D’SYLVA v Ellenbrook Family Medical Centre Pty Ltd and Bibok v Ellenbrook Family Medical Centre Pty Ltd
[2020] FCCA 1171
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| D’SYLVA v ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD and BIBOK v ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD | [2020] FCCA 1171 |
| Catchwords: PRACTICE AND PROCEDURE – Small Claims Division – whether leave should be given for respondent to be represented – factors for consideration – leave refused. |
| Legislation: Fair Work Act 2009 (Cth), s.548 Federal Circuit Court Rules 2001, rr.1.04, 9.04, 45.13, 45.13A, pt.2 of sch.3 |
| Cases cited: Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/a Western Diagnostic Pathology [2014] FCCA 187 |
| Applicant: | RELISSA D’SYLVA |
| Respondent: | ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD |
| File Number: | PEG 394 of 2019 |
| Applicant: | GILLIAN BIBOK |
| Respondent: | ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD |
| File Number: | PEG 395 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the papers |
| Date of Last Submission: | 13 May 2020 |
| Delivered at: | Perth |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Applicant in proceedings PEG394/2019: | Eureka Lawyers (Pro Bono) |
| Applicant in proceedings PEG395/2019: | In person |
| Respondent in proceedings PEG394/2019 and proceedings PEG395/2019 | Mr I Kakay (with leave) |
ORDERS
IN PROCEEDINGS PEG 394/2019
The application for leave for the respondent to be represented by a legal practitioner is refused.
IN PROCEEDINGS PEG 395/2019
The application for leave for the respondent to be represented by a legal practitioner is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 394 of 2019
| RELISSA D'SYLVA |
Applicant
And
| ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD |
Respondent
PEG 395 of 2019
| GILLIAN BIBOK |
Applicant
And
| ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 October 2019, the applicants filed an application in the Small Claims Division of this Court. They claimed that the respondent, Ellenbrook Family Medical Centre Pty Ltd, had paid them less than the amount required by the Health Professionals and Support Services Award 2010 (the “Award”) and had not paid penalty overtime rates.
The two matters were referred to mediation. Unfortunately, mediation was unsuccessful. Both matters have now been programmed for a final hearing.
During the course of a directions listing on 17 March 2020, Mr Kakay, a legal practitioner, sought leave to appear on behalf of the respondent in both matters for the remainder of these proceedings.
The applicants opposed this request and the Court made orders (in both matters) as follows:
1. The respondent file and serve any affidavits and an outline of submissions of no more than 10 pages in relation to the application for leave to be represented in this matter by 30 April 2020.
2. The applicant file and serve any affidavit evidence and an outline of submissions of no more than 10 pages in response by 14 May 2020.
3. The matter be determined on the papers.
4. Liberty to apply.
These reasons reflect the Court’s determination of whether the respondent should have leave to be represented in both matters by a legal practitioner, Mr Kakay, for the remainder of these proceedings. Given the factual similarities of both matters, the Court has produced one judgment.
Small Claims Proceedings
The applicants commenced their matters within the Court’s small claims jurisdiction pursuant to s.548 of the Fair Work Act 2009 (Cth) (the “FW Act”).
Relevantly, s.548(5)-(6) of the FW Act provides:
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.
Further, r.45.13 of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”) provides:
Lawyers--Fair Work Act small claims proceeding
(1) A party to a small claims application may not be represented by a lawyer without the leave of the Court.
(2) If the Court grants a party leave to be represented by a lawyer, the leave may be given subject to conditions the Court considers appropriate.
(3) For subrule (1), a party is not taken to be represented by a lawyer if the lawyer is an employee or officer of that party.
Rule 45.13A of the FCC Rules, in turn, provides:
Representation for corporations--Fair Work Act small claims proceeding
Despite rule 9.04, an officer or employee of a corporation may represent the corporation in a small claims proceeding under this Division if the officer or employee is authorised by the corporation to represent the corporation in the proceeding.
Respondent’s Submissions
Mr Kakay, on behalf of the respondent, filed the same submissions in both matters on 30 April 2020. Those submissions are short. Without alteration, they provide:
1. The respondent is a corporation duly incorporated on 12 March 2014.
2. The respondent carries on business in the provision of medical services.
3. By letter dated 31 October 2017 the respondent engaged the applicant to work as a Medical receptionist on a part time basis at 51 Mornington Parkway, Ellenbrook WA 6069.
