Fair Work Ombudsman v Lu's Healthcare Pty Ltd
[2015] FCCA 482
•4 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v LU’S HEALTHCARE PTY LTD & ANOR | [2015] FCCA 482 |
| Catchwords: PRACTICE AND PROCEDURE – Representation – application in a case for a non-lawyer to appear on behalf of the respondents – application in a case dismissed. |
| Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) Federal Circuit Court Rules 2001 (Cth), r.9.04 |
| Cases cited: Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595 Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 Reynolds v The Minister for Health & Anor [2010] FMCA 843 Ritson v PATS Consulting Pty Ltd [2012] FMCA 837 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | LU’S HEALTHCARE PTY LTD |
| Second Respondent: | KUN WANG |
| File Number: | MLG 2246 of 2014 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | On the papers in chambers |
| Date of Last Submission: | 26 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 4 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Fair Work Ombudsman |
| The First Respondent: | Unrepresented |
| The Second Respondent: | Unrepresented |
ORDERS
The first respondent’s application in a case filed on 26 February 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2246 of 2014
| FAIR WORK OMBUDSMAN |
Applicant
And
| LU’S HEALTHCARE PTY LTD |
First Respondent
| KUN WANG |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are proceedings commenced by the Fair Work Ombudsman (“the applicant”) on 7 November 2014. By statement of claim filed the same day the applicant alleges Lu’s Healthcare Pty Ltd (ACN 119 143 556) (“the first respondent”) contravened the Fair Work Act 2009 (Cth) (“the FW Act”) by inter alia engaging in sham contracting in relation to work done for it by two Chinese massage therapists between 2011 and 2013. It is also alleged that Kun Wang (“the second respondent”) was involved in those contraventions and as a result separately liable for breaches of the FW Act.
Background
The applicant alleges the first respondent operated a business providing massage services at inter alia stores located at the Victoria Gardens Shopping Centre in Richmond and the Queen Victoria Shopping Centre in Melbourne. The applicant alleged the first respondent employed Chao Liu and Dianna Zhou between December 2011 up to December 2013 and February 2014 respectively. The applicant alleges the second respondent as business manager of the first respondent was involved in inter alia engaging those workers and making payments to them.
As noted earlier the applicant also alleges each of the respondents contravened those provisions of the FW Act that prohibit sham contracting in relation to the engagement of those workers, who as a result had also been unpaid more than $21,000.00 and had money unlawfully deducted from their wages.
The applicant sought various relief including declarations of contraventions of the FW Act by each of the respondents, orders for payment of outstanding wages, interest and the imposition of pecuniary penalties for the alleged contraventions.
The application and statement of claim were served on each of the respondents in December 2014. The proceedings had a first Court date of 19 February 2015. However prior to this and on 13 February 2015 and before the respondents filed a notice of address for service or a response, the applicant provided the Court with a minute of proposed directions agreed to by all the parties. As a result the Court made the following orders by consent on 16 February 2015:
“BY CONSENT THE COURT ORDERS THAT:
1.The directions hearing listed for 10:00am on 19 February 2015 be vacated.
2.The Respondents file and serve their Defences to the Applicant’s Statement of Claim filed 7 November 2014 by no later than 26 February 2015.
3.The Applicant file and serve its Reply (if any) to the Respondents’ Defences by 5 March 2015.
4.The parties are to file a Statement of Agreed Facts by no later than 26 March 2015.
5.The Respondents are to file and serve any evidence on which they seek to rely on the issue of penalty by 16 April 2015.
6.The Applicant is to file and serve any evidence on which it seeks to rely on the issue of penalty by 7 May 2015.
7.The Respondents are to file and serve any evidence in reply by 28 May 2015.
8.The Applicant is to file and serve any submissions in respect of penalty by 18 May 2015.
9.The Respondents are to file and serve any submissions in respect of penalty by 8 June 2015.
10.The Applicant is to file and serve any submissions in reply to the Respondent’s penalty submissions by 29 June 2015.
11.The proceeding be adjourned for a penalty hearing on 23 July 2015 at the Federal Circuit Court of Australia at Melbourne commencing at 10.00 am.
12.The parties have liberty to apply.
AND THE COURT NOTES:
A.Once the above Court documents have been filed, copies of the parties material to be sent by email in word format to the Associate to Judge O’Sullivan at associate.judgeo’[email protected]”
After the matter was fixed for a penalty hearing Employsure Pty Ltd (“Employsure”) with the consent of the applicant, wrote to the Court referring to the above mentioned orders advising they had “acted as a paid agent” of the respondents. Employsure referred to Rule 9.04 of the Federal Circuit Court Rules 2001 (“the Rules”) which requires a corporation to be represented by a lawyer. Employsure indicated in that correspondence on behalf of the respondents it wished to make an application to seek leave to appear as “[R]epresentative” of the respondents.
Accordingly, there were further orders made on 26 February 2015 by consent to facilitate that application as follows:
“BY CONSENT THE COURT ORDERS THAT:
1.The Respondent has leave to file an application in a case and affidavit in support this day seeking to be represented by an industrial advocate.
2.The parties consent to the Respondent’s application in a case being dealt with on the papers in Chambers.
AND THE COURT NOTES:
A.The Applicant neither consents or opposes the Respondent’s application in a case.”
These reasons for decision concern the disposition of that application in a case.
