Fair Work Ombudsman v Koojedda Carpentry Pty Ltd as trustee for the Gumley Trust
[2016] FCCA 2221
•2 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v KOOJEDDA CARPENTRY PTY LTD AS TRUSTEE FOR THE GUMLEY TRUST & ORS | [2016] FCCA 2221 |
| Catchwords: PRACTICE AND PROCEDURE – Application by a corporation to be represented by a non-lawyer – consideration of relevant factors in exercising discretion. |
| Legislation: Fast Food Industry Award 2010 Fair Work Act 2009 (Cth), ss.550(1), 570(2) Fair Work (Registered Organisations) Act 2009 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 44 Federal Circuit Court Rules 2001 (Cth), rr.1.03, 9.04, 21.02(1)(a) |
| Cases cited: AA Shi Pty Ltd v Avbar Pty Ltd (No.4) [2010] FCA 878 Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation [2003] HCA 55; (2003) 77 ALJR 1806; (2003) 53 ATR 834; (2003) 201 ALR 271; (2003) ATC 4894 Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431 Gera v Commonwealth Bank of Australia Ltd [2010] FMCA 205; (2010) 201 IR 26; (2010) 62 AILR 101-209 Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362; (1974) 48 ALJR 423; (1974) 5 ALR 549 Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 Sheahan v Northern Australia Land & Agency Co Pty Ltd (unreported, Supreme Court of South Australia, Perry J, No S3815, 4 February 1993) |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | KOOJEDDA CARPENTRY PTY LTD AS TRUSTEE FOR THE GUMLEY TRUST |
| Second Respondent: | MARK ROSS GUMLEY |
| Third Respondent: | GEMMA GUMLEY |
| File Number: | PEG 244 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 July 2016 (and on the papers) |
| Date of Last Submission: | 21 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 2 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms H Millar |
| Solicitors for the Applicant: | Janine Webster (The Office of the Fair Work Ombudsman, Brisbane) |
| For the First Respondent: | No appearance |
| For the Second Respondent: | In person |
For the Third Respondent: | No appearance |
ORDERS
That the application in a case for leave under r.9.04 of the Federal Circuit Court Rules 2001 (Cth) for the second respondent, a non-lawyer, to carry on, and appear for, the first respondent in these proceedings be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 244 of 2015
| FAIR WORK OMBUDSMAN |
Applicant
And
| KOOJEDDA CARPENTRY PTY LTD AS TRUSTEE FOR THE GUMLEY TRUST ACN 111 218 476 |
First Respondent
| MARK ROSS GUMLEY |
Second Respondent
| GEMMA GUMLEY |
Third Respondent
REASONS FOR JUDGMENT
Introduction – the issue of representation
At a directions hearing in this matter on 21 July 2016 this Court made an order that:
The issue of whether the first respondent has leave to appear other than by a lawyer be determined by the Court on the papers.
The issue arises because the second respondent, Mark Ross Gumley (“Mr Gumley”) seeks to appear for the first respondent, Koojedda Carpentry Pty Ltd As Trustee for The Gumley Trust ACN 111 218 476 (“Koojedda Carpentry”).
Mr Gumley swore an “Affidavit” on 24 May 2016 (“Mr Gumley’s Affidavit”), the substantive content of which is as follows:
1.Ask for dispensation not to be represented by a lawyer.
2.I am presently unemployed, I am looking for work, I do not have the financial capacity to be able to engage the services of a lawyer.
3.I ask the court for leave to be able to represent myself in this matter.
Mr Gumley’s Affidavit describes the name of the deponent as “Koojedda Carpentry/Mark Gumley”, and inserts the name of “Koojedda Carpentry Pty Ltd” as the full name of the person said to be swearing Mr Gumley’s Affidavit.
It is evident that Mr Gumley’s Affidavit is not an affidavit in proper form, but a combination of:
a)what should have been an application in a case by Koojedda Carpentry under r.9.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for it to be represented other than by a lawyer; and
b)evidence in support of the application in a case by way of affidavit by Mr Gumley.
