Fair Work Ombudsman v Sona Peaks Pty Ltd
[2015] FCCA 437
•19 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v SONA PEAKS PTY LTD & ANOR | [2015] FCCA 437 |
| Catchwords: INDUSTRIAL LAW – Interlocutory application – whether leave should be granted to permit the second respondent to represent the first respondent. |
| Legislation: Fair Work Act 2009 (Cth), ss.350, 716 |
| Fair Work Ombudsman v Sona Peaks Pty Ltd & Anor [2015] FCCA 137 Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595 Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889 Worldwide Enterprises Pty Ltd v Silberman and Anor (2010) 26 VR 595 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | SONA PEAKS PTY LTD (ACN 141 459 789) |
| Second Respondent: | DAVID PETER ANDERSON |
| File Number: | MLG 2301 of 2014 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 19 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nicholas |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| The First Respondent: | No appearance |
| The Second Respondent: | In person by telephone |
THE COURT ORDERS THAT:
The parties are to file a Statement of Agreed Facts by 20 March 2015.
The Respondents are to file and serve any evidence on which they seek to rely on the issue of penalty by 10 April 2015.
The Applicant is to file and serve any evidence on which it seeks to rely on the issue of penalty by 1 May 2015.
The Respondents are to file and serve any evidence on which they seek to rely in reply to the Applicant’s evidence by 22 May 2015.
The Applicant is to file and serve its submissions on the issue of penalty by 12 June 2015.
The Respondents are to file and serve their submissions on the issue of penalty by 3 July 2015.
The Applicant is to file and serve any submissions in reply by 17 July 2015.
The Second Respondent be given leave on a limited basis, to represent the First Respondent in the conduct of the penalty proceedings.
The parties have liberty to apply.
The proceeding be listed for a penalty hearing in the Federal Circuit Court of Australia at Melbourne at 10:00am on 24 July 2015.
THE COURT NOTES THAT:
The First and Second Respondents make admissions to all matters alleged in the Statement of Claim filed on 14 November 2014 and agree to the relief sought in paragraphs 41 to 50 of the Statement of Claim. The parties seek to proceed directly to a hearing on penalty in this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2301 of 2014
| FAIR WORK OMBUDSMAN |
Applicant
And
| SONA PEAKS PTY LTD (ACN 141 459 789) |
First Respondent
| DAVID PETER ANDERSON |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court is an application filed 14 November 2014 by the Fair Work Ombudsman (“the applicant”). The statement of claim accompanying the application alleges various breaches of the Fair Work Act2009 (Cth) (“the Fair Work Act”) by Sona Peaks Pty Ltd (“the first respondent”) and David Peter Anderson (“the second respondent”) who is the director of the first respondent and it is alleged was involved in and separately liable for those breaches.
On 15 January 2015 the second respondent filed an application in a case seeking leave to appear for the first respondent. The application in a case is also before the Court today. The second respondent’s application is not opposed by the applicant.
Today Ms Nicholas appears on behalf of the applicant and the second respondent appears (with leave of the Court) by telephone. The Court has been told the parties have agreed on the following orders:
“THE COURT NOTES THAT:
The First and Second Respondents make admissions to all matters alleged in the Statement of Claim filed on 14 November 2014 and agree to the relief sought in paragraphs 41 to 50 of the Statement of Claim. The parties seek to proceed directly to a hearing on penalty in this proceeding.
THE COURT ORDERS BY CONSENT THAT:
1.The parties are to file a Statement of Agreed Facts by
20 March 2015.2.The Respondents are to file and serve any evidence on which they seek to rely on the issue of penalty by 10 April 2015.
3.The Applicant is to file and serve any evidence on which it seeks to rely on the issue of penalty by 1 May 2015.
4.The Respondents are to file and serve any evidence on which they seek to rely in reply to the Applicant’s evidence by 22 May 2015.
5.The Applicant is to file and serve its submissions on the issue of penalty by 12 June 2015.
6.The Respondents are to file and serve their submissions on the issue of penalty by 3 July 2015.
7.The Applicant is to file and serve any submissions in reply by 17 July 2015.
8.The matter be listed for a penalty hearing on a date to be fixed by the Court, not before 24 July 2015 (with an estimated hearing time of 2 hours).
9.The Second Respondent be given leave on a limited basis, to represent the First Respondent in the conduct of the penalty proceedings.
10. The parties have liberty to apply.
11.Such further or other orders as the Court considers appropriate.”
The second respondent confirmed he understood and agreed to these orders. The second respondent told the Court given his involvement in previous proceedings which resulted in orders being made for the reasons set out in Fair Work Ombudsman v Sona Peaks Pty Ltd & Anor [2015] FCCA 137 he sees his involvement in this matter as only being to “plea and pay”.
The second respondent (who is not a lawyer (and whilst he is a director)) is not entitled to represent the first respondent except by leave of the Court (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 second respondent swore an affidavit in support of the application in a case to represent the first respondent. The second respondent deposed to the following:-
“1.That I am unable to meet costs of legal representation and so would ask leave of the Court to represent Sona Peaks Pty Ltd ACN 141 459 789 and myself.”
There was no supporting documents annexed to the affidavit. The second respondent did not seek to file any further documents substantiating the claims made about the first respondent’s financial position. There was no other evidence. However the applicant agreed to the second respondents application provided any leave was limited to only a penalty hearing.
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.”
As Her Honour noted in the above mentioned decision a company that is impecunious is not automatically entitled to be represented by a non-lawyer (Finetune Holdings (Supra) at [41]) and that when making an application such as this it was necessary to provide sufficient evidence to the Court that the corporation and/or persons sitting behind it could not afford legal representation.
However in the circumstances of this matter and having considered the matters referred to above the Court will exercise its discretion to grant leave to the second respondent on a limited basis to appear for the first respondent. Such leave is limited and only so for as the matter involves the question of any penalty to be imposed for any admitted contraventions. In the event the respondents resile from what was an agreed position today the respondents are on notice leave may be withdrawn. The matter will otherwise be adjourned to a penalty hearing on 24 July 2015 at 10:00 am and orders and directions made (by consent) for that purpose.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 27 February 2015
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