Application for non-lawyer to appear
On 26 February 2015 the first respondent filed an application in a case which sought the following orders:
“Orders sought:
1.Chris Mahoney of Employsure Pty Ltd be granted leave to act as a paid agent of the First and Second Respondent in complying with the orders of 16 February 2015.”
The application in a case was supported by an affidavit of Shiwei Lu, a director of the first respondent. As the director of the first respondent Shiwei Lu deposed:
“1.I am the sole Director of the First Respondent, Lu’s Healthcare Pty Ltd and husband of the Second Respondent Kin Wang.
2.On 22 January 2015, the First Respondent engaged the services of Employsure as a paid agent to assist with discussions with the Applicant.
3.The advice of Employsure has assisted the First Respondent in understanding the legal complexities of this matter and resulted in new dialogue with the Applicant.
4.I believe that the granting of an order allowing Employsure to act as representative of the First and Second Respondents will assist in resolving the matter as quickly and efficiently as possible.”
As was clear from the orders of 26 February 2015 the applicant advised the Court it did “not object or consent to the substantive application itself, noting that it is ultimately a matter for the Court to determine.”
Consideration
Section 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the 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.
The Rules generally provide that a party may represent themselves in person or may be represented by a lawyer.[1]
[1] The Rules dictionary defines “lawyer” as “means a legal practitioner who is entitled to practise in the Court.”
However Rule 9.04 provides that:
“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.”
In Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595 Judge Hartnett considered the issue of whether (in that case) the second respondent (who was its director but not a lawyer) could represent the first respondent company. Her Honour said:
“7.This is a discretionary matter. The principles which govern the Court’s exercise of that discretion were summarised by Lucev FM (as His Honour then was) in Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889 (‘Finetune Holdings’).
8.The general rule, as adopted in this Court, is that corporations may only be represented before federal courts by legal practitioners (s.44 of the Federal Circuit Court of Australia Act 1999 (Cth) and r.9.04 of the Federal Circuit Court Rules 2001 (Cth)). The policy behind that rule is that in the interests of 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 (Alcantara and Anor v Buildpower Pty Ltd [2010] FMCA 626 at [10]; Worldwide Enterprises Pty Ltd v Silberman & Anor (2010) 26 VR 595 at [35] per Weinberg JA). 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 (Worldwide Enterprises Pty Ltd v Silberman & Anor (2010) 26 VR 595 at [76] per Bongiorno JA; Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14]).
9.The Court has discretion to depart from the general rule, as stated in the preceding paragraph, having regard to all of the relevant considerations. In Finetune Holdings at [24] to [47], the Court identified the following considerations as relevant to determining whether to permit a director respondent (as the Second Respondent, Mr Oren is) to represent the corporate respondent in the matter:-
a)the complexity or simplicity of the matter;
b)whether a non-lawyer appears or has previously appeared for any of the parties;
c)the objects and purposes of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court Rules 2001 (Cth), 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 the party;
e)whether there has been an appropriate opportunity for a party to arrange legal representation;
f)the financial position of a party; and
g)whether the granting of leave to appear is opposed.”
In Reynolds v The Minister for Health & Anor [2010] FMCA 843 Lucev FM (as His Honour then was) considered an application by the applicant in proceedings alleging breaches of the Disability Discrimination Act 1992 (Cth) for a non-lawyer to appear on her behalf. His Honour refused that application.
In Ritson v PATS Consulting Pty Ltd [2012] FMCA 837 Barnes FM (as Her Honour then was) dealt with and refused an application by an employee of a corporate respondent for leave to represent the corporate respondent in proceedings under the Competition and Consumer Act 2010 (Cth). Her Honour also referred to the following decision as apposite.
In Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 French J (as His Honour then was) considered the relevant Federal Court Rules at the time (for an application similar to this) and referred to the fact that there is:
“…no threshold requirement of special or exceptional circumstances” (at [12) and at [13] that “the policy of the rule is clear that ordinarily a corporation will be required to be represented by a solicitor” and then (at [14]) that “those who chose to carry on their businesses through corporate structures enjoy advantages that those carrying on business on their own account do not enjoy.”
His Honour acknowledged that a more liberal approach to granting leave may be warranted where the company in question was a respondent rather than applicant. This is the case here.
There is no evidence about Employsure or whether Employsure is registered under the Fair Work (Registered Organisations) Act 2009 (Cth), such that it would have the right of appearance on behalf of a member or member company by operation of s.353A of that FW Act. There is also no evidence about why beyond continuing to assist the respondents it is necessary for Employsure to represent them in these proceedings. There is no affidavit material about or from Mr Chris Mahoney.
It is necessary to have regard to all the factors relevant to the question of leave insofar as it is possible to do so, on the material before the Court. I have considered the relevant factors referred to by Lucev FM (as His Honour then was) in Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 and Her Honour Judge Hartnett in Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595.
I have considered all of those factors in this case including issues of significance such as the “simplicity of the matter” as a penalty hearing for contraventions of the FW Act; the objects and purposes of the FCCA Act and the Rules; the absence of evidence of any prejudice to the respondents if leave were refused; and that whilst the granting of leave is not opposed, there is no evidence about why the respondents could not arrange legal representation or the respondent’s financial position as well as the other matters referred to above.
Conclusion
Given the matters set out above, I am not prepared to exercise any discretion to grant leave. The application in a case filed on 26 February 2015 will be dismissed. The matter will otherwise be adjourned to the date already fixed for the penalty hearing on 23 July 2015 at 10.00 am.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 4 March 2014
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