No objection was taken by the applicant, the Fair Work Ombudsman (“FWO”), to the form or content of Mr Gumley’s Affidavit, and the Court will treat:
a)Mr Gumley’s Affidavit as an application in a case for Koojedda Carpentry to carry on these proceedings, and to be represented in these proceedings other than by a lawyer (and specifically by Mr Gumley); and
b)paragraph 2 of Mr Gumley’s Affidavit as evidence in support of the application in a case.
The FWO’s position with respect to the issue of representation was essentially to take no position, neither consenting to nor opposing Mr Gumley’s request to carry on these proceedings and appear for Koojedda Carpentry in these proceedings.
Other relevant matters and material
It is not in dispute that Mr Gumley is a director of the first respondent, and the husband of the third respondent, Gemma Gumley (“Mrs Gumley”). It follows that Mr Gumley, in his capacity as second respondent, may appear for himself in the proceedings.
It is also not in dispute that Mrs Gumley has during the course of these proceedings been in prison. The precise details of Mrs Gumley’s imprisonment, and the reasons for that imprisonment, are not before the Court.
To the extent that there are other relevant matters and material, particularly in relation to the nature and complexity of the proceedings, those matters are dealt with below in relation to the consideration of the relevant factors in exercising the Court’s discretion as to whether leave ought to be granted under r.9.04 of the FCC Rules.
Consideration
Legislative provisions
Section 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides as follows:
A party to a proceeding before the Federal Circuit Court of Australia 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.
Save for r.9.04 of the FCC Rules there is no regulation or other law of the Commonwealth which would authorise Mr Gumley to appear on behalf of Koojedda Carpentry.
Rule 9.04 of the FCC Rules provides as follows:
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.
As this Court observed in Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423 at [17] per Judge Lucev (“Wong”):
a)there is nothing in the Fair Work Act 2009 (Cth) (“FW Act”) or the Fair Work (Registered Organisations) Act 2009 (Cth) which precludes a corporation from seeking leave to appear other than by a lawyer under r.9.04 of the FCC Rules: Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189; (2011) 63 AILR 101-337 at [16]-[23] per Lucev FM, and
b)the requirement that a corporation must not proceed other than by a lawyer “cannot be ignored”: Anying Group Pty Ltd v Wang [2012] FCA 702 at [19] per Flick J.
The purpose underlying restrictions on appearance
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) 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.
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.
Discretion of the kind contained in r.9.04 of the FCC Rules must be exercised judicially and having regard to all relevant considerations: MolnarEngineering FCR at 73 per Smithers J; Wong at [20] per Judge Lucev. In the exercise of such discretion it is not necessary for each factor to be given equal weight: Wong at [20] per Judge Lucev.
Nature of the matter
Some hint of the nature of the legal and factual complexity of this matter might be discerned from the fact that the statement of claim is 41 pages long, consisting of 33 pages of pleadings and six schedules covering eight pages of calculations in relation to the alleged underpayment of the employees concerned.
An examination of the statement of claim reveals that:
a)eight employees have allegedly been underpaid;
b)seven of those employees have allegedly been underpaid their minimum rate of pay;
c)five of those employees have allegedly been underpaid casual loading;
d)two employees have allegedly been underpaid overtime;
e)all eight employees have allegedly been underpaid weekend penalties;
f)three of the employees have allegedly been underpaid annual leave and annual leave loading; and
g)one of the employees has allegedly not been paid payment in lieu of notice.
The statement of claim relates to the operation of two separate businesses by the first respondent, one a café and another a delicatessen, covered by two different awards, namely, the Restaurant Industry Award 2010 (“Restaurant Award”) and the Fast Food Industry Award 2010 (“Fast Food Award”), the former said to apply to the café business and the latter said to apply to the delicatessen business.
Of the eight employees, five are alleged to have been casuals throughout their employment period, one employee is alleged to have been a permanent part-time employee, and two employees are alleged to have been fulltime (and those two employees are alleged to have worked across both of the businesses).
