Hughes v Mainrange Corporation Pty Ltd

[2009] FMCA 1025

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUGHES v MAINRANGE CORPORATION PTY LTD [2009] FMCA 1025

INDUSTRIAL LAW – Small Claims procedure – whether lawyer to be granted leave to appear – factors for consideration in determining whether leave granted.

Fair Work Act 2009 (Cth), ss.548, 548(5), 548(6)

Applicant: MARION ANN HUGHES

Respondent: MAINRANGE CORPORATION PTY LTD

File Number: PEG 166 of 2009

Judgment of: Lucev FM

Hearing date: 9 October 2009

Date of Last Submission: 9 October 2009

Delivered at: Perth

Delivered on: 9 October 2009

REPRESENTATION

the Applicant: In person

Counsel for the Respondent: Ms J. Auerbach

Solicitors for the Respondent: Chamber of Commerce and Industry WA

ORDERS

1. Leave be granted to the applicant to amend her affidavit:

   (a)in paragraph 24 by substituting ‘5 Martingale’ for ‘9 Martingale’; and

   (b)by adding an annexure MH6, being a response dated 13 May 2009 from Ms Hughes.

2. The application filed on 9 September 2009 be amended under the heading ‘Type of application’ by the insertion of the number ‘539’ in place of ‘537’.

3. The jurisdictional objection raised by paragraph 3 of the Response filed on 23 September 2009 be set down for hearing at 10:15am on 22 October 2009.

4. In relation to the hearing of the jurisdictional objection:

   (a)the respondent file and serve a written outline of submissions by 4:00pm on 14 October 2009;

   (b)the applicant file and serve a written outline of submissions by 4:00pm on 19 October 2009;

   (c)the respondent file and serve any written outline of submissions in reply by 4:00pm on 21 October 2009.

5. Both parties have leave to be represented by a lawyer in relation to the jurisdictional issue.

6. Costs, if any, be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 166 of 2009

MARION ANN HUGHES

Applicant

And

MAINRANGE CORPORATION PTY LTD

Respondent

REASONS FOR JUDGMENT

1. These are the reasons for judgment in relation to the respondent’s application for leave to appear by a lawyer in this matter. The Court has a discretion as to whether or not to grant leave to appear by a lawyer under the provisions of s.548 of the Fair Work Act 2009 (Cth),[1] in particular, s.548(5). The question arises here as to whether the discretion ought to be exercised in this case in which the respondent has filed a response objecting to jurisdiction and seeking to be represented by a lawyer. The applicant has indicated that she has no objection to that course, but that the applicant will not be represented by a lawyer.

   [1] “FW Act”.

2. This is, so far as the Court is aware, the first occasion on which the issue of a right to appear by a lawyer in proceedings of this type, which are under the small claims procedure under the FW Act, has arisen, and there appears to be no prior judgments on the issue. The Court takes the view that that is a factor to be taken into consideration; that is, that it was the first occasion in which such an issue has arisen. Secondly, the nature of the issue to be determined is a pure legal issue, and that is a factor in the Court’s consideration. Thirdly, the Court takes the view, for better or worse, that a lawyer, by reason of training and expertise, ought to have the ability to provide the Court with the appropriate and logical arguments based on research to be of assistance to the Court in a case such as this, where a legal issue of this type, namely jurisdiction, arises.

3. In those circumstances, the Court considers it is appropriate to grant a lawyer leave to appear. That leave to appear will be granted to both parties in case Ms Hughes decides that she wishes to seek to have a lawyer appear. The leave to appear in accordance with s.548(6) of the FW Act will, at this stage, be restricted to the jurisdictional issue; that is, the lawyer’s right to appear will be restricted to preparing the written outline of submissions and appearing at any hearing on the jurisdictional issue.

4. If the Court determines that it does have jurisdiction, it will be a question for another day as to whether a lawyer gets a right to appear at any hearing on the merits.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S. Gough

Date:  20 October 2009