Fair Work Ombudsman v 2Cloud Technology Pty Ltd

Case [2025] FedCFamC2G 154


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v 2Cloud Technology Pty Ltd [2025] FedCFamC2G 154

File number(s): MLG 2233 of 2024
Judgment of: JUDGE BINGHAM
Date of judgment: 13 February 2025
Catchwords: INDUSTRIAL LAW – application for leave under r 9.04 – director and second respondent proposes to represent corporation – purposes of representation – application dismissed
Legislation:

Fair Work Act 2009 (Cth) s 716(5)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 175 and 190

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.04

Cases cited:

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361

Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman [2017] FCA 473

Fair Work Ombudsman v ABMENG Pty Ltd [2024] FedCFamC2G 636

Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889

Fair Work Ombudsman v Konsulteq Pty Ltd & Ors [2013] FCCA 1315

Fair Work Ombudsman v VicPro Security Pty Ltd [2024] FedCFamC2G 1040

Molnar Engineering Pty Ltd v Burns [1984] FCA 201

Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949

Slattery v Canard Consolidated Pty Ltd [2023] FedCFamC2G 198

Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241

Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18

Worldwide Enterprises Pty Ltd v Silberman [2010] VSCA 17

Division: Division 2 General Federal Law
Number of paragraphs: 31
Date of last submissions: 5 February 2025
Date of hearing: 5 February 2025
Place: Melbourne
Solicitor for the Applicant: Fair Work Ombudsman
The Respondents: The Second Respondent appeared in person

ORDERS

MLG 2233 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

2CLOUD TECHNOLOGY PTY LTD (ACN: 653527854)

First Respondent

CANYUAN LIAO

Second Respondent

ORDER MADE BY:

JUDGE BINGHAM

DATE OF ORDER:

13 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the Respondents on 21 November 2024 be dismissed.

2.The Directions listed on 4 March 2025 be adjourned to 16 April 2025 at 9:30am.

3.No order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BINGHAM:

  1. Rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the GFLRules) provides among other things that a corporation may not start or carry on a proceeding otherwise than by a lawyer except with leave of the Court. The First Respondent in these proceedings, 2Cloud Technology Pty Ltd (

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AGLC
Fair Work Ombudsman v 2Cloud Technology Pty Ltd [2025] FedCFamC2G 154
Case
[2025] FedCFamC2G 154
Decision Date

CaseChat Overview and Summary

In the Fair Work Ombudsman v 2Cloud Technology Pty Ltd case, the Fair Work Ombudsman (FWO) brought proceedings against 2Cloud Technology Pty Ltd, alleging breaches of employment laws. The Federal Circuit and Family Court of Australia (FCFCA) was tasked with determining whether a director of the company, Mr Liao, should be granted leave to represent the corporation in the matter, in accordance with rule 9.04 of the Federal Court of Australia General Federal Rules 2010 (GFL Rules). This rule generally requires corporations to be represented by a lawyer in legal proceedings unless an exception applies or leave is granted by the Court.

The court had to consider several legal issues, including the complexity of the case, the progression of the proceedings, financial considerations, and whether Mr Liao could bring the necessary objectivity and expertise required for the proceedings. The FWO opposed Mr Liao's application, arguing that a legal practitioner would be better suited to represent the corporation due to the complexity of the case and the need for a neutral party to narrow the issues for the final hearing. The court also needed to determine whether Mr Liao's representation would prejudice any party and whether there had been an appropriate opportunity to arrange for legal representation.

In its decision, the court dismissed Mr Liao's application to represent 2Cloud Technology Pty Ltd. The court found that while Mr Liao was familiar with the case, he could not provide the same level of objectivity and expertise as a legal practitioner. The court emphasised the importance of legal representation in litigation to promote the proper administration of justice and to ensure that the Court is assisted by qualified and experienced individuals. The court also noted that there was adequate time for 2Cloud to obtain legal representation before further steps were taken in the proceeding. The matter was adjourned to allow 2Cloud to acquire legal representation, and it was ordered that 2Cloud must be legally represented at the next listing.

The court's decision underscored the importance of adhering to the rule requiring corporations to be represented by a lawyer in legal proceedings, except in exceptional circumstances or with leave from the Court. The overarching objectives of the Federal Circuit and Family Court of Australia Act 1995 (FCFCOA Act) were taken into account, and it was concluded that the objectives would be best served if 2Cloud engaged a lawyer to assist in defining and narrowing the issues for the final hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the fact that this matter has not progressed beyond the pleading stage there is adequate time for 2Cloud to obtain legal representation before further steps are taken in the proceeding.CONCLUSION I accept that 2Cloud engaging legal representation will be more expensive than representation by Mr Liao and therefore place a financial impost on the business. I not convinced that Mr Liao can bring to the proceedings the necessary objectivity that a legal practitioner will. I have taken into account the overarching objectives in s 190 of the FCFCOA Act. I am of the view that the objectives will be best served and the matter will proceed more efficiently if a lawyer is engaged by 2Cloud to assist it and consequently the Court by defining and narrowing the issues that must be considered at final hearing. I dismiss Mr Liao’s application to represent 2Cloud. 2Cloud must appear in this proceeding by way of legal representation. I will adjourn the Directions from 4 March 2025 to 16 April 2025 at 9:30am to enable 2Cloud time to acquire legal representation. At the next listing 2Cloud should be legally represented and I will make orders timetabling the progression of this matter.

Ratio Decidendi

Legal Principle Established

Rule 9.04 of the GFL Rules provides as follows: 9.04 Corporation must be represented Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer. The discretion to grant leave is a broad one and depends on the existence of a sufficient cause: Molnar Engineering Pty Ltd v Burns [1984] FCA 201; Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949, [4].[1][1] See also Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18, [19]-[20]; Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman [2017] FCA 473, [20]. The purpose of representation is to promote the proper administration of justice: Worldwide Enterprises Pty Ltd v Silberman [2010] VSCA 17 at [35]. In Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14], incorporation confers benefits, but it also confers burdens, one of which is that in litigation, a company must normally be represented by a lawyer. In Fair Work Ombudsman v Konsulteq Pty Ltd & Ors [2013] FCCA 1315 at [11], Judge Lucev considered the purpose of representation as considered by the Court and reiterated:[…] The policy behind that rule is that, in the interests of justice and the administration of justice, the courts should be assisted by persons who are qualified and experienced in arguing factual and legal disputes and who have ethical duties to clients and the courts. Incorporation confers many benefits on those connected with a company; it also imposes some corresponding burdens, one of which is that in litigation a company must normally be represented by a lawyer.Citations omitted. The relevant considerations include: the complexity (or simplicity) of the case; the manner that the proceedings have progressed and the manner in which they may progress; whether granting leave is opposed; whether prejudice will be suffered by any party; financial considerations; a representative’s ability to exercise objectivity; whether the person seeking to be the representative will be a principal witness; the effect of granting leave on the Court and other litigants; whether there has been an appropriate opportunity to arrange legal representation; whether the application is opposed; and the objects and purposes of the rules and acts applying to the Court: Slattery v Canard Consolidated Pty Ltd [2023] FedCFamC2G 198; Fair Work Ombudsman v ABMENG Pty Ltd [2024] FedCFamC2G 636; Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889.SHOULD LEAVE BE GRANTED?Complexity of the proceedings The Respondents’ Outline of Submissions claimed that Mr Liao’s familiarity with the case was justification for leave to be granted. Mr Liao submitted that his knowledge with respect to the employment relationship with Ms Wang, the compliance issues raised by the FWO and his familiarity with the evidence filed in the matter places him in the position of effectively able to represent the Respondents.