The Court observes that in relation to both the Restaurant Award and the Fast Food Award there are alleged to be transitional pay rates calculated with reference to a Transitional Minimum Wage Instrument, namely the Australian Pay and Classification Scale (“APCS”) derived from earlier State awards.
There are also allegations:
a)of a failure to produce documents by Koojedda Carpentry in response to a Notice to Produce issued by the FWO; and
b)that employees were not given payslips by Koojedda Carpentry within one day of the employees being paid, or in some cases at all.
There is also an allegation that each of Mr Gumley and Mrs Gumley are accessorially liable under s.550(1) of the FW Act for the alleged contraventions by Koojedda Carpentry. Mr Gumley’s accessorial liability appears to arise by reason of his being a director, and his having management and control of both businesses, and knowledge of the alleged contraventions. Mrs Gumley’s alleged accessorial liability is said to arise by reason of her alleged management and control of both businesses, and her knowledge of the alleged contraventions.
The FWO seeks the usual relief in the form of:
a)declarations in relation to the alleged underpayments;
b)declarations in relation to the alleged involvement of Mr Gumley and Mrs Gumley in the contraventions;
c)orders that Koojedda Carpentry pay the employees the amount of the alleged underpayments, plus interest; and
d)an order that each of Koojedda Carpentry, Mr Gumley and Mrs Gumley, pay penalties in respect of the alleged contraventions.
More unusually, and perhaps more controversially, the FWO seeks orders that Koojedda Carpentry engaged an appropriately qualified person to:
a)audit Koojedda Carpentry’s compliance with the FW Act and the Restaurant Award and the Fast Food Award for all employees and persons engaged to perform work for Koojedda Carpentry for a period of six months following the date of any order of the Court, with the audit to be completed within 30 days of the end of that audit period, and to provide an audit report and details of any contraventions identified in the audit within 30 days of the audit being completed; and
b)provide training to Mr Gumley and Mrs Gumley, and any other person involved in the management of Koojedda Carpentry, in relation to their obligations under the Restaurant Award, the Fast Food Award and the National Employment Standards in the FW Act, and the payment of wages in accordance with relevant provisions of the FW Act, and provide to the FWO details of the date on which the training was completed, by whom it was conducted, and the methods of delivery of that training.
A defence was filed on behalf of each of the respondents by HWL Ebsworth Lawyers on 3 September 2015, followed thereafter by an amended defence on 18 September 2015, and a further amended defence on 2 October 2015. The further amended defence runs to 26 pages, consisting of 17 pages of pleadings and six schedules covering nine pages of calculations in relation to the alleged underpayment of the employees concerned.
The further amended defence makes significant admissions in relation to many of the facts of the alleged contraventions, but also significantly left many matters in dispute, including the following (which is not an exhaustive list):
a)in relation to four of the employees whether or not they are casual employees, or part-time or fulltime employees;
b)in relation to all of the employees the extent of their relevant experience in the hospitality industry or particular roles (which might go to the relevant pay level within an award classification as opposed to, but perhaps as well as, the classification per se for each such employee);
c)in relation to one of the employees, the level of classification;
d)in relation to seven of the employees, whether or not they were either not paid or underpaid in various respects;
e)in respect of one employee for whom there is an admission that he was not paid, a claim that he was not paid because he was summarily dismissed because of serious misconduct;
f)in respect of two of the employees an assertion that they were not entitled to part of the payment claimed because they failed to serve out a period of notice;
g)in respect of one employee an assertion that there was an attempt to pay her, but that she had provided the incorrect bank details, and failed to provide the correct bank details when requested to do so;
h)as to the period of employment of one employee;
i)as to the ordinary hours worked by all employees, and whether or not those persons alleged to be casuals worked ordinary hours at all;
j)as to the amounts actually paid to each employee, and whether there was a failure to pay in accordance with the relevant award;
k)as to the amount payable pursuant to the transitional rate provisions in each award in respect of at least two of the employees claimed to be casuals;
l)as to the rate of overtime payable under the Fast Food Award, and whether it is double time and half or double time on Sundays;
m)as to overtime hours worked for some employees, and in respect of an admission of underpayment a dispute as to the quantum of underpayment with respect to overtime worked;
n)as to whether there was compliance with the Notice to Produce;
o)the accessorial liability of Mr Gumley and Mrs Gumley; and
p)save with respect to some admission with respect to some underpayment of some employees, whether the FWO is entitled to relief (including, for example, the relief with respect to penalties, audits and training).
