Jarial Couriers Pty Ltd v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1313
•11 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Jarial Couriers Pty Ltd v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313
File number(s): PEG 484 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 11 June 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Employer Nomination Application
PRACTICE AND PROCEDURE – Appearance of a corporation by a lawyer – failure to comply with rule concerning appearance of a corporation by a lawyer – withdrawal of lawyer from proceedings – whether to dismiss proceeding by reason of non-compliance with rule concerning appearance of a corporation by a lawyer – whether leave to appear without legal representation to be granted to a corporation – consideration of factors concerning appearance of a corporation by a lawyer
PRATICE AND PROCEDURE – Summary dismissal – whether summary dismissal where no leave for non-lawyer to appear
PRACTICE AND PROCEDURE – Adjournment – whether leave to adjourn pending legal representation to be granted – consideration of factors concerning adjournment
PRACTICE AND PROCEDURE – Where applicant in default – where step to be taken within time limited in order – whether order for dismissal to be made if step not taken
Legislation: Corporations Act 2001 (Cth) s 588G
Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 42, 44
Federal Circuit Court of Australia Rules 2001 (Cth) rr 1.03, 6.01, 9.03, 9.04, 13.03B, 13.10
Migration Act1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) reg 5.19
Cases cited: AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878
Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73
Anying Group Ltd v Wang [2012] FCA 702
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Australian Consumer and Competition Commission v Dataline.net.au Pty Ltd [2004] FCA 1361
Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
BCE15 v Minister for Immigration & Border Protection [2015] FCA 293
BHG16 v Minister for Immigration & Anor [2017] FCCA 2745
Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363; (2012) 90 ATR 24; 127 ALD 64
Dowling v Commonwealth Bank of Australia [2008] FCA 59
EBB17 v Minister for Immigration & Anor [2018] FCCA 48
Fair Work Ombudsman v Darna Pty Ltd [2014] FCCA 595
Fair Work Ombudsman v Finetune Holdings Pty Ltd [2010] FMCA 889
Fair Work Ombudsman v Konsulteq Pty Ltd [2013] FCCA 1315
Fair Work Ombudsman v Lu’s Healthcare Pty Ltd [2015] FCCA 482
Fair Work Ombudsman v Sona Peaks Pty Ltd [2015] FCCA 437
Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437
Kelly v Quick Pick Movers Pty Ltd [2015] FCCA 2487
London City Equities v Penrice Soda Holdings Ltd (No 3) [2012] FCA 361
McShane v Image Bollards Pty Ltd (2011) 206 IR 239; [2011] FMCA 215
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Myers v Myers [1969] WAR 19
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192
Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513
Ritson v PATS Consulting Pty Ltd [2012] FMCA 837
Singh v Owners Strata Plan No 11723(No 3) [2012] FCA 1121
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Walker v Aztec Steel Pty Ltd [2010] FMCA 68
Wills v Ningaloo Resorts Pty Ltd [2011] FMCA 433
Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423
Wong v Timberglen Pty Ltd [2020] FCCA 828
WZASW v Minister for Immigration and Border Protection [2019] FCCA 237
Number of paragraphs: 64 Date of last submission/s: 26 March 2021 Date of hearing: 26 March 2021 Place: Perth Applicant: Mr V Jarial (seeking leave) (with the assistance of an interpreter) Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 484 of 2019 BETWEEN: JARIAL COURIERS PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
11 JUNE 2021
THE COURT ORDERS THAT:
1.The applicant’s application made orally at hearing for leave to appear by a non-lawyer be dismissed.
2.The first respondent’s application made orally at hearing for summary dismissal of the originating application made on 12 December 2019 be dismissed.
3.The applicant file an address for service for a lawyer acting for the applicant in compliance with r 6.01 of the Federal Circuit Court Rules 2001 (Cth) by 11 August 2021.
4.If the applicant fails to comply with order 3 the originating application be dismissed pursuant to r 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
5.The matter be otherwise adjourned to a directions hearing on 16 August 2021 at 2.00pm.
6.Costs reserved.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 12 December 2019 the applicant, Jarial Couriers Pty Ltd (“Jarial Couriers”), filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act1958 (Cth) (“Migration Act”) in relation to a decision made on 7 November 2019 by the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration, Citizenship and Multicultural Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse Jarial Couriers’ application for approval of the nomination of a position in Australia (“Employer Nomination Application”) under reg 5.19 of the Migration Regulations 1994 (Cth).
As will become clear, the issues before the Court, of which there are three, arise not from the grounds of the Judicial Review Application, but rather from Jarial Couriers’ legal representation being withdrawn and the subsequent applications made to the Court in relation to that withdrawal. These issues are set out below at [9].
