KELLY v Quick Pick Movers Pty Ltd

[2015] FCCA 2487

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLY v QUICK PICK MOVERS PTY LTD [2015] FCCA 2487

Catchwords:  
INDUSTRIAL LAW – Interlocutory application – whether leave should be granted to permit the director of the Respondent company to represent the Respondent – application allowed.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), s.44
Federal Circuit Court Rules 2001 (Cth), r.9.04

Alcantara & Anor v Buildpower Proprietary Limited [2010] FMCA 626
Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889
Worldwide Enterprises Proprietary Limited v Silberman & Anor (2010) 26 VR 596

Applicant: MATTHEW KELLY

Respondent: QUICK PICK MOVERS PTY LTD

File Number: MLG 2018 of 2013

Judgment of: Judge Hartnett

Hearing date: 28 August 2015

Delivered at: Melbourne

Delivered on: 28 August 2015

REPRESENTATION

Solicitors for the Applicant: Hymans Solicitors

Counsel for the Applicant: No Appearance

The Respondent: Mr Theodoropalos (director of the Respondent)

THE COURT ORDERS THAT:

1. There is leave to the parties to inspect all subpoena documents in the Registry.

2. Pursuant to r.9.04 of the Federal Circuit Court Rules (Cth) leave be granted to the director of the Applicant to carry on the proceedings otherwise than by a lawyer.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2018 of 2013

MATTHEW KELLY

Applicant

And

QUICK PICK MOVERS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an Application in a Case filed by the Respondent company on 5 August 2015 seeking the Court’s leave for the company to be represented not by a lawyer but, rather, by the managing director and sole director of the company, Mr Theodoropoulos.  In support of the application seeking the Court’s leave, Mr Theodoropoulos has affirmed an Affidavit on 5 August 2015 and he relies on the contents therein. 

2. The application by the Respondent company is undefended by the Applicant. I am satisfied, on the oral evidence given by Mr Theodoropoulos today, that he served by email upon the solicitors for the Applicant a sealed copy of his Application in a Case and Affidavit, both filed 5 August 2015, and that he effected such service on 5 August 2015.  I am further satisfied that there was acknowledgment from the Applicant’s solicitor that such documents were received by him.

3. In the absence of the Applicant’s solicitor and the Applicant this day, both of whom have been called outside the court room and failed to appear, the matter is unopposed. 

4. Mr Theodoropoulos is not entitled to represent the company, except by leave of the Court pursuant to s.44 of the Federal Circuit Court of Australia Act 1999 (Cth) and r.9.04 of the Federal Circuit Court Rules 2001 (Cth).

5. The substantive application before the Court is an Application filed under the Fair Work Act 2009 (Cth) which was filed on 22 November 2013. In support of that Application, was filed a Statement of Claim on 23 April 2014, wherein the Applicant alleges breaches of the Applicant’s workplace rights as set out in paragraphs 6 and 7 of that Statement of Claim. Paragraphs 6 and 7 are as follows:-

   “6. On or about 9 September 2013 the Applicant had identified discrepancies going to his rate of pay between the period 26 August 2013 and 8 September 2013 and sought to bring this to the attention of the Respondent.

   PARTICULARS

   The Applicant said words to the following effect to INSERT NAME of the Respondent: (sic) “I have worked on Sunday the 8^th of September 2013 and you have paid me $75.00 for 6.5 hours.  Not only that you are paying $19.00 per hour for my overtime when my hourly rate is $21.00 this is just outrageous”. The Applicant said further words to the effect: “I’m not coming into work if I am not going to make any money”.

   The Adverse Action

   7. Upon the Applicant bringing the said discrepancies to the Respondent terminated the Applicant’s employment contract (“the Dismissal”).

   PARTICULARS

   Mr Nicholas Theodoropoulos said words to the falling (sic) effect: “If you don’t like it you can go.  Not only that I will be deducting $280.00 for your uniform costs” at which stage the Applicant responded: “All right ill go you scum bag.”

6. Thereafter the Statement of Claim alleges an assault perpetrated upon the Applicant by Mr Theodoropoulos  The Applicant does not particularise his claim in relation to the injuries allegedly sustained by him in the Statement of Claim. The Applicant claims:-

   “A. Damages:

   B. Compensation under section 545(2)(b) of the Act;

   C. The imposition of a penalty on the Respondent under section 546 of the Act;[1]

   D. An order that the penalty be paid to the Applicant under section 546(3) of the Act;

   E. Damages pursuant to section 236 of the Australian Consumer Law (Cth) and/or the Australian Consumer Law (Victoria).

   [1] Note: The Act is the Fair Work Act 2009 (Cth).

