Fair Work Ombudsman v ABMENG Pty Ltd
[2024] FedCFamC2G 636
•15 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v ABMENG Pty Ltd [2024] FedCFamC2G 636
File number: MLG 2298 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 15 July 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave for respondent corporation to carry on proceeding without a lawyer – where applicant consents to the grant of leave – application granted. Legislation: Fair Work Act 2009 (Cth) ss 712, 716
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia(Division 2)(General Federal Law) Rules 2021 (Cth) r 9.04
Cases cited: Wong v Dong Lai Sun Massage Pty Ltd (2016) 305 FLR 423; [2016] FCCA 18 Division: Division 2 General Federal Law Number of paragraphs: 6 Date of hearing: 15 July 2024 Place: Melbourne Counsel for the Applicant: Ms K Ruhl Solicitor for the Applicant: Office of the Fair Work Ombudsman Respondents: Mr J Parker appeared for the first respondent and the second respondent ORDERS
MLG 2298 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: ABMENG PTY LTD (ACN 617 448 512)
First Respondent
JAY PARKER
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 JULY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), the name of the first respondent in this proceeding be amended to ABMENG Pty Ltd (ACN 617 448 512).
2.Pursuant to r 9.04 of the GFL Rules, the first respondent is given leave to carry on this proceeding without legal representation.
3.The first respondent is to file and serve a Notice of Address for Service on or before 19 July 2024.
4.The applicant is to file and serve affidavit evidence and submissions in respect to penalty on or before 16 August 2024.
5.The respondents are to file and serve affidavit evidence and submissions in respect to penalty on or before 6 September 2024.
6.The applicant is to file and serve submissions in reply on or before 20 September 2024.
7.The matter be listed for a hearing on penalty of no more than half a day on 15 October 2024 at 11:00am AWST / 1:00pm AEST / 2:00pm AEDT, with the hearing to be conducted by way of video link.
8.Not less than 7 days before the date listed for hearing, the parties may request the Court determine the issue of penalty on the papers.
9.Each party be granted liberty to apply.
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
(Delivered ex tempore and revised from the transcript)JUDGE LADHAMS:
The proceeding before the Court is an application brought under the Fair Work Act 2009 (Cth) (Fair Work Act) by which the Fair Work Ombudsman (Ombudsman) asserts that the first respondent breached s 716(5) of the Fair Work Act by failing to comply with a compliance notice, and s 712(1) of the Fair Work Act by failing to comply with a notice to produce. The Ombudsman also asserts that the second respondent, who is the director of the first respondent, was involved in those contraventions. Amongst other things, the Ombudsman seeks orders for the imposition of civil penalties. The first respondent is a corporation and, pursuant to r 9.04 of the Federal Circuit and Family Court of Australia(Division 2)(General Federal Law) Rules 2021 (Cth) (GFL Rules), a corporation may not start or carry on a proceeding otherwise than by a lawyer, except as provided for under an Act or regulations or with the leave of the Court.
The first respondent seeks leave to carry on the proceeding without a lawyer. It is proposed that the second respondent, who is not a lawyer, represent the first respondent. The applicant consents to the first respondent being granted such leave. In considering whether to grant leave under r 9.04 of the GFL rules, it is appropriate to have regard to factors such as:
(a)the relative complexity or simplicity of a matter;
(b)whether a non-lawyer appears or has previously appeared for any of the parties;
(c)the objects and purpose of the Federal Circuit and Family Court of AustraliaAct2021 (Cth) (FCFCOA Act) and the GFL Rules, including the impact of those objects and purposes on case management considerations;
(d)whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the non-appearance of a lawyer for the party;
(e)whether there has been an appropriate opportunity for the party to arrange legal representation;
(f)the financial position of a party; and
(g)whether the granting of leave is opposed
(see Wong v Dong Lai Sun Massage Pty Ltd (2016) 305 FLR 423; [2016] FCCA 18 (Wong) at [19]).
The first respondent was previously represented by a lawyer in this proceeding, but that representation ceased in May 2024. I previously granted leave to the second respondent to represent the first respondent for the limited purposes of appearing at a directions hearing and agreeing facts in the matter. The Court is satisfied that the second respondent ably represented the first respondent for those purposes.
The parties have now filed an agreed statement of facts, which shows the parties have agreed facts relating to the contraventions. The remaining steps in the matter relate to the filing of submissions and evidence in relation to penalty, and the conduct of a hearing in relation to penalty. Based on discussions at the directions hearing before me today, I am satisfied that the second respondent understands the remaining steps to be taken in this proceeding, and the types of matters that the Court will consider in determining an appropriate penalty in this matter. I also understand, from representations made by the second respondent at the directions hearing today, that he is consulting lawyers in relation to matters arising in this proceeding.
I have taken into account the overarching purpose of the Court’s practice and procedure provisions with that overarching purpose set out in s 190 of the FCFCOA Act. I am satisfied that granting leave to the first respondent to carry on the proceedings without a lawyer would not be inconsistent with the overarching purpose of the civil practice and procedure provisions in this particular matter. I do not have any evidence before me in relation to the financial position of the first respondent. However, I note that at a previous directions hearing, the second respondent indicated a preference to use available funds to rectify the underpayment of employees, which was the subject of the compliance notice and the notice to produce, and the second respondent has confirmed at the hearing today that he proposes to use available funds towards that purpose first. Taking into account the considerations identified in Wong and the circumstances described in this judgment, I am satisfied that it is appropriate to grant leave to the first respondent to carry on the proceeding without a lawyer.
While I am satisfied it is appropriate to make that order, I also acknowledge that the first respondent has not ruled out the possibility that it may appoint a lawyer subsequently in this proceeding. The grant of leave today does not preclude the first respondent from subsequently appointing a lawyer, but I do note that it is the Court’s expectation that the time frames set out in the orders that I make today be complied with and any lawyer coming on the record later in this proceeding would still be expected to comply with the orders that I make today.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 July 2024
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