McShane v Image Bollards Pty Ltd

[2011] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCSHANE v IMAGE BOLLARDS PTY LTD [2011] FMCA 215

CONTRACT – Alleged breach of contract of employment – alleged unpaid sales commission and superannuation – whether terms for payment of sales commission proven.

INDUSTRIAL LAW – Alleged breach of contract of employment – matter in small claims jurisdiction.

COURTS – Federal Magistrates Court – small claims jurisdiction.

EVIDENCE – Small claims jurisdiction – evidentiary requirements where rules of evidence do not apply and capacity to act informally without regard to legal forms and technicalities – evidence with rational probative force.

PRACTICE AND PROCEDURE – Representation of corporations in small claims jurisdiction.

Fair Work Act 2009 (Cth), ss.12, 139, 542(1), 548, 570(2)
Fair Work (Registered Organisation) Act 2009 (Cth), s.353A
Fair Work Regulations 2009 (Cth)
Federal Magistrates Act 1999 (Cth), ss.3(a) and (b), 44(a), (b) and (c)
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 9.04, 45.11, 45.13
Judiciary Act 1903 (Cth), ss.55B(3), 55C, 78

Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626
Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246
Salemi v Mackellar (No.2) (1997) 137 CLR 396
University of Western Australia v Gray and Others (No.25) (2009) 180 FCR 483; [2009] FCA 1227

Applicant: PHILLIP MCSHANE

Respondent: IMAGE BOLLARDS PTY LTD AS TRUSTEE FOR THE SCOTT FAMILY TRUST TRADING AS IMAGE BOLLARDS

File Number: PEG 39 of 2011

Judgment of: Lucev FM

Hearing date: 31 March 2011

Date of Last Submission: 31 March 2011

Delivered at: Perth

Delivered on: 18 April 2011

REPRESENTATION

For the Applicant: Mr P McShane

For the Respondent: Mr A Scott (by leave)

ORDERS

1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 39 of 2011

PHILLIP MCSHANE

Applicant

And

IMAGE BOLLARDS PTY LTD AS TRUSTEE FOR THE SCOTT FAMILY TRUST TRADING AS IMAGE BOLLARDS

Respondent

REASONS FOR JUDGMENT

Small claims jurisdiction – application

1. This is an application by Mr Phillip McShane in the small claims list of the Fair Work Division of this Court for an order[1] requiring his former employer, Image Bollards Pty Ltd,[2] to pay him:

   a)$16,000; and

   b)the superannuation guarantee entitlement of 9% on the sum of $16,000.

   [1] Fair Work Act 2009 (Cth), s.548(1) (“FW Act”).

   [2] “Image Bollards”.

Small claims jurisdiction – basis for amount

1. Section 548 of the FW Act relevantly provides as follows:

   (1)  Proceedings are to be dealt with as small claims proceedings under this section if:

   (a) …

   (b)  the order relates to an amount referred to in subsection (1A); and

   (c) …

   (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)  …

2. The claim for sales commission in this case concerns an amount that the employer, Image Bollards, would be, in the event of proven entitlement, required to pay because of a “safety net contractual entitlement”[3], the sales commission being “an entitlement under a contract between an employee [Mr McShane] and employer [Image Bollards] that relates to any of the subject matters discussed in … sub-section 139(1)”[4] of the FW Act. The payment of sales commission “relates to” the subject matter of “incentive-based payments” in s.139(1)(a)(ii) of the FW Act. The claim may also be an amount Image Bollards is required to pay “under … [the FW] Act”[5], because it is a safety net contractual entitlement, which “has effect as an entitlement … under this [FW] Act.”[6]

   [3] FW Act, s.548(1A)(a)(ii).

   [4] FW Act, s.12 – definition of “safety net contractual entitlement”.

   [5] FW Act, s.548(1A)(a)(i).

   [6] FW Act, s.542(1).