   F. An order that any penalty be paid to the Applicant;

   G. An order that any unpaid amount due to the Applicant be paid to the Applicant by the Respondent under the FW Act;

   H. Such further or other orders as the Court seems appropriate.”[2]

   [2] Statement of Claim filed by the Applicant on 23 April 2014.

7. The Respondent company has formally had legal representation in these proceedings with such legal representation ceasing by Notice of Withdrawal as Lawyer filed on 13 April 2015.  The reason for the cessation of Zenith Lawyers & Consultants acting for the Respondent company was Mr Theodoropoulos’ inability to continue to meet legal costs due to the financial difficulties the Respondent company, and he personally, were experiencing, as alleged by him.  Prior to that time, the Respondent company had filed a Notice of Cross-Claim in these proceedings and there has been filed by the Applicant a further Notice of Defence to Cross-Claim.

8. Mr Theodoropoulos has sworn that he cannot afford the costs of a barrister and that he is unable to obtain legal aid.  He provided information this day concerning the Respondent company’s financial position which included the Financial Statements for the year ended 30 June 2015. Such statements indicate a deficiency in trust funds for the Theodoropoulos Family Trust of $50,663.  The Court was also provided with the Respondent company’s ANZ Business Extra statements indicating the bank account, as at 17 July 2015, has a balance of $3,676.49.  Mr Theodoropoulos stated there was a further bank account held by the Respondent company which had it in a sum of approximately $22,000, being the proceeds of sale of a van sold by him in order to meet company debt.  The company debt that was met from that van’s sale, which netted proceeds of approximately $38,000, was taxation, workers compensation payments and outstanding debts relating to the rental of a factory by the Respondent company.  The Respondent company has five employees who are employed on a casual basis.  The Respondent company currently has four trucks and one van which are unencumbered.  Mr Theodoropoulos derives an income of approximately, in the last financial year, $45,000 and his wife receives a similar sum of gross income.  Mr Theodoropoulos and his wife have five children all under the age of 18 whom they support.  His business thrived between 2009 and 2012, but since 2012 it has struggled. I accept on his evidence that the Respondent company has little ability to fund the services of a lawyer in these proceedings at this time.

9. The documents provided by Mr Theodoropoulos this day were tendered in evidence and marked as exhibits. 

10. This is a discretionary matter.  The principles which govern the Court’s exercise of that discretion were summarised by Federal Magistrate Lucev (as His Honour then was) in Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889.

11. The general rule, as adopted in this Court, is that corporations may only be represented before federal courts by legal practitioners.  The policy behind that rule is that in the interests of the administration of justice the courts should be assisted by persons who are qualified and experienced in arguing factual and legal disputes and who have ethical duties to clients and the courts.[3] 

    [3] Alcantara & Anor v Buildpower Proprietary Limited [2010] FMCA 626 at [10]; Worldwide Enterprises Proprietary Limited v Silberman & Anor (2010) 26 VR 596 at [35] per Weinberg JA.

12. A corporation confers many benefits on those connected with the company.  It also imposes some corresponding burdens, one of which is that in litigation a company must normally be represented by a lawyer.[4]   

    [4] Worldwide Enterprises Proprietary Limited v Silberman & Anor (2010) 26VR 595 at [76] per Bongiorno JA.

13. In my view this matter, on the pleadings, is not a difficult matter.  This matter refers to a discrete episode and a limited period of time.  The Court will be assisted by the subpoenaed material from the police and other material which has been subpoenaed in the adjudication of this matter.

14. The parties have been represented by lawyers to date.  There is a final hearing on 11 September this year.  I am satisfied that Mr Theodoropoulos will be able to represent the Respondent company appropriately and efficiently. I am satisfied that Mr Theodoropoulos understands the ambit of the dispute and what material it is that he should put before the Court. It is important that this matter be heard on evidence being presented by both parties. I do not think any prejudice will be suffered to the Applicant by reason of the non-appearance of a lawyer for the Respondent company.

15. The list of factors considered above is not exhaustive.  The Court can consider any relevant consideration in the exercise of its discretion.  The Court is particularly mindful that the application is unopposed.

16. The Court is satisfied that the sole director of the Respondent company is familiar with the factual matrix of this claim and will be able to conduct appropriately proceedings to bring this matter to a timely conclusion.  The Court does not consider that there is a risk of conflict of interest between the company and its managing director. In the interests of the administration of justice, the application is acceded to.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 10 September 2015