BACKGROUND
The relevant background to the Judicial Review Application is as follows:
(a)Jarial Couriers is a business trading as Ink Curries To Go. The nominated person, Mrs Minu Jarial, is a citizen of India, currently residing in Australia. Her spouse, Anil Kumar, is listed as a migrating family member included in the Employer Nomination Application: Court Book (“CB”) 1-8;
(b)the Employer Nomination Application was lodged, with the assistance of a migration agent, on 30 November 2016: CB 1-8. The contact person for Jarial Couriers listed on the Employer Nomination Application was Mr Vinod Kumar Jarial (“Mr Jarial”): CB 2, who appears to be an owner of Jarial Couriers: CB 23;
(c)on 31 May 2017 the Delegate’s Decision to refuse to grant the Employer Nomination Application was made: CB 13-21;
(d)on 5 June 2017 Jarial Couriers sought review of the Delegate’s Decision in the Tribunal: CB 23-24;
(e)on 23 October 2019 the Tribunal invited Jarial Couriers, by way of an email to the migration agent, to comment or respond to information regarding the operation of the business: CB 35-41. Jarial Couriers did not respond to the invitation to comment or respond to information;
(f)on 9 November 2019 the Tribunal handed down its decision affirming the Delegate’s Decision: CB 43-48; and
(g)the Judicial Review Application was filed on 12 December 2019.
Subsequent to the filing of the Judicial Review Application, the following occurred:
(a)on 7 December 2020 Jarial Couriers’ then lawyer served on Jarial Couriers a Notice of Intention to Withdraw;
(b)on 11 January 2021 Jarial Couriers’ then lawyer filed a Notice of Withdrawal as a Lawyer;
(c)Jarial Couriers did not file an outline of submissions 28 days before this hearing as it was required to do pursuant to the Orders of a Registrar of this Court of 15 January 2020 (“Registrar’s Orders”);
(d)on 9 March 2021, 17 days before the listed hearing of the Judicial Review Application, the Minister’s lawyer wrote to Mr Jarial by email (see Exhibit 1). In summary, the Minister’s lawyer:
(i)set out r 9.04 of the Federal Circuit Court of Australia Rules 2001 (Cth) (“FCC Rules”);
(ii)noted that Jarial Couriers was currently unrepresented by a lawyer in the proceedings in breach of r 9.04 of the FCC Rules; and
(iii)indicated that if a lawyer did not file a Notice of Address for Service on behalf of Jarial Couriers by 16 March 2021 then the Minister would seek to have the Judicial Review Application dismissed with costs for non-compliance with r 9.04 of the FCC Rules; and
(e)on 11 March 2021 the Minister filed an outline of submissions (“Minister’s Written Submissions”), in accordance with the Registrar’s Orders, in which it was submitted that the Judicial Review Application ought to be dismissed because Jarial Couriers had not complied with r 9.04 of the FCC Rules because it was carrying on the proceeding otherwise than by a lawyer, and, in case leave to appear by a non-lawyer was granted, otherwise made written submissions on the two grounds of the Judicial Review Application.
JUDICIAL REVIEW APPLICATION
The Judicial Review Application, prepared and filed by lawyers then acting for Jarial Couriers, seeks review of the Tribunal Decision on two grounds, as follows:
1. The Second Respondent's decision was affected by jurisdictional error in that, in considering whether or not to adjourn the review under subsection 363(1)(b) of the Migration Act 1958 (Cth), it took into account an irrelevant consideration.
Particulars
In considering whether or not to allow the applicant additional time in which to provide further evidence, the Second Respondent took into account a consideration that was both legally incorrect and irrelevant namely that "the nominating business is not prevented from lodging a new nomination application with the Department".
2. The Second Respondent’s exercise of its powers under subsection 359C(1) and 363(1)(b) of the Migration Act 1958 (Cth) was legally unreasonable.
Particulars
The Second Respondent’s statement to the Secretary of the Department of Home Affairs under section 368A of the Migration Act 1958 (Cth) dated 9 November shows that the case management system recorded one physical address, three telephone numbers and an email address for the Applicant (rather than the authorised representative).
The Second Respondent also had evidence that the Applicant’s registered migration agent had an alternative email address, to which it sent correspondence in relation to the associated visa application review (file number 1716708).
The Second Respondent had alternative means of contact with the Applicant but chose only to use an outdated email address of the Applicant’s authorised representative.
In circumstances where a delegate of the First Respondent refused the nomination without giving the Applicant an opportunity to provide further information, the Second Respondent deprived the Applicant of a meaningful opportunity to supply it with information which supported the merits of the review.
