Murtagh v SMS Contracting Pty Ltd
[2020] FCCA 1151
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURTAGH v SMS CONTRACTING PTY LTD & ANOR | [2020] FCCA 1151 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave for corporation to appear by non-lawyer – factors for consideration – leave refused. |
| Legislation: Fair Work Act 2009 (Cth), ss.323, 345 Federal Circuit Court Rules 2001 (Cth), rr.1.03, 9.04 Federal Court Rules 2011 (Cth) |
| Cases cited: Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 Wong v Dong Lai Sun Massage Pty Ltd T/A Dong Lai Sun Massage and Beauty [2016] FCCA 18 |
| Applicant: | JOSHUA MURTAGH |
| First Respondent: | SMS CONTRACTING PTY LTD |
| Second Respondent: | GILLIAN HOWE |
| File Number: | PEG 135 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the Papers |
| Date of Last Submission: | 6 May 2020 |
| Delivered at: | Perth |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Applicant: | In Person |
| For the Respondents: | Ms G Howe (with leave) |
ORDERS
Leave for the first respondent to carry on these proceedings without legal representation is refused.
The matter be referred for further mediation before a Registrar of this Court on a date to be fixed by that Registrar.
If the matter does not resolve at the mediation referred to in order 2, the matter be listed for further directions before the Court on a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 135 of 2019
| JOSHUA MURTAGH |
Applicant
And
| SMS CONTRACTING PTY LTD |
First Respondent
| GILLIAN HOWE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 15 April 2019, Mr Murtagh, filed an application in this Court alleging various contraventions of the Fair Work Act 2009 (Cth) (the “FW Act”) by the first respondent (“SMS Contracting”).
The second respondent (“Ms Howe”) is the Employee Relations Manager of SMS Contracting.
At the first court date, Ms Howe sought leave to appear on behalf of SMS Contracting. The Court granted Ms Howe leave on that occasion but indicated that SMS Contracting would need to be represented by a lawyer or would need to seek leave to appear without a lawyer. It was explained that r.9.04 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) requires that a corporation be represented by a legal practitioner.
The matter was programmed to mediation.
A mediation was held before a Court Registrar on 21 November 2019. At that time, SMS Contracting had not made any application for leave to appear by a non-lawyer. In the circumstances, the mediation was terminated and the respondents were advised that leave would need to be sought if they wished to appear without legal representation.
The matter returned to the Court on 13 February 2020 for directions. Ms Howe again stated that she wished to appear on behalf of SMS Contracting. Mr Murtagh opposed this request.
The Court made orders in the following terms:
1. The first respondent file any application in a case, supporting affidavits and a written outline of submissions seeking leave to appear by a non-lawyer in these proceedings by 12 March 2020.
2. The applicant file and serve any affidavits and a written outline of submissions in response by 9 April 2020.
3. Any application filed pursuant to order 1 be determined on the papers.
Ms Howe emailed Chambers on 10 March 2020 annexing a medical certificate that indicated that she had suffered a broken shoulder. She requested additional time to file the required documents.
Orders were made in Chambers on 13 March 2020 allowing SMS Contracting until 9 April 2020 to comply with the Court’s earlier orders. Mr Murtagh was given until 7 May 2020 to respond.
The parties have agreed that the application seeking leave to appear without a lawyer be heard on the papers. The issue before the Court is whether Ms Howe should have leave to appear on behalf of SMS Contracting.
SMS Contracting’s Case
Despite the Court’s orders requiring SMS Contracting to file an application in a case, no application in a case was formally filed. It appears that an application in a case of sorts was attached to an affidavit. However, this was rejected by Registry staff because an application in a case must be filed separately and a filing fee must be paid. The application in a case was then filed as “correspondence” (rather than as an “application in a case”) and no filing fee was paid. Hence, no application actually appears on the Court file and there is no formal application before the Court (as required by the Court’s orders dated 13 February 2020).
Despite these procedural irregularities, the Court (having regard to its objects to act informally and noting that this matter has already been protracted by the respondents’ delay in bringing an application) will proceed as if the application in case had actually been properly filed.
The application in a case seeks the following order:
Seeking leave to appear by a non-lawyer in these proceedings.
