Joanne Dinov v ANZ Banking Group Ltd trading as ANZ

[2021] FWC 360

[2021] FWC 360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.596—Representation by lawyers and paid agents

Joanne Dinov
v
ANZ Banking Group Ltd trading as ANZ
(U2020/14169)

DEPUTY PRESIDENT BULL SYDNEY, 27 JANUARY 2021

S.596(2) Application for permission to be legally represented - whether matter will be dealt with more efficiently taking into account the complexity of the matter - exercise of discretion – application granted.

[1] The applicant, Ms Joanne Dinov, has filed an application in the Fair Work Commission alleging she was unfairly dismissed. The respondent employer, the ANZ Banking Group Ltd T/A ANZ Bank (ANZ) opposes the unfair dismissal application and seeks to be legally represented in the forthcoming hearing, pursuant to s.596 of the Fair Work Act 2009 (the Act).

[2] On 24 December 2020, a confidentiality order in respect of this matter and pursuant to s.594 of the Act was issued on the application of ANZ and with the consent of the applicant.

[3] ANZ had previously filed an outline of submissions dated 23 December 2020 as to the grounds on which the application for legal representation is made.

[4] Ms Dinov was emailed by my chambers on 23 December 2020 requesting a response to be filed by 11 January 2021 to ANZ’s application to be legally represented. As no response was received by the due date, a further email request for a response was made on 18 January 2021, requesting a response by 4:00pm, 19 January 2021. As no response was received by this date, my chambers telephoned Ms Dinov wherein, she was advised that she had missed two deadlines to file a response. Ms Dinov subsequently sent an email later that day which stated she objected to legal representation being granted to ANZ, but provided no reasons or grounds upon which her objection was based.

[5] The issue of permission to be legally represented was dealt with by way of a telephone hearing conducted on 25 January 2021. Notification of the hearing was forwarded to the parties on 21 January 2021 and the parties were requested to confirm their attendance by 4:00pm on 22 January. A further email was sent on 22 January 2021 at 4:27pm advising that chambers had received notification of the respondent’s attendance but no response from the applicant had been received.

[6] On the day of the hearing, the respondent’s representatives were in attendance however there was no attendance from the applicant who had also not responded to chambers’ emails to advise of her attendance.

[7] Following a number of telephone calls, the applicant was contacted at 10:12am. The applicant stated she was unaware of the hearing, and further stated that she had a sore throat and was with her children and declined to participate in the telephone hearing.

[8] The Commission, being satisfied that the applicant had received the respondent’s written material and had been notified of the hearing, proceeded to hear the respondent’s case which consisted of ANZ responding to a number of questions asked by the Commission.

Consideration

[9] Section 596(2) of the Act is the relevant section to be applied in determining applications of this kind. It is expressed in the following terms:

“(2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[10] ANZ has submitted in its written material (with reference to relevant authorities) that it would be more efficient for ANZ to be legally represented as it would:

(a) ensure that only the relevant matters are canvassed before the Commission;

(b) assist the Commission to complete the hearing of the application expeditiously and within the one day allocated for the hearing, given the large volume of evidentiary material, the issues of confidentiality and privacy associated with ANZ’s customer information and the fact that Ms Dinov is self-represented; and

(c) otherwise aid in the efficient hearing of the application given that inter alia:

i. ANZ’s Outline of Submissions has been prepared with the assistance of counsel; and

ii. counsel for ANZ has reviewed the relevant materials and is preparing for cross examination.

[11] ANZ contends, in part, that the Commission should allow for it to be legally represented because its in-house staff are not experienced in the conduct of contested hearings in the Commission.

[12] It is noted that ss.(a), (b) and (c) of s.596 are disjunctive in that it is only necessary for the Commission to find one of the subsections is satisfied in order to exercise its discretion to grant permission for a person to be represented by a lawyer. In deciding whether to exercise the discretion to grant permission to be represented one of the conditions in s.596(2)(a)-(c) must have been satisfied. The satisfaction of one of these conditions is not determinative, but enlivens the Commission’s discretion whether permission to be represented should be granted. 1

[13] The principles to be applied in such applications were considered in Warrell v Walton 2 and subsequently adopted by a Full Bench of the Commission in McAuliffe. In Warrell, Flick J said, at [24]:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to section 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of section 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by section 596(2) have been taken into account and considered. The constraints imposed by section 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in section 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by section 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in section 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission.”

