Gill v Toll Transport Pty Ltd
[2022] FedCFamC2G 735
Federal Circuit AND FAMILY Court of Australia (DIVISION 2)
Gill V Toll Transport Pty Ltd [2022] FedCFamC2G 735
File number(s): MLG 2886 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 2 September 2022 Catchwords: PRACTICE AND PROCEDURE – where application in a proceeding does not identify source of jurisdiction – proceedings temporarily adjourned and existing program vacated – whether to issue a referral certificate Legislation: Fair Work Act 2009 (Cth)
Federal Court and Family Court of Australia Rules 2021 (Cth)
Cases cited: Bartuciotto v Western Health Care and Ors (2007) 94 ALD 387
Fuller v Toms [2012] FCA 27
Sims v RM Capital Pty Ltd & Anor (No.2) [2015] FCCA 149
Number of paragraphs: 25 Date of hearing: 29 August 2022 Place: Melbourne Applicant: Appearing in person Counsel for the Respondent: Ms Davern Solicitor for the Respondent: Kingston Reid ORDERS
MLG 2286 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURLAL GILL
ApplicantAND: TOLL TRANSPORT PTY LTD
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
29 August 2022
THE COURT ORDERS THAT:
1.The directions on 29 September 2022 be vacated and the matter be adjourned until the time for compliance with Order 2.
2.By 4.00 pm on 14 October 2022, the Applicant is to email chambers and copy the Respondent on notification of his decision whether to withdraw or proceed with the reinstatement application and:
(a)If the Applicant decides not to proceed, he must file and serve a complete Notice of Discontinuance and there will be no order as to costs.
(b)If the Applicant decides to proceed, then the Applicant will be allowed leave to amend his reinstatement application, and a program of directions will issue as the next step.
3.The Court will not issue a referral certificate under Rule 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
AND THE COURT NOTES THAT:
A.In the event of non-compliance with the above directions, pursuant to Rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Court may dismiss the matter.
Note: The form of the order is subject to the entry in the Court’s records.
Note:This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
INTRODUCTION
Before the Court is an application in a proceeding made with reference to an application alleging various breaches of the general protections provisions of the FairWork Act 2009 (Cth) (the Act).
The following judgment relates to two procedural matters that have arisen in the proceeding:
(a)Whether the Applicant should be required to articulate the jurisdiction or proper basis for the “application in a proceeding” before the matter proceeds further; and
(b)Whether the Court should issue a referral for the Applicant to obtain pro bono legal assistance.
relevant context
On 3 August 2022, the Applicant filed a form titled "application in a proceeding" which provided that the Applicant is seeking orders that his file and case in MLG2286/2021 be reinstated (reinstatement application), along with an accompanying affidavit. The original application, made on 10 September 2021, alleged various contraventions of Part 3-1 of the Fair Work Act 2009 (Cth) (Act) and was dismissed on 1 July 2022 by operation of orders entered by consent of the parties on 30 May 2022.
On 22 August 2022, programming orders were issued in chambers requiring the Respondent to respond to the reinstatement application with an outline of submissions, any evidence and any other materials on which the Respondent seeks to rely, and allowing the Applicant to reply with an outline of submissions and anything further in reply, and fixing the reinstatement application for hearing on 29 September 2022.
On 24 August 2022, the Respondent sought to be heard on those procedural directions. A directions hearing was convened on 29 August 2022 and was attended by the Applicant, assisted by an interpreter, and the Respondent was represented by Counsel.
The procedural issues
The first issue
The Respondent primarily complained that the reinstatement application and accompanying affidavit had not identified any power of the Court to reinstate his original application. It said procedural fairness required that it should not be ordered to respond until he had made out, or at least articulated, the legal basis of his application by reference to a statutory provision, rule of the Court or case authority. The Respondent did not make a formal application for costs but contended that it had already been put to some cost in defending the reinstatement application and foreshadowed it may seek an order that its costs be paid by the Applicant in the event the reinstatement application did not succeed.
The Applicant said that this would be a difficult exercise as he is not a lawyer and does not presently have legal representation. If he were afforded more time, the Applicant submitted that 6 weeks would be sufficient to consider his position and to seek advice if possible.
On the face of the materials, neither the reinstatement application or the accompanying affidavit articulates any legal basis for, or power of the Court to grant, the reinstatement application. It is essential in all litigation that the respondent party be on notice of the case they have to answer. The Respondent in this case is entitled to understand the basis for the Applicant’s request to “reinstate” the original application.