Briefly, as per the Minister’s Written Submissions, the Minister opposes ground 1 because the fact that Jarial Couriers could lodge a new nomination application was not an irrelevant consideration, and was not the Tribunal’s only consideration, in deciding whether to not exercise its discretion not to adjourn proceedings. The Minster opposes ground 2 because the Tribunal under the Migration Act are required to send all correspondence to the migration agent. The migration agent only provided one email address in relation to the Tribunal in relation to the Employer Nomination Application, and the Tribunal sent correspondence to that address accordingly.
THE HEARING IN THIS COURT
When the matter was called Mr Jarial sought to appear for Jarial Couriers, and to make submissions, for which he had the assistance of an interpreter. The Court asked Mr Jarial to deal with two issues, as to which Mr Jarial told the Court that:
(a)in relation to a lawyer appearing:
(i)“right now I cannot afford a lawyer”: Transcript, p 2;
(ii)“I do not want to give up. I want to fight this case and for that I need a lawyer and I need time”: Transcript, p 2;
(iii)the lawyer for Jarial Couriers had withdrawn, and “I do not know much about it”: Transcript pp 2-3;
(iv)“I need some time” to make the necessary financial and legal arrangements for a lawyer to appear: Transcript, p 3;
(v)he is not a lawyer, and “I do not have much knowledge about legality of these issues raised here, but I think if I had lawyer, lawyer could have understood much better”: Transcript, p 7; and
(vi)“I am struggling to convince or explain my case and I need a lawyer”: Transcript, p 8.
(b)in relation to the arguments that might be sought to be advanced by Jarial Couriers on the Judicial Review Application if leave were to be granted for a non-lawyer to appear for Jarial Couriers Mr Jarial told the Court that:
(i)“I am not happy with the way AAT deals with my matter and they contacted my representative, but they did not contact me, and my representative did not answer AAT. They should have contacted me, and it is not fault of mine and not fault of my employee”: Transcript, p 3;
(ii)“I am not happy with the decision of AAT. She has been working for five years. They should have asked me to provide evidence or they should have given her chance to express herself and that was not given”: Transcript, p 3; and
(iii)“ … in the decision … of AAT, they have come up with the conclusion that I can – I should apply new nomination. But legally it was not possible because my 457 visa was ended. So that decision is not right”: Transcript, p 3.
The Minister, in relation to the appearance of a lawyer for Jarial Couriers and an application for summary dismissal of the Judicial Review Application, submits as follows:
(a)Jarial Couriers is a corporation;
(b)rule 9.04 of the FCC Rules requires a corporation to commence and carry on proceedings by a lawyer unless leave is granted to proceed without a lawyer;
(c)whilst the Judicial Review Application was commenced by a lawyer on behalf of Jarial Couriers, on 11 January 2021 that lawyer filed a Notice of Withdrawal of Lawyer in accordance with r 9.03 of the FCC Rules;
(d)Jarial Couriers remains unrepresented by a lawyer;
(e)the requirement that a corporation be represented by a lawyer cannot be ignored: Anying Group Ltd v Wang [2012] FCA 702 (“Anying”) at [19] per Flick J. Incorporation normally imposes an obligation on a corporation to be represented by a lawyer in litigation: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 (“Termi-Mesh Australia”) at [14] per French J; and
(f)the factors to be considered in determining whether to grant leave to a non-lawyer to appear for a corporation are set out in Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423 (“Dong Lai Sun Massage”) at [19] per Judge Lucev. In the circumstances of this case the Judicial Review Application should be dismissed because Jarial Couriers has no reasonable prospect of successfully prosecuting the Judicial Review Application if it has no lawyer and has been refused leave to continue to prosecute the application without one, and therefore the Judicial Review Application should be summarily dismissed under r 13.10(a) of the FCC Rules.
The Court is therefore considering the following:
(a)whether leave should be granted for a non-lawyer, Mr Jarial, to appear for Jarial Couriers;
(b)the oral application of the Minister requesting that the Judicial Review Application be summarily dismissed; and
(c)whether leave should be granted to adjourn the hearing to allow Jarial Couriers to obtain legal representation.
LEAVE FOR A NON-LAWYER TO APPEAR
It is convenient to begin with the question of whether leave ought to be granted to Jarial Couriers to appear by a non-lawyer.
Law
Section 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides as follows:
44 Representation
A party to a proceeding before the Federal Circuit Court of Australia is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
Rule 9.04 of the FCC Rules provides as follows:
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
Save for r 9.04 of the FCC Rules there is no regulation or other law of the Commonwealth which would authorise Mr Jarial to appear on behalf of Jarial Couriers.
The requirement that a corporation must not proceed other than by a lawyer “cannot be ignored”: Anying at [19] per Flick J; Dong Lai Sun Massage Pty Ltd at [17] per Judge Lucev.
