Jones v Groovy Freighters Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JONES v GROOVY FREIGHTERS PTY LTD [2010] FMCA 673

INDUSTRIAL LAW – Termination of employment – general protection provisions – first small claim proceeding under the new legislation to proceed to full hearing – applicant represented by an industrial advocate.

Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act (2009)
Federal Magistrates Act (1999)

Browne v Dunn (1894) 6 R 67 (HL)
Carr v Blade Repairs Australia (No.2) [2010] FCA 688
Jones v Dunkel (1959) 101 CLR 298
Maher v Mulgowie Fresh Proprietary Limited (2010) FCA 439

Applicant: TERENCE JONES

Respondent: GROOVY FREIGHTERS PTY LTD

File Number: BRG 1011 of 2009

Judgment of: Burnett FM

Hearing date: 20 July 2010

Date of Last Submission: 20 July 2010

Delivered at: Brisbane

Delivered on: 3 August 2010

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Advocacy & Industrial Advisory Services

Counsel for the Respondent:

Solicitors for the Respondent: Quinn & Scattini

ORDERS

1. That the application filed 30 December 2009 be dismissed.

2. That any costs Application is to be made before 1 September 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1011 of 2009

TERENCE JONES

Applicant

And

GROOVY FREIGHTERS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. The applicant seeks relief for dismissal and contravention of a general protection on account of his temporary absence from work because of a back injury.  The sum claimed in the application was $12,000.00, although as will be discussed later a higher figure was sought.  At the outset I identified the matter as one which more properly was a small claim under the Fair Work Act (FW Act) because of its quantum; neither party demurred from that view and the application proceeded on that basis. 

Legal Representation

1. This application appears to be the first small claim proceeding under the new legislation to proceed to full hearing.  A number of issues arose along the way, particularly because the applicant was represented by an industrial advocate.  Accordingly, it is appropriate that I set out in greater detail than might otherwise be expected some of the regulatory matters relevant to the application.

2. At the outset the respondents took issue with the appearance of a Mr Steinitz, an industrial advocate for the applicant.  The respondent itself was a corporation represented by a solicitor, to which there was also objection.

3. Dealing first with that issue, Federal Magistrates Court rule 9.04 provides that:

   “Except by or under an Act or regulations made under an Act with the leave of the court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.”

   In this instance there was no commencement of the proceeding, but there was clearly a carrying on of a proceeding from the perspective of the respondent. It follows that prima facie it must appear by a lawyer. Ordinarily that would not cause any difficulty. However, in the context of an application of this kind an issue arises because the application falls within the small claims provisions…