On 8 October 2015 the FWO filed a reply which suggested that the schedules to the further amended defence appear to raise the issue of whether or not Koojedda Carpentry had an entitlement to set-off alleged overpayments of certain entitlements against admitted underpayments of certain entitlements, and the FWO went on to say that Koojedda Carpentry had failed to plead a legal or equitable basis on which it will be entitled to set-off such entitlements.
It is immediately evident from the foregoing that there are a plethora of areas of dispute between the parties, and that overall the factual disputes are likely, in their totality, to be relatively complex. The complexity of the factual disputes involved is likely to be increased by the fact that there are disputes as to legal issues, or disputes concerning mixed questions of law and fact, as to:
a)whether particular employees are casuals, or whether they are fulltime or part-time employees, which appears to involve disputed questions of fact and of interpretation of the relevant award (and as to the complexity of such issues, see, for example, Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321; (2010) 201 IR 123; (2010) 63 AILR 101-294 (“Williams – Federal Court”) at [5] and [13]-[43] per Barker J, dismissing an appeal from Williams v MacMahon Mining Services Pty Ltd [2009] FMCA 511; (2009) 182 IR 104; (2009) 231 FLR 59);
b)what constitutes ordinary working hours (a dispute of a kind which has long and often vexed industrial and workers’ compensation law in Australia: see, for example, Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation [2003] HCA 55; (2003) 77 ALJR 1806; (2003) 53 ATR 834; (2003) 201 ALR 271; (2003) ATC 4894; Catlow v Accident Compensation Commission (1989) 167 CLR 543; (1989) 63 ALJR 619; (1989) 87 ALR 663; Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362; (1974) 48 ALJR 423; (1974) 5 ALR 549);
c)whether or not there was misconduct by an employee amounting to “serious” misconduct, which is to be distinguished from “misconduct” simpliciter, for the purposes of establishing an entitlement to payment in lieu of notice (and as to the distinction between “serious misconduct” and “misconduct” see, for example, Gera v Commonwealth Bank of Australia Ltd [2010] FMCA 205; (2010) 201 IR 26; (2010) 62 AILR 101-209 at [104] per Lucev FM); and
d)a dispute as to the relevant rate at which overtime is to be paid on a Sunday, which presumably involves a disputed question of award interpretation.
The nature of the matter is also made more complex by the FWO seeking relief, which if not novel, is certainly not usual, namely, orders for audits of Koojedda Carpentry’s employee entitlement records and training of Koojedda Carpentry’s directors and employees concerned in the management and supervision of issues related to employee entitlements.
A further complication might be that there is a dispute as to accessorial liability with respect to Mr Gumley who seeks to appear for the corporate respondent, Koojedda Carpentry. The possibility of some conflict of interest arising between Koojedda Carpentry and Mr Gumley at final hearing cannot be precluded, and in those circumstances it would be more desirable that Koojedda Carpentry be separately represented by a lawyer.
If the issue of set-off therefore does genuinely arise, that is likely to add a further degree of legal and factual complexity to this matter.
The issue of whether or not there is an entitlement to set-off alleged overpayments against alleged underpayments can be complicated, and is often a vexed issue: see, for example, Williams – Federal Court at [44]-[70] per Barker J, dismissing an appeal from Williams v MacMahon Mining Services Pty Ltd (No. 2) [2009] FMCA 763; (2009) 187 IR 426; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CJ Manfield Pty Ltd [2011] FMCA 374; (2011) 63 AILR 101-370 at [79]-[111] per Lucev FM (from which an appeal on a different issue was dismissed: see CJ Manfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FCA 253).