The purpose underlying legislative provisions such as s 44 of the FCCA Act and r 9.04 of the FCC Rules is to ensure that, in accordance with the interests of justice and the administration of justice, the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts: Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 at [40] per Brown FM; Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 at [10] per Lucev FM (“Alcantara”). Lawyers may also be of considerable assistance to the Court in the proper assessment of fact: Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J (“Molnar Engineering”). Incorporation confers many benefits on those connected with a corporation, and also imposes some corresponding burdens, one of which is that in litigation a corporation must normally be represented by a lawyer: Termi-Mesh Australia at [14] per French J; Dong Lai Sun Massage at [18] per Judge Lucev.
In determining whether to grant leave under r 9.04 of the FCC Rules, the applicability of a number of factors, which are not exhaustive, but include the following, are to be considered:
(a)the relative complexity or simplicity of a matter;
(b)whether a non-lawyer appears, or has previously appeared, for any of the parties;
(c)the objects and purposes of the FCCA Act and FCC Rules, including the impact of those objects and purposes on case management considerations;
(d)whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party;
(e)whether there has been appropriate opportunity to arrange legal representation;
(f)the financial position of a party; and
(g)whether the granting of leave to appear is opposed.
See Fair Work Ombudsman v Konsulteq Pty Ltd [2013] FCCA 1315 (“Konsulteq”) at [12] per Judge Lucev, applied in Dong Lai Sun Massage at [19] per Judge Lucev; see also Fair Work Ombudsman v Darna Pty Ltd [2014] FCCA 595 (“Darna”) at [9] per Judge Hartnett and Wong v Timberglen Pty Ltd [2020] FCCA 828 at [46] per Judge Kendall.
Discretion of the kind contained in r 9.04 of the FCC Rules must be exercised judicially and having regard to all relevant considerations: Molnar Engineering at 73 per Smithers J; Dong Lai Sun Massage at [20] per Judge Lucev. In the exercise of such discretion it is not necessary for each factor to be given equal weight: Dong Lai Sun Massage at [20] per Judge Lucev.
Consideration of factors as to whether a non-lawyer ought to appear
Relative complexity or simplicity
The Court might grant leave for a director of a corporation, or another person on behalf of a corporation, who is a non-lawyer to appear where:
(a)the matter was not a difficult one or was relatively simple, such as a simple contractual dispute over a well-defined payment;
(b)the facts are not complex, and the legal issue to be determined is clear;
(c)the director of the corporation, or another person on behalf of a corporation, understood both the process and the legal and factual issues sufficiently to enable them to properly represent the corporation; and
(d)there was no prejudice to the other party.
See McShane v Image Bollards Pty Ltd (2011) 206 IR 239; [2011] FMCA 215 (“Image Bollards”) at [43]-[45] per Lucev FM; Walker v Aztec Steel Pty Ltd [2010] FMCA 68; Wills v Ningaloo Resorts Pty Ltd [2011] FMCA 433; Alcantara at [25] per Lucev FM; Kelly v Quick Pick Movers Pty Ltd [2015] FCCA 2487 at [15] per Judge Harnett.
In Dong Lai Sun Massageat [21]-[35] per Judge Lucev this Court considered the pleadings and affidavits before it gave rise to more than a dozen matters, the nature of which was said to add significant complexity to the proceedings, such as to warrant refusal of leave for a non-lawyer to appear. So too was leave refused in Konsulteq where a central issue was whether the status of two persons was that of employee or independent contractor, the determination of which the Court said was “notoriously difficult”: at [19] per Judge Lucev.
In Darna at [17] per Judge Hartnett the Court agreed with a submission that despite a relative lack of complexity, from a lawyer’s perspective, leave for a non-lawyer to appear should not be granted where the non-lawyer had demonstrated a fundamental misunderstanding of the nature of the proceedings and an inability to understand the requirements of the FCC Rules, where such attributes were likely to incur unnecessary costs, delay and an undermining of the administration of justice.
It is pertinent to observe that there is a requirement on Jarial Couriers in these proceedings to establish jurisdictional error before prerogative relief can be granted: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In that regard an understanding of the terminology of jurisdictional error may be difficult even for the legally qualified, for as at least one member of the High Court has observed, the “subtleties of ‘jurisdictional error’ have sometimes escaped experienced judges”: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 (“Ex parte HB”) at [24] per Kirby J cited in WZASW v Minister for Immigration and Border Protection [2019] FCCA 237 at [19] per Judge Lucev. In the circumstances, as is evident from what was said by Mr Jarial at hearing: see [7] above, it is not wholly surprising that the distinction between jurisdictional error and pleading for merits review and a more favourable decision might not be fully understood by someone such as Mr Jarial: Ex parte HB at [24] per Kirby J; BCE15 v Minister for Immigration & Border Protection [2015] FCA 293 at [19] per Flick J. Thus, the mere fact that this case involves having to establish jurisdictional error in the Tribunal Decision is sufficient to deem the matter complex for the purposes of finding that Mr Jarial ought not to be granted leave to appear for a corporation: Darna at [17] per Judge Hartnett, and weighs against a finding that Mr Jarial ought to be granted leave to appear for Jarial Couriers.
