Evans v Oxford Shop Pty Ltd - [2020] FCCA 2730

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVANS v OXFORD SHOP PTY LTD

[2020] FCCA 2730

Catchwords:
PRACTICE AND PROCEDURE – Small Claims matter – leave to be represented – factors for consideration – leave granted.

Legislation:

Fair Work Act 2009 (Cth), pt.6-4C, s.548

Federal Circuit Court Rules 2001 (Cth), r.45.13

Cases cited:

Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598

Cangemi v Specialist Diagnostic Pathology Services Pty Ltd T/As Western Diagnostic Pathology [2014] FCCA 187
D’Sylva v Ellenbrook Family Medical Centre Pty Ltd and Bibok v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171

Applicant:

TARA ANNE EVANS

Respondent:

OXFORD SHOP PTY LTD

File Number:

PEG 243 of 2020

Judgment of:

Judge Kendall

Hearing date:

On the Papers

Date of Last Submission:

21 September 2020

Delivered at:

Perth

Delivered on:

5 October 2020

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Moray & Agnew Lawyers

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 by that Registrar.
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 243 of 2020

TARA ANNE EVANS

Applicant

And

OXFORD SHOP PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

On 11 August 2020, the applicant filed a small claims application in this Court. The applicant claims that she is owed $13,170 by the respondent for unpaid payments in lieu of notice and redundancy.
At the first court date on 1 September 2020, Mr Marriott from Moray & Agnew Lawyers sought leave to appear on behalf of the respondent and to represent the respondent for the remainder of these proceedings.
Pursuant to s.548(5) of the Fair Work Act 2009 (Cth) (the “Act”) and r.45.13 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”), a lawyer is not allowed to appear in matters of this sort without the leave of the Court.
At the first court date, the applicant indicated that she opposed leave being granted for the respondent to be represented by a lawyer. With the consent of the parties, the Court advised the parties that it would determine whether the respondent could be represented by a lawyer on the papers. The Court then made orders for the filing of any affidavit evidence and submissions relevant to this issue.
In considering this issue, the Court has assessed the following materials:
a)the applicant’s substantive application dated 11 August 2020;
b)the applicant’s affidavit dated 7 August 2020;
c)the affidavit of James Benjamin Togno dated 21 August 2020
d)the affidavit of James Benjamin Togno dated 15 September 2020;
e)
an outline of submissions from the respondent filed

15 September 2020; and
f)
an outline of submissions from the applicant filed

21…

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: [2020] FCCA 2730
Decision Date: 5 October 2020

CaseChat Overview and Summary

In *Evans v Oxford Shop Pty Ltd*, the applicant, Ms. Evans, sought leave to be represented by a legal practitioner in a small claims matter before the Local Court of New South Wales. The respondent, Oxford Shop Pty Ltd, opposed this application.

The central legal issue before Judge Kendall was whether to grant Ms. Evans leave to be represented by a legal practitioner, notwithstanding the general prohibition against legal representation in small claims matters under the *Local Court Act 2007* (NSW) and the *Uniform Civil Procedure Rules 2005* (NSW). The court was required to consider the factors relevant to exercising its discretion to grant such leave.

Judge Kendall granted leave to Ms. Evans, applying the principles established in cases such as *R v Legal Practitioners Complaints Committee; Ex parte Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU)*. His Honour considered the complexity of the legal and factual issues involved in the dispute, the applicant's capacity to represent herself effectively, and the potential for unfairness if representation were denied. The court found that the circumstances warranted the exercise of discretion in favour of granting legal representation to ensure a fair hearing.

Orders