The pleadings in this case give rise to a number of legal and factual issues the nature of which adds significant complexity to the proceedings, and makes the nature of the matter significantly more complicated than it would appear as first glance. When Koojedda Carpentry, Mr Gumley and Mrs Gumley were represented by lawyers, the mere fact that it took three attempts over the space of a fortnight to finally settle upon the further amended defence is further indicative of there being a not inconsiderable degree of complexity in these proceedings. It is certainly a matter in respect of which the assistance of a lawyer for a corporate respondent would be desirable and of significant assistance to the Court.
For all of the above reasons, the nature and complexity of this matter weigh quite significantly in favour of the discretion being exercised so as to not grant leave to Mr Gumley to represent, or appear for, Koojedda Carpentry in these proceedings.
Whether a non-lawyer appears or has appeared previously for any of the parties
Opportunity to arrange legal representation
Each of the above matters can be considered together.
At 9.00am on 8 July 2015 Mr Gumley filed a notice of address for service in his own name.
At a directions hearing at 9.30am on 8 July 2015 at which there was no appearance for the respondents the Court ordered that a copy of an order made that day, ordering the filing of any defence and adjourning the matter to a further directions hearing on 4 August 2015, be served on each respondent by the FWO and that the FWO file an affidavit of service in respect thereof. The FWO effected service and on 15 July 2015 filed an affidavit of service accordingly.
On 27 July 2015, “Steve Heathcote” Barrister & Solicitor (APX Law Pty Ltd Trading as)” filed a notice of address for service on behalf of Koojedda Carpentry, Mr Gumley and Mrs Gumley. On 30 July 2015 a consent order was made for the filing of any defence by 5 August 2015, the filing of any reply by 12 August 2015, and adjourning the matter to a further directions hearing on 13 August 2015.
On 13 August 2015 a consent order was made vacating the 13 August 2015 directions hearing, re-listing the matter for a further directions hearing on 28 August 2015, and providing for any defence to be filed by 20 August 2015 and any reply to be filed by 27 August 2015.
In advance of the 28 August 2015 directions hearing the FWO filed submissions which effectively sought summary judgment in the absence of a filing of any defence by any of the respondents.
On 28 August 2015 Counsel appeared for the respondents instructed by HWL Ebsworth Lawyers, and the Court made orders that:
1. By 4pm on 3 September 2015 the respondents file and serve:
a. a notice for service; and
b. any response and defence.
2. The matter be adjourned to a further directions at 2.15pm on 4 September 2015, at which time the applicant may move for default judgment if order 1 is not complied with.
3. Costs, if any be reserved.
Later on 28 August 2015 HWL Ebsworth Lawyers filed a notice of address for service for Koojedda Carpentry, Mr Gumley and Mrs Gumley. Thereafter, a defence, amended defence and further amended defence were filed as set out above: see [27] above.
On 16 November 2015 HWL Ebsworth Lawyers gave notice of withdrawal as the lawyers for Koojedda Carpentry, Mr Gumley and Mrs Gumley.
On 24 November 2015 HWL Ebsworth Lawyers filed a notice of address for service for Koojedda Carpentry, Mr Gumley and Mrs Gumley.
On 12 January 2016 HWL Ebsworth Lawyers filed a notice of withdrawal as lawyers for Koojedda Carpentry, Mr Gumley and Mrs Gumley.
On 21 March 2016 a consent order programming the filing of evidence, submissions and objections was made by the Court, and for the purposes of processing the consent order, “and only for that purpose” the Court granted leave to Mr Gumley to appear and consent on behalf of Koojedda Carpentry and Mrs Gumley.
At a directions hearing on 10 May 2016 there was no appearance by Koojedda Carpentry, Mr Gumley or Mrs Gumley, and the Court made orders that each of them file and serve a notice of address for service by 17 May 2016. Each did so, with:
a)Koojedda Carpentry giving an address for service of 361 Marshall Road, Argyle in the State of Western Australia, and an email of [email protected];
b)Mr Gumley giving an address for service of 361 Marshall Road, Argyle in the State of Western Australia, and an email of [email protected];
c)Mrs Gumley giving an address for service of Boronia Pre-Release Centre for Women, 14-16 Hayman Road, Bentley in the State of Western Australia, and an email of [email protected].
