Fair Work Ombudsman v Joe Antonios Carpentry and Woodwork Pty Ltd
[2022] FedCFamC2G 756
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Joe Antonios Carpentry and Woodwork Pty Ltd [2022] FedCFamC2G 756
File number(s): SYG 828 of 2022 Judgment of: JUDGE LAING Date of judgment: 28 July 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – whether the Second Respondent ought to be granted leave to represent the First Respondent, a company – application dismissed. Legislation: Fair Work Act 2009 (Cth) ss 550, 716(5), 716(6)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 175
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 9.04
Cases cited: Fair Work Ombudsman v Darna Pty Ltd [2014] FCCA 2222
Fair Work Ombudsman v Siner Enterprises Pty Ltd & Anor [2017] FCCA 2583
Ricupero v Peter Barrett Corporation Pty Ltd & Anor [2018] FCCA 2784
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 28 July 2022 Place: Sydney Solicitor for the Applicant Ms M. Zhang appeared by video link on behalf of the Applicant Solicitor for the First Respondent No appearance Solicitor for the Second Respondent Mr J. Antonios appeared via video link ORDERS
SYG 828 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: JOE ANTONIOS CARPENTRY AND WOODWORK PTY LTD (ACN 607 181 411)
First Respondent
JOSEPH ANTONIOS
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
28 JULY 2022
THE COURT ORDERS THAT:
1.The application by the second respondent to appear for the first respondent generally in these proceedings is dismissed.
2.The matter be referred to a Registrar of the Court for mediation pursuant to s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to occur by 31 October 2022. The second respondent has leave to attend the mediation on behalf of the first respondent for the purposes of the mediation.
3.The parties must approach the chambers of Judge Laing within 7 days of the mediation notifying the outcome.
4.If the mediation is unsuccessful, the following orders will apply.
5.The first respondent appoint a legal representative who must file and serve a Notice of Address for Service that accords with r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on or by 11 November 2022.
6.The first respondent file and serve a Response and any Defence by 30 November 2022.
7.The matter be listed for directions at 9:30am on 2 December 2022.
8.Liberty to apply on three days’ notice.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING
Before the Court is an application by the Fair Work Ombudsman (Ombudsman) seeking a declaration and other remedies, including penalties, in respect of alleged non-compliance by the first respondent, Joe Antonios Carpentry and Woodwork Pty Ltd (Company), with a Compliance Notice. Remedies are also sought against the second respondent (Mr Antonios) on the basis of accessorial liability.
This matter was listed for a first court date on 8 July 2022. There was no appearance for either respondent. Orders were made in their absence, requiring (inter alia) that:
(a)The First Respondent appoint a legal representative who must file and serve a Notice of Address for Service in accordance with rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) on or by 15 July 2022.
(b)The Second Respondent file and serve a Notice of Address for Service by 15 July 2022.
(c)The Respondents file and serve a Response and any Defence by 5 August 2022.
Mr Antonios has since applied for leave to represent the Company. He has also filed a Notice of Address for Service, and has sought to file a Response on behalf of both himself and the Company. At this stage, the latter document has been accepted for filing on his behalf only.
PRINCIPLES
Section 175 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
175 Representation
A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 2) is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
Rule 9.04 of the Rules states:
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 principles underlying the predecessors to these provisions were considered by Judge Lucev in Fair Work Ombudsman v Siner Enterprises Pty Ltd & Anor [2017] FCCA 2583 at [8]-[9] as follows:
8. The purpose underlying legislative provisions such as s.44 of the FCCA Act and r.9.04 of the FCC Rules is to ensure that in accordance with the interests of justice and the administration of justice the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts: Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 at [40] per Brown FM; Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 at [10] per Lucev FM (“Alcantara”). Lawyers may also be of considerable assistance to the Court in the proper assessment of fact: Re Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68 at 74 per Smithers J (“Molnar Engineering”). Incorporation confers many benefits on those connected with a corporation; and also imposes some corresponding burdens, one of which is that in litigation a corporation must normally be represented by a lawyer: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14] per French J; Wong at [18] per Judge Lucev.
9. In determining whether to grant leave under r.9.04 of the FCC Rules, the applicability of a number of factors, which are not exhaustive, but include the following, are to be considered:
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 purposes of the FCCA Act and FCC 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 appearance or non-appearance of a lawyer for a party;
e. whether there has been appropriate opportunity to arrange legal representation;
f. the financial position of a party; and
g. whether the granting of leave to appear is opposed.
Wong at [19] per Judge Lucev.
Other potentially relevant matters may include the status of proceedings, the manner in which they have progressed to date and the manner in which the proceedings may be affected in the future as a result of leave being granted or refused: see Ricupero v Peter Barrett Corporation Pty Ltd & Anor [2018] FCCA 2784 (Ricupero) at [21].
Complexity and other representation
No lawyer at this stage has appeared for either of the respondents.
The proceedings would not be described as particularly complex, from a relative standpoint. The Ombudsman contends that a Compliance Notice was properly issued pursuant to s 716 of the Fair Work Act 2009 (Cth) (Act) requiring the Company to undertake certain action. The first respondent is contended to have failed to comply and therefore breached s 716(5) of the Act. Mr Antonios is contended to have accessorial liability, pursuant to s 550 of the Act. Whilst it does not say so, the Response filed by Mr Antonios appears to be directed towards arguing (inter alia) that there was a reasonable excuse for this within the meaning of s 716(6).