In any event, the substantive proceedings themselves are not simple, involving two particularised allegations of jurisdictional error, in relation to which there are statutory provisions which will require explanation and submission in connection with the relevant facts. On what the Court has thus far seen, that is a task which, with respect, is likely to be too complex for Mr Jarial (who admits as much: Transcript, pp 7-8 quoted at [7] above), and weighs against a finding that Mr Jarial ought to be granted leave to appear for Jarial Couriers: Darna at [17] per Judge Hartnett.
In the above circumstances, this factor weighs against Mr Jarial being granted leave to appear for Jarial Couriers.
Objects of relevant legislation and case management considerations
The objects and purposes of the FCCA Act in ss 3 and 42 and the FCC Rules in r 1.03 mean that this Court is intended to operate in a manner which:
(a)is as informal as possible in the exercise of judicial power;
(b)is not protracted in its proceedings;
(c)resolves proceedings justly, efficiently and economically;
(d)uses streamlined procedures; and
(e)avoids undue delay, expense and technicality.
The above approach reflects much of the modern approach to case management, and especially the need to take into account the paramount consideration of doing justice between the parties whilst observing that a just resolution must have regard to any relevant legislative purpose or object: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk Services”) at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The relevant legislative purpose in the context of representation of a corporation is directed at ensuring that in accordance with the interests of justice and the administration of justice the Court is assisted by those qualified and experienced in arguing legal disputes, and who have ethical duties to clients and the Courts in which they appear: see [15] above and the cases there cited. In this case there has already been a breach of the Registrar’s Orders by reason of the failure of Jarial Couriers to file and serve its written submissions. It is far less likely (albeit not unheard of) that this breach would have occurred had Jarial Couriers been represented by lawyers at the time at which submissions were required to be filed fell due. The failure of Jarial Couriers, a corporation, to file submissions causes difficulties for the Minister and the Court. In the face of what appear to be competently drafted grounds of judicial review professionally prepared for Jarial Couriers, both the Minister and the Court are left to potentially wonder about, or wander about in, the field of potential submissions, in a possibly fruitless exercise, apt to cause inefficiency and delay.
Where there is a risk that a person may put their own interests ahead of those of the corporation, or where it is evident that a non-lawyer finds it difficult to discern when the interests of the corporation differ from their own interests, the interests of justice may be best served by the corporation being represented by a lawyer bound to observe professional rules of conduct and who had duties to the Court: Konsulteq at [35]-[36] per Judge Lucev. In this case it is evident from what Mr Jarial submitted at hearing, and in particular the persistent use of the personal pronoun “I”, that he drew no particular distinction between his own interests and views, and those of Jarial Couriers as a corporation: see Transcript at pp 2,3, 7 and 8, set out at [7] above.
In relation to the objects and purposes of the FCCA Act and FCC Rules set out above, those objects do not, read together with the provisions of s 44 of the FCCA Act and r 9.04 of the FCC Rules, operate to diminish the importance of corporations being legally represented. In any event, in this migration matter the opportunity for the resolution of the matter informally is limited and the proceedings, having been on foot since the filing of the originating application on 12 December 2019, are already relatively, but not inordinately, protracted. By reason of the nature of judicial review the issues are often complex for a non-lawyer, for reasons adverted to at [21] above, and technicality cannot be avoided. The Court, irrespective of whether lawyers appear, endeavours to adopt streamlined procedures, but, again, a non-lawyer appearing for Jarial Couriers is, in the Court’s view, less likely to assist with the streamlining of procedures in a technical case. In the circumstances, and also having regard to the Courts comments on the effectiveness of representation and prejudice set out below: see [31]-[38] below, these proceedings are less likely to be resolved justly, efficiently and economically, and without undue delay and the incurring of greater expense than is necessary, if a non-lawyer were to appear for Jarial Couriers.
Whilst delay and protraction of proceedings is not consistent with the underlying intent of the FCCA Act or FCC Rules, the paramount consideration remains that justice be able to be properly done between the parties, and to do that it is necessary for a proper balance to be struck by way of judicial consideration of the issues: AON Risk Services at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Molnar Engineering at 74 per Smithers J. The Court has thus taken into consideration the fact that an adjournment of the proceedings may be necessary if a lawyer is to appear for Jarial Couriers, and that this will necessitate the re-listing of the matter for hearing. Given the current state of the migration lists and the significant diminution in the migration and other caseload in the Perth Registry of this Court over the last three years (down from more than 700 applications in 2017 to slightly less than 400 applications in 2020) the delay in re-listing the matter for final hearing is likely to be less than six months, which is not inordinate and not contrary to the objects set out in the FCCA Act and FCC Rules.