[14] I am unable to accept as submitted by ANZ; that as its outline of submissions has been prepared with the assistance of counsel who has reviewed the relevant materials and is preparing for cross examination, that this should be a factor in determining that it would be more efficient for ANZ to be legally represented. To allow this to be a consideration would countenance a party to proceedings creating circumstances to favour an application to permit legal representation.

[15] As expressed above, ANZ also states that its in-house staff are not experienced in the conduct of contested hearings in the Commission. This submission would appear also to relate to whether under s.596(2)(b) it would be unfair not to allow representation because ANZ is unable to represent itself effectively. 3 Whilst not persuaded that ANZ’s own in-house staff would not be sufficiently competent to represent itself effectively as per s.596(2)(b),4 the test at least in respect of s.596(2)(a) is not whether a party can be effectively represented by an in-house advocate, but whether the matter would be dealt with more efficiently if permission to be represented by a lawyer or paid agent was granted, taking into account the complexity of the matter.

[16] This issue was dealt with in a decision in ASC Pty Ltd v The Australian Workers’ Union and others; 5 where it was stated by Gostencnik DP:

“[16] In any event the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result.”

[17] To be satisfied that s.596(2)(a) of the Act is met, the Commission must take into account the complexity of the matter. ANZ has not referred to the complexity of the matter directly in its written submissions but ANZ has stated that there is a large volume of evidentiary material with issues of confidentiality and privacy associated with ANZ’s customer information. I have perused the material filed to date by both parties which indicates that there is a substantial and fundamental disagreement over the alleged misconduct of the applicant which will presumably require a competent advocate on behalf of ANZ (who are requesting permission to be legally represented) to cross-examine the applicant on.

[18] ANZ referred to the fact that there is a large volume of material before the Commission consisting of over 400 pages, dealing with multiple aspects of information technology that the applicant needs to be taken through. 6 In this respect it is submitted that legal representation would enable the matter to be dealt with more efficiently.

[19] Accordingly, on the specific facts and circumstances of this matter, to assist the Commission in the efficient hearing of this matter having regard to the complexity of the submitted material, I am satisfied that the respondent, pursuant to s.596(2) should be granted permission to be legally represented. In coming to this conclusion, I have taken into consideration that the applicant is unrepresented and to date has not demonstrated any more than a rudimentary understanding on how the matter will proceed before the Commission.

[20] The respondent’s written submissions note the observations of Gregory C in Tobias Little v Qantas Airways Limited T/A Qantas 7at [17] which I endorse:

“I am also of the view that the involvement of competent legal representatives does not necessarily disadvantage the other party.”

[21] I also note the comments of Mason CJ in Giannarelli v Wraith 8 concerning the appearance and assistance of legal counsel in proceedings:

“[A] barrister’s duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.”

[22] A Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd 9 commented in relation to legal representation:

“[48] A lawyer’s duty to the Commission is paramount and supersedes a lawyer’s duties to their client. A grant of permission to appear pursuant to section 596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].”

[23] The Full Bench in Priestley v Department of Parliamentary Services 10 expressed a similar view with regard to the role of legal representatives:

“[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.”

[24] Thus I am satisfied that legal representation on behalf of ANZ would enable the matter to be dealt with more efficiently in ensuring that the issues in contest, which will require detailed cross-examination, and issues of credit are efficiently dealt with.

DEPUTY PRESIDENT

Appearances:

M Minucci of Counsel for ANZ

No appearance on behalf of the applicant

Hearing details:

2021

25 January

Printed by authority of the Commonwealth Government Printer

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 1   CEPU & Ors v Northern SEQ [2016] FWC 4736 at [13- 14]

 2 [2013] FCA 291

 3   Outline of submissions at [4]

 4   No evidence of their competence was provided, other than they were not experienced in conducting contested hearings before the Commission

 5   [2014] FWC 544

 6   See comments of Full Bench in Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268 in regard to volume of material

 7   [2019] FWC 5577

 8 (1988) 165 CLR 543 at [556]

 9   [2014] FWCFB 174

 10   [2011] FWAFB 5585