In support of the application in a case is an affidavit of Ms Howe dated 8 April 2020. In full, that affidavit provides as follows:
1. I am the Employee Relations Manager of SMS Contracting Pty Ltd.
2. The Director of SMS Contracting Pty Ltd. Mark Welsh, consents to my seeking leave to appear on behalf of the First Respondent.
3. I am the Second Respondent in these proceedings and will be self-represented.
4. At the time of the making of the SMS Contracting Pty Ltd Enterprise Agreement (approved 31 October 2013) and the SMS Group Services Enterprise Agreement (approved 18 January 2018), I was the Bargaining Agent for the Employer and participated in the making of the Agreements.
5. I am familiar with this matter and have extensive knowledge of all aspects of the Claim.
6. I have carefully reviewed the Applicant’s claim and am able to refute all claims and allegations, and provide supporting evidence.
7. During the bargaining and lodgement process, all records of communication were maintained.
No written submissions were filed by the respondents.
Mr Murtagh’s Case
Mr Murtagh does not consent to Ms Howe appearing on behalf of SMS Contracting and filed an affidavit dated 6 May 2020 to that effect (and in response to the current application in a case).
Relevantly, Mr Murtagh’s affidavit provides:
a)Ms Howe’s affidavit did not provide any substantial grounds for the Court to grant leave;
b)Ms Howe has conflicting interests that are “probably not aligned with the interests of the company” and SMS Contracting’s interests are “probably not aligned” with Ms Howe (given her alleged actions);
c)Ms Howe claimed that she has extensive knowledge of all aspects of the claim, which is true in a sense. Ms Howe never contacted the applicant to discuss or question what matters he alleges are false and misleading;
d)even if Ms Howe did have extensive knowledge of all aspects of the claim, that would not be grounds for Ms Howe to represent SMS Contracting because that knowledge can be easily passed on to a legal representative along with the supporting evidence that Ms Howe claims that she is able to provide;
e)the Company Director of SMS Contracting giving consent for Ms Howe to represent the company is not grounds for her to do so especially when considering the nature of the allegations the applicant makes;
f)grounds to appear as a non-lawyer for a corporation would include things like financial hardship of the company. SMS Contracting is a multi-million-dollar company with over 100 employees and secure contracts;
g)the communication, transparency, willingness to negotiate, respect and trust between the applicant and Ms Howe is limited to none. The fact that a lawyer will have an ethical and legal obligation to SMS Contracting and the advice they provide would encourage a willingness to negotiate is relevant;
h)Ms Howe has caused these proceedings to be unnecessarily protracted as she refused to accept the Registrar stating that SMS Contracting was required to be represented by a lawyer and that leave was required; and
i)the applicant was sent an email on 12 February 2020 advising that it was “likely that SMS will be obliged under Rule 9.03 [sic] of the Federal Circuit Court Rules 2001 to obtain legal representation and to incur costs accordingly.” and that SMS Contracting was “reserving” its right to make a costs application against the applicant.
Mr Murtagh’s affidavit made reference to other matters that are not relevant at this stage in the substantive proceedings (such as the filing of evidence and materials). Mr Murtagh also filed an “amended application” (attached to an affidavit) on 27 April 2020. While the applicant does not yet have leave to rely on the amended application, this is a matter that can be resolved at mediation or thereafter if necessary.
No written submissions were filed by Mr Murtagh.
Legal Principles
Rule 9.04 of the Rules provides:
Corporation must be represented
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.
The requirement that a corporation be represented by a lawyer is not novel to this Court. It has been said that incorporation confers many benefits. However, it also imposes burdens, one of which is recognised by the rules of many courts, that in litigation a corporation must generally be represented by a lawyer: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14].
There is, however, a discretion to grant leave to allow a non-lawyer to represent a corporation.
When considering whether leave should be granted, the Court is guided by a number of factors. Critically, the Court must ensure that any order made will not prejudice the interests of the administration of justice.
In Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583 at [20] the following factors were considered relevant when assessing a similar provision of the Federal Court Rules 2001 (Cth):
(a) the manner in which the case has progressed to date;
(b) the manner in which the case can proceed in the future without a solicitor;
(c) the complexity of the issues involved in the case;
(d) whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;
(e) whether the case can be conducted in an orderly and responsible fashion without a solicitor;
(f) whether there are financial considerations which would inhibit a company from obtaining legal representation;
(g) the stage which the case has reached;
(h) whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and
(i) the effect, if any, on court resources and in particular on other litigants in the Court list if the company were to appear without a solicitor.
Each case is fact specific. The Court must consider those factors which are relevant to the case before it and any other matters which arise that are arguably specific to the circumstances in that case.
Consideration
Having assessed all of the materials before it, the Court has determined that it is not appropriate for leave to be granted for SMS Contracting to carry on these proceedings without legal representation.
These proceedings are at a preliminary stage. The parties have yet to undertake a mediation (notwithstanding that the substantive application was filed over one year ago). This is unsatisfactory. Many of the delays have been brought about as a result of SMS Contracting’s actions or because Ms Howe was unavailable to attend to certain Court dates or requirements. The delay in the mediations, on the evidence before the Court, resulted from Ms Howe’s insistence that she had leave to represent SMS Contracting. This is despite the fact that she had, on a number of occasions, been advised that leave had not in fact been granted.
The Court bears in mind its objects as outlined in r.1.03 of the Rules and s.3 of the Federal Circuit Court of Australia Act 1999 (Cth). These provisions effectively provide that the Court’s core objective is to ensure the just, efficient and economical resolution of proceedings by operating as informally as possible and by avoiding undue delay, expense and technicality. Here, “progress” has been delayed. The Court has significant concerns that the lack of “progress” thus far may well continue into the future if Ms Howe is allowed to represent SMS Contracting. The way in which the matter has been progressed thus far weighs against leave being granted.
Ms Howe has also failed to demonstrate that she is able to competently represent SMS Contracting. As Mr Murtagh correctly indicated, Ms Howe has not advanced any substantive grounds to indicate why leave should be granted.
The Court’s concerns in this regard result from a number of matters that have arisen in relation to this application:
a)Ms Howe appears to have filed the application in a case incorrectly (whether this was to avoid the filing fee is not clear; however, it is noted that on two occasions she was advised that a filing fee needed to be paid);
b)the order sought in the application in a case makes no reference to the rule pursuant to which Ms Howe seeks leave;
c)Ms Howe did not file any written submissions in support of the application for leave (as was ordered); and
d)Ms Howe’s affidavit is deficient in many aspects. For example, the affidavit merely states that the director has consented to Ms Howe appearing. It makes no comment on the complexity of the proceedings and there is no submission as to SMS Contracting’s financial circumstances (which is usually a relevant consideration). The affidavit is, with respect, entirely deficient and does not assist the Court or SMS Contracting’s application in a case in any way whatsoever.
The Court does not have confidence that if leave is granted the proceedings will progress in an orderly, responsible and efficient manner.
Further, the matter on its face does not appear to be either “simple” or “straight forward”.
In his original application, Mr Murtagh raises seven contraventions (including breaches of general protections, contraventions of an award and contraventions of an agreement). Mr Murtagh filed an affidavit on 14 November 2019 annexing an amended application. In that proposed amended application, Mr Murtagh states that he wishes to “remove ambiguity” arising from his original application. The amended application pleads a breach of s.345 by Ms Howe. Mr Murtagh also seeks an order that the relevant agreement does not apply to him. Mr Murtagh then filed an affidavit annexing a further amended application on 27 April 2020. The further amended application pleaded breaches of s.323 of the FW Act – specifically, that Mr Murtagh was underpaid. It appears that Mr Murtagh is seeking to “add” a breach of s.323 of the FW Act to the breach of s.345 as pleaded in the amended application dated 14 November 2019.
Mr Murtagh, as a self-represented litigant, has done his best to articulate his claim.
Ms Howe, on behalf of the respondents, filed a response to the original application which responds to some of the matters highlighted above, but not all of them. This again indicates that her capacity to represent SMS Contracting may be limited.
Although the substantive application could have been better pleaded, it is clear that what is in issue here is complex, involving matters of interpretation relating to the relevant agreement.
