Evans v Oxford Shop Pty Ltd
[2020] FCCA 2730
•5 October 2020
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 |
| 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 September 2020.
These reasons concern whether the respondent should be permitted to continue these proceedings with legal representation.
Principles
As noted, s.548(5) of the Act and r.45.13 of the Rules prohibit a lawyer from appearing in a small claims matter unless the Court grants leave. Granting leave is a discretionary matter for the Court and the onus is on the respondent to satisfy the Court that leave should be granted.
In Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598, this Court summarised the factors that a Court would ordinarily look at in determining if leave ought to be granted for a party to be represented by a lawyer. These factors are not exhaustive, but relevantly include:
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)the familiarity, and competence, of the proposed legal representatives to provide assistance to the Court on the complexities or technicalities that arise;
d)whether the party seeking leave to be represented has an in-house lawyer or employee capable of conducting the matter satisfactorily; and
e)whether the other party (here the applicant) is represented by a lawyer and any prejudice or unfairness the other party may suffer if leave is granted.
The Court will consider the above factors, and any other matters that arise in the materials, to determine whether the circumstances of this case warrant the granting of leave.
Respondent’s Case
As it is for the respondent to satisfy the Court that leave should be granted for a lawyer to represent it, it is appropriate to first set out the respondent’s evidence and submissions.
The affidavit evidence of Mr Togno, the National Sales Manager of the respondent, dated 21 August 2020 and 15 September 2020 can be summarised as follows:
a)Mr Togno is the instructing officer for Moray & Agnew Lawyers. He has no qualifications in Law or Human Resources. Mr Togno has never represented the respondent in court proceedings and is unfamiliar with the Rules;
b)Mr Togno relies entirely on external legal advice in relation to issues of workplace relations and employment law. He would not be able to assist the Court on any complex or technical legal issue;
c)the respondent has engaged the services of Moray & Agnew Lawyers for a number of years to provide advice in relation to industrial and employment law matters. Moray & Agnew Lawyers has knowledge of the respondent’s business and is familiar with the circumstances of the case;
d)given the breadth of Mr Togno’s responsibilities as National Sales Manager, he doubts that he could comply with any orders imposing short timeframes and would need extensive time to be able to prepare any further documents and generally to prepare for the hearing of this matter;
e)this case is complex as the applicant is claiming redundancy pay in circumstances where the respondent contends that she has not been made redundant. The resolution of this issue will require technical legal argument;
f)the respondent started as a family owned and family run business. It does not employ an in-house lawyer and it does not employ an in-house Human Resources Manager (or any type of manager with legal or human resources qualifications). As such, there is no one within the respondent’s organisation who could be of assistance to the Court in relation to any complex legal issue which arises;
g)the respondent has no objection to the applicant being legally represented and was of the understanding that the applicant was receiving legal advice; and
h)the respondent has been devastated by COVID-19 and several stores have had to close (such that the respondent is an eligible employer for the purposes of the JobKeeper subsidy).
In written submissions, the respondent submitted, in summary, as follows:
a)in the absence of a qualified lawyer, the length of the proceedings in this matter will be longer and will proceed with less efficiency. With neither side legally represented, court documents may take longer to prepare (noting that Mr Togno’s workload will make it difficult for him to prepare things in a short time frame) and arguments are likely to be less focussed on the most relevant factors. Any questions of a technical nature will also go unanswered (which may also prolong proceedings);
b)the argument raised by the applicant in this matter relies upon a particular interpretation of the law around dismissal and redundancy. Whether or not the applicant was ultimately made redundant will require the Court to consider case law which goes to the issue of travel time and whether, in the circumstances, it can actually be said that the applicant was entitled to redundancy pay;
c)there is also a question which arises as to whether the respondent would be able to apply for an exemption from the requirement to pay redundancy pay. Another matter concerning a redundancy claim in this Court was given leave pursuant to s.548(5) of the Act;
d)the lawyer who will appear on behalf of the respondent is a highly experienced advocate and an Accredited Specialist in Workplace Law. He has advised the respondent in respect of all aspects of employment law for a number of years and is familiar with this particular case. He is well placed to assist the Court on all technical questions which may arise;
e)the respondent has no in-house lawyer and has never employed an in-house lawyer to assist with employment issues. Nor does it employ a Human Resources Manager;
f)Mr Togno would be required to represent the company if leave is refused. He has only been employed by the respondent in a sales capacity. He has no legal qualifications or Human Resources qualifications. He has no experience running any kind of court case and relies on external legal advice in relation to all matters arising under the Act;
g)while the applicant is not legally represented in this matter, the respondent believes that she has received legal advice previously. The respondent has no objection to the applicant being legally represented should she so wish;
h)even in the absence of legal advice and representation, it is understood that in cases such as this, the Court will assist the applicant in being able to confidently articulate her case and will make her aware of the issues that are raised against her; and
i)all of the above weigh in favour of leave being granted and the Court should be amply justified in granting leave.
