Li v Zheng Min-Seng
[2010] FMCA 344
•4 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v ZHENG MIN-SENG & ORS | [2010] FMCA 344 |
| INDUSTRIAL LAW – Small claims procedure – claim for underpayment – leave granted for lawyer to appear at directions hearing. |
| Fair Work Act 2009 (Cth), s.548 |
| Hughes & Mainrange Corporation Pty Ltd [2009] FMCA 1025 |
| Applicant: | YU FANG LI |
| Respondents: | ZHENG MIN-SENG & FU RUI ZHI T/AS CAMY SHANGHAI DUMPLING & NOODLE RESTAURANT |
| File Number: | MLG 562 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 4 May 2010 |
| Date of Last Submission: | 4 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Daly |
| Solicitors for the Respondents: | Lewenberg & Lewenberg |
ORDERS
The Respondents have leave to be represented by a lawyer for the purpose of today’s directions hearing only.
The Respondents file and serve any interlocutory application relating to jurisdiction prior to 11 May 2010.
The Applicant file and serve any amended application, affidavit material and any documents upon which she intends to rely at hearing on or before 4.00 pm on 18 May 2010.
The Respondents file and serve any response, affidavit material and any documents on which they intend to rely at hearing on or before 8 June 2010.
The Applicant have until 22 June 2010 to file any further affidavit material in reply.
The proceeding be listed for hearing in the small claims list of the Fair Work Division of the Federal Magistrates Court at Melbourne at 10:00am on 13 July 2010.
There be general liberty to apply for both parties.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 562 of 2010
| YU FANG LI |
Applicant
And
| ZHENG MIN-SENG & FU RUI ZHI T/AS CAMY SHANGHAI DUMPLING AND NOODLE RESTAURANT |
Respondents
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
Before the Court this morning is an application by Yu Fang Li (“the Applicant”) filed on 20 April 2010. The respondents to that application are Zheng Min-Seng and Fu Rui Zhi trading as the Camy Shanghai Dumpling and Noodle Restaurant (“the Respondents”).
The application was filed in the Fair Work Division of the Court and the applicant has elected that it be dealt with pursuant to the small claims procedure and the provisions of section 548 of the Fair Work Act 2009 (“the FW Act”).
Application
In the application of 20 April 2010 the orders sought were:
“Final orders sought
1.Wages – overtime/weekend rates.
2.Public holidays.
3.Annual Leave
Total amount sought $22,823.92 owing.
Grounds of application
1.Breaches of the Accommodation, Cafes & Restaurants Industry Sector – Minimum Wage Order Victoria 1997.
2.Breaches of the Liquor and Accommodation Industry Restaurants Victoria Award 1998.”
The application was accompanied by the prescribed small claims form. It annexes to it calculations, which detail the applicant’s allegations that from the time that she commenced employment with the respondents, in October 2003, to the date of her termination she was underpaid, in comparison to the applicable industrial instruments.
The applicant has appeared in Court today in person with the assistance of an interpreter. Ms Daly, of counsel, has appeared today and sought leave of the Court pursuant to section 548(5) to appear for the respondents.
Legislation
Section 548 of the FW Act provides that:
“(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A)The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2)In small claims proceedings, the court may not award more than:
(a)$20,000; or
(b)if a higher amount is prescribed by the regulations--that higher amount.
Procedure
(3)In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a)in an informal manner; and
(b)without regard to legal forms and technicalities.
(4)At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
Legal representation
(5)A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6)If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7)For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Representation by an industrial association
(8)The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.
(9)However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.”
Ms Daly pressed her application for the Court to grant her leave only to the extent of an appearance for today’s first directions hearing, and only for the purposes of bringing any orders that the Court made today to the attention of the respondents.
Once it was established that that was Ms Daly’s application, the matter was stood down to give her an opportunity to try and locate the respondents, and for the applicant, through the interpreter, to digest the Court’s explanation that that is what was going on. Ms Daly came back and indicated that she retained instructions to appear only today on behalf of the respondents, but had unable to speak to the respondents, or at least one of the respondents.
When the applicant was asked, through the interpreter, what was her response to the application for that leave, once it would be fair to say she understood the extent of that, she told the Court that she didn’t oppose it.
In considering this application for leave, I’ve had regard to the only decision that I’ve been able to identify where this Court has considered, in the context of section 548, a similar application.
That was a decision of Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025, a decision of Lucev FM. In that decision, his Honour, at paragraphs 2 and 3 of his decision summarises the fact that it was the first such decision on this issue by a Court in this jurisdiction.
He noted that that was a factor to be taken into consideration that the issue before the Court, was a jurisdictional issue and the assistance of a legal representative for one of the parties would help determine that pure legal issue, and that, for better or for worse, a lawyer by reason of training and expertise ought to have the ability to provide the Court with appropriate and logical arguments to be of assistance to the Court in a case such as that before him.
His Honour, in that case, granted leave for the lawyer to appear, but imposed restrictions pursuant to section 548(6) on such a right of appearance, or leave to appear, and that restriction was limited to preparing a written outline of submissions and appearing at the hearing on any jurisdictional issue.
In the circumstances of this matter, I’m asked to only grant leave to appear for the purposes of today’s hearing, and only for the purposes of bringing the orders that the Court makes today to the attention of the respondents.
In the particular circumstances of this matter that leave is appropriate given:
·the applicant appears with the assistance of an interpreter;
·the issues that the Court has raised with the applicant about the jurisdictional ceiling on the Court’s ability to make orders under section 548;
·a number of those issues raised with the applicant will necessitate an amended application being filed by the applicant, which she will need time to do; and
·that the orders that the Court will make set out a timetable for the matter to come back for a hearing.
I’m satisfied that it’s appropriate that the respondents at today’s first Court date have leave to be represented by Ms Daly of Counsel, but subject to the restrictions that I’ve articulated, pursuant to section 548(6), and only for those purposes.
I’ll otherwise make the orders and directions that I’ve articulated during exchange with each of the parties today.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: Rachelle Lombardo
Date: 4 May 2010
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