On 24 May 2016 Koojedda Carpentry and Mr Gumley filed notices of address for service giving an address for service for each of them of Lot 361 Marshall Road in Argyle in the State of Western Australia, as well as a post office box address (the same in each instance) in Gelorup in the State of Western Australia, and an email address for service at [email protected] for each of them.
From the foregoing, it is evident that lawyers have been briefed to appear for and represent Koojedda Carpentry, Mr Gumley and Mrs Gumley, and that two separate law firms have been so engaged, and that one of those law firms (HWL Ebsworth Lawyers) withdrew, was then seemingly re-engaged, and withdrew a second time. Thus, each of Koojedda Carpentry, Mr Gumley and Mrs Gumley have had the opportunity to, and have arranged, legal representation by lawyers, one firm of which has appeared before the Court, and that same firm has prepared the defence, amended defence and further amended defence which have been filed on behalf of Koojedda Carpentry, Mr Gumley and Mrs Gumley.
Given the nature and complexity of the matter, as set out above: see [18]-[36] above, it is hardly surprising that Koojedda Carpentry, Mr Gumley and Mrs Gumley took the opportunity to arrange legal representation, and have their lawyers file a defence, amended defence and further amended defence.
The fact that lawyers have previously appeared for Koojedda Carpentry, taken together with the nature and complexity of the matter, and the possibility for conflict involving the interests of Mr Gumley and Mrs Gumley by reason of the FWO seeking to impose accessorial liability upon them (that is conflict between each of them and Koojedda Carpentry), weighs, in this case, in favour of Koojedda Carpentry being represented by a lawyer, rather than by Mr Gumley. For reasons which are set out below: see [58]-[63] below, that view is reinforced by reason of the Court’s comments with respect to the effectiveness of representation and prejudice likely to be suffered if Koojedda Carpentry is not represented by a lawyer.
Objects of relevant legislation and case management considerations
The objects and purposes of the FCCA Act in ss.3 and 42 and the FCC Rules in r.1.03 mean that this Court is intended to operate in a manner which:
a)is as informal as possible in the exercise of judicial power;
b)is not protracted in its proceedings;
c)resolves proceedings justly, efficiently and economically;
d)uses streamlined procedures; and
e)avoids undue delay, expense and technicality.
This approach reflects much of the modern approach to case management, and especially the need to take into account the paramount consideration of doing justice between the parties whilst observing that a just resolution must have regard to any relevant legislative purpose or object: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431.
In respect of the relevant legislative purpose in the context of representation of parties, that purpose is, as set out above, directed at ensuring 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 in which they appear: see [15] above and the cases there cited.
In relation to the objects and purposes of the FCCA Act and FCC Rules set out above, those objects do not, read together with the provisions of s.44 of the FCCA Act and r.9.04 of the FCC Rules, operate to diminish the importance of corporations being legally represented. In any event, in this matter the opportunity for the resolution of the matters informally and without protraction has probably already passed given that the proceedings have been on foot since the filing of the application and statement of claim in June 2015, and that by reason of the nature of the statement of claim, the further amended defence, and a reply, the factual and legal issues are complex, for reasons set out above: see [18]-[36] above. In those circumstances, and having regard to the Courts comments on the effectiveness of representation and prejudice set out below: see [58]-[63] below, these proceedings are more likely to be resolved justly, efficiently and economically, and without undue delay and the incurring of greater expense than is necessary, if a lawyer appears for Koojedda Carpentry. Technicality cannot be avoided in these proceedings because of their nature. The Court, irrespective of whether lawyers appear, endeavours to adopt streamlined procedures, but, again, a lawyer appearing for Koojedda Carpentry is, in the Court’s view, more likely to assist with the streamlining of procedures in a technical case, than if a non-lawyer appears.