That the matter does not appear to be attended by significant complexity weighs in favour of the leave sought.
Effectiveness of representation and prejudice
There are some indications that Mr Antonios may not provide effective representation for the Company. These include that:
(a)Neither he nor anyone for the Company appeared at the first directions hearing;
(b)Mr Antonios initially sought leave to appear for the Company by way of email sent to my Deputy Associate;
(c)Mr Antonios has experienced difficulty in filing an application in a case, which remains unfiled at the time of this listing (I am informed that the filing fee imposed an impediment in this regard);
(d)No affidavit evidence was filed in support of the application (although, as I will come to shortly, certain documents were submitted); and
(e)Whilst the Response raises a number of contentions and allegations against others, it does not on the face of it clearly state, by reference to the Act, the basis upon which the matters contended by the Ombudsman are contested.
Moreover, it appears that there is some prospect of Mr Antonios appearing as a witness in these proceedings. The undesirability of granting the leave sought in these circumstances has previously been recognised (see Ricupero v Peter Barrett Corporation Pty Ltd & Anor [2018] FCCA 2784 (Ricupero) at [35] and Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595 at [16]).
These matters weigh against grant of leave.
Case management and the interests of justice
The objects in s 5 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and rule 1.04 of Rules include the just resolution of proceedings as quickly, effectively, inexpensively and efficiently as possible, according to law.
The proceedings are at an early stage. In this regard, I have given some consideration to giving Mr Antonios leave to appear on behalf of the Company for the purposes of timetabling without granting leave for his appearance for the Company at hearing. A difficulty with this, however, is that should the Company engage representation at a later stage of the proceedings then they may well take a different view to Mr Antonios regarding the earlier preparation of the matter. This could conceivably cause unnecessary expense and delay.
It has been held that the requirement for a corporation to be legally represented is not to be ignored, or taken lightly: Ricupero at [47]. The interests of justice would be better served if a lawyer, with appropriate legal knowledge and ability, as well as ethical duties to the Court, were to represent the Company in these proceedings.
Opportunity and financial position
This is the main basis upon which the application for leave was advanced by Mr Antonios.
A corporation that is that is impecunious is not automatically entitled to be represented by a non-lawyer. Mere assertions of impecuniosity will also not suffice. Evidence in this regard is required (see Ricupero at [38]).
Mr Antonios submitted that the Company in this case does not have the funds or resources to pay a lawyer. He has submitted that lawyers contacted requested that (unspecified) funds be placed into trust but that the Company does not have such funds. Mr Antonios has tendered two documents, which are said to demonstrate that the Company is “not in a financial profit position” as is “an altruistic community-based for-purpose organisation named Wastewood”. Wastewood is contended to have never earned a profit.
The first document relied upon by Mr Antonios is a one-page profit and loss statement indicating that the Company operated at a loss of over $11,000 in the period between April and June 2022. The primary expenses of the company are indicated on this document to be “Wages Expense”. The total for this exceeds the amount of “Sales of Product Income” stated on the document by more than $3,000.
The second document relied upon is a bank statement for Joe Antonios Pty Ltd for the period 23 May 2022 to 22 June 2022. That document indicates that the account received credits of nearly $16,000 and debits of nearly $14,000 during the period, resulting in a closing balance of just over $2,000. Many of the transactions appear to involve things like Uber Eats and other food purchases. There are also transactions that refer to “PETCULTURE”, “PETCO ANIMAL SPPLS”, “PET INSURANCE” and “NETFLIX.COM”.
I am informed that aside from an exception concerning Netflix, these are expenses of the Company. This may be so. I am also informed that the shortfall in finance for this Company is covered personally by Mr Antonios, potentially on an altruistic basis. Again, this may well be so. However, it is not clear on the face of the documents that the Company’s position is of the nature described for the purposes of this application. The documents give limited insight into the nature of the Company. On the face of them they don’t indicate what assets are held, nor the sources of the shortfall I am informed is covered by Mr Antonios. I also have no company search before me confirming the structure of the Company.
Given the limitations within these documents, I am unable to be satisfied on the basis of this material as to the financial position of the Company. I am therefore unable to weigh this factor heavily in favour of the leave sought.
Whether leave is opposed
The Ombudsman does not oppose the grant of leave. This therefore does not indicate against its grant.
Conclusion
Taking into account the above factors, I am not persuaded on the current evidence that leave ought to be granted for Mr Antonios to represent the Company generally in these proceedings. It follows that his application in this regard must be dismissed.
However, Mr Antonios has expressed a willingness to engage with the Ombudsman with a view towards narrowing the issues that are in dispute in these proceedings. He wishes to do so before the Company incurs the costs of engaging a legal representative. Given the apparent willingness of the parties to engage on these matters, I will refer the matter to mediation and give Mr Antonios a limited form of leave to enable him to attend the mediation on behalf of the first respondent.
27 I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 9 September 2022
1
7
0