FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v VicPro Security Pty Ltd [2024] FedCFamC2G 1040
File number: MLG 2303 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 10 October 2024 Catchwords: INDUSTRIAL LAW – Application for leave under r. 9.04 for corporation to carry on proceeding otherwise than by a lawyer – Where director of corporation proposes to carry on a proceeding for corporation – Effectiveness of representation – Financial position of the corporation – Leave to carry on a proceeding otherwise than by a lawyer not granted Legislation: Fair Work Act 2009 (Cth) s. 716
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 175, 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 9.04
Cases cited: Fair Work Ombudsman v ABMENG Pty Ltd [2024] FedCFamC2G 636
Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833
Fair Work Ombudsman v Finetune Holdings Proprietary Limited & Anor [2010] FMCA 889
Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68; [1984] FCA 201
Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949
Slattery v Canard Consolidated Pty Ltd [2023] FedCFamC2G 198
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 10 October 2024 Place: Melbourne Counsel for the Applicant: Mr McKenna Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the Respondents: In person ORDERS
MLG 2303 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: VICPRO SECURITY PTY LTD
First Respondent
DAMIEN BLACK
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
10 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the First Respondent may not take any further step in this proceeding otherwise than by a lawyer.
2.By 6 December 2024, the First Respondent has leave to file and serve an Amended Defence which has been signed off by the lawyer referred to in order 1 above (or Counsel briefed on their behalf).
3.By 6 December 2024, the Second Respondent has leave to file and serve an Amended Defence (which may be the same as the Defence referred to in order 2 above).
4.By 20 December 2024, the Applicant file and serve any reply to the Defence filed by the First and Second Respondent.
5.By 21 February 2025, the Applicant is to file and serve any affidavit material on which it intends to rely on the issue of liability.
6.By 27 March 2025, the Respondents are to file and serve any affidavit material on which they intend to rely on the…
Continue reading Fair Work Ombudsman v VicPro Security Pty Ltd
Sign in free to access the full text
- AGLC
- Fair Work Ombudsman v VicPro Security Pty Ltd [2024] FedCFamC2G 1040
- Case
- [2024] FedCFamC2G 1040
- Decision Date
CaseChat Overview and Summary
The court examined VicPro's financial statements, which showed a net profit of $314,567 for the year ended 30 June 2023 and total equity of $439,701 as of that date. The company had also been invoiced approximately $27,000 for legal fees in the current matter, with an estimated future cost of around $100,000. Despite VicPro's assertions that these costs would significantly impact its ongoing profitability, the court found that the company had sufficient financial resources to obtain legal representation. The contested and potentially complex nature of the case, coupled with the lack of a consent position allowing VicPro to proceed without a lawyer, further weighed against granting the application. The court concluded that financial considerations did not support VicPro's application for leave to self-represent, and that the effectiveness of representation would likely be compromised without legal assistance.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The fact that the proceeding will be contested and possibly complex weighs against the grant of leave. Financial considerations VicPro bears the onus of putting before me material to establish that there are financial considerations which would inhibit it from obtaining representation. I have some evidence in Mr Black’s affidavit as to its financial considerations. Judge Symons referred to financial considerations that would “inhibit the company from obtaining representation”: Slattery, [46]. To similar effect, in Fair Work Ombudsman v Finetune Holdings Proprietary Limited & Anor [2010] FMCA 889, Federal Magistrate Lucev (as he then was) spoke about an inability to engage legal representation. In that regard, his analysis was synonymous with Judge Symons’ analysis. VicPro was candid in providing some financial information to the court on its application. Mr Black deposed that VicPro has been invoiced approximately $27,000 for legal fees in this matter at a time when it retained lawyers and was provided with an estimate as to future legal costs approximating $100,000 (Affidavit of Mr Black’s, [11]–[13]). He deposed that the costs of engaging legal representation would have a “significant impact on the ongoing profitability of VicPro”. He annexed some financial statements as Attachment “A” to his affidavit. Those financial statements indicate that the profit and loss statement for VicPro for the year ended 30 June 2023 is that the company achieved a net profit of $314,567. The balance sheet, which also forms part of Attachment “A”, discloses total equity at the end of 30 June 2023 of $439,701. Mr Black emphasised to me that his business operates in an environment of changing business conditions. Further, that it likes to keep reserves of approximately $200,000 in respect of employee contingent entitlements, which are not necessarily fully apparent on its balance sheet or its profit and loss statement. To his credit, though, in an exchange with me as to whether VicPro would be “inhibited” from obtaining legal representation were I not to grant leave, Mr Black admitted by reference to those financial reports that VicPro would not be inhibited, albeit that there would be pressure placed on cash reserves if I declined leave. Although doubtless VicPro would prefer to deploy funds elsewhere, adopting Judge Symons language in Slattery, the evidence does not establish that financial considerations would “inhibit” VicPro from obtaining legal representation. The snapshot of its financial position provided by its profit and loss statement and balance sheet disclose it to be a substantial trading entity with sufficient financial resources to obtain legal representation in this matter and conduct its business. I accept the FWO’s submissions that the amount of any penalty that may be imposed, should the FWO be successful in the litigation, is not relevant to any decision as to the grant of leave under r. 9.04. Financial considerations do not support a grant of leave. The effectiveness of representation