Small claims jurisdiction – limitation

1. Under s.548(2) of the FW Act and r.45.11(1) of the Federal Magistrates Court Rules 2001 (Cth)[7], the Court may not, in a matter in the small claims list, award more than $20,000, or a higher amount prescribed by the Fair Work Regulations 2009 (Cth).[8] At this stage there is no such amount prescribed by the FW Regulations. As set out in more detail below, Mr McShane’s claim does not exceed the $20,000 limit.

   [7] “FMC Rules”.

   [8] “FW Regulations”.

Small claims jurisdiction – practice and procedure

1. Section 548(3) of the FW Act provides as follows:

   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.

2. Rule 45.11(2) of the FMC Rules provides as follows:

   (2)   The Court is not bound by the rules of evidence when dealing with a small claim application, but may inform itself of any matter in any manner as it thinks fit.

3. Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force.[9] The necessity to prove the claim was pointed out with particularity to the parties at the directions hearing on 18 March 2011. That particularity was necessary because Mr McShane had described the hearing, which the Court had just ordered be listed for 31 March 2011, as the “next get-together” (or words to that effect). The Court was at pains to point out that it was in fact a hearing at which the claim would need to be proved. Thus, Mr McShane was on notice that he would need to attend the hearing and prove his claim.

   [9] Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67-68 per Deane J (with whom Evatt J agreed at 57); Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246 at 275 per Moore J.

The claim

1. According to the small claim form filed by Mr McShane with his application, he:

   a)was employed as a sales representative by Image Bollards;

   b)performed the duties of:

   i)quoting and selling the Image Bollards product range to existing and new commercial customers;

   ii)promoting the product range to architects, builders and potential new business outlets; and

   iii)responding to all sales leads as they came into the office via either website or yellow pages;

   c)was a sales representative under the “Commercial Sales Award”;

   d)worked from Monday to Friday 8.00am to 5.00pm; and

   e)resigned from employment on 19 November 2010.

2. Mr McShane alleges Image Bollards failed to pay him sales commission of approximately $16,000, plus the 9% superannuation guarantee entitlement.

Response

1. In its response, Image Bollards seeks that the application be dismissed on the basis that Mr McShane is not entitled to payment in the terms sought or at all.

2. In the Points of Defence filed with the response, Image Bollards admits:

   a)the employment of Mr McShane; and

   b)the terms of Mr McShane’s employment in relation to the payment of commission as set out in his contract of employment, including the requirement to forward a claim with evidence for jobs on which the sales commission was payable each month.[10]

   [10] See paras.14 and 15 below for the relevant provisions of the contract of employment.

3. Paragraphs 4 to 7 of the Points of Defence provide as follows:

   4.The Applicant was aware that:

   (a)he should not claim commission for jobs:

   (i)      which were designated as head office supplies; or

   (ii)    which were not in his sales area; and

   (b)the evidence required by the Respondent was that he [Mr McShane] should check completed jobs upon which he was entitled to commission against the printed commission sheets provided by the Respondent each month and then provide copies of the relevant job sheet to confirm his entitlement to commission.

   5.The Applicant was not entitled to any commission for jobs completed after the termination of his employment.

   6.Despite the fact that the responsibility to claim commission was imposed on the Applicant, the Applicant has failed to claim commission in accordance with the terms of his employment in that he has failed to make the claim in time or with the evidence required.

   7.On that basis, the Applicant is no longer entitled to commission in relation to any jobs completed and for which he has failed to provide evidence against the monthly printed commission sheets.

4. Image Bollards then pleads that, alternatively, Mr McShane is not entitled to payment for certain jobs, which are listed, on the basis that they have been paid for, and that Mr McShane is not entitled to be paid for the remaining jobs listed in his schedules on the basis set out in paragraphs 9 and 10 of the Points of Defence, which are as follows:

   9.The Applicant is not entitled to be paid for the remaining jobs listed in his spreadsheet annexed to the application on the basis that:

   (a)they were head office supplies; or

   (b)they were not related to his sales area; or

   (c)they were completed after termination of his employment; or

   (d)they have not been completed.

   10.In any event, in relation to the outstanding matters referred to in paragraph 9, the Applicant has not provided any or any adequate evidence in support of his claim.