Applicant’s Case
The applicant filed an outline of submissions on 21 September 2020. However, the outline of submissions also included two additional documents: an ASIC extract relevant to the respondent’s business and an email dated 14 August 2020 accepting service of the substantive application.
The applicant’s submissions can be summarised as follows:
a)the applicant does not understand why Mr Togno is being used in this matter. A more suitable person would be the acting Human Resources Manager, Mr Peter Gregory Michael Herro, who is also a Company Director of the respondent;
b)Mr Herro is already a named party in these proceedings as he was the person who terminated the applicant. He is also the writer of the termination letter;
c)Mr Herro accepted service of the claim by email and instructed the lawyers to act on behalf of the respondent;
d)Mr Herro runs a hands-on operation. Accordingly, Mr Herro is very capable of representing the respondent in these proceedings without legal representation;
e)this is a relatively straightforward case where the issues requiring examination are whether there was a mobility clause in the applicant’s contract and whether it was reasonable for the respondent to relocate the applicant;
f)the reason the Joondalup Store (the store the applicant worked at) closed was due to the lease expiring and the store was not profitable enough to warrant renewing the lease. The Wesley Quarter store was not profitable and in rent arrears of approximately $20,000;
g)the COVID-19 pandemic provided the respondent the opportunity to negotiate its way out of the lease. The respondent has reduced staff hours to meet the JobKeeker payments. It moved staff from closed stores that were not profitable to profitable stores. This means that there are more staff per store on reduced hours (which leads to the JobKeeper payment paying staff wages);
h)the request for the applicant to relocate was made so that the respondent could keep the JobKeeper payment;
i)the respondent is a multi-million dollar corporation with the ability to brief a senior partner of a large employment law firm. The amount of effort and resources applied by the respondent in response to the applicant’s claim would indicate that the respondent is prepared to spend more than the applicant’s claim in legal fees. This indicates that this case is about more than the applicant’s claim: it is designed to win at all costs and prevent potential future claims by past and present employees; and
j)on the one hand you have a senior partner of one of the largest employment law firms in Australia with unlimited resources and funding. On the other hand you have an ex-employee who has been on close to minimum wage for the past 5 years and who has no resources. In the circumstances, the applicant will be unfairly disadvantaged if leave is granted for the respondent to have legal representation in what is a “minor case jurisdiction”.
Consideration
For the reasons which follow, the Court in satisfied that leave to appear by a lawyer should be granted in this case.
The Court accepts that the object of the Small Claims Division is to operate informally and without regard to legal forms and technicalities. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) stated that this was:
…to ensure that claims for a relatively small amount of money are dealt with efficiently and expeditiously by the courts.
The respondent states that Mr Togno’s responsibilities would make it difficult for him to comply with Court orders in short time frames. While the Court accepts that Mr Togno’s workload may be demanding, it would be a matter for him to prioritise these proceedings over other matters he attends to if necessary. While the Court would endeavour to accommodate Mr Togno, it would not protract the matter on the basis that Mr Togno has other commitments.
As for Court documents taking longer to prepare and arguments being less focussed if both parties are unrepresented, this overlooks the fact that “the norm” in small claims matters is that all parties remain unrepresented. The Court does not accept that documents “take longer to prepare” in these circumstances. On the contrary, parties who appear on their own behalf tend to be remarkably punctual. While arguments may be less refined, that is to be expected and is something the Court takes account of when listing matters for a hearing.
Accordingly, the Court does not accept that the objects and purpose of the Small Claims Division and this Court would be better served if the respondent was represented. This weighs in favour of denying leave to appear with a lawyer.
In relation to the complexity of the matter, the Court notes that in D’Sylva v Ellenbrook Family Medical Centre Pty Ltd and Bibok v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171, the Court determined that the matter there was not legally complex and leave was refused on that basis.
The respondent referred to Cangemi v Specialist Diagnostic Pathology Services Pty Ltd T/As Western Diagnostic Pathology [2014] FCCA 187 (“Cangemi”) where the Court stated as follows (at [6]):
In this matter, there is sufficient complexity involving the interpretation of the Collective Agreement concerned, the interpretation of, and interaction between, that Collective Agreement and the contract of employment, and it would seem, some serious issues as to whether the employee repudiated the contract or whether the employee was terminated by the employer, and whether the employee resigned and whether the employee was made redundant.
The applicant says that Cangemi is distinguishable as there is no “complex interpretation” required here.