In all of the circumstances, I am satisfied that this is an appropriate case to allow the Applicant a further period in which to consider whether he wishes to pursue the reinstatement application and that an additional 6 weeks would be a reasonable period in which to do so. Further, in the event that he does wish to proceed, to afford the Applicant more time in which to amend the reinstatement application and identify the jurisdiction of the Court and the legal basis of his application. I will order accordingly.
The Respondent’s foreshadowed application for its costs was discussed with the parties at the proceeding on 29 August 2022. The Respondent confirmed (in my view, properly) that any decision by the Applicant to withdraw at this stage would not be met with a costs application. It otherwise reserved its rights in relation to costs if the Applicant decided to proceed with the reinstatement application.
The second issue
The Respondent's counsel put to the Court that the Applicant, being self-represented, might appropriately be referred for pro bono legal assistance of the Victorian Bar, via the “Victorian Bar Pro Bono Service”.
The Respondent considered this may be an appropriate course if the Court were satisfied that the Court would be assisted by the Applicant being represented but acknowledged that “the scheme” is quite limited and the Applicant’s capacity to otherwise obtain legal advice is not clear.
The Court’s file reflects that the Applicant had engaged legal assistance to commence and represent him in the original application. A notice of ceasing to act was filed after the consent orders were entered, on 24 June 2022. The Applicant was sent a list of pro bono advisory services from my chambers on 12 July 2022.
At the proceedings on 29 August 2022, the Applicant told the Court that he could not afford the estimated legal fees for “the full case” and had spoken with a lawyer who would not accept his brief for the reinstatement application. Since his employment with the Respondent, the Applicant said he had worked in other, casual employment but is not currently receiving shifts pending an investigation. He acknowledged receipt of the list of pro bono advisory services but did not detail what efforts he had made to seek advice from those or any other sources.
There is no specific or established service or scheme for pro bono advice in this Fair Work jurisdiction of Division 2 of the Federal Circuit and Family Court of Australia.
There is a provision of the Federal Circuit and Family Court of Australia Rules 2021 (Cth), at Rule 12.01 which provides that a Court “may” refer a party to a lawyer for legal assistance by issuing a referral certificate. There is no right to apply for such referral (although, there is no difficulty with the concept being raised as a means for initiating the Court’s consideration): Rule 12.02.
Rule 12.01(2) proscribes factors the Court “may” (as distinct from “must”) take into account:
Referral for legal assistance
(2) In making a referral under subrule (1), the Court may take the following matters into account:
(a) the means of the party;
(b) the capacity of the party to otherwise obtain legal assistance;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.
The Court’s discretion is broad, is not limited to a consideration of the particular matters listed and the Court can consider any matter that it considers appropriate. Whether a case has no arguable basis, or is “patently hopeless”, is a factor that may and very often will be considered in deciding whether to make such referral: Fuller v Toms [2012] FCA 27, Barker J at [91] –[97]. Further, the Court may properly bear in mind the scarcity of pro bono resources which “only exist because of the goodwill of the legal profession and are provided voluntarily and therefore cannot be mandated to be provided by the Court”: Bartuciotto v Western Health Care and Ors (2007) 94 ALD 387, Lucev FM at [25].
The Court has limited knowledge of the Applicant's means or financial circumstances but for present purposes it may be accepted that the Applicant had found new employment and as of very recently is not employed.
The Applicant has suggested that he may have the means to fund advice about at least the somewhat narrower matter of the reinstatement application. Whether the Applicant should choose to spend his means to engage and instruct a lawyer or, alternatively choose not to engage and instruct a lawyer and risk being unable to establish a basis for his claim, is entirely a matter for him. Such a decision ought not to impinge on the limited resources available through pro bono assistance.
Further, the Court is not aware of what steps the Applicant has taken to contact the list of pro bono legal centres and I am not able to conclude that those options have been exhausted.
From the Applicant’s point of view as a self-represented litigant, the proceedings by their very nature are complex and his legal representation would likely assist the Court in its task. He said at least one lawyer has declined to accept his brief in the reinstatement application – it is unclear whether that was a reflection of that lawyer’s assessment of the merit of the reinstatement application – but again, that is entirely a matter for the Applicant and one he should carefully consider.
In any event, on what is before the Court, I have no basis to conclude there is anything novel about the Applicant’s circumstance as to distinguish him from other self-represented litigants seeking to pursue their claims in this Court. Nor am I able to conclude that the nature and complexity of the legal issues in the reinstatement application appropriately justify such referral.
Accordingly, I am not satisfied that it is appropriate in this case for the Court to issue a referral certificate.
Conclusion
Having regard to the above decision, the proceedings will be temporarily adjourned and the existing program vacated to allow the Applicant more time and there will be no certificate as to referral.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Dated: 2 September 2022
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