For all of the above reasons, the Court is of the view that the relevant legislative purpose, as well as case management considerations, favour the appearance of a lawyer for Koojedda Carpentry, rather than having Koojedda Carpentry represented by, and appear through, one of its directors who is not a lawyer.
Effectiveness of representation and prejudice
There is nothing in either Mr Gumley’s brief appearance before the Court on 21 July 2016, or in Mr Gumley’s Affidavit, which would indicate to the Court that Mr Gumley would be able to effectively:
a)deal with the complex legal and factual issues likely to arise in these proceedings, particularly where many of the factual and legal issues are in dispute, as outlined above: see [18]-[36] above;
b)make opening and closing submissions in relation to the law and facts; and
c)cross-examine the various witnesses who may appear for the FWO.
Mr Gumley’s Affidavit, for example, simply does not exhibit an understanding of the distinction between Koojedda Carpentry, as a corporation respondent to these proceedings, and Mr Gumley, as an individual respondent to these proceedings said to be accessorially liable as a consequence of Koojedda Carpentry’s alleged contraventions. Indeed, Mr Gumley’s Affidavit deals more with his own employment and financial position, than it does with any relevant facts concerning Koojedda Carpentry. Further, no submissions were filed or made which addressed the relevant issues as to why the Court might grant a non-lawyer leave to appear for Koojedda Carpentry. Nor does it appear from Mr Gumley’s Affidavit, or otherwise, that the potential for conflict between the position and interests of Koojedda Carpentry, and his position and interest personally as a director of Koojedda Carpentry, is understood, or if understood, why the Court ought to disregard it in this instance. Unlike Alcantara, this matter is not straightforward, and nor has Mr Gumley exhibited an appearance of knowing and understanding the facts, comprehending the competing contentions, and being able to articulate the competing contentions so as to effectively represent Koojedda Carpentry: contrast Alcantara at [25] per Lucev FM.
This is not one of those relatively simple cases in which a non-lawyer might appear for a corporation: London City Equities Ltd v Penrice Soda Holdings Ltd (No. 3) [2012] FCA 361 at [4]-[8] per Robertson J; Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363, (2012) 90 ATR 24; (2012) 127 ALD 64 at [4]-[8] per Robertson J; Alcantara at [25] per Lucev FM, and see also McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239.
It might be argued that to deny to Mr Gumley leave to appear for Koojedda Carpentry would be to deny Koojedda Carpentry the ability to exercise its right to appear, and even though Mr Gumley may not be entirely effective and Koojedda Carpentry might suffer prejudice if leave was granted to Mr Gumley to represent, and appear for, Koojedda Carpentry, greater prejudice would be suffered if Koojedda Carpentry were to not appear. That proposition ignores the primary legislative purpose of s.44 of the FCCA Act and r.9.04 of the FCC Rules that a corporation must be represented by a lawyer, and also assumes that Mr Gumley’s representation and appearance might be in some way effective on behalf of Koojedda Carpentry. If, however, Mr Gumley appears and is ineffective in his appearance it will lack utility, and arguably be prejudicial to Koojedda Carpentry, and as such Mr Gumley’s appearance for Koojedda Carpentry would be neither meaningful nor workable for the benefit of Koojedda Carpentry: AA Shi Pty Ltd v Avbar Pty Ltd (No. 4) [2010] FCA 878 at [35] per Collier J. Albeit that Mr Gumley’s appearance before the Court has been limited, taken together with the content, largely irrelevant, of Mr Gumley’s Affidavit, the Court is not prepared to assume that less prejudice would be suffered by Koojedda Carpentry if Mr Gumley were to represent Koojedda Carpentry at the final hearing than if Koojedda Carpentry were unrepresented.
