Mayger v Community Accommodation and Respite Inc T/A Cara - [2016] FCCA 2151

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYGER v COMMUNITY ACCOMMODATION AND RESPITE INC T/A CARA

[2016] FCCA 2151

Catchwords:
INDUSTRIAL LAW – Practice and procedure – representative – McKenzie Friend – whether inherent jurisdiction of Court to allow non-party lay person to represent party.

INDUSTRIAL LAW – Practice and procedure – pleadings – further and better particulars – pleadings – strike out application.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.43 & 44

Federal Circuit Court of Australia Rules 2001 (Cth), rr.1.05 & 11.08
Federal Court Rules 2011 (Cth), r.16.45

Fair Work Act 2009, ss.34 & 596

Migration Act 1958 (Cth)

Cases cited:

Pugliese v Paull [2011] FMCA 95

Collins v Department of Finance and Deregulation [2011] FMCA 240
Nepal v The Minister for Immigration and Border Protection [2015] FCA 499
Nepal vThe Minister for Immigration and Border Protection [2015] FCA 366
McKenzie v McKenzie [1970] 3 WLR 472
Collier v Hicks (1831) 2 B & Ad 663, 669; 109 ER 1290, 1292
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Reynolds v The Minister for Health & Anor [2010] FMCA 43

Applicant:

MERILYN ANN MAYGER

Respondent:

COMMUNITY ACCOMMODATION AND RESPITE INC T/A CARA

File Number:

ADG 475 of 2015

Judgment of:

Judge Heffernan

Hearing date:

29 July 2016

Date of Last Submission:

29 July 2016

Delivered at:

Adelaide

Delivered on:

9 August 2016 (ex tempore)

Reasons settled on:

22 August 2016

REPRESENTATION

The Applicant:

In person with the assistance of Mr M Mayger

Solicitors for the Respondent:

Mr S McGrath for Cowell Clarke Commercial Lawyers

UPON NOTING THAT:

a)On the next occasion, the Court will hear submissions from the parties as to whether, by extension of having allowed Mr Mayger to appear as a McKenzie friend, he should be allowed to make submissions in open Court on behalf of the applicant; and
b)Counsel for the respondent has indicated that copies of various authorities referred to in the judgment of Nepal v Minister for Immigration & Border Protection [2015] FCA 366, if they are able to access them, will be provided to the applicant to assist her to prepare for the argument

THE COURT ORDERS THAT:

The Application by the applicant, pursuant to s.44 of the Federal Circuit Court Act 1999 (Cth), for Mr Mark Mayger to appear as a representative on behalf of the applicant, Ms Merilyn Ann Mayger, is dismissed.
Mr Mark Mayger is permitted to assist Ms Merilyn Ann Mayger as a McKenzie Friend in this application.
The applicant do provide within 28 days Amended Further and Better Particulars as to the complaints on which it relies in contravention of s.34 of the Fair Work Act2009 (Cth) as follows:
(a)Particulars of each and every complaint which the applicant alleges was made to the respondent, and with respect to each compliant:
(i)The date on which it was made;
(ii)Whether the complaint was made orally or in writing, and if in writing, whether by letter, fax, text message or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2151
Decision Date: 9 August 2016 (ex tempore)

CaseChat Overview and Summary

Mayger (the applicant) brought proceedings against Community Accommodation and Respite Inc trading as Cara (the respondent) in the Industrial Relations Court of South Australia. The dispute concerned allegations of unfair dismissal. The applicant sought to be represented by a McKenzie friend, a non-legally qualified person, who was not a party to the proceedings. The respondent sought further and better particulars of the applicant's pleadings and also applied to strike out the applicant's statement of claim.

The primary legal issue before the Court was whether it possessed an inherent jurisdiction to permit a non-party lay person to represent a party in proceedings before it, particularly in circumstances where the party was unable to obtain legal representation. A secondary issue concerned the respondent's application for further and better particulars and its application to strike out the applicant's statement of claim.

Judge Heffernan considered the scope of the Court's jurisdiction, noting that while the *Industrial Relations Act 1994* (SA) provided for representation by legal practitioners, it did not expressly grant a right to representation by a McKenzie friend. His Honour reviewed authorities concerning the inherent jurisdiction of courts to manage their own proceedings and ensure fairness, particularly in the context of access to justice. The Court determined that it did not possess an inherent jurisdiction to permit a non-party to represent another party, as this would usurp the statutory framework governing representation. However, the Court acknowledged a limited discretion to allow a McKenzie friend to provide assistance, such as taking notes or offering advice, but not to conduct the case. Regarding the pleadings, the Court found that the statement of claim lacked sufficient particularity to enable the respondent to adequately respond and therefore ordered that the applicant provide further and better particulars.

The Court ordered that the applicant provide further and better particulars of the statement of claim within 21 days. The application to strike out the statement of claim was adjourned pending the provision of those particulars. The applicant's request for representation by a non-party McKenzie friend was refused.

Orders