Ferrigno v Qantas Airways Limited - [2023] FCA 1044

FEDERAL COURT OF AUSTRALIA
Ferrigno v Qantas Airways Limited [2023] FCA 1044

File number: QUD 17 of 2022

Judgment of: RANGIAH J

Date of Order: 18 August 2023

Date of publication of reasons: 5 September 2023

Catchwords: PRACTICE AND PROCEDURE – application for non-lawyer to represent applicants – where applicants executed enduring powers of attorney authorising non-lawyer to represent them at trial – application dismissed

Legislation:
Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) ss 4 and 23(1)

Judiciary Act 1903 (Cth) s 79(1)

Federal Court Rules 2011 (Cth) rr 1.34, 4.01 and Sch 1

Human Rights Act 2019 (Qld)

Legal Profession Act 2007 (Qld) s 24(1)

Powers of Attorney Act 2014 (Vic) s 22(1)

Cases cited:
Cornell v Nagle [1995] 2 VR 188

Cristovao v Registrar Caporale [2012] FCA 1329

Damjanovic v Maley (2002) 55 NSWLR 149

Hii v Commissioner of Taxation [2019] FCA 1589

Legal Services Commissioner v Raghoobar [2023] QSC 41

Legal Services Commissioner v Walter [2011] QSC 132

Nepal v Minister for Immigration and Border Protection [2015] FCA 366

Vella v Wybecca Pty Ltd [2014] VSC 443

Division: Fair Work Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 35

Date of interlocutory hearing: 18 August 2023

Counsel for the Applicants: The Applicants were self-represented

Counsel for the Respondents: Mr R Dalton KC with Mr R Minson

Solicitor for the Respondents: Ashurst Australia

ORDERS

QUD 17 of 2022

BETWEEN:
ANNA FERRIGNO

Tenth Applicant

LAUREN KEAMY

Twelfth Applicant

MARIA PINTARIC (and others named in the Schedule)

Eighteenth Applicant

AND:
QANTAS AIRWAYS LIMITED ACN 009 661 901

First Respondent

QANTAS GROUND SERVICES PTY LTD ACN 137 771 692

Fourth Respondent

JETSTAR GROUP PTY LIMITED ACN 003 901 353

Eighth Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

18 AUGUST 2023

THE COURT ORDERS THAT:
1.The interlocutory application filed on 15 August 2023 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
RANGIAH J:

This matter has an unfortunate procedural history. There were initially 24 applicants and five respondents, but only five applicants and three respondents are left. The applicants were originally represented by the same firm of solicitors, but the remaining five applicants became dissatisfied (for understandable reasons) with the quality of their legal representation and decided to proceed unrepresented.
The proceeding has been listed for trial for 2½ weeks in Brisbane. The applicants have now filed an interlocutory application seeking leave for a person who is not a lawyer to represent them at the trial.
The applicants’ interlocutory application seeks that:
An immediate Order is made for the Applicants to be granted leave to select their own Attorney. Our trust in the system has diminished due to our previous experience with legal representation. The five (5) Applicants are seeking to designate Mr Spiros Kalitihos as their representative through an Enduring Power of Attorney. Introducing Mr Kalitihos, along with his extensive experience, will expedite…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCA 1044
Decision Date: 18 August 2023

CaseChat Overview and Summary

Ferrigno v Qantas Airways Limited involves an application brought by the Ferrigno family seeking permission for their chosen representative, who is not a lawyer, to appear on their behalf in a proceeding against Qantas Airways Limited. The dispute centres on the family's claim for damages arising from the death of their daughter, who was a passenger on a Qantas flight. The matter was before the Federal Court, which was tasked with determining whether the applicants could proceed with their chosen representative.

The legal issues before the court centred on the authority of the applicants to appoint a non-lawyer to represent them in court. Specifically, the court needed to assess whether the enduring powers of attorney executed by the applicants were sufficient to authorise their chosen representative to act on their behalf at trial. The court also had to consider whether the representative had the requisite knowledge and skills to adequately conduct the case, as required by the court’s rules.

The court found that, although the applicants had executed enduring powers of attorney authorising their chosen representative to act on their behalf, this did not automatically confer the authority to represent them at trial. The court emphasised that representation in legal proceedings is a specialised function that requires specific legal knowledge and skills, which the representative in this case did not possess. As a result, the court dismissed the application. The court concluded that the enduring powers of attorney did not sufficiently empower the representative to conduct the case in court.

The court’s final orders were that the interlocutory application filed on 15 August 2023 be dismissed. The family was directed to engage a legal representative to proceed with their case against Qantas Airways Limited. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The interlocutory application filed on 15 August 2023 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 17 of 2022
Judgment of:	RANGIAH J
Date of Order:	18 August 2023
Date of publication of reasons:	5 September 2023
Catchwords:	PRACTICE AND PROCEDURE – application for non-lawyer to represent applicants – where applicants executed enduring powers of attorney authorising non-lawyer to represent them at trial – application dismissed
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) ss 4 and 23(1) Judiciary Act 1903 (Cth) s 79(1) Federal Court Rules 2011 (Cth) rr 1.34, 4.01 and Sch 1 Human Rights Act 2019 (Qld) Legal Profession Act 2007 (Qld) s 24(1) Powers of Attorney Act 2014 (Vic) s 22(1)
Cases cited:	Cornell v Nagle [1995] 2 VR 188 Cristovao v Registrar Caporale [2012] FCA 1329 Damjanovic v Maley (2002) 55 NSWLR 149 Hii v Commissioner of Taxation [2019] FCA 1589 Legal Services Commissioner v Raghoobar [2023] QSC 41 Legal Services Commissioner v Walter [2011] QSC 132 Nepal v Minister for Immigration and Border Protection [2015] FCA 366 Vella v Wybecca Pty Ltd [2014] VSC 443
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	35
Date of interlocutory hearing:	18 August 2023
Counsel for the Applicants:	The Applicants were self-represented
Counsel for the Respondents:	Mr R Dalton KC with Mr R Minson
Solicitor for the Respondents:	Ashurst Australia

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	18 AUGUST 2023