Another difficulty with Mr Gumley effectively representing Koojedda Carpentry is the likelihood that he will be both advocate and witness in the proceedings. It is difficult to envisage how, in the circumstances pleaded, Mr Gumley might avoid giving evidence, unless no evidence is put on behalf of Koojedda Carpentry. The undesirability of a person being both witness and advocate for a party in a case where the facts are not simple, and where serious issues and potential conflicts arise (for example, whether there is a set-off available, or whether an employee has seriously misconducted themselves, and whether Mr Gumley is accessorially liable for the alleged contraventions of Koojedda Carpentry), mean that there may be that confusion between a person’s role as a witness and an advocate which would colour the independence and objectivity usually required of an advocate (and in particular a lawyer because of their role as an officer of the Court) which is necessary for truly effective representation of a party: Wong at [54] per Judge Lucev. The difficulties that may arise are many, and referred to in Sheahan v Northern Australia Land & Agency Co Pty Ltd (unreported, Supreme Court of South Australia, Perry J, No S3815, 4 February 1993) at [3]-[18] and Pittorino v Meynert [2001] WASC 245 at [7]-[10] per Bredmeyer M.
Having regard to all of the above circumstances the Court is of the view that Mr Gumley is not likely to be capable of effectively representing Koojedda Carpentry, and that this factor favours a refusal of a grant of leave for Mr Gumley to represent Koojedda Carpentry.
Financial position
A corporation that is impecunious is not automatically entitled to be represented by a non-lawyer: Australian Consumer & Competition Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 at [4] per Kiefel J; Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 at [41] per Lucev FM (“Finetune Holdings”). Assertions of impecuniosity do not suffice: evidence is required: Finetune Holdings at [42]-[45] per Lucev FM.
The evidence contained in Mr Gumley’s Affidavit, such as it is, relates to his financial position, not that of Koojedda Carpentry. Further, the evidence is not detailed and consists of bare assertions without the provision of any documentary or corroborative evidence, either as to Mr Gumley’s financial position or, more pertinently, that of Koojedda Carpentry. There are, for example, no bank statements, no financial statements, no profit and loss accounts, no taxation returns or any other form of relevant financial data, which would allow the Court to make findings as to Koojedda Carpentry’s financial position. Nor is there, in the absence of the evidence referred to above, any scope for the Court to draw a “reasonable and definite” inference that had Koojedda Carpentry the financial capacity to retain a lawyer, then it is probable that such a lawyer would have been retained, or in the circumstances of this case, the lawyers who were retained would not have ceased to act for it: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466; (2007) 242 ALR 643; [2007] ATPR 42-177 at [38] per Weinberg, Bennett and Rares JJ.
There is nothing in the evidence before the Court which allows the Court to make a finding that Koojedda Carpentry is not in a financial position to be represented by a lawyer in these proceedings, and this factor does not weigh in favour of leave being granted for Mr Gumley to represent Koojedda Carpentry.
Whether leave to appear is opposed
As indicated above: see [7] above, the FWO neither consented to nor opposed the Court granting leave to Mr Gumley to appear for Koojedda Carpentry. In those circumstances, this factor does not weigh against the grant of leave to Mr Gumley to appear for Koojedda Carpentry.
Conclusion – leave to appear by a non-lawyer
Having regard to the views it has expressed in relation to the factors set out above, and giving particular weight to its views in relation to the nature and complexity of the legal and factual issues which arise in this matter, and the lack of effectiveness of any representation of Koojedda Carpentry by Mr Gumley, the Court has concluded that the application in a case by the first respondent for leave under r.9.04 of the Federal Circuit Court Rules 2001 (Cth) for a non-lawyer (namely, Mr Gumley) to carry on, and appear for, the first respondent in these proceedings must be dismissed. There will be an order accordingly.
Bearing in mind the provisions of s.570(2) of the FW Act, the neutral position adopted by the FWO in relation to the application for a non-lawyer to have leave to represent, and appear for, Koojedda Carpentry, and the purposes for which costs are awarded in legal proceedings, the Court, without expressing any concluded view, has reservations as to whether any application for costs in relation to this aspect of the proceedings could be successful. Nevertheless, if costs are sought by any party, an application may be made under the provisions of r.21.02(1)(a) of the FCC Rules, with the provisions thereof meaning that no further order is required to facilitate the making of such a costs application.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 2 September 2016
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