For all of the above reasons, the Court is of the view that the relevant legislative purpose, as well as case management considerations, weigh against Mr Jarial’s appearing as a non-lawyer for Jarial Couriers.
Effectiveness of representation and prejudice
The Court may have regard to whether or not the non-lawyer who seeks leave to appear recognises or understands the nature of the case being dealt with by the Court, and in particular whether that person would be able to assist the Court or effectively represent the corporation in:
(a)dealing with the relevant legal and factual issues; and
(b)making submissions in relation to the law and facts.
See Dong Lai Sun Massage at [47] per Judge Lucev.
If it appears that the person seeking leave to represent the corporation may be ineffective in their appearance, and their appearance may therefore lack utility and be prejudicial to the corporation, and the Court is not confident that that person will be able to conduct the hearing in a manner both meaningful and workable for the benefit of the corporation, leave to represent the corporation may not be granted: AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878 (“AA Shi”) at [35] per Collier J; Dong Lai Sun Massage at [50] per Judge Lucev; Darna [16]-[20] per Judge Hartnett.
Where a person (often a director) is sufficiently able to represent the corporation because that person knows and understands the facts, comprehends the competing contentions, and is able to articulate them sufficiently, or had done so in written submissions filed for the corporation, and was in the circumstances able to effectively represent the corporation in a relatively simply case, leave might be granted to that non-lawyer to represent the corporation: London City Equities v Penrice Soda Holdings Ltd (No 3) [2012] FCA 361 at [4]-[8] per Robertson J; Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363; (2012) 90 ATR 24; 127 ALD 64 at [4]-[8] per Robertson J; Alcantara at [19] and [26] per Lucev FM; Image Bollards at [43]-[45] per Lucev FM.
In assessing the effectiveness of representation regard may be had to whether or not the person who seeks leave to appear requires the services of an interpreter: Dong Lai Sun Massage at [48] per Judge Lucev. In this case the difficulties already inherent in Mr Jarial representing Jarial Couriers, by reason of complexity: see [18]-[23] above, will be added to, at least to some degree, by the fact that Mr Jarial requires the services of an interpreter.
There is nothing in Mr Jarial’s submissions seeking leave to appear as a non-lawyer, which were, perhaps understandably in the circumstances, not particularly helpful: see Transcript, pp 2, 3, 7 and 8, or otherwise, which would indicate to the Court that Mr Jarial would be able to effectively:
(a)deal properly with the legal and factual issues likely to arise in these proceedings; and
(b)make relevant and helpful submissions in relation to the relevant issues.
The nature of judicial review generally means that this is not one of those relatively simple cases in which a non-lawyer might appear for a corporation: see [21] and [33] above.
It might be argued that to deny Mr Jarial leave to appear for Jarial Couriers would be to deny Jarial Couriers the ability to exercise its right to appear, and even though Mr Jarial may not be entirely effective and Jarial Couriers might suffer prejudice if leave was granted to Mr Jarial to represent, and appear for, Jarial Couriers, greater prejudice would be suffered if Jarial Couriers were to not appear. That proposition ignores the primary legislative purpose of s 44 of the FCCA Act and r 9.04 of the FCC Rules that a corporation must be represented by a lawyer, and also assumes that Mr Jarial’s representation and appearance might be in some way effective on behalf of Jarial Couriers. If, however, Mr Jarial appears and is ineffective in his appearance (which on present indications is most likely) it will lack utility, and arguably be prejudicial to Jarial Couriers, and as such Mr Jarial’s appearance for Jarial Couriers would be neither meaningful nor workable for the benefit of Jarial Couriers: AA Shi Pty Ltd at [35] per Collier J, nor be of assistance to the Court. Albeit that Mr Jarial’s appearance before the Court has been limited, the Court is not prepared to assume that less prejudice would be suffered by Jarial Couriers if Mr Jarial were to represent Jarial Couriers at the final hearing than if Jarial Couriers were unrepresented.
Having regard to all of the above circumstances the Court is of the view that Mr Jarial is not likely to be capable of effectively representing Jarial Couriers, and that his representing Jarial Couriers may cause Jarial Couriers prejudice by reason of that ineffectiveness, and that this factor weighs in favour of a refusal of a grant of leave for Mr Jarial to represent Jarial Couriers.
Whether a non-lawyer appears or has appeared previously for any of the parties and opportunity to arrange legal representation
Each of the above matters can be considered together.
