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
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:
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
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
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.