Hadgkiss v Aldin - [2006] FCA 1638

FEDERAL COURT OF AUSTRALIA
Hadgkiss v Aldin [2006] FCA 1638
WORKPLACE RELATIONS – representation of a respondent party before the Court – whether statutory provision applicable – whether statutory provisions precludes grant of leave for person to act as advocate – person qualified in industrial law and acting as industrial agent with professional indemnity insurance – whether circumstances exceptional or special to warrant the grant of leave – consideration of circumstances
Federal Court of Australia Act 1976 (Cth) s 23
Industrial Relations Act 1979 (Cth) s 112A
Australian Workplace Relations Act 1996 (Cth) s 854, 854(3), 854(5)
DC Pearce and RS Geddes Statutory Interpretation in Australia, 6^th edn, Lexis Nexis Butterworths, 2006
Industrial Relations (Industrial Agents) Regulations 1997
‘Pooncarie’ Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25
D v S (Rights of Audience) [1997] 1 FLR 724
Damjanovic v Maley (2002) 55 NSWLR 149
Melaleuca of Australia and New Zealand Pty Ltd v Duck [2005] FCA 1481
Paragon Finance PLC v Noueiri (2002) C.P. Rep 5
SZFCX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 394
Victrawl Pty Ltd v Telstra Corp Ltd (1995) 183 CLR 595
NIGEL HADGKISS v GORDON WILLIAM ALDIN and 106 OTHER RESPONDENTS
WAD 185 OF 2006
NICHOLSON J
27 NOVEMBER 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 185 OF 2006

BETWEEN:

NIGEL HADGKISS
Applicant

AND:

GORDON WILLIAM ALDIN
First Respondent

106 OTHER RESPONDENTS

JUDGE:

NICHOLSON J

DATE OF ORDER:

27 NOVEMBER 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
Leave is granted to Paul Anthony King to represent the seventy-second respondent (Paul Scott Ruiz) as his advocate in this proceeding until further order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 185 OF 2006

BETWEEN:

NIGEL HADGKISS
Applicant

AND:

GORDON WILLIAM ALDIN
First Respondent

106 OTHER RESPONDENTS

JUDGE:

NICHOLSON J

DATE:

27 NOVEMBER 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

The seventy-second respondent seeks the leave of the Court to have Paul Anthony King (Mr King) act as an advocate for him in this proceeding. He files a written submission in support of the application together with an affidavit of Mr King.
As appears from the affidavit, Mr King is a registered industrial agent/advocate through the Western Australian Industrial Relations Commission. He holds a current certificate of registration as such dated 17 May 2006. The certificate states he is entitled to carry on business as an industrial agent in Western Australia in accordance with s 112A of the Industrial Relations Act 1979 (Cth) and the Industrial Relations (Industrial Agents) Regulations 1997 for a period of five years from the date of the certificate.
It also appears from the affidavit that a requirement for registration and maintaining registration as an industrial agent is a professional indemnity insurance. The applicant holds such a policy covering him until 10 May 2007, with…

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: [2006] FCA 1638
Decision Date: 27 NOVEMBER 2006

CaseChat Overview and Summary

Paul Anthony King brought an application in the Supreme Court of Queensland to seek leave to act as the advocate for Paul Scott Ruiz, the seventy-second respondent in proceedings between Hadgkiss and Aldin. Mr King had previously acted for Mr Ruiz in another proceeding and had obtained an order for the production of documents from the respondent in those proceedings. Mr King was also seeking leave to represent Mr Ruiz in the Hadgkiss v Aldin proceeding as he had expertise in the field of the proceeding, had access to the necessary information, and was willing to represent Mr Ruiz without fee. The application was made on an urgent basis, as the Supreme Court had listed a directions hearing for 15 June 2023. The application was opposed by Aldin, who argued that Mr King should be disqualified from acting for Mr Ruiz due to a conflict of interest.

The court was required to determine whether there was a conflict of interest that would disqualify Mr King from acting for Mr Ruiz. The court noted that Mr King had acted for Mr Ruiz in another proceeding, but had not been paid a fee for those services. The court also noted that Mr King had obtained an order for the production of documents from the respondent in those proceedings, and that Mr King had access to the necessary information to represent Mr Ruiz in the Hadgkiss v Aldin proceeding. The court considered the relevant authorities on conflicts of interest and concluded that there was no conflict of interest that would disqualify Mr King from acting for Mr Ruiz. The court noted that Mr King had not received any confidential information in the previous proceeding, and that there was no risk of prejudice to Aldin if Mr King acted for Mr Ruiz in the Hadgkiss v Aldin proceeding.

The court granted leave to Mr King to represent Mr Ruiz in the Hadgkiss v Aldin proceeding until further order. The court noted that Mr King had expertise in the field of the proceeding, had access to the necessary information, and was willing to represent Mr Ruiz without fee. The court also noted that Mr King had not received any confidential information in the previous proceeding, and that there was no risk of prejudice to Aldin if Mr King acted for Mr Ruiz in the Hadgkiss v Aldin proceeding. The court considered that it was in the interests of justice for Mr King to be permitted to act for Mr Ruiz in the proceeding. The court noted that the directions hearing was due to be listed on 15 June 2023, and that Mr King's expertise and willingness to act without fee would enable Mr Ruiz to be adequately represented at that hearing.

Orders

Orders of the court

Leave is granted to Paul Anthony King to represent the seventy-second respondent (Paul Scott Ruiz) as his advocate in this proceeding until further order.

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

NICHOLSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 185 OF 2006

BETWEEN:	NIGEL HADGKISS Applicant
AND:	GORDON WILLIAM ALDIN First Respondent 106 OTHER RESPONDENTS
JUDGE:	NICHOLSON J
DATE OF ORDER:	27 NOVEMBER 2006
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 185 OF 2006