The evidence

1. Mr McShane’s contract of employment is in evidence and it expressly deals with what is described in Part 6 as the “Commission Plan”. Under that heading the contract of employment provides as follows:

   In addition to the above salary and conditions, you are eligible to receive Sales Commission paid on a 30 days after month end basis determined by your individual performance.

   You will be paid commission of 15% of Gross Profit on sales;

   (a)from new customers and new projects that you introduce to Image Bollards, confirmed by recording the lead on your sales sheet, or

   (b)that you close directly, obtaining a confirmed order.

   Gross Profit costings may change in accordance with the increases in costs of materials and workmanship. We will pass this on with a price increase and therefore maintain our Gross Profit percentage.

   Sales Commission is due for payment 30 days after the end of the month during which the job was completed (delivered/installed).

   It is your responsibility to forward, to the Director, a claim with evidence for jobs on which the Sales Commission is payable each month.

   Please note the effect of termination (below) on Commission payments.

2. Part 7 headed “Notice of Termination” contains the following paragraph:

   On termination by either party (whether during the trial period or after) the commission due will be for all jobs that have been completed (ie goods supplied and/or installed) up to and including the last day of employment. This Commission will be payable, as usual, 30 days after the end of the month in which the jobs were completed. Commission will not be payable for jobs ordered but not completed by the time employment with the Company ceases.

3. Mr McShane’s evidence was that his employer had refused to pay allegedly outstanding commissions. Mr McShane said that he was told the refusal to pay was on the basis that:

   a)it was too difficult to go back and assess these jobs because too much time has elapsed;

   b)it was difficult principally because the MYOB versions have changed over time;

   c)it was Mr McShane’s mistake; and

   d)Image Bollards was only prepared to pay outstanding jobs from the 2010 year.

4. On 18 October 2010 Mr McShane sent to Mr Scott, the Managing Director of Image Bollards, an email concerning “Unpaid or Missed Commissions” in the following terms:

   Tony,

   I am well aware these disputed commissions are old but the fact remains that according to my records these have not been paid.

   I have checked all commission sheets and they do not appear on any of them.

   A useful and simple start for the company would be to do just that, i.e. check the commission sheets yourself, this is not a difficult nor a time consuming task.

5. There is a hand-written response on the email from Mr Scott in the following terms:

   Yes it is and won’t be happening.

   Not prepared to go beyond 2010.

   Mark has checked monthly from day one so your mistake.

   I have explained every year we change MYOB series. To take current MYOB 19 off and re install each year individually is a huge task and not happening.

6. On 21 October 2010, Mr McShane tendered his resignation to be effective four weeks from 20 October 2010 in accordance with his contract. In the email tendering his resignation there was no mention of the alleged unpaid sales commissions.

7. Mr McShane referred to two schedules prepared by him, and said to represent the jobs on which Mr McShane claims he has not been paid his commission. He described them in evidence as “the missed commission claim payments on Excel spreadsheets part one and part two”.[11] The description was, however, no more precise than that, and without more, the schedules are just lists which are practically meaningless in relation to an assessment as to whether the contractual terms have been met. There is no evidence which:

   [11] Transcript, page 7.

   a)shows that any of the alleged sales in the schedule are:

   i)from new customers;

   ii)from new projects; or

   iii)recorded as leads on the sale sheets;

   b)shows that Mr McShane closed the sales directly himself;

   c)shows that these were in fact confirmed orders;

   d)shows when the jobs were delivered or installed;

   e)shows a claim forwarded to the Director each month, with evidence for jobs on which sales commission is payable; and

   f)independently corroborates the information in the schedules.

8. In respect of the claim to be forwarded to the Director evidencing the jobs on which sales commission is payable each month, there is evidence from which it can be implied that such claims were not made by Mr McShane each month as required. In particular:

   a)Mr Scott telling Mr McShane that it was now too difficult to go back and assess these jobs;[12]

   b)by Mr McShane’s writing to Mr Scott indicating that “these disputed commissions are old”;[13] and

   c)by Mr Scott’s writing to Mr McShane stating that “Mark”, a reference to Mr Bush, another sales representative, had “checked monthly from day one so your mistake.”[14]

   [12] See para.16 above.