Here, the applicant argues (in her substantive application) that her position was “redundant” and that she should receive redundancy pay and payment in lieu of notice. The respondent argues that the applicant refused to work and that the applicant repudiated her contract.
There is here, as there was in Cangemi, a serious question to be determined about how the employment relationship came to an end (i.e., whether the employee repudiated the contract, whether the employee’s contract was terminated by the employer and whether the employee was made redundant).
Determining how the relationship came to an end will be a question of fact and law. The Court will be required to determine the factual circumstances leading up to the applicant ceasing employment and how those circumstances interact with the redundancy provisions of the Act and the terms of the relevant employment contract.
While there has been no reference to any award or collective agreement in this matter, the Court notes that, in light of the fact that the respondent was obtaining JobKeeper payments, the provisions in Part 6-4C of the Act may have some effect. While these provisions might arguably be irrelevant, given that these are new legislative provisions which have not yet been the subject of judicial consideration in circumstances that arise here (namely, directions to attend work) any assistance from a lawyer would be beneficial and would greatly assist the Court.
Further, the applicant seems to suggest that the respondent was, arguably, using the JobKeeper scheme in an improper way. This is a serious accusation. Hence, given the accusation made, it would be most beneficial for a legal representative to assist the Court and to respond to those allegations if made in open court.
In light of the factual and legal issues which appear on the face of the material filed, the Court considers there to be a level of complexity that weighs in favour of leave being granted.
The Court has no doubt that the law firm seeking leave to appear for the respondent, and the particular lawyer who will have carriage of the matter, is highly competent in this area. It has no concerns about that lawyer’s ability to properly assist the Court.
This also weighs in favour of leave being granted.
Mr Togno’s affidavit states that the respondent has no Human Resources Manager. However, the applicant’s affidavit contains correspondence from at least 3 August 2020 signed from the “HR Department”. It appears that there is, at the very least, a “HR Department”.
The applicant submits, and the email attached to those submissions indicates, that Mr Herro has been acting in the capacity of Human Resources Manager and that, as a Director of the respondent, he is equipped to represent the respondent.
While the evidence shows that Mr Herro is a Director and that he accepted service of the application, it appears that Mr Togno was giving direction in relation to the applicant’s employment. For example, it was Mr Togno who emailed the applicant her employment contract and pointed out that the contract said that that her location would be “as directed”. It was also Mr Togno who appears to have given directions to an employee called ‘Dan’ about when the applicant was required to return to work. One message from Dan states: “If you want to communicate further please get in contact with James”.
Contrary to the applicant’s submission, Mr Herro is not a party to this proceeding. The only party is the respondent company.
On the materials before the Court, Mr Herro does not appear to have had any engagement with the applicant during the course of the events which led to her employment ending. There is also nothing to suggest that Mr Herro has legal or human resource qualifications.
Mr Togno does not have any legal or human resource qualifications. He does, however, appear to have had an active role with the applicant prior to her employment ending.
While Mr Togno and Mr Herro lack legal or human resource qualifications, this fact, on its own, does not warrant leave being granted. The applicant also lacks these qualifications.
There is also no reason for the Court to accept that neither Mr Togno nor Mr Herro would prove incapable of acting on behalf of the respondent if required to do so.
This weighs in favour of denying leave to appear.
The final factor the Court consider in determining whether leave should be granted for a lawyer to appear relates to prejudice.
The applicant is unrepresented. However, the applicant indicated in correspondence that she was consulting lawyers. The respondent does not oppose the applicant obtaining legal representation.
There is nothing to suggest that the applicant herself is not able to present her claim competently. Her substantive application, affidavit and submissions are clear and articulate.
In any event, as noted by the respondent, the Court is well equipped to assist an unrepresented applicant understand court proceedings. The applicant can be confident that the Court will provide support where it can and ensure that she is able to actively participate in, and properly understand, the proceedings.
The Court does not consider there to be any prejudice if leave is granted for the respondent to be represented by a lawyer.
The Court gives this some weight in favour of leave being granted.
Conclusion
Taking all of the above into account, the Court considers this to be an appropriate matter for the Court to exercise its discretion to grant leave for the respondent to be legally represented.
While in isolation some of the factors discussed above weigh against leave being granted, when considered as a whole – and noting, in particular, some of the very serious allegations made by the applicant – it is apparent that the just and efficient resolution of the proceedings will be aided by a grant of leave for a lawyer to appear.
Accordingly, leave pursuant to s.548(5) of the Act will be granted for the respondent to be represented by a lawyer in this matter. Noting that the respondent did not oppose the applicant also having leave, the order granting leave will extend to both parties.
As is the normal course for matters of this sort, this matter will be referred to a mediation before a Registrar of this Court on a date to be fixed by that Registrar.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 October 2020
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