Jarial Couriers had legal representation until its lawyers withdrew two and a half months before the listed hearing (and noting that notice of their intention to do so was served on Jarial Couriers around five weeks prior to the withdrawal). Prior to their withdrawal Jarial Couriers lawyers had prepared the Originating Application (including the two grounds of review set out at [5] above). From the foregoing, it is evident that lawyers had been briefed to appear for and represent Jarial Couriers, and that it had the opportunity to, and did arrange, legal representation by lawyers in these proceedings.
The fact that lawyers have previously appeared for Jarial Couriers, taken together with the nature of judicial review applications under the Migration Act, weighs, in this case, against Jarial Couriers being represented by a non-lawyer. For reasons which are set out at [31]-[38] above, that view is reinforced by reason of the Court’s comments with respect to the effectiveness of representation and prejudice likely to be suffered if Jarial Couriers is represented by Mr Jarial, rather than being represented by a lawyer.
Where there was no evidence as to why a corporation could not arrange legal representation, leave for a non-lawyer to appear was refused in Fair Work Ombudsman v Lu’s Healthcare Pty Ltd [2015] FCCA 482 at [21]-[22] per Judge O’Sullivan. Jarial Couriers were put on notice prior to the hearing that the Minister intended to make an application for the dismissal of the Judicial Review Application by reason of non-compliance with r 9.04 of the FCC Rules: see [4(d) and (e)] above. Jarial Couriers have taken no steps to provide evidence as to why it could not arrange legal representation, but the Court does note that in submissions at hearing it was said that it was not in a financial position to arrange legal representation: as to which see [44]-[47] below, and would require more time to arrange legal representation.
In the Court’s view the matter is one in respect of which the assistance of a lawyer for Jarial Couriers would be highly desirable and of not insignificant assistance to the Court, and that weighs significantly in favour of the discretion being exercised so as not to grant Mr Jarial leave to represent, or appear for, Jarial Couriers in these proceedings, particularly in circumstances where Jarial Couriers were previously represented by lawyers
Financial position
A corporation that is impecunious is not automatically entitled to be represented by a non-lawyer: Australian Consumer and Competition Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 at [4] per Kiefel J; Fair Work Ombudsman v Finetune Holdings Pty Ltd [2010] FMCA 889 (“Finetune Holdings”) at [41] per Lucev FM. Bare assertions about a corporation’s financial position are insufficient proof of impecuniosity, and proper documentary and corroborative evidence is required to demonstrate that the financial position of a corporation is such as to prevent it from being legally represented: Finetune Holdings at [42]-[45] per Lucev FM; Konsulteq at [43] per Judge Lucev; Fair Work Ombudsman v Sona Peaks Pty Ltd [2015] FCCA 437 at [9] per Judge O’Sullivan. In Ritson v PATS Consulting Pty Ltd [2012] FMCA 837 a corporation’s training manager sought leave to appear but leave was not granted, with one of the significant factors being that there was inadequate evidence in relation to the corporation’s financial position and the information about the corporation’s financial situation was not such as to indicate that legal representation was not possible: at [17] and [20] per Barnes FM.
Jarial Couriers has provided no evidence as to its financial position and capacity to fund the services of lawyer, despite being on notice of the Minister’s intention to bring an application for the dismissal of the Judicial Review Application by reason of the non-appearance of a lawyer for Jarial Couriers in these proceedings.
There is evidence that, at the time the Employer Nomination Application was filed, on or about 30 November 2016: CB 1-8, Jarial Couriers intended to pay the nominee a wage of $54,000 a year: CB 4, but that information is more than four years old. There is no evidence that any director of Jarial Couriers has allowed it to trade whilst insolvent: Corporations Act 2001 (Cth), s 588G. Otherwise, there is no evidence in these proceedings relating to the financial position of Jarial Couriers. There are no bank statements, financial statements, profit and loss accounts, taxation returns, nor any other form of relevant financial data which would allow the Court to make findings as to Jarial Couriers’ financial position. The lack of evidence as to Jarial Couriers’ financial position militates against the grant of leave for a non-lawyer to appear for Jarial Couriers: Termi-Mesh Australia at [14] per French J.
There is nothing in what is before the Court which allows the Court to make a finding that Jarial Couriers is not in a financial position to be represented by a lawyer in these proceedings, and this factor does not weigh in favour of leave being granted for Mr Jarial to represent Jarial Couriers.
Whether leave for non-lawyer to appear opposed
The Minister opposes leave for a non-lawyer to appear for Jarial Couriers.
This factor does not weigh in favour of Mr Jarial being given leave to appear for Jarial Couriers.