   [13] See para.17 above.

   [14] See para.18 above.

9. Mr McShane was expressly asked, by the Court, how it was that he claimed the contractual entitlement to commissions arose on the documents which were before the Court. In response he indicated that there was a “blue copy that the salesperson keeps” for each of the jobs submitted to Image Bollards, “[b]ut the evidence of the job that is submitted to the company is by way of the other copies of the contract and other documents, ie, a site plan of whatever else is needed on that job. So that is submitted to Tony Scott and that starts the process. And it’s from those documents that all the information is recorded.”[15] Mr McShane further said that at the end of the month, following the information set out above being forwarded to the company, the salesperson checks off the blue copies against the payment recorded on the commission sheets, “[a]nd if they don’t appear on the commission sheets, then they haven’t been paid.”[16] Mr McShane asserted that it was simply a matter of Image Bollards checking to see whether he had been paid, and that “the onus is now on the company [Image Bollards] to say yes, these have been paid or they haven’t been paid”.[17]

   [15] Transcript, page 7.

   [16] Transcript, page 8.

   [17] Transcript, page 9.

10. When expressly asked how, in the evidence that was before the Court, the Court was to determine whether or not sales commission on a job has or has not been paid, and whether or not it fits into particular categories which might be excluded from payment, Mr McShane indicated that this was a question that could be put to Mr Scott.[18]

    [18] Transcript, page 9.

11. Ultimately, Mr McShane did not put into evidence what he claims to be the evidence of the jobs submitted to Image Bollards by way of the “other copies of the contract, and other documents such as a site plan or whatever else is needed on that job”.[19] Nor did he tender the “blue copies”. The Court indicated to Mr McShane during the course of the hearing that it was a matter for him as to whether or not he tendered the “blue copies”. However, even if he had done so, on his own evidence the “blue copies” were not the evidence of the jobs submitted to Image Bollards.[20] There was no application for production of any relevant documents either prior to the hearing or at hearing.

    [19] Transcript, page 7.

    [20] Transcript, page 7.

12. Evidence was given by Mr Bush, another salesperson for Image Bollards. Mr Bush gave evidence of the sales commission payment process which was in much the same terms as Mr McShane.[21] Cross-examined by Mr McShane, Mr Bush confirmed that there was in fact no need to hand in the blue copies as evidence of the claim, because the information was already in the system at Image Bollards and it was a matter of the salesperson checking each month to ensure that they had been paid.[22]

    [21] Transcript, page 15.

    [22] Transcript, page 17.

13. However, Mr Bush’s evidence does not assist Mr McShane because there is still no evidence put before the Court as to the actual documentation submitted as claims by Mr McShane during the relevant period. The Court is not prepared to act upon the basis of the two schedules which are not independently corroborated by any other documentation.

14. In the circumstances, the claim in contract is not made out because there is no evidence, or alternatively, insufficient evidence to prove the claim and, therefore, the Court is not satisfied that there has been a breach of contract by Image Bollards. It follows that Mr McShane’s application must be dismissed.

Representation of a corporation in small claims jurisdiction

1. At the outset of these proceedings, the Court gave leave to Mr Scott, the Managing Director of Image Bollards, to appear for Image Bollards in these proceedings. The Court indicated that it would give reasons for granting Mr Scott leave in these Reasons for Judgment. What follows are those reasons.

2. Section 44 of the Federal Magistrates Act1999 (Cth)[23] provides that:

   [23] “FM Act”.

   A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:

   (a)  under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or

   (b)  under the regulations, the other person is taken to be an authorised representative; or

   (c)  another law of the Commonwealth authorises the other person to represent the party.

3. Section 548(5)-(9) of the FW Act provides that:

   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.

1. Rule 45.13 of the FMC Rules provides that:

   (1)   A party to a small claims application may not be represented by a lawyer without the leave of the Court.

   (2)   If the Court grants a party leave to be represented by a lawyer, the leave may be given subject to conditions the Court considers appropriate to ensure that no other party to the proceedings is unfairly disadvantaged.

