FEDERAL COURT OF AUSTRALIA
Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman [2017] FCA 473
Appeal from: Application for leave to appeal: Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd (No 2) [2016] FCA 1563 File number: SAD 30 of 2017 Judge: CHARLESWORTH J Date of judgment: 28 April 2017 Date of publication of reasons 9 May 2017 Legislation: Fair Work Act 2009 (Cth)
Workplace Relations Act 1996 (Cth)
Federal Court Rules 2011, r 1.34, 4.01
Date of hearing: 28 April 2017 Registry: South Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: No catchwords Number of paragraphs: 33 Counsel for the Appellant: Mr H Dean appeared on behalf of the Appellant Counsel for the Respondent: Ms G Walker Solicitor for the Respondent: Office of the Fair Work Ombudsman ORDERS
SAD 30 of 2017 BETWEEN: COMPLETE WINDSCREENS (SA) PTY LTD (ACN 090 479 324)
Appellant
AND: FAIR WORK OMBUDSMAN
Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
28 APRIL 2017
THE COURT ORDERS THAT:
1.The appellant’s application for leave to be represented on the appeal other than by a lawyer is dismissed.
2.The application filed on 3 April 2017 for orders staying the execution of orders of the learned primary judge be struck out.
3.The appellant is, on or before 19 May 2017, to engage legal representation in connection with the appeal and to file a notice of address for service.
4.Any application to amend the notice of appeal is to be filed and served on or before 9 June 2017.
5.Any application filed and served in accordance with the order in paragraph 4 is set down for hearing at 10:30am on 28 June 2017.
6.The appeal is set down for a case management hearing at 10:30am on 28 June 2017.
7.The parties have liberty to apply.
8.The respondent is, on or before 8 May 2017, to serve a copy of these orders and the reasons for judgment given on the appellant’s application for leave to be represented by a non-lawyer on the proper officer of the appellant.
9.There be no order as to costs in respect of the two interlocutory applications filed on 3 April 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The appellant, Complete Windscreens (SA) Pty Ltd, applied for leave to appear on this appeal other than by a lawyer. It proposes that it be represented on the appeal by its operations manager and shareholder, Mr Hadyn Dean.
I dismissed the application. I gave oral reasons for doing so and said that I would publish written reasons at a later time. These are my written reasons.
THE APPEAL
The appeal is against a judgment of a single judge of this Court. On the application of the Fair Work Ombudsman, the learned primary judge made declarations that Complete Windscreens had contravened various provisions of the Fair Work Act 2009 (Cth), the Workplace Relations Act 1996 (Cth) and…
Keep reading for free
Create a free CaseChat account to read Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] FCA 473
- Decision Date
CaseChat Overview and Summary
The court examined the arguments presented by Complete Windscreens, which included the company’s preference for non-lawyer representation and claims that no solicitor could understand its position. The company argued that it faced financial constraints, but it did not provide any evidence to support this claim. The court noted that while financial difficulties could justify self-representation, the absence of such evidence meant this factor could not be considered. Additionally, the court dismissed the argument that no lawyer could adequately represent the company's interests, stating that any dissatisfaction with past legal services could be addressed by seeking new legal counsel. Given the complexity of the case and the importance of ensuring the proper administration of justice, the court concluded that Complete Windscreens must be represented by a lawyer on appeal.
The Federal Court dismissed Complete Windscreens' application for leave to appear on appeal without legal representation. The court ordered the company to engage legal counsel for the appeal, with a deadline for filing a notice of address for service. It also set specific dates for any applications to amend the notice of appeal and for a case management hearing. The Fair Work Ombudsman was required to serve a copy of the orders and reasons for judgment on the company. There was no order regarding costs for the interlocutory applications filed on 3 April 2017.
Orders
Orders of the court
1. The appellant’s application for leave to be represented on the appeal other than by a lawyer is dismissed.
2. The application filed on 3 April 2017 for orders staying the execution of orders of the learned primary judge be struck out.
3. The appellant is, on or before 19 May 2017, to engage legal representation in connection with the appeal and to file a notice of address for service.
4. Any application to amend the notice of appeal is to be filed and served on or before 9 June 2017.
5. Any application filed and served in accordance with the order in paragraph 4 is set down for hearing at 10:30am on 28 June 2017.
6. The appeal is set down for a case management hearing at 10:30am on 28 June 2017.
7. The parties have liberty to apply.
8. The respondent is, on or before 8 May 2017, to serve a copy of these orders and the reasons for judgment given on the appellant’s application for leave to be represented by a non-lawyer on the proper officer of the appellant.
9. There be no order as to costs in respect of the two interlocutory applications filed on 3 April 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In her written submissions, Counsel for the respondent has distilled from the authorities a number of factors that may be taken into account in the exercise of the discretion. I gratefully reproduce that part of Counsel’s submissions as a correct but not exhaustive statement of the matters that may be taken into account:(a)the ability of the proposed representative to display the objectivity expected from a legal practitioner;(b)the skills, training, qualifications and experience of the proposed representative and their capacity to conduct the proceedings effectively;(c)the factual complexities of the case and the capacity of the proposed representative to conduct it effectively;(d)whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;(e)the overarching purpose of civil practice and procedure set out in section 37M of the Federal Court of Australia Act 1976 (Cth), that is, the just resolution of disputes in accordance with the law and as quickly, inexpensively and efficiently as possible;(f)whether the case can be conducted in an orderly and responsible fashion without a solicitor;(g)the manner in which the case has progressed to date;(h)the manner in which the case can proceed in the future without a solicitor;(i)the effect on court resources and in particular on other litigants in the court list if the company were to appear without a solicitor;(j)whether the company in question is the Respondent, in which case a more liberal approach to dispensing with the requirement may be warranted;(k)the financial capacity or lack of capacity of the corporation and those standing behind it; and(l)whether there are financial considerations which would inhibit a company from obtaining legal representation.CONSIDERATION I am not satisfied that there is a sufficient basis for the grant of leave to Complete Windscreens to appear on the appeal, other than by a lawyer. Although Hadyn Dean submitted that there were financial to reasons to justify the grant of leave, he acknowledged that the Court could not proceed on the basis of assertions of fact made from the bar table. The company has not produced any evidence as to its financial position. The company has not deposed to there being any financial or practical reason as to why a lawyer ought not be engaged. Had it done so, any financial difficulty that might be suffered by the company would have weighed heavily in the exercise of my discretion. I would consider that circumstance to give rise to an access to justice issue and one that would ordinarily justify a grant of leave subject to other considerations being met. Rather, assuming the subjective opinion of Hadyn Dean to reflect that of the company, Complete Windscreens takes the view that it may more capably represent its interests on the appeal by appearing through a non-lawyer rather than solicitor and counsel. In the absence of evidence of financial restraints, I do not consider the company’s preference in this regard to be a sufficient reason to grant leave, irrespective of the identity of the non-lawyer proposed by the company to represent it. Moreover, the company’s claim that no solicitor or barrister is capable of understanding the position it seeks to advance on the appeal should not be accepted as a matter of common sense. To the extent that Complete Windscreens might be dissatisfied with any legal services it has received in the past, that circumstance may be addressed by the engagement of alternative solicitors or alternative counsel.