Conclusion – whether leave for a non-lawyer to appear
Having considered the factors set out above, and the reasoning in relation to each of those factors, and giving particular weight to its views in relation to the nature of judicial review applications generally, and this Judicial Review Application in particular, and the likelihood of a lack of any effective representation of Jarial Couriers by Mr Jarial, the Court has concluded that it ought not grant leave under r 9.04 of the FCC Rules for a non-lawyer to appear for Jarial Couriers in these proceedings.
WHETHER JUDICIAL REVIEW APPLICATION TO BE SUMMARILY DISMISSED
The Minister submits that Jarial Couriers has no reasonable prospect of successfully prosecuting the Judicial Review Application in circumstances where it has no lawyer and has been refused leave to appear by a non-lawyer, and that the Judicial Review Application ought therefore to be dismissed under r 13.10(a) of the FCC Rules.
The Court notes that it was not submitted by the Minister that the Judicial Review Application was not able to be successfully prosecuted if argued by a lawyer.
Rule 13.10 of the FCC Rules relevantly provides as follows:
13.10 Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim;
…
In Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) the High Court observed that:
(a)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
(b)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
(c)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
The Court also observes that:
(a)the Minister in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeves J;
(b)an application for summary dismissal is concerned with substance, and the Court may consider matters outside the pleadings: Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 at [24] per Markovic J; Singh v Owners Strata Plan No 11723(No 3) [2012] FCA 1121 at [39] per Griffiths J; and
(c)where an applicant fails to identify any valid claim at all in the materials placed before the court a conclusion may be justified that there is not, and never will be, a valid claim to advance: Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [30] per Reeves J.
In circumstances where:
(a)there are, before the Court, well drafted, cogent and particularised grounds of review awaiting proper elaboration, and which appear to raise grounds that are at least arguable;
(b)the Court must endeavour to remain vigilant to any possible jurisdictional error which might arise on the face of the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J;
(c)it was not submitted by the Minister that the Judicial Review Application was not able to be successfully prosecuted if argued by a lawyer; and
(d)a relatively short adjournment might facilitate the appointment of a lawyer to act for Jarial Couriers (as to which see [57]-[59] below),
the Court is of the view that the Minister has not discharged the onus of persuading the Court that the Judicial Review Application ought to be summarily dismissed under r 13.10(a) of the FCC Rules. It follows that the Minister’s application, foreshadowed in the Minister’s lawyer’s email of 9 March 2021 (Exhibit 1) and the Minister’s Written Submissions, and made orally at hearing for summary dismissal of the Judicial Review Application, must be dismissed.
WHETHER LEAVE TO ADJOURN TO ALLOW LAWYER TO APPEAR
If leave to appear by a non-lawyer is refused the question arises as to whether an adjournment ought to be granted to allow Jarial Couriers to arrange representation by a lawyer.
Adjournment - principles
The Court has a broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev. The paramount consideration remains the interests of the administration of justice, which includes taking into account issues associated with case management and wastage of public resources, and in that regard the principles in AON Risk Services: see [25] above, have been adopted by this Court in migration proceedings: see, by way of example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev; BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
Adjournment - consideration
For essentially the same reasons as are set out at [56](a)-(d) above the Court is of the view that it is in the interests of justice and the administration of justice to permit Jarial Couriers some further, but specifically limited, time to obtain legal representation for the remainder of these proceedings. In all the circumstances set out above the Court considers that a period of two months is appropriate and sufficient for Jarial Couriers to make proper enquiries about, and to engage, new lawyers. Jarial Couriers will therefore be required, by order of the Court, to file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021.
DISMISSAL FOR NON-COMPLIANCE
Rule 13.03B(1) of the FCC Rules provides as follows:
13.03B Orders on default
(1) If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
Jarial Couriers has been on notice of its non-compliance with r 9.04 of the FCC Rules since at least 9 March 2021: see [4(d)] above. It seemingly did nothing to comply with the requirements of r 9.04 of the FCC Rules after being out on notice. It is appropriate, and consistent with s 42 of the FCCA Act and r 1.03 of the FCC Rules, that a further failure to comply with the to file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021, in accordance with an order of the Court, result in the Judicial Review Application being dismissed pursuant to r 13.03B(1)(c) of the FCC Rules.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)it ought not grant leave under r 9.04 of the FCC Rules for a non-lawyer to appear for Jarial Couriers in these proceedings;
(b)the Minister’s application made orally at hearing for summary dismissal of the Judicial Review Application is to be dismissed;
(c)Jarial Couriers will be required, by order of the Court, to file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021; and
(d)if Jarial Couriers fails to comply with the Court’s order that it file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021 the Judicial Review Application is to be dismissed pursuant to r 13.03B(1)(c) of the FCC Rules.
The matter will otherwise be adjourned to a directions hearing on 16 August 2021 at 2.00pm. Costs will be reserved.
There will be orders accordingly.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 11 June 2021
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