   (3)   For subrule (1), a party is not taken to be represented by a lawyer if the lawyer is an employee or officer of that party.[24]

   [24] It is not apparent to the Court why r.45.13 of the FMC Rules is necessary, given that it replicates, almost word for word, but, in any event, has the same effect as, s.548(5)-(7) of the FW Act.

2. Rule 9.04 of the FMC Rules provides that:

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

3. Section 548(5)-(9) of the FW Act and rr.9.04 and 45.13 of the FMC Rules are all laws of the Commonwealth for the purposes of s.44(c) of the FM Act, which provides that a party to a proceeding is not entitled to be represented by another person unless another law of the Commonwealth authorises the other person to represent the party. Otherwise, the other person must be a barrister or solicitor of a federal court, or an authorised person under the Federal Magistrates Regulations 2000 (Cth).[25]

   [25] FM Act, s.44(a) and (b); FMC Rules, r.45.13.

4. Section 353A of the Fair Work (Registered Organisations) Act 2009 (Cth)[26] provides as follows:

   [26] “FW (Registered Organisations) Act”.

   (1)  This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:

   (a)  a proceeding in relation to an appeal under section 565 of the Fair Work Act; or

   (b)  a proceeding in relation to an offence against a law of the Commonwealth.

   (2)  Subject to subsection (4), a party to the proceeding that is an organisation may be represented by:

   (a)  a member, officer or employee of the organisation; or

   (b)  a member, officer or employee of a peak council to which the organisation is affiliated.

   (3)  Subject to subsection (4), a party to the proceeding that is not an organisation may be represented by:

   (a)  a member, officer or employee of an organisation of which the party is a member; or

   (b)  a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.

   (4)  If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.

   (5)  In this section:

   "party" includes an intervener.

5. In Hall v Cadillac Transport Repairs Pty Ltd[27] the Court said as follows:

   [27] [2011] FMCA 189 (“Cadillac Transport Repairs”).

   20. The FW (Registered Organisations) Act is “another law of the Commonwealth” for the purposes of s.44(c) of the FM Act. It specifically allows for certain persons to be able to appear in proceedings in the Fair Work Division (which these proceedings are) of this Court. But, unlike s.854(10)(a) of the WR Act, s.353A of the FW Act does not include a non-lawyer employee of a party as a person who is authorised to represent a party, and no longer requires leave of the Court for those persons authorised to appear for a party that is an organisation, or a party that is not an organisation, to be able to appear.

   21. ...

   22. The fact that a discretionary right of appearance which previously existed under s.854(10)(a) of the WR Act has been repealed might be read as precluding an employee of a party, in this case Cadillac Transport, from having a right of appearance. Such an interpretation is bolstered by the fact that the FW Act and the FW (Registered Organisations) Act are recently enacted statutes, and that the FW (Registered Organisations) Act has enacted specific and detailed provisions concerning various types of representation, which differ in material respects from those enacted under the former WR Act. Specifically, no discretionary right of appearance for an employee of a party has been maintained under the FW (Registered Organisations) Act, nor under the FW Act. Further, such an interpretation might be bolstered by the presumption that an express reference to the discretionary right of some persons to appear for a party in this Court indicates that the discretionary right of other persons to appear for a party might be excluded. So, for example, in Pugliese v Paull where a non-lawyer employee of an organisation not registered under the FW (Registered Organisations) Act sought leave to appear for a party before this Court, the Court applied the statutory presumptions to preclude that person from appearing. However, in Pugliese the Court was dealing with an appearance by an employee of an unregistered organisation which was not itself a party to the proceedings. Nor, in Pugliese, was the party a corporation. In that regard Pugliese is distinguishable from the present circumstances.