4. Rule 4.01 (2) of the Federal court rules provide that: ‘a corporation must not proceed in the Court other than by a lawyer’.
5. Unless the court dispense with compliance with rule 4.01(2) pursuant to rule 1.34, a director or member or shareholder cannot represent their company in court.
6. It is respectfully submitted that Leave should be granted for the respondent to be represented by a lawyer in this matter.
Attached to these submissions was a Company Extract from the Australian Securities and Investment Commission. This material should have been provided on affidavit. It wasn’t. Nevertheless, the Court will consider it.
Applicants’ Submissions
Ms D’Sylva’s submissions were prepared with the assistance of pro-bono counsel. It was made clear in those submissions that that assistance was limited to preparing submissions in relation to the representation issue. Hence, there is no need for the Court to consider if the applicant should be given leave to be legally represented.
Ms Bibok did not file any submissions. Instead, she emailed Chambers indicating that she wished to rely on Ms D’Sylva’s submissions and had nothing further to add. In circumstances where the respondent filed the same set of submissions in both proceedings the Court sees no issue in relation to Ms Bibok relying on Ms D’Sylva’s submissions.
These submissions can be summarised as follows:
a)the matters are not complex. The parties agree that the Award applied to the applicants’ employment and the only issues that appear to be in dispute are the applicants’ classifications under the Award and whether they were paid the minimum rate for that classification. These are largely factual and not legal issues;
b)it would be unfair to the applicants if the respondent were represented by a lawyer. The applicants do not have the capacity to be represented by a lawyer and are worried that they would not understand anything that a lawyer says;
c)the Form 5 and attached documents that the applicants have lodged with the Court set out the claim in detail. They identify the Award, the duties, the classification, and include a spreadsheet calculating how much they believe they were underpaid;
d)if leave was granted in a straightforward matter such as this, it would defeat the objects of the small claims procedure set out in s.548(3) of the FW Act for the Court to “act in an informal manner” and “without regard to legal forms and technicalities”.
Consideration
The Court will first address the respondent’s submissions in relation to the application of the FC Rules. It will then consider whether leave should be granted.
The application of the Federal Court Rules 2011 (Cth)
The respondent’s submissions are based upon an incorrect presumption that the FC Rules apply to this proceeding.
The rules which guide this Court are its own -- namely, the FCC Rules. Rule 1.05 of the FCC Rules states:
(1) It is intended that the practice and procedure of the Court be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Family Law Rules, the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016 , in whole or in part and modified or dispensed with, as necessary.
(3) Without limiting subrule (2):
…
(b) the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings.
Note: These Rules have effect subject to any provision made by an Act, or by rules or regulations under an Act, with respect to the practice and procedure in particular matters…
Of note here:
a)the practice and procedure of the Court should be governed principally by the FCC Rules. In circumstances where the FCC Rules contain particular provisions relevant to small claims matters, this should be given priority over other Court’s Rules given that it is specific to the jurisdiction being exercised;
b)as the FCC Rules contain provisions specific to small claims, it cannot be said that the FCC Rules are “insufficient or inappropriate” to apply to the particular circumstances of this case such that the Court should resort to the FC Rules. This is particularly the case where the FCC Rules make specific provision for lawyers in small claims proceedings;
c)given that r.9.04 of the FCC Rules is in similar terms to r.4.01 of the FC Rules, it is again the case that the FCC Rules are not “insufficient or inappropriate” such that the Court needs to consider r.4.01;
d)rule 9.04 of the FCC Rules states that “Except as provided by or under an Act or regulations made under an Act” a corporation must be represented by a lawyer. Here, s.548(6) of the FW Act specifically states that parties cannot be represented. Therefore, the Court is to give precedence to the FW Act and not the FCC Rules (or the FC Rules given they ought not apply in these proceedings);
e)part 2 of sch.3 of the FCC Rules does not indicate that r.4.01 of the FC Rules is applicable to the Court. This is arguably because the FCC Rules themselves attend to, or already contain, a provision of this sort; and
f)in any event, s.59(3) of the Federal Court of Australia Act 1976 (Cth) states that the FC Rules “have effect subject to any provision made by another Act… with respect to the practice and procedure in particular matters”. Again, s.548(5) of the FW Act takes precedence and r.4.01 of the FC Rules is not applicable.