It is not the case here that only factual issues are in dispute. There would, and often can be, complex matters of law involved in the interpretation and application of agreements. Further, the allegation of misrepresentation as articulated here is serious and the alleged underpayments are not insignificant.
These matters also weigh against leave being granted.
Ms Howe appears to suggest that because she was the “bargaining agent” for SMS Contracting when the agreements were made points to an ability on her part to act for SMS Contracting. The Court disagrees. The role of a “bargaining agent” differs in significant aspects to the role required in legal proceedings. Further, the fact that Ms Howe acted as a “bargaining agent” suggests that Ms Howe’s interpretation or understanding of the agreement may be influenced by the position she took during any negotiations relating to the relevant agreement. A legal representative, on the other hand, would have obligations to both SMS Contracting and the Court and would, ethically, be required to address the matters before him or her with objectivity and without a clouded history as to the issues in question.
In this regard, it is also noted that in the response to the substantive application (prepared by Ms Howe), Ms Howe writes that “the Applicant has made several untrue statements in his application, in particular Point 44.” Point 44 of the application is an allegation that Ms Howe has made “34 false and misleading statements”. While the Court understands why Ms Howe has taken specific objection to point 44 (as it involves her personally), it is clear that she is particularly reactive to allegations made against her personally. On that basis, Ms Howe’s own interests and feelings may colour her capacity to represent SMS Contracting effectively.
Further, Ms Howe is also a party to the proceedings and Mr Murtagh alleges in his amended application that she engaged in criminal behaviour. Ms Howe will, most likely, appear as a witness in these proceedings. The difficulties evident in acting as a witness and an advocate (and the undesirability of such) were identified in Wong v Dong Lai Sun Massage Pty Ltd T/A Dong Lai Sun Massage and Beauty [2016] FCCA 18 at [54].
It is also the case here that the relationship between Mr Murtagh and Ms Howe is, in effect, broken. Ms Howe may be required to cross-examine Mr Murtagh and Mr Murtagh may wish to cross-examine Ms Howe. In circumstances where there is no respect between the parties, this is less than ideal. This too weighs against leave being granted.
Finally, there is nothing in the materials to indicate that SMS Contracting is unable to retain a lawyer. Rather, it appears that SMS Contracting has somewhat resided to the fact (saying it was “likely” that they would require legal representation) that they will be required to retain a lawyer. SMS Contracting has gone so far as to put the applicant on notice that it may seek indemnity costs against him if he pursues his claim.
Having considered all of the circumstances, including the progress of the matter to date, the complexity of the issues that may arise and the concerns the Court has with Ms Howe being able to represent both herself and SMS Contracting, the Court does not consider that it is in the interests of the administration of justice for leave to be granted to Ms Howe under r.9.04 of the Rules.
Leave is, accordingly, refused.
Other Matters
Mr Murtagh has indicated that he is concerned that Ms Howe will “self-represent”. Ms Howe is a named party to these proceedings. Whether Ms Howe intends to represent herself going forward is a matter entirely for her. Mr Murtagh has no say as to whether Ms Howe obtains legal representation or not. In light of what the Court has said above, however, SMS Contracting must be represented.
Mr Murtagh also requests an opportunity to provide a statement of claim and affidavit evidence. The Court will make those orders when and if it considers it necessary to do so. However, the matter must first go to mediation. It may be that the mediation resolves the matter such that the filing of further materials will not be necessary.
Orders referring the matter for further mediation will be made. Mediations are currently being listed in this Court for late August. This is more than sufficient time for SMS Contracting to retain and instruct a legal representative. Any issues as to the amended substantive application can be addressed at a mediation.
As for Mr Murtagh’s claims that Ms Howe did not properly serve him with the application in a case and the affidavit, this appears to be true. Nonetheless, Mr Murtagh did obtain the relevant documents and was able to respond. The Court does not believe service will be an issue going forward now that the Court has determined that SMS Contracting is required to obtain legal representation.
Finally, as the application in a case was not properly filed, the Court will order that leave for SMS Contracting to carry on these proceedings without legal representation be refused.
Conclusion
For the reasons outline above, the application in case seeking leave for SMS Contracting to appear without legal representation is refused.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 15 May 2020
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