   23. Section 353A of the FW (Registered Organisations) Act does not however, in its terms, constitute a code with respect to who may appear before this Court in Fair Work Division proceedings. Rather, it deals with appearances on behalf of registered organisations and appearances on behalf of a party that is not a registered organisation, but which may be represented by a member, officer or employee of a registered organisation of which it is a member, or of a peak council to which an organisation of which the party is a member is affiliated. That the provisions of s.353A are not intended to be a code, is made clear by s.353A(4) of the FW (Registered Organisations) Act which provides that in a particular kind of proceedings, namely, where a question of law is referred to the Federal Court under s.608 of the FW Act, a party may only be represented as permitted by s.353A(2) and (3). That clearly leaves open the possibility that a party to proceedings in the Fair Work Division of this Court may be represented otherwise in proceedings, other than those under s.608 of the FW Act. By whom a party may be represented is, in the case of a corporation, then dealt with by r.9.04 of the FMC Rules which provides for a corporation to appear only by a lawyer, except as provided by or under another Act or regulations made under an Act, or with the leave of the Court. Thus, a corporation to which s.353A(2) and (3) of the FW (Registered Organisations) Act does not apply, can nevertheless seek leave to appear other than by a lawyer by reason of r.9.04 of the FMC Rules. And in these proceedings, Cadillac Transport seeks that leave, which then requires consideration by the Court of the factors relevant to a grant of leave to appear for a corporation by a non-lawyer.[28]

   [28] Cadillac Transport Repairs at paras.20-23 per Lucev FM (footnotes omitted).

6. In Alcantara & Anor v Buildpower Pty Ltd[29] this Court observed as follows:

   [29] (2010) 199 IR 73; [2010] FMCA 626 (“Alcantara”).

   11. In determining whether to grant leave under r.9.04 of the FMC Rules, this Court has previously considered the applicability of a number of factors, including the following:

   a) the relative complexity or simplicity of a matter;

   b) whether a non-lawyer appears, or has previously appeared, for any of the parties;

   c) the objects and purposes of the FM Act and FMC Rules, including the impact of those objects and purposes on case management considerations;

   d) whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party; and

   e) whether there has been appropriate opportunity to arrange legal representation.

   Obviously, the above is not a closed list of factors.

   12. A discretion of the kind contained in r.9.04 of the FMC Rules must be exercised judicially and having regard to all relevant considerations.[30]

   [30] Alcantara IR at 76-77 per Lucev FM; FMCA at paras.10-12 per Lucev FM (footnotes omitted).

7. Under s.44 of the FM Act parties in proceedings in this Court must appear by a lawyer who is on the High Court roll of practitioners,[31] unless the FW Regulations or another law of the Commonwealth allow for a non-lawyer to appear. In this case, s.548(5) of the FW Act and r.45.13(1) of the FMC Rules provide that a lawyer may only appear in small claims proceedings in this Court with leave of the Court. That leave is not sought in this case because Image Bollards did not seek to be represented by a lawyer, but rather by its Managing Director. Given that r.9.04 of the FMC Rules is a general regulatory provision which requires corporations to be represented by lawyers in proceedings in this Court, unless:

   a)an Act, or regulations made under an Act; or

   b)leave of the Court is granted to,

   allow a non-lawyer to appear, it must give way to s.548(5) of the FW Act, which is a specific legislative provision directed to representation in small claims proceedings in the Fair Work Division of this Court.[32]

   [31] FM Act, s.44(a); Judiciary Act 1903 (Cth), ss. 55B(3), 55C and 78; University of Western Australia v Gray and Others (No. 25) (2009) 180 FCR 483 at 491 per Barker J; [2009] FCA 1227 at para.25 per Barker J.

   [32] Salemi v Mackellar (No. 2) (1997) 137 CLR 396.

8. A lawyer may however appear in small claims proceedings in this Court if the lawyer is an employee or officer of a party to the proceedings.[33]

   [33] FW Act, s.548(7).

