other matters which favour the grant of a pro bono referral certificate. The Court has not sought any submissions from the Respondent. The decision as to whether a pro bono referral certificate ultimately issues is one which, as the Federal Court indicated in Schokker v Federal Commissioner of Taxation (No.2) (2000) 106 FCR 134; (2000) 181 ALR 597; [2000] FCA 1734 is essentially an administrative one for the Court and therefore, not necessarily one in which a respondent might have an interest or an ability or capacity to put submissions in that regard.
The Court has concluded that individually none of the relevant factors under r.12.02(2) of the FCC Rules are such as to warrant the grant of a pro bono referral certificate. Collectively, the position is no different. The Applicant has therefore not made out a case for the exercise of the Court’s discretion to grant a pro bono referral certificate, and the Applicant’s Application in a Case for such a certificate will therefore, be dismissed. The Court proposes there be no order for costs in this regard, having regard to the position of the Respondent outlined previously, and also having regard to the provisions of s.570(2) of the FW Act in relation to which this is primarily a no-costs jurisdiction, particularly, one might add, in relation to an application of this type which has been fairly straightforward to deal with.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 17 July 2013.
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