On the basis of the above, the FC Rules that the respondent relies upon are irrelevant to these proceedings. There would be no reason to refer to the FC Rules in circumstances where the FCC Rules are entirely adequate and appropriate and in circumstances where the legislation governing the proceeding (s.548 of the FW Act) specifically dictates that a party must not be represented by a lawyer.
Hence, to the extent it is suggested that leave is not required this is not correct. Leave is required. Further, to the extent that it is suggested that r.4.01 of the FC Rules is a factor that weighs in favour of leave being granted, the Court will consider this below.
Should leave be granted?
There are no mandatory considerations when determining whether leave to be represented should be granted pursuant to s.548(5). The following factors are relevant (but not definitive):
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)whether the other party (here the applicants) are represented by a lawyer and any prejudice or unfairness the other party may suffer if leave is granted;
d)the familiarity, and competence, of the proposed legal representatives to provide assistance to the Court on the complexities or technicalities that may arise; and
e)whether the party seeking leave to be represented has an in-house lawyer or employee capable of conducting the matter satisfactorily.
(Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/a Western Diagnostic Pathology [2014] FCCA 187; Renouf v RAC Finance Limited [2017] FCCA 142; Corcoran v Bansley Pty Ltd [2011] FMCA 440)
In small claims matters a legal representative is the exception – not the norm. While a legal representative may well assist the efficient and just resolution of the proceedings by reason of their legal training, it nevertheless goes against the norm for an external legal practitioner to be involved in the small claims division. The Court bears this in mind, particularly where other matters (such as the complexity of the issues and any resulting prejudice) weigh against leave being granted.
The issues in these proceedings are not complex. This is an underpayment claim. It will require a determination of whether the applicant was paid what she was entitled as per the relevant Award at the times in question. On its face, no significant interpretation of the Award will be necessary and the matters to determine are confined. There does not appear to be any dispute about the hours that are alleged to have been worked. Rather, the only real issue appears to relate to the rate of pay and any entitlement to overtime.
As noted, the issues in this case are largely factual and will not require a detailed examination or analysis of competing statutory or industrial instruments. This is not a complex matter that requires a legal practitioner. This also weighs against leave being granted.
The applicants are unrepresented and state that they cannot retain a lawyer. The Court does not, however, consider that the applicants would be significantly prejudiced if the respondent were legally represented. The Court is well-suited to providing assistance to self-represented litigants to the extent that it is able to do so. Further, the applicants have demonstrated that they are capable of representing themselves. Hence, the lack of prejudice weighs in favour of leave being granted.
Mr Kakay (the respondent’s lawyer) has provided no indication that he has any familiarity with this area of law. Further, in light of the submissions made in relation to whether leave should be granted the Court does not have confidence that Mr Kakay will adequately assist the Court if leave is granted for him to appear. In any event, the Court does not believe there is anything complex in this matter that requires legal representation.
The respondent has a director (this was confirmed in Mr Kakay’s submissions). As allowed for in r.45.13A of the FCC Rules, the director has appeared before the Court and, as the Court understands it, appeared at the mediation. It is noted that, despite orders being made for the respondent to file a response, the respondent did not file a response as ordered until Mr Kakay first appeared before the Court and sought leave to represent the respondent.
The Court has considered whether the director of the respondent is capable of representing the respondent given the failure to comply with the orders of the Court. The Court does not consider that the respondent is unable to competently represent the respondent. Mr Kakay has not produced any evidence on why the respondent’s director, or another employee so authorised, cannot appear on behalf of the respondent. On that basis, the Court is not prepared to accept that the respondent must be represented by a lawyer in order for the matter to be conducted in a satisfactory nature. This weighs against leave being granted.
Having considered all of the above matters, the Court is not satisfied that this is a matter in which the respondent should be granted leave to be represented by a legal practitioner.
Leave, accordingly, is refused.
Conclusion
For the reasons given above, leave for the respondent to be represented by a legal practitioner is refused.
The matter has already been programmed for hearing. The parties have been provided the opportunity to put on evidence and submissions in support of their case. The Court emphasises that it is the parties’ responsibility to put their case forward by filing their evidence and complying with those orders.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 15 May 2020
3
3
5