9. Section 548(5) of the FW Act prevails over s.44 of the FM Act and r.9.04 of the FMC Rules in relation to the appearance of lawyers in this Court. However, it does not prevent the Court from granting leave for a corporation to be represented by a non-lawyer under the provisions of r.9.04 of the FMC Rules. Therefore, the Court can allow a non-lawyer to appear for a corporation in small claims proceedings in this Court under r.9.04 of the FMC Rules. Such an interpretation is not inconsistent with s.548 of the FW Act which is silent as to how a corporation might be represented in small claims proceedings in this Court. As the Court explained in Cadillac Transport Repairs, where the relevant legislation leaves open the possibility that a party may be represented in a manner other than that prescribed in the legislation, r.9.04 of the FMC Rules can still apply so that a corporation can seek leave to appear other than by a lawyer.[34] Thus, in this case, because s.548 of the FW Act:

   a)is silent as to the appearance of corporations in small claims proceedings in the Fair Work Division of this Court; and

   b)is insufficiently comprehensive or conclusive to constitute a code as to appearance in small claims proceedings in the Fair Work Division of this Court,

   r.9.04 of the FMC Rules can still apply insofar as it provides for the Court to grant leave to non-lawyers to appear in proceedings.

   [34] Cadillac Transport Repairs at para.23 per Lucev FM.

10. Most of the factors outlined in Alcantara related to the appearance of non-lawyers are not relevant to a consideration of whether a non-lawyer should be granted leave to appear under r.9.04 of the FMC Rules in small claims proceedings in the Fair Work Division of this Court, because they are directed to circumstances where lawyers ordinarily have a right of appearance. The remaining factors, adapted to suit the circumstances of small claims proceedings in the Fair Work Division of this Court, which might be considered by the Court are as follows:

    a)the relative complexity or simplicity of the matter;

    b)the objects and purposes of the FM Act and FMC Rules, including the impact of those objects and purposes on case management considerations; and

    c)whether a party can be effectively represented by the proposed representative, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of the proposed representative.

11. In addition, regard must be had to the objects and purposes of the inclusion of the provisions concerning small claims proceedings in the FW Act.

12. As in Alcantara, the above factors do not purport to be a closed list. Further, and again as in Alcantara, the discretion is to be exercised judicially having regard to all relevant considerations.

13. In this case there is a contractual issue as to whether Image Bollards has or has not paid Mr McShane sales commission in accordance with his contractual terms. The contractual issue is a simple one, and does not involve complex legal issues. Therefore, the comparative simplicity of the issue was a factor favourable to Mr Scott being allowed to appear for Image Bollards.

14. The objects of the FM Act and the FMC Rules provide, in essence, for informal and streamlined procedures to assist in the just, efficient and economical resolution of proceedings, and in which parties are required to assist the Court to avoid undue delay, expense and technicality.[35] Those objects and rules are complemented by s.548(3) of the FW Act which provides for the Court to act in an informal manner without regard to legal forms and technicalities in small claims proceedings.[36]  To allow the Managing Director of Image Bollards to appear in this comparatively simple and straightforward case would appear to be consistent with the objects of the FM Act, the FMC Rules and s.548(3) of the FW Act.

    [35] FM Act, s.3(a) and (b); FMC Rules, r.1.03.

    [36] There is nothing in the Second Reading Speech or Explanatory Memorandum to the FW Act which helps to explain or clarify the small claims proceedings representation provisions in relation to appearances by a non-lawyer employee of a corporation.

15. Given the simplicity of the matter the Court was of the view that Image Bollards could be effectively represented without prejudice by Mr Scott in these proceedings. As it transpired, Mr Scott’s representation of Image Bollards, particularly in cross-examination, was not especially effective. His failure to cross-examine, instead making submissions and putting arguments, might have significantly prejudiced Image Bollards if Mr McShane had actually proved his case. However, at the outset of the proceedings, the Court considered that the proceedings were sufficiently simple and straightforward for the Court to be persuaded that Image Bollards might have been effectively represented by Mr Scott.

16. It was for the above reasons that Mr Scott was granted leave to appear at the hearing of this matter.

Conclusion

1. Mr McShane’s application will be dismissed.

2. Having regard to:

   a)the provisions of s.570(2) of the FW Act;

   b)the fact that both parties were not represented by lawyers; and

   c)the fact that this is a matter in the Court’s small claims jurisdiction